Today’s post discusses two recent federal cases involving the use of Tasers in North Carolina jails. (The post draws from an article I originally prepared for the North Carolina Jail Administrators’ Association newsletter.)
Many view Tasers and other similar electronic control devices as a helpful way for detention officers to apply non-lethal force to maintain security and good order in the jail. Used properly, they give officers a way to avoid hands-on engagement that could further escalate an incident and cause more serious injury to officer and inmate alike. The mere presence of a device can deescalate a situation and provide a deterrent to disorderly conduct.
The devices are not, however, without controversy. First, not everyone agrees that they are truly non-lethal, as there have been deaths associated with Taser use—nationally and in North Carolina. See, e.g., Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016). Some view them as excessively painful to point that they violate the Constitution’s ban on cruel and unusual punishment. Others view them as incompatible with a custodial setting, where other means exist to control inmate behavior.
As with any use of force against an inmate, electronic control devices are governed by constitutional limitations. The exact nature of those limits depends on the type of inmate in question—pretrial or sentenced. If the inmate is a pretrial detainee, the force is analyzed under the Fourteenth Amendment under a standard recently spelled out by the Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). To prevail on an excessive force claim, a pretrial inmate must establish that the force was objectively unreasonable. For sentenced inmates, excessive force claims are—for now, at least—evaluated under the Eighth Amendment’s prohibition on cruel and unusual punishment. As stated by the Supreme Court in Hudson v. McMillian, 503 U.S. 1 (1992), force violates the Eighth Amendment when it is used “maliciously and sadistically to cause harm,” rather than in a good faith effort to maintain or restore order.
As you can imagine, there are countless court cases—many of them federal civil rights lawsuits—applying that analysis to incidents involving Tasers and similar electronic devices. In general, courts have said that Tasers may be used to quell disorder and compel obedience, but never merely to punish an inmate.
Two recent cases from North Carolina demonstrate how Taser use can lead to litigation and, potentially, liability for jail staff. In one case the court deemed officers’ use of the device proper; in the other, most of the lawsuit was dismissed on technical grounds. A review of the legal analysis in each case offers helpful guidance to jail administrators looking to develop a proper policy for use of electronic control devices.
The first case is Ellenburg v. Henderson County Jail. No. 1:14-cv-290-FDW, 2016 WL 1354980 (W.D.N.C. Apr. 5, 2016). The relevant facts of Ellenburg are as follows. After an officer opened inmates’ cell doors to let them get their food, one inmate ran into another inmate’s cell and began to punch him. An officer quickly responded, yelling at the inmates to stop fighting. When they didn’t stop, the officer discharged his Taser from eight feet away. The Taser prongs hit the inmate who had been the initial victim of the other inmate’s assault. The inmates stopped fighting, both were handcuffed, and the inmate who was attacked and then tased was examined by medical staff.
The inmate filed a federal civil rights lawsuit alleging excessive force by the officer who tased him. Because the inmate in question was a pretrial detainee, the judge walked through a set of legal factors set out in Kingsley: (1) the relationship between the need for the force and the amount of force used; (2) the extent of the inmate’s injury; (3) the effort the officer made to temper or limit the force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether the inmate was actively resisting.
Applying those factors, the federal judge hearing the case concluded that the force used was not excessive. The judge said there was a close relationship between the need for force and the amount of force used. A fight between inmates is, unquestionably, a serious security risk, and the officer was correct to respond. Several facts stand out as particularly important in the court’s analysis of the reasonableness of the officer’s response.
- The officer attempted a verbal warning before discharging the Taser, telling the inmates to stop fighting.
- The officer used the Taser only once.
- The force ended as soon as the fighting stopped.
- No other force (pepper spray, batons, or fists) was applied in addition to the Taser.
- The inmate’s injuries from the Taser were minimal.
In light of these facts, the court dismissed the inmate’s case against the officer.
Compare the facts of Ellenburg with another recent case, Reed v. Jones, No. 1:12-CV-456, 2015 WL 4460322 (M.D.N.C. July 21, 2015). Reed involved a state prison inmate who was temporarily returned to the county jail on a writ to face felony charges. The inmate had a history of violence: he was being held in the state prison system’s high security maximum control unit, and his pending felony charges in the county stemmed from an earlier assault on detention staff.
While in a holding cell in full restraints (double handcuffs and ankle shackles), the inmate put foam lunch boxes in the toilet, causing it to overflow. According to the facts set out by the court, a detention officer responded to the incident by tasing the inmate without warning, causing him to fall to the floor. He was then tased again and pepper-sprayed in the face at close range. The inmate lost consciousness. When he regained consciousness, the state correctional officers who brought him to the county denied his request to be decontaminated, put him in the transportation vehicle, and drove him four hours back to the prison facility at which he was housed. During the drive he complained of chest pain, breathing trouble, and eye pain. A nurse examined him when he returned to the prison.
The inmate filed an excessive force claim against the officer who tased him, as well as other claims against the officer and other bystanders for their deliberate indifference to his serious medical needs in the wake of the incident.
The court did not reach the merits of the inmate’s claim against the county detention officers. Instead, it dismissed the inmate’s lawsuit because he failed to exhaust his administrative remedies. He never filed a grievance under the jail’s “Inmate Grievance System,” and there was no record that he had tried to do so and been denied. Because he failed to exhaust his administrative remedies, his claims against the county were barred by the federal Prison Litigation Reform Act (PLRA).
Had the inmate gone through the grievance process, his case would surely have been a closer one than Ellenburg. The actual facts are of course a matter of dispute (the court is required to take the inmate’s version as true at this preliminary stage), but if they turned out to be correct, many of the factors that weighed in the officer’s favor in Ellenburg clearly would have been absent in Reed.
- The inmate initiated the incident by flooding his cell, but it was not an immediate security emergency like a fight.
- The inmate was alone in his cell, shackled.
- The officer did not give a warning.
- The officer used the Taser twice.
- The Taser use was followed with pepper spray.
- The inmate was rendered unconscious.
- The inmate did not receive immediate medical attention and was not allowed an opportunity to decontaminate.
Those facts, if true, could eventually have allowed the inmate to prevail.
Obviously no definitive lessons can be drawn from only two cases, but Ellenburg and Reed highlight recurring issues that jails that use Tasers should consider addressing in their policies on use of force. In particular, a requirement for officers to give a warning before using the device, and for assessing the results of a first use (and obtaining necessary medical care) before any subsequent deployment. Administrators may also wish to consider whether or in what limited circumstances it is ever appropriate to use a Taser or similar device on an inmate who is already otherwise restrained or in isolation.