The case is Bryant v. Meriden Police Dept., decided on May 16. Bryant was arrested on drug charges. The police took him to the station where, he says, the officers tased him. Some of the events were captured on video, but one of the officers, Egan, testified that when they took plaintiff to the ground, another officer, Slezak, applied the Taser. As the district court stated, "Though the Second Circuit has yet to rule on the issue, district courts within the Circuit have concluded that, regardless of whether it is in drive-stun or dart-stun mode, the use of a taser constitutes a "significant degree of force" that is akin to pepper spray." Now, plaintiff does not come off as an angel here. The officers had to place a spit mask on his face, and they say they found drugs on his person in custody. Anyway, at trial, the officers said plaintiff's resistance justified the single use of the Taser in the cell. The jury ruled for the officers.
On plaintiff's motion for a new trial, however, the trial court said "it was against the weight of the evidence for the jury to have found that Bryant's Fourth Amendment rights were not violated when he was tased." A new trial was ordered to determine whether Slezak's use of the Taser was excessive and whether Egan failed to intervene. Here is how the trial court saw it:
any contention that the taser was used for purely officer-safety purposes is belied by the fact that, at the time the taser was initially brought into the cell, there was no immediate threat to officer safety. Immediately prior to the taser being brought into the cell, an officer can be seen interacting with Bryant individually—without the presence of other officers and without a taser or other instrument that would help protect the officer if he encountered a threat. Had the officers truly believed that Bryant posed a serious threat to their safety, they would not have casually entered the holding cell with him, often without the assistance of an additional officer. Rather, Slezak testified that he brought the taser into the cell to convince Bryant to submit to a search. The taser was wielded as a compliance mechanism in the face of a suspect who did not want to submit to a search. It was not used as a tool for officer protection.
Faced with a suspect who they believed had something secreted between the cheeks of his buttocks, it would have been reasonable to place Bryant in a dry cell and wait until either he submitted to a search or released the drugs on his own volition. It was not reasonable to tase Bryant merely to speed up the process. Having evaluated the Graham factors and additional considerations, I hold that it was against the weight of the evidence for a jury to find that Slezak's use of the taser was reasonable under the circumstances. For the same reason, it is also against the weight of the evidence to find that Egan, unquestionably in a position to intervene, is not liable for failing to intervene in Slezak's unreasonable use of force. The jury verdict in favor of those defendants represented a "seriously erroneous" result justifying a new trial.
The officers appealed. The problem for them is that new trial rulings are not immediately appealable. The officers have to go to trial before they can challenge the trial court's new trial ruling. This means that, if plaintiff wins the retrial, the officers can challenge the new trial ruling for the first time in the argument that there never should have been a second trial and that the first jury got it right. That's a hassle for the officers, but one of many peculiarities unique to federal practice.