Use of Force: TASER
Over the past few years, the use of Tasers (electronic restraining/compliance device) has become more common among law enforcement agencies nationwide. As the use of Tasers becomes more prevalent, law enforcement agencies can expect claims to be made regarding their use. As with any use of force, courts will look at three factors in determining if a particular use of force is objectively reasonable. First, how serious was the offense that the officer suspected at the time the officer was in contact with the individual; second, did the suspect pose an active threat to the officer or others; and third, was the suspect actively resisting or attempting to evade arrest by flight. These three factors, announced in Graham v. Connor, 490 U.S. 386 (1989), are the basis for judging all uses of force during arrest. Law enforcement officers would be well-advised to consider these three factors in determining whether or how much force is appropriate in any given circumstance.
Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) which involved the use of a Taser exemplifies how a court will review this type of force. Stacy Draper filed a lawsuit against Deputy Clinton Reynolds alleging a civil rights violation arising out of a motor vehicle stop and his arrest, during which Deputy Reynolds used a Taser on Draper. The reason for the initial stop was an improperly illuminated registration plate light.
In his lawsuit Draper alleged that Reynolds shined a flashlight in his eyes during a traffic stop and he politely asked Reynolds to refrain from doing so. The initial contact between Reynolds and Draper took place at the side of Draper’s truck and could not be seen on the police cruiser’s video recorder. Their initial conversation could not be heard on Reynolds’s audio recorder either. Draper alleged that Deputy Reynolds used harsh language in this initial contact at the side of the truck.
Deputy Reynolds then ordered Draper to come to the back of his truck. At that point all activity and all audio were recorded by the police vehicle’s equipment. The tape showed an uncooperative and belligerent Draper who refused to comply with several polite commands by Deputy Reynolds to produce paperwork from the truck. As many as five times Draper would start toward the truck to retrieve the paperwork, but then would turn and return toward Deputy Reynolds in what Reynolds described as a “threatening” manner which put Reynolds on “the defensive.” On the fifth occasion, with Draper yelling and returning toward Reynolds, the deputy discharged his Taser at Draper’s chest. Draper fell to the ground, was handcuffed and taken into custody. In his allegation of excessive force, Draper alleged that if Deputy Reynolds had simply informed him that he was under arrest he would have complied, thus there was no need to employ the Taser.
In rejecting Draper’s claim of excessive force the court held: “Reynolds’s use of the Taser gun effectuate the arrest of Draper was reasonably proportionate to the difficult, tense and uncertain situation that Reynolds faced in this traffic stop, and did not constitute excessive force. From the time Draper met Reynolds at the back of the truck, Draper was hostile, belligerent, and uncooperative…Draper used profanity, moved around and paced in agitation, and repeatedly yelled at Reynolds.” The court noted that a verbal arrest command and attempt to handcuff such a hostile individual as Draper may have escalated the situation into a “serious physical struggle” which was avoided by the use of the Taser.
Roll-Call Training/Use of Force:
Officers should be reminded that all uses of force will be judge in accordance with three factors:
Serious of Offense Suspected
Active Threat to the Officer or Others who are Present
Active Resistance or Attempt to Evade Arrest by Flight
Officers should consider these three factors in determining whether use of force is appropriate as well as determining the level of force that will be justified.
Officers should articulate all uses of force in accordance with the three factors listed above.
Hypothetical: Officer Dibble suspects Harry Gashat of committing a robbery by threatening a store clerk with a tire iron. When Dibble approaches Gashat he runs. Dibble observes that Gashat is in possession of the tire iron. When Dibble finally catches up to Gashat, Gashat drops the tire iron, but physically resists Dibble’s attempt at handcuffing him. Dibble uses his Taser to control Gashat.
Utilizing the hypothetical have the officer’s explain the use of the Taser in terms of the three factor test:
Tire Iron and Resistance-Active Threat