Billy Gunn/The Daily Town Talk/AP/File
Former Winnfield Police Officer Scott Nugent (c.) walks with his attorneys Phillip Terrell (l.), and George Higgins in the Winn Parish Courthouse in Winnfield, La., Oct. 22, 2010. Mr. Nugent deployed an electronic Taser device eight times against a handcuffed arrestee who was lying on the ground.

Supreme Court vacates police-immunity ruling in suit over multiple Tasering

The Supreme Court ordered the New Orleans-based Fifth Circuit to reexamine a case involving a suit against a police officer for repeatedly Tasering a handcuffed arrestee who was lying on the ground.

The US Supreme Court ordered a federal appeals court Monday to reexamine a case involving the alleged use of excessive force by a police officer in Louisiana who deployed an electronic “Taser” device eight times against a handcuffed arrestee who was lying on the ground.

The suspect, who later died, had reportedly refused to obey a police command to stand up and walk to the patrol car. The police officer was fired for using “unnecessary force,” but was found not guilty of manslaughter.

A panel of the New Orleans-based Fifth US Circuit Court of Appeals subsequently ruled that the officer was entitled to qualified immunity and could not be sued for allegedly violating the rights of the handcuffed prisoner.

The appeals court said that it was not clearly established in American law that such conduct by a police officer would violate the Fourth Amendment’s protection against unreasonable searches and seizures.

In a summary order on Monday, the high court vacated that Fifth Circuit decision and sent the case back with instructions that the appeals court comply with a Supreme Court decision issued two weeks ago in a case called Tolan v. Cotton.

That case was also from the Fifth Circuit and also involved allegations of excessive use of force by police. In the Tolan opinion, the Supreme Court said the Fifth Circuit had not given proper weight to evidence offered by those suing the police.

In essence, the high court said the Fifth Circuit improperly sided with the account offered by the police officer. Instead, judges at the summary judgment stage of litigation must view the evidence in a light most favorable to the alleged victim of the excessive force, the Supreme Court said.

The high court order requires the Fifth Circuit to reconsider whether the young son of the deceased arrestee can sue the Taser-wielding police officer in federal court for civil damages. The appeals court must decide whether the case should proceed to a trial.

The January 2008 incident took place in Winnfield, La.

The arrested man, Baron Pikes, was wanted on two outstanding warrants, one for crack cocaine possession, the other for possessing an open beer bottle. He was subjected to 50,000-volt electric shocks at least eight times within a 14-minute period. Later, at the police station, Mr. Pikes repeatedly fell from his chair to the floor, began foaming at the mouth, and lost consciousness. Eventually, police called an ambulance.

Paramedics were unable to revive him and he was declared dead at the hospital.

The police officer, Scott Nugent, was fired from the Winnfield Police Department for using what the police chief characterized as “unnecessary force and violence.”

Mr. Nugent was charged with manslaughter in Pikes’ death. Nugent’s defense lawyer claimed that Pikes died from a pre-existing physical condition. The coroner’s report said Pikes died of heart failure following the electric shocks. A jury found Officer Nugent not guilty.

Lawyers filed a civil suit on behalf of Pikes’ son, claiming the police officer used excessive force that resulted in Pikes’ death.

Nugent’s lawyer argued that the civil lawsuit must be thrown out because Nugent had been acting in an official capacity as a police officer and was entitled to qualified immunity from such litigation.

The federal judge disagreed and allowed the case to move forward toward a trial. A panel of the Fifth Circuit reversed that decision.

The appeals court said Pikes’ lawyers had failed to prove that it was clearly established in 2008 that a restrained suspect in police custody had a constitutional right to be free from repeated 50,000-volt shocks for failing to comply with a police command to stand up and walk to the patrol car.

“The Fifth Circuit’s decision in this case creates a clear conflict with the decisions of other circuits,” Michael Vatis, a lawyer with the New York firm Steptoe & Johnson, wrote in his brief urging the high court to take up the case.

“Those circuits have held that even as of January 2008, it was clearly established that the use of an electronic control weapon or an analogous (or even lesser) use of force on a suspect who was already within an officer’s control and posed no flight or safety risk was unconstitutional, even if the person failed to comply with an officer’s commands,” he said. 

Five federal appeals courts – the Philadelphia-based Third Circuit, the Richmond-based Fourth, the Cincinnati-based Sixth, the Chicago-based Seventh, and the St. Louis-based Eighth – have ruled that the use of a Taser on a restrained subject who refuses to obey an officer’s command is excessive force, according to a friend-of-the-court brief filed on behalf of experts in police accountability and the use of force.

“The Fifth Circuit’s decision creates considerable uncertainty regarding whether it is clearly established that such Taser use constitutes excessive force,” Pablo Quinones, of the New York law firm Reed Smith, wrote in the experts’ brief.

“While Tasers may be appropriate in some circumstances, their use by law enforcement to force compliance by non-threatening persons undermines public confidence and trust in law enforcement and erodes the Fourth Amendment ‘right of the people to be secure in their persons … against unreasonable searches and seizures,’ ” Mr. Quinones said.

In his brief urging the court to allow the Fifth Circuit’s decision to stand, Nugent’s lawyer, Randall Keiser of Alexandria, La., said there were no court decisions directly addressing the facts presented in the Nugent-Pikes case.

He added that the very fact that a split exists among the circuit courts on the issue “necessarily means that qualified immunity was properly granted.”

“This Court has explained on at least three occasions that qualified immunity should be granted where a circuit split on the relevant issue exists, because if judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy,” Mr. Keiser wrote.

Vatis replied in his own brief: “If the Court were to allow this decision to stand, officers in the future could repeatedly electroshock fully restrained arrestees who pose no flight or safety risk, just to force them to get up, and they would be protected by qualified immunity because of the circuit split that the Fifth Circuit has created.”

The Police Executive Research Forum established guidelines in 2005 for police use of electronic control weapons. The policy says that such weapons “should only be used against persons who are actively resisting or exhibiting active aggression, or to prevent individuals from harming themselves or others.”

“When used properly, electronic control weapons can serve legitimate law enforcement purposes, and can reduce the need for lethal force,” Vatis wrote in his brief. “But they are also dangerous and potentially lethal: since 2001, over 540 people have died after being shocked by police Tasers.”

The case was Thomas v. Nugent (13-862).

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