Tasers: How much force is too much?
The North Carolina Court of Appeals will review a lawsuit involving the Durham Police Department’s use of a Taser.
At the Supreme Court of North Carolina’s request, the North Carolina Court of Appeals is set to review Bryan DeBaun’s lawsuit against the City of Durham. DeBaun claims that the Durham Police Department’s use of force policy is both unconstitutional and dangerous. On the night of July 24, 2009, DeBaun was stopped by a Durham police officer as he was crossing the street, carrying a case of beer on his way home from a night of drinking. The officer requested that DeBaun produce identification, frisked him, and handcuffed him. The officer told DeBaun he was not under arrest, but it was the officer’s intent to detain DeBaun for his own protection. DeBaun then took off running.
The officer stunned DeBaun twice with a Taser gun, causing DeBaun to fall on his face, breaking facial bones and teeth. These injuries resulted in extensive medical bills. Neither the officer nor DeBaun recall whether the officer yelled for him to stop or whether the officer warned DeBaun that he was going to use his Taser on DeBaun. Although DeBaun is not seeking a total ban on the use of Tasers, he is seeking a reformation of the Durham Police Department’s use of force policy. The Durham Police Department, however, argues that both the officer’s actions and its Taser policy are reasonable and not excessive.
The officer in this case was permitted to restrain DeBaun and even use force to do so, as long as that force was reasonable.
North Carolina General Statute § 122C-301 permits an officer to assist an individual who is found to be intoxicated in a public place by taking that person home, to a friend’s home, or to a shelter or hospital. The officer is also permitted to use reasonable force to restrain the intoxicated individual if the officer finds it necessary to protect himself, the intoxicated individual, or other citizens. No officer can be held criminally or civilly liable for assault, false imprisonment, or other torts or crimes stemming from the reasonable measures taken under statutory authority.
In following the statute, the officer in this case was permitted to restrain DeBaun and even use force to do so, as long as that force was reasonable, because DeBaun was intoxicated in a public place – a fact that was undisputed at trial.
An official acts with malice when the act is “(1) done wantonly; (2) contrary to the actor’s duty; and (3) intended to be injurious to another.”
The trial court initially dismissed DeBaun’s case on summary judgment, a ruling which the North Carolina Court of Appeals affirmed in August of 2013, dismissing the excessive force and assault and battery charges based on the public official immunity doctrine.
Public official immunity is accorded to government officials, including police officers, unless the officer’s actions were “(1) outside the scope of official authority; (2) done with malice; or (3) corrupt.” Mere negligence or reckless indifference is not sufficient. In this case, DeBaun never alleged that the officer’s actions were corrupt or outside the scope of his authority, leaving malice as the only plausible exception to immunity. An official acts with malice when the act is “(1) done wantonly; (2) contrary to the actor’s duty; and (3) intended to be injurious to another.” The intent to injure can be constructive or actual. Constructive intent arises when the official’s conduct is “manifestly indifferent to the consequences, where the safety of life or limb is involved,” which would lead to a finding of willfulness and wantonness equal to the spirit of actual intent.
The Court of Appeals did not find malice in its first review because the purpose of the detainment was to take DeBaun into custody in order to care for his safety. The officer was found to not have constructively or actually intended to injure DeBaun when he stunned him with his Taser gun. An important factor considering that without public official immunity, the case would have likely survived summary judgment.
There is not a North Carolina case which has set out the appropriate level of force an officer may use when restraining an intoxicated individual; therefore, the question of what level of force is excessive is judged by a standard of objective reasonableness, something generally left to the finder of fact (i.e., the jury). Without prior precedent, the Court found that it could not, on its own, determine the reasonableness of the officer’s actions at summary judgment.
The Durham Police Department’s use of force guidelines do not specifically prohibit using a Taser on a fleeing subject.
When determining how much force an officer may apply in any situation, officers use the use of force continuum. This continuum is made up of five categories ranging from least dangerous to most dangerous. These categories include “hands-on/restraining techniques, striking techniques (inflicting blows with hands or feet), impact weapons (i.e., use of batons), less than lethal weapons, and firearms.” Tasers are generally included in the less than lethal weapons category.
The Durham Police Department’s General Order 4008 R-3 (see page 16 of the N.C. Court of Appeals opinion), prohibits officers from using Tasers on the elderly, pregnant women, visibly frail individuals, someone who is driving, or in a situation which creates the likelihood for additional injury other than those created by the Taser. This does not include a specific ban on using a Taser on someone who is running away from the custody of the officer. In order for officer use of the Taser to be prohibited in DeBaun’s case, it would likely fall into the category of creating additional injury.
Very few North Carolina cases have dealt with the use of Taser guns and have never determined the reasonableness of stunning an individual with a Taser gun. In State v. Rivera, the Court of Appeals found that using a Taser is sufficient to support the crime of robbery with a dangerous weapon, based on the manner of its operation.
Although the North Carolina courts have not weighed on the reasonableness issue, in Draper v. Reynolds (pdf), the U.S. Court of Appeals for the Eleventh Circuit found that an officer’s use of a Taser on an arrestee did not constitute excessive force. In this case, the arrestee was hostile, belligerent, uncooperative, and resisted being handcuffed during a traffic stop. The Court found that stunning the arrestee with a Taser was permissible under these circumstances and did not constitute excessive force.
Upon rehearing, whether there was excessive force will become a controlling issue.
Since the Supreme Court of North Carolina ordered the Court of Appeals to re-examine DeBaun’s case, it seems likely that public official immunity does not apply in this situation, making the controlling issue whether the use of the Taser was reasonable. At trial, DeBaun could not produce any evidence that the officer was aware that stunning him with the Taser was likely to create injuries other than those caused by the Taser itself. However, because there is no precedent on point and the standard is objective reasonableness, if public official immunity does not apply, then the ruling on summary judgment would not stand.
There are two competing arguments on the reasonableness issue: first, that the use of the Taser is unreasonable because stunning a fleeing individual on pavement who was not actually under arrest is likely to produce substantial injury; and second, that it is not objectively unreasonable for an officer to stun a fleeing individual because it is likely the safest way for the officer to proceed.
It seems likely that the second argument, using the Taser on the fleeing individual, was the most reasonable course of action. Here, the officer chose to stun DeBaun with a Taser gun instead of a number of different alternatives, like pursuing on foot and physically subduing him, which could have endangered the officer by putting him in close contact with a potentially dangerous individual. It could also have caused even more serious injuries to DeBaun, because if he were tackled he would be hitting the pavement with the added force of the officer.
While the officer’s use of the Taser was likely the most appropriate means of stopping DeBaun, since the Court of Appeals previously found a genuine dispute as to this issue, either of the two arguments could prevail. For DeBaun, however, it is most important that the Durham Police Department’s policy is changed. “Their policy is pretty grotesque and dangerous,” DeBaun’s attorney stated. “[Police] shouldn’t be allowed to seriously injure or kill Durham residents who are accused of no more than a traffic offense in order to ‘assist’ or ‘protect’ them by shooting them with a Taser.”