CA5: Using a Taser on a person no longer resisting is excessive force

Using a Taser on a person no longer resisting is excessive force. The mentally ill plaintiff was at first resisting but then stopped. At that point, it became excessive. Carroll v. Ellington, 2015 U.S. App. LEXIS 15098 (5th Cir. August 26, 2015):

We agree with the Ninth Circuit’s and the Sixth Circuit’s conclusion that, as of October 2006, the law was not clearly established that using a Taser to gain compliance of an unarmed, seated suspect for resisting arrest and failing to follow verbal commands was clearly excessive and objectively unreasonable. The Carrolls point to no case clarifying the law between 2005 (when the Ninth Circuit found the law to be unclear) and the tasing in this case in October 2006, and we are aware of none. Therefore, we conclude that Deputy Viruette is entitled to qualified immunity on the Carrolls’ excessive-force claim.

. . .

Having considered the entire record and each individual’s use of force, we conclude that the deputies’ use of force in getting Barnes onto the ground was not unreasonable under the circumstances. By all accounts, after the initial Taser discharge, Barnes failed to comply with verbal task directions and actively resisted all attempts to subdue and detain him. We find it significant that only nonlethal force was used throughout this portion of the encounter. We judge the officers’ conduct “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Rockwell, 664 F.3d at 991. Deputies Celestial and Ellington “responded with ‘measured and ascending’ actions that corresponded” to Barnes’s “escalating … physical resistance.” Poole, 691 F.3d at 629. Thus, they are each entitled to qualified immunity for this portion of the encounter.

. . .

The issue, then, is whether a reasonable jury could conclude that continued force applied after a suspect has been restrained and after the suspect stops resisting may be clearly excessive and objectively unreasonable. The law was clearly established at the time of the deputies’ conduct that, once a suspect has been handcuffed and subdued, and is no longer resisting, an officer’s subsequent use of force is excessive. See, e.g., Bush v. Strain, 513 F.3d 492, 501-02 (5th Cir. 2008); Gomez v. Chandler, 163 F.3d 921, 922, 924-25 (5th Cir. 1999) (concluding that use of force “while [a prisoner’s] hands were handcuffed behind his back” could be considered excessive, precluding summary judgment). This includes repeated applications of a Taser after a suspect is arrested, subdued, and “no longer resisting arrest.” Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam); Autin v. City of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005). Thus, the deputies are not entitled to qualified immunity as a matter of law for injuries Barnes sustained after he was handcuffed and restrained and after he stopped resisting arrest.

Because we lack jurisdiction to review the district court’s fact determinations, we cannot say on this record—rife with inconsistencies and contradictions—at which point Barnes was restrained and subdued after he had been tackled to the ground. Accordingly, we dismiss this portion of deputies Celestial’s, Ellington’s, Carter’s, Evans’s, and Hulsey’s interlocutory appeal for lack of jurisdiction.