{"id":5419,"date":"2011-04-10T11:50:35","date_gmt":"2011-04-10T11:49:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-04-10T11:49:46","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5419","title":{"rendered":"TX Crim: Tasering 11 times in the groin to get defendant to spit out drugs was excessive"},"content":{"rendered":"

Tasering defendant handcuffed behind his back up to eleven times, mostly in the groin, to get him to spit out drugs in his mouth, was excessive force under the Fourth Amendment. Hereford v. State<\/a>, 2011 Tex. Crim. App. LEXIS 445 (April 6, 2011), affg Hereford v. State, 302 S.W.3d 903 (Tex. App.\u2014Amarillo 2009):<\/p>\n

\nThe court of appeals may be seen as having failed to credit testimony that appellant was \u201ccombative\u201d through out this incident, but this testimony was also unsupported by the record. Each officer agreed that appellant was not compliant with their orders to spit out the contents of his mouth, yet, each individually confirmed that appellant was not a danger to the officers, the medical staff, or anyone else. Officer Williams commented during direct examination that, even though appellant was handcuffed, he was still a potential threat to the welfare of the medical staff. This testimony was directly contradicted by his own testimony, during the pre-trial suppression hearing and on cross-examination at trial, that appellant was not a threat to anyone present. Corporal Holmes noted that appellant\u2019s legs were not tied down when he was strapped to a bed at UMC, but stated that appellant did not kick or injure anyone. Officer Arp testified that, although appellant\u2019s legs were not strapped down, they were held down while appellant was on the hospital bed. Appellant kicked his feet only when he was strapped to a bed while Officer Arp and the medical staff administered ammonia capsules and additional Taser shots. Other than refusal to open his mouth, the only non-compliant acts mentioned were that appellant did not immediately exit from the back of the police car, moved his head around, tried to push off of the trunk of the police car when his chest and head were being forced down by three officers, and that he moved around and made loud noises. Non-compliance, without more, does not itself deem a suspect \u201ccombative\u201d in a use-of-force analysis. The court of appeals was not required to defer to the trial court\u2019s implied finding that appellant was combative when such a finding was not supported by the record.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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