THE TENTH CIRCUIT FINDS THE USE OF A TASER TO BE EXCESSIVE FORCE WHEN USED AGAINST A NON-VIOLENT PERSON

Brad Cavanaugh called the Wood Cross City, Utah police claiming that his wife, Shannon, who has a history of suicide attempts, had run out of the house with a knife following a domestic dispute. Three officers arrived at the house. One stayed with Brad while two went out looking for Shannon. Shortly thereafter. Shannon returned home. Officer Davis who had stayed in the house went outside. Shannon did not have a knife in her hand. She walked right past him. He followed her and Tasered ¹ her in the back, causing her to fall down and hit her head on the concrete steps, causing traumatic injury.

The Cavanaughs sued Davis and Wood Cross City for excessive use of force. The defendants moved for summary judgment claiming qualified immunity. The District Court denied the motion and the defendants appealed to the Tenth Circuit Court of Appeals. The Court denied the appeal. To refute a claim of qualified immunity the plaintiff must show that their constitutional rights were violated and that the violation was clear at the time of the incident.

The court looks at the facts in a manner favorable to the plaintiff to determine if any jury could agree with the plaintiff. The use of a Taser is a clear violation of the Fourth Amendment in that it is a seizure. The only question is whether it is justified. Assuming that the facts are as described by the plaintiff the Tenth Circuit found that the seizure was not justified. Shannon Cavanaugh was shot in the back. She was not holding a knife and did not appear to be a danger to anyone. Furthermore she was heading towards the house and she could have been arrested once she got in the house. ² Thus it was not justified and based upon the plaintiff’s declarations and evidence the Fourth Amendment was violated.

Furthermore, the Court ruled that based upon prior decisions of the court the fact that a Taser was used against a non-violent misdemeanant is a violation of the Fourth Amendment was clearly established prior to the incident. As a result the appellate court denied the appeal and sent the case back to the District Court for trial.