Tasers and the Fourth Amendment

The Fourth Amendment requires police to use reasonable force when arresting a citizen. A police officer who harms a citizen may be subject to an excessive force or unreasonable force claim. Many police officers have begun tasering people into compliance; or in retaliation for “insolence” or “disrespect.” Departmental policy has become: Taser first, ask questions later.  Is this pro-Taser policy constitutional?

On Friday, a split Eighth Circuit Court of Appeals panel opinion approved the use of a Taser in an unusual circumstance. See Cook v. City of Bella Villa, No: 08-2712 (8th Cir. Oct. 2, 2009). Cook had some disturbing facts, which require repeating.

Edward Locke is the chief of police of Bella Villa, Missouri. For reasons not immediately clear, Locke remains police chief even though several women have accused him of sexual assault. Indeed, Cook v. City of Bella Villa, was the second published Eighth Circuit Court of Appeals opinion involving claims of sexual assault against Locke. See also, Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009) (Locke required woman to unbutton her pants so Locke could take multiple pictures of a tattoo located near her public area).

Locke stopped a motorist who was allegedly swerving over the center line for “three miles.” The female motorist claimed the police made a false factual statement. She also challenged Locke’s epistemology: She noted that noted that Locke had just pulled out from behind a bend in the road, a mere one-hundred yards behind. Thus, it would have been impossible for him to have seen her swerving.

Locke demanded that the woman “blow into his hand.” She refused. He arrested her. Then it gets creepy.
Locke

thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” ... Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.”
Slip op. at *5.

Michael Cook, the motorist’s husband, was in Diane's car during the assault:
When Chief Locke began moving his hands underneath Diane’s shirt toward her breast area, Michael exited the vehicle. Michael stated, “Yo, dude, what’s the problem? You can’t be touching her that away.” When Michael made those comments, he was standing beside the car. Chief Locke told Michael that Chief Locke would talk to Michael in a minute. Michael remained where he was, smoking a cigarette. Chief Locke then walked Diane to where Michael was standing. Michael took one step toward Chief Locke. Chief Locke told Michael to “[g]et back in the fucking car” and, at the same time, Chief Locke tasered Michael. Michael never saw the taser.
Slip op. at *26 (Shepherd, J., dissenting). Michael sued Locke, alleging (among other claims) that using of a Taser without any notice was an unreasonable use of force. The trial court granted summary judgment in favor of Locke. Shockingly, a split panel of the Eighth Circuit Court of Appeals affirmed.

The panel stated:
Viewing the facts in the light most favorable to the Cooks, Michael stepped out of the vehicle to confront Chief Locke when Michael saw what he believed to be Chief Locke inappropriately touching Diane. Michael began yelling at Chief Locke and took one step forward. Chief Locke instructed Michael to get back into the car, and Chief Locke simultaneously tased Michael.
Slip op. at *11.  The panel recognized, then, that Locke tasered Michael without any warning. The panel failed to note, however, that Michael had good cause to approach Locke.  Locke, after all, was sexually assaulting his wife.

The panel nevertheless affirmed summary judgment:
In evaluating Appellees’ motion for summary judgment, the district court concluded, “[Chief] Locke’s conduct, in tasering and causing Michael’s head to strike the subject vehicles, [was] objectively reasonable as a matter of law.” The court continued, “In addition to being alone and outnumbered by presumably intoxicated suspects, Diane’s sarcastic comments and noncompliance, coupled with Michael’s wayward behavior in exiting the vehicle and opposing Locke’s arrest and/or search could lead a reasonable officer to respond in the manner described of [Chief] Locke.” We agree.
Slip op. at 11-12. The panel seems to be suggesting that “sarcastic comments” are a reason to taser a citizen. That's an unfortunate analysis, which among other reasons, caused Bobby E. Shepherd to dissent.

In his dissent, Judge Shepherd conducted a standard use-of-force analysis.  Id. at *26 (balancing the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety ofthe officers or others, and whether [the suspect] is actively resisting arrest orattempting to evade arrest by flight") (citations and quotation marks omitted).  Judge Shepherd only briefly discussed the use of Tasers against a non-violent suspect.  Id. at *28 ("With regard to Michael’s yelling at Chief Locke, 'a reasonable officer would not discharge his Taser simply because of insolence.'") (quoting Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008)).

The use of Tasers is an issue of scholarly concern and real-world impact.  The law needs Judge Shepherd's handiwork, as Judge Shepherd would no doubt provide a scholarly analysis of this important issue.

Therefore, the Eighth Circuit should rehear Cook en banc. Cook presents a perfect opportunity for the entire Court to consider whether a Taser may be used where the citizen’s only “offense” is causing offense. See Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (“a reasonable officer would not discharge his Taser simply because of insolence.”) Tasers were originally used as a substitution for deadly force.  These days, a person who fears that a police officer might rape his wife can be tasered.

Under what circumstances may a Taser be used? May a Taser be used for compliance-only purposes where a police officer does not face any threat? May a Taser be used where, as here, a citizen is yells at a police officer who is sexually assaulting his wife?

Are citizens required to remain quiet when witnessing a woman being sexually assaulted by the police? Ultimately, Michael Cook was tasered for simply telling Locke to stop sexually assaulting his wife. May a police officer really Taser a man for telling him to stop sexually assaulting his wife?  That seems to be one implication of the panel's ruling.

Let's hope this case gets reheard en banc.

4 comments:

  Will B

1:05 PM

An interesting case to add to the growing Taser jurisprudence in the federal appellate courts. One thing-- I believe the dissenting judge in this case was Judge Shepherd, not Senior Judge Arnold.

  Mike

12:18 PM

Yes; thank you.

  Anonymous

4:13 PM

Since when is insolent behavior directed to a police officer a basis for any use of force? What happened to Houston v. Hill, the US Supreme Court precedent that allows citizens to criticize police without fear of arrest much less use of any force against them?

  Anonymous

2:01 PM

Could this be the same Ed Locke?
The info is on https://www.courts.mo.gov/casenet

08SL-CR03732 - ST V EDWARD JOHN LOCKE JR
This information is provided as a service and is not considered an official court record.
Charge/Judgment
Description: Knowingly Grants/Continues Commission As Peace Officer Without Valid License { Misdemeanor B RSMo: 590.195 }