By OSS Law Enforcement Advisors Staff | Thu, 4 Feb 2016
On January 11, 2016, the U.S. Fourth Circuit Court of Appeals issued an opinion in the case of Armstrong v. Village of Pinehurst which dramatically changes the legal landscape governing TASER use by officers. TASER use as a pain compliance tool against a resisting subject is prohibited by the Fourth Amendment unless the police can articulate “immediate danger” to the officer apart from the fact of resistance alone. This is true whether the Electronic Control Device [ECD] is used in probe deployment or drive stun mode.
Holding: “Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force. … law enforcement officers should now be on notice that such taser use violates the Fourth Amendment.” In other words, “… taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger.” The court concluded: “At bottom, ‘physical resistance’ is not synonymous with ‘risk of immediate danger.” On the same note: “Even noncompliance with police directives and non-violent physical resistance do not necessarily create ‘a continuing threat to the officers’ safety.”
This ruling arose from a lawsuit against Pinehurst PD over the death of a mentally ill man. Officers responded to a call and observed Armstrong sitting on the pavement with his arms wrapped around a pole so he could not be moved. He had refused to comply with officer instructions and was physically passive. Officer resorted to using a Taser in drive stun mode, having determined Armstrong was a threat to himself.
This decision applies directly in the five states comprising the 4th Circuit – North Carolina, South Carolina, Maryland, Virginia, and West Virginia. Although Texas is not in the 4th Circuit, we know from experience that if an officer of your agency is filed on for a constitutional ECD application, this case will be put forward by the Plaintiffs as a standard. We recommend you review this case carefully, and modify your training and policies accordingly. For agencies we support we are finding that ECD [Taser], Use of Force, and Mental Illness Response policies are all impacted.