Court of Appeals reinstates excessive force verdict in Taser case

The plaintiff in this case went to trial on his excessive force case against the police, who tased him twice in the course of trying to arrest him. Plaintiff won the trial, and the jury awarded him $30,000 in punitive damages. But the trial judge struck the verdict, ruling the officer had qualified immunity in the belief that the plaintiff was still resisting after the first tasing, necessitating the second blitz with the Taser gun. The Court of Appeals reinstates the verdict and finds the officer did not have qualified immunity because the jury found that plaintiff was not resisting arrest after the first tasing.

The case is Jones v. Treubig, issued on June 26. Qualified immunity means the police cannot be sued if they are not violating clearly-established case law at the time of the incident. The Court of Appeals finds that it was clearly-established in the Second Circuit in 2015 (when this episode took place) that officers cannot tase or pepper spray someone who is complying with police demands, poses no immediate threat to the police, or is not resisting arrest. The Court of Appeals has ruled this way in pepper spray cases, and it finds the logic in those cases applies to Tasers. So this is the first time the Second Circuit squarely holds that a Taser cannot be used except in special circumstances.

The problem is that the district court, post trial, determined that the plaintiff had conceded at trial that he was resisting arrest after the first tasing. That was actually not the case. The trial court got it wrong. The jury found that plaintiff was not resisting at this time. If plaintiff did make such a concession, then the police would have qualified immunity because the case law has never held that a police cannot cannot use a Taser when someone resists arrest. While plaintiff "was pushing himself off the ground at the time of the first tasing," the Court of Appeals (Bianco, Cabranes and Reiss [D.J.]) says, prior to the second tasing, "he was already subdued face down, arms spread," and on the ground. In that circumstance, there was no need to blitz the plaintiff.

When the jury returned its verdict, it answered a few questions that the trial court posed to it about the state of the officer's knowledge at the time of the incident. The jury said that while plaintiff was not resisting arrest, the officer believed he was. Is that enough for qualified immunity to attach? No, says the Court of Appeals, because qualified immunity only protects reasonable factual mistakes on the part of the police officer, not any mistake in fact. The jury was not asked if the officer's belief about plaintiff's resistance was reasonable when the officer activated the Taser.

The officer tries to win the appeal by arguing that the Taser blasts took place in rapid succession and he deserves the benefit of the doubt when he must act quickly. But the Court of Appeals says the jury was able to find the officer actually had time to think about tasing the plaintiff before he did so a second time. And the officer kind of admitted at trial that after the first use of the Taser (which lasts five seconds), he "reassessed the situation" and then tased the plaintiff again. Since it is clearly established law that the reasonableness of the amount of force is determined "at the moment" the force is used. "Thus, any reasonable officer would have understood in April 2015 that, if he or she has an opportunity to re-assess a situation after firing a taser, any additional force (such as re-cycling the taser) must be justified under the Fourth Amendment based upon the totality of the circumstances that existed at the time of the re-assessment."

Finally, the officer argued that he had to tase the plaintiff again because he needed to handcuff him. But the Court of Appeals rejects that argument, holding that "there was more than sufficient evidence for a rational jury to conclude that he was no longer resisting arrest after the first tasing or posing an ongoing threat to the safety of the officers or others. Thus, any belief by [defendant] that the second tasing was necessary to effectuate handcuffing Jones was unreasonable," particularly since Jones was face down on the ground with his arms spread after the first tasing.