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.

Streamwood, Illinois police officer, James Mandarino, while making a traffic stop, tasered, Ronald Bell, the driver and hit him with his baton 15 times. The Cook County District Attorney has charged Mandarino with felony aggravated battery and official misconduct.. The beating may not be unusual but the charges are becoming more common. What made the charges possible was a video of the beating taken by a camera in the officer’s vehicle.

Many cases of police using excess force are making the press and some of them are resulting in criminal charges. Videos are also helping law enforcement officers fight charges of excessive force such as the case of the Bay Area Rapid Transit (BART) officer who was accused of throwing a man through a glass window but the video showed that it was the suspect was punching the window. But of course another BART police office is facing murder charges based upon a cell phone video for killing Oscar Grant, a BART passenger, on New Years Eve 2009.

While some of the video’s,such as that of Mandarino are taken from cameras in their vehicles, others such as the video of Rodney King were taken by citizens. With the advent of cell phone cameras videos, such as the killing of Oscar Grant, and You Tube are becoming omnipresent.

Videos can also be used to help convict or exonerate individuals. But mny police departments have been slow to install them in police cars. In DUI’s I can think of no better evidence that a videotape of the suspect performing the field sobriety tests.

One of the advantages of videos, although it did not work in the Bell case, is that it should make police more reluctant to use unnecessary force. But Mandarino tasered Bell and hit him numerous times with his baton despite the fact that Bell did not offer any resistance and despite the fact that it was being recorded on the officer’s camera.

The Supreme Court, yesterday, in Wilkins v. Gaddy reversed a Fourth Circuit Court of Appeal decision upholding a District Court denial of a habeas claim against a prison guard because the injury was only de minimus. The Supreme Court ruled, citing Hudson v. McMillian that while the amount of the injury might indicate the nature of the force used, it is the latter that determines whether the force was excessive, not the amount of the injury.

In a pro per complaint James L. Wilkins alleged that he was assaulted by an officer. Willkins alledged that Gaddy punched, kicked, kneed and choked him. Furthermore he alleged that Gaddy threw him into the concere floor. As a result of Gaddy’s actions Wilkins suffered ” multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.” But he did not allege that his injuries required hospitalization or treatment. Therefore the District Court and the Fourth Circuit found the injuries to be de minimus and dismissed the complaint.. In reality, Wilking receieved medical treatment for the injuries.

In any case the Supreme Court, citing Hudson, ruled that the issue is not whether the injuries are de minimus or not but rather the nature of theforce used is excessive and reversed the lower court’s denial of the claim. It remanded for further consideration.

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.