CA6: Prolonged Tasering known to be excessive force that causes brain injury

Tasering plaintiff’s ward twice for 5 and 21 seconds violated clearly established law and created an unnecessary risk of the brain injury he suffered. It was clear to the officer that applying a Taser for 15 seconds or more was highly dangerous. Qualified immunity denied. Goodwin v. City of Painesville, 2015 U.S. App. LEXIS 4417 (6th Cir. March 19, 2015):

These facts, viewed in the light most favorable to Plaintiffs, establish that it was objectively apparent to a reasonable observer—including Officer Soto, who was standing over him for the duration—that Mr. Nall was convulsing uncontrollably and had ceased all resistance during the tasering. Even if a jury were to credit the Officers’ assertions that Mr. Nall posed a danger to them and that he had resisted at the apartment door, the force used against him could still be found to be excessive. We have held that even previously-resisting suspects have a constitutional right to be free of a gratuitous application of a Taser once they have stopped all resistance. Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008).

The final step in the Graham analysis requires the court to inquire “whether the totality of the circumstances justifie[s] a particular sort of … seizure.” Graham, 490 U.S. at 396 (quoting Garner, 471 U.S. at 8-9). This court has considered an officer’s actions in a given case “in light of testimony regarding the training that [the officer] received.” Griffith v. Coburn, 473 F.3d 650, 657 (6th Cir. 2007).

The parties agree that an uninterrupted 21-second application of a Taser is atypically long. According to the department’s Taser instructor, a typical Taser cycle lasts five seconds, during which time the officer using the Taser should evaluate the need for further force. Officer Soto had been certified on the Taser since 2004. His training materials included a warning stating that Taser

applications directly across the chest may cause sufficient muscle contractions to impair normal breathing patterns. While this is not a significant concern for short (5 sec) exposure, it may be a more relevant concern for extended duration applications. Accordingly, prolonged applications should be avoided where practicable.

R. 40-1. The record further shows that Officer Soto was trained that a subject was more at risk of breathing problems the longer the application of the Taser, and that a prolonged application was one of 15 seconds or more. Though Officer Soto said he had mistakenly believed that a Taser application would last only five seconds even if he depressed trigger longer, he was trained that power would flow through the device continuously until he released the trigger. Officer Soto was also taught that common effects of tasering include the subject falling immediately to the ground, involuntary muscle contractions, and the subject freezing in place with his legs locked.

The “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” called for in Graham indicates that a jury could reasonably find that Officer Soto violated Mr. Nall’s Fourth Amendment right to be free from excessive force. The prolonged tasering of Mr. Nall was severe: Officer Soto’s training indicated that it lasted well into the risky period and that the probes were in a position that could cause breathing problems during extended application. Further, the application of the Graham factors to the facts taken in the light most favorable to the Nalls shows: (1) that Mr. Nall’s crime was not serious, (2) there was little basis to believe Mr. Nall was a threat to the officers or others, (3) Mr. Nall’s initial resistance was at most a passive refusal to comply with a single request to leave his residence, and (4) it was objectively apparent that Mr. Nall’s failure to present his hands to be cuffed was due to Taser-induced involuntary convulsions. The Officers’ challenges to the Nalls’ facts have no place in the court’s qualified immunity analysis on appeal. Plaintiffs’ facts state a constitutional violation.