AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel
Pointing Electronic Control Weapons (ECWs)
Journal Article: Excessive
Force Claims Concerning Pointing Firearms--Part 1, 2010 (10) AELE Mo. L.
Monthly Law Journal Article: Excessive Force Claims Concerning Pointing Firearms--Part 2, 2010 (11) AELE Mo. L. J. 101
Monthly Law Journal Article: Drawing and Pointing Weapons During a Terry Investigative Stop, 2013 (7) AELE Mo. L. J. 101.
Monthly Law Journal Article: Pointing and Threatening to Use Electronic Control WeaponsWeapons, 2013 (8) AELE Mo. L. J. 101.
A motorist stopped for a traffic offense met his burden of rebutting the
defendant officer’s qualified immunity defense. The court concluded that
the constitutional right at issue was clearly established at the time of the
incident, and that the officer’s conduct was objectively unreasonable in
light of then-existing clearly established law. In this case, he stopped the
plaintiff for a minor traffic offense and abruptly escalated to a takedown, The
motorist had presented no immediate threat or risk of flight. He allegedly
offered, at most, passive resistance, including asking whether he was under
arrest, which if true would not justify the level of force utilized. The
officer also had his Taser aimed at the motorist’s back while he stood
against his vehicle, facing away from the officer, with his empty hands
displayed behind his back, not presenting any threat. Hanks
v. Rogers, #15-11295, 2017 U.S. App. Lexis 5927 (5th Cir.).
An officer observed a pedestrian walking on a road in alleged violation of a city ordinance. When the man ignored orders to stop walking, the officer exited his vehicle and drew his Taser, threatening to use it if the man did not get down on his knees, which he did. The officer handcuffed him and then allegedly continued to strike him after doing so. The court found that the officer was not entitled to summary judgment, in light of the officer's "very aggressive tactics" during the encounter over the "relatively minor offense" the arrestee was accused of. The issue of whether the officer's actions were reasonable or unreasonable, including the threat to use the Taser, was for the jury to decide. Chatman v. Buller, #12-CV-182, 2013 U.S. Dist. Lexis 22901 (N.D. Okla.).
A detainee became involved in a scuffle with officers while he was in the process of being booked into a county detention facility. A sergeant displayed her Taser and told the detainee that she would use it if he did not cease his resistance. After she shined the Taser's aiming light in his eye, he ceased his resistance. The detainee sued, claiming that aiming the laser in his eye amounted to a battery and that doing so permanently impaired his left field of vision. A jury found that the use of the Taser was not an assault. The appeals court found that this did not preclude the possibility that pointing the Taser's aiming laser was a battery. Someone can commit a battery without committing an assault because it is possible to intentionally cause a harmful or offensive touching without first putting the victim in fear or apprehension of such contact. Additionally, the county's argument that the battery claim was barred assumed that the jury decided that the sergeant lacked the intent to assault the detainee. "In fact, the verdict form did not require findings on each element of assault so we cannot be sure which element or elements of the claim were not shown to the jury's satisfaction." The trial court ruled on whether the sergeant intended to use the Taser on the detainee, but failed to rule on the issue of whether shining the laser in the detainee's eye constituted a battery, so the appeals court ordered further proceedings on that theory of liability. Evans v. Multnomah County, #10-35215, 2012 U.S. App. Lexis 17623, 492 Fed. Appx. 756 (Unpub. 9th Cir.). In a subsequent decision, Evans v. Multnomah County, #3:07-CV-01532, 2013 U.S. Dist. Lexis 55403 (D. Ore.), the trial court granted a motion for summary judgment by the defendant county on its argument that shining the light from the Taser in the Plaintiff's eye was not a battery. A battery requires an intent to cause harm, and there was no allegation that the officer who did this action acted with the intent to cause personal injury.
Because the law on the threat of the used of a Taser to compel compliance by a detainee was not clearly established, an officer was entitled to qualified immunity on the claim that the threat was an excessive use of force. Johnson v. Bay Area Rapid Transit, #CV-09-00901, 790 F. Supp. 2d 1034 (N.D. Cal. 2011).
Canada, Ontario Court of Justice, Toronto: A Toronto police officer pleaded guilty to threatening bodily harm. The officer was recorded by his vehicle's onboard camera pressing a Taser against a handcuffed suspect's neck and also threatening to Taser the groin of a second handcuffed suspect. The Taser was not discharged and neither suspect was injured. The officer's lawyers claimed that, at the time, he suffered from a diabetes-related hypoglycemic reaction. The judge imposed a sentence of nine months of probation, a $500 victim surcharge fee and 50 hours of community service. Later, the officer was demoted from the rank of sergeant for a year. R. v. Christopher Hominuk (2011). View a photo of the incident.
It was not unreasonable for an officer to point a Taser at and threaten to use it on a motorist who was refusing to exit his vehicle during a traffic stop despite being ordered to do so at least 21 times. The Taser was not actually used, although an officer did break a car window to get the Taser within range of the motorist to use it if necessary. The motorist then exited his vehicle. Clark v. Rusk Police Dep't, #6:07cv340, 2008 U.S. Dist. Lexis 69776 (E.D. Tex.).
A husband and wife sued claiming that police officers illegally searched their home and used excessive force. The wife claimed that she had been Tasered in the dart mode, causing her to fall. Officers denied discharging a Taser, but one officer did unholster and point his Taser. A subsequent download confirmed that it had not been discharged. The officers were entitled to a Summary Judgment because there was no proof that force had been used. Garcia v. Contreras, #C-07-359, 2008 U.S. Dist. Lexis 83438 (S.D. Tex.).
An officer's drawing and pointing of a Taser at a man possibly experiencing a diabetic reaction and believed to be not acting rationally was not a seizure and the officer and municipality are entitled to a summary judgment on the issue of excessive force. Policky v. City of Seward, # 4:05 CV 3212, 433 F.Supp.2d 1013 (D. Neb. 2006).
A man was coerced into granting consent to emptying his pockets to search for drugs during an investigative stop by an officer's action of pointing a stun gun at him. The consent was therefore invalid, and the marijuana found must be suppressed. While the defendant's flight when the officers approached gave rise to a reasonable suspicion justifying an investigative stop, the fact that the officers admitted that the reason they asked the defendant to empty his pockets was to search for drugs rather than find out if he had weapons, they exceeded the permissible stop of a permitted search under the circumstances. State v. Williams, #A06A1514, 635 S.E.2d 807 (Ga. App. 2006).