On January 11, 2016, the Fourth Circuit decided Armstrong v. Village of Pinehurst, a major case concerning the use of tasers by law enforcement officers. The opinion is here. This post summarizes the opinion and explores its implications.
Facts. Ronald Armstrong was mentally ill. Concerned about his erratic behavior, his sister took him to the local hospital, but he fled the emergency department. A doctor issued involuntary commitment papers, finding that Armstrong was mentally ill and a danger to himself. The doctor did not find that Armstrong was a danger to others.
The police were called during this time. Three officers arrived at the hospital and found Armstrong at an intersection outside the facility. They talked with Armstrong while awaiting the completion of the commitment order. Armstrong was “acting strangely,” including “eating grass and dandelions . . . and put[ting] cigarettes out on his tongue.” Two hospital security officers and Armstrong’s sister were also present.
As soon as they learned that the commitment papers were complete, the three police officers surrounded and advanced toward Armstrong — who reacted by sitting down and wrapping himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge.
After the “stalemate” had lasted about 30 seconds, the officers told Armstrong that he would be tased if he did not let go of the post. Armstrong did not let go, and one of the officers tased him multiple times. (The taser was set to “drive stun mode,” which is not intended to incapacitate the target. It is meant to be a “pain compliance tool.”)
Armstrong did not let go of the post, but the police and security officers together were able to pry him off of it, pin him down, and cuff him. The parties dispute whether the struggle involved any choking of Armstrong. He became unresponsive and essentially died at the scene.
Procedural history. Armstrong’s estate sued, among others, the police officers. The estate contended that they had used excessive force in attempting to execute the commitment order, in violation of the Fourth and Fourteenth Amendments.
The officers removed the case to federal court. A district court judge granted summary judgment to the officers, finding it “highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity” because any constitutional violation was not clearly established at the time of the incident.
Majority opinion. The Fourth Circuit ruled that the officers violated the Fourth Amendment, but were entitled to qualified immunity. Starting with the Fourth Amendment issue, the majority stated that claims of excessive force during a seizure are evaluated under an objective reasonableness standard, considering (1) the severity of the crime at issue, (2) the extent to which the subject poses a threat to the safety of the officers or others, and (3) whether the subject is actively resisting arrest or attempting to flee.
The first factor did not support the officers’ use of force, as Armstrong had not been charged with a crime at all. To the extent that the severity of the crime at issue is a proxy for dangerousness, a doctor had found Armstrong dangerous to himself, not others. The majority stated that Armstrong’s mental illness should have prompted the officers to take extra care to de-escalate the situation.
The second and third factors justified a “limited” use of force. There was a potential safety threat: Armstrong might have fled from the officers as he had fled from the hospital. He was near a roadway and had previously wandered into traffic, so he could have endangered himself, officers, and the public by doing so again. Furthermore, he was resisting the officers’ lawful orders. On the other hand, at the time he was tased, Armstrong was seated on the ground, clutching a post, and refusing to move, suggesting that flight was not imminent. And although Armstrong was not complying with the officers’ orders, his resistance posed “little risk” to anyone, and officers tried to break the impasse for only 30 seconds before using the taser.
The court found that the use of a taser was not a reasonable or proportional response to the situation. Tasers inflict severe pain, and various authorities have cautioned against repeated use of tasers or the use of tasers on the mentally ill. To my mind, the court’s clearest statement of its Fourth Amendment holding is this: “[T]asers are proportional force only when deployed in response to a situation in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser,” and that was not the case here. “Non-violent resistance” does not necessarily involve “immediate danger” and so does not necessarily support use of a taser.
The majority seemed to endorse the use of a “hands on” approach to situations like Armstrong’s, writing that:
When Appellees stopped tasing and enlisted the Hospital’s security guards to help pull Armstrong off of the post, however, the group removed Armstrong and placed him in restraints. Had Appellees limited themselves to permissible uses of force when seizing Armstrong, they would have had every tool needed to control and resolve the situation at their disposal.
Nonetheless, the majority found that qualified immunity protected the officers, because the law was “not so settled at the time they acted” that every reasonable officer would have understood that the taser use was unconstitutional. In support of this conclusion, the court distinguished some of its own prior precedents and noted that the other circuits were not uniform in their approach to taser usage. But it also made clear that this opinion was intended to provide guidance about the constitutional limitations on the use of tasers, making qualified immunity much less likely to be available in future cases.
The “dissent.” Judge Wilkinson concurred in part, agreeing that qualified immunity protected the officers. But he viewed the majority’s discussion of the constitutional issue as “so unnecessary.” He saw the constitutional question as a close one, noting that the officers were dealing with a 260 pound, unpredictable subject who did not respond to verbal commands or to a “soft hands” attempt to remove him from the post. He was also skeptical of the majority’s efforts to provide guidance to officers in the future: “[W]hat conduct qualifies as ‘resistant,’ and what rises to the level of a ‘serious safety threat’ is . . . dependent on the actual and infinitely variable facts and circumstances that confront officers on their beat.” Thus, the majority opinion will be of “less than limited help to officers.”
The reaction. Judging from the emails and phone calls I have received, many officers and agency attorneys view the decision negatively. First, they see the “immediate danger” or “serious safety threat” standard as vague. Second, they fear that officers will replace the use of tasers with “hands on” techniques that are more dangerous for suspects and officers alike. The North Carolina Department of Justice produced a memo on point here, and an agency attorney was interviewed in a WNCN story here. Some departments are reconsidering their taser policies in light of the decision. On the other hand, some already limit taser use to cases of imminent physical threats. See, for example, Charlotte’s policy, Directive 600-019, available here.
Obviously, other perspectives are possible and those who believe that officers overuse tasers are surely happy about the decision. The Washington Post covers the overuse debate here.
Analysis. I agree that Armstrong leaves important questions unanswered. For example, it doesn’t precisely define what counts as an “immediate danger.” The court also offers few specifics about how officers should react to persistent resistance that does not involve such danger and so does not support taser usage. And the court briefly mentions the severe effects of pepper spray, raising but not answering questions about the circumstances under which officers may use pepper spray.
At the same time, Armstrong does seem to make several points clear:
- First and most importantly, officers normally should not use tasers absent threatening behavior by the subject. Armstrong involved an involuntary commitment rather than an arrest, and a court might be more inclined to find an “immediate danger” in an arrest situation, especially if the arrestee were suspected of a serious or violent offense. But even in the arrest context, an officer would need to be able to explain why he or she viewed the subject as an immediate danger, and without any specific acts of violence or aggression, that may be difficult to do.
- Second, officers should be particularly careful about repeated use of a taser, at least in “drive stun mode.”
- Third, officers should be particularly careful about using a taser on an individual who appears to be mentally ill.
- Fourth, when a subject is engaged in non-violent resistance, officers should consider giving the situation some time, rather than moving to resolve it quickly. This may not always be possible, but it is clear that the court was troubled by the speed with which the officers moved from talking with Armstrong, to attempting to move him, to using the taser on him. Giving the situation time may also allow additional officers to arrive. If it becomes necessary to use force on the subject, having multiple officers present may make that process safer and easier.
Further review? Armstrong’s estate could choose to seek further review, either from the Fourth Circuit en banc or from the Supreme Court. Statistically, either move is a long shot.