Qualified immunity, clearly established law, and tasering as excessive force. Aldaba v. Pickens, 2015 U.S. App. LEXIS 1822 (10th Cir. February 4, 2015):
B. Clearly Established Law
Having held that the alleged facts regarding the initial taser strike would be sufficient to establish an excessive force claim, we must turn to the question of whether the law was clearly established at the time of the alleged violation. See Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013). Under Graham, the analysis of an excessive-force claim is necessarily fact-specific, and thus prior cases do not need to involve all of the same factual circumstances or factors in order for an excessive force violation to be clearly established. See Casey, 509 F.3d at 1284. Rather, we use a sliding scale in which “[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Morris, 672 F.3d at 1196 (internal quotation marks omitted).
In several previous cases, we have examined the reasonableness of taser use in general without discussing the specific ramifications of law enforcement’s use of tasers against the mentally and physically ill. On one end of the spectrum, Hinton stands for the uncontroversial proposition that a misdemeanant who ignores an officer’s orders to stop, shoves an officer, and then actively and openly resists arrest by, among other things, biting the officer, has no clearly established right not to be tased during the struggle. 997 F.2d at 781. At the other end of the spectrum, Casey clearly established that an officer could not tase a non-violent misdemeanant who appeared to pose no threat and who was given no warning or chance to comply with the officer’s demands. 509 F.3d at 1281-82. Appellants argue that Casey is distinguishable because the officer in that case used a taser without a warning, while here Mr. Leija was warned he would be tased if he did not comply with the officers’ demands. However, our decision in Casey was based on the conclusion that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.” Id. at 1286. Thus, Casey does not stand for the proposition that it is reasonable for an officer to simply give a warning and then use a taser as the initial use of force against a non-violent, non-threatening misdemeanant. Rather, Casey establishes that only a lesser level of force may be employed against such an individual unless the individual begins actively resisting or fleeing, as the plaintiff did in Hinton. Under Casey, a warning is a necessary but not a sufficient part of the reasonableness analysis when a taser is used against a non-violent, non-threatening individual who has not committed a serious crime.Consistent with our precedents, other courts that have examined the use of tasers against the mentally ill have found it clearly established that officers may not tase non-criminal, non-threatening subjects who primarily exhibit passive resistance. For example, in Oliver v. Fiorino, 586 F.3d 898, 901, 906-07 (11th Cir. 2009), the court found that as of 2004, a mentally unstable subject who flagged down an officer to falsely report a shooting had a clearly established right not to be tased where he was suspected of no crime, was largely compliant, and posed no immediate threat of danger to officers beyond one moment of struggle. Likewise in Asten v. City of Boulder, 652 F. Supp. 2d 1188, 1203 (D. Colo. 2009), the court concluded that a mentally unstable woman had a clearly established right not to be tased in her own home without warning where she was suspected of no crime, posed no threat to officers or others, only resisted by refusing to allow the officers to enter her home. Finally, in Borton v. City of Dothan, 734 F. Supp. 2d 1237, 1249-50 (M.D. Ala. 2010), the court held that officers called to a hospital to assist with a “disturbed patient” who was loud, boisterous, and screaming could not tase the patient without warning while she was restrained to a gurney because she had committed no crime, was no longer a danger or threat, and was outnumbered.
These cases do not exactly mirror the factual circumstances of our case, but “the qualified immunity analysis involves more than ‘a scavenger hunt for prior cases with precisely the same facts.'” Cavanaugh, 625 F.3d at 666 (quoting Casey, 509 F.3d at 1284). Instead, the “more relevant inquiry” for qualified immunity purposes is “whether the law put officials on fair notice that the described conduct was unconstitutional.” Casey, 509 F.3d at 1298. Here, we conclude that Graham, Casey, Cruz, and the other pertinent authorities sufficiently put Appellants on notice that it is not objectively reasonable to employ a taser as the initial use of force against a seriously ill, non-criminal subject who poses a threat only to himself and is showing only passive resistance, regardless of whether they provide a warning first. Cf. Fogarty, 523 F.3d at 1162 (“Considering that under [plaintiff’s] version of events each of the Graham factors lines up in [her] favor, this case is not so close that our precedents would fail to portend the constitutional unreasonableness of defendants’ alleged actions.”).
We emphasize that significant factual issues remain which must be resolved at trial, including whether Mr. Leija was slinging blood at the officers, whether the officers knew about the extent of Mr. Leija’s illness, and whether he exhibited something more than passive resistance in the moments before he was tased. If those facts prove to be different than those we have considered on the summary judgment record, the excessive force analysis may yield a different result. However, based on the facts taken in the light most favorable to Plaintiff, we conclude that Plaintiff can show a violation of clearly established law sufficient to defeat Appellants’ request for qualified immunity.
