Mimesis Law
21 September 2019

Are Courts Finally Paying Attention to Tasings?

October 14, 2016 (Fault Lines) — James Clifton Barnes was in the ocean, getting baptized by his aunt. At some point, he freaked out a bit, and started flailing his arms and yelling about a demon. Could have been a sign he was drowning, could have been a speaking-in-tongues-type thing. Barnes had a history of drug abuse. Dealing with it would require a deft touch.

Fortunately, Officer Joseph Tactuk was at the scene. He ordered Barnes to calm down and get out of the water. The “calm down” command continued its 0% success rate, as Barnes continued to flail. So Tactuk waded out into the water and did what any reasonable person would do—he started repeatedly punching Barnes in the face. Then, he dragged him into waist deep water and put him in a choke hold, punching him in the face some more.

This did not engender instant compliance. Weirdly, Barnes seemed freaked out by the prospect of being drowned by a stranger. Ultimately, Tactuk and a bystander managed to pull Barnes from the water, as others called 911. Barnes begged for help. Tactuk kneeled next to Barnes after he calmed down and started to put on the handcuffs, but Barnes resisted.

So, Tactuk hit him in the face some more as three bystanders helped him slap on the cuffs. But since these weren’t experts, they did it wrong, twisting his arms behind his back, cuffed together, in a way that must have been agonizing. Barnes started “erupting” blood and fluids from his mouth and struggled to breathe.

And still, Barnes continued his persistent struggle, apparently trying to get his arms free so that he could breathe properly. Tactuk called for help and continued Barnes’ vigorous face massage, tossing in some pepper spray for good measure. By the time another officer arrived, Tactuk was sitting on Barnes’ stomach as Barnes struggled for breath. Barnes had gone limp, and some bystanders said that his movement was minimal, aside from the occasional spasm when Tactuk lifted him up for more punches.

Still, Tactuk thought that a taser was in order. Over the course of two minutes, Tactuk asked Kuber to tase Barnes five times. Even under the best version of events for police, Barnes totally stopped moving after the second time being tased.

At this point, someone from the fire department came by, and noted that the reason Barnes couldn’t breathe was because of the way he’d been handcuffed. He took off the cuffs and tried to do CPR, but Barnes’ face was such an unrecognizable pulp that he could only do chest compressions. Barnes was taken to a hospital, but two days later, he was dead.

Now, of course, neither of the officers involved in the case were charged criminally. Prosecutors who looked at the case ruled that it was an excusable homicide, though Tactuk showed “poor judgment,” and was let go from his job as a law enforcement officer (this was not a decision that other officers agreed with). Still, the question remained, could Kuber, the second responding officer be sued?

For many years, the answer seemed to be no. Courts had been reluctant to hold officers accountable for killing people with tasers, ruling that reasonable officers might not have known, for instance, that they couldn’t taze a pregnant woman three times for refusing to sign a speeding ticket, or that you could tase a man who swore and paced in response to a request for documents.

But the 11th Circuit, where the case ended up, has been refreshingly reluctant of late to give officers a free pass, holding that an officer couldn’t taze a mentally-ill man 20 times for walking away from her. In line with those previous decisions, the Court found Kuber’s case to be a pretty easy call.

This has been part of an encouraging wave of courts finding that officers who use their tasers on people after they’ve stopped actively resisting can’t keep falling back on a claim that they didn’t know it was unconstitutional. Which isn’t to say that it’s a dead letter. The 4th Circuit Court of Appeals recently held that, while it was unconstitutional to tase a mentally ill man to death for holding onto a pole to avoid arrest, officers couldn’t have reasonably foreseen that they could be sued. Still, the next time an officer does it, he may suffer real consequences.

As the federal circuits start taking these cases seriously, it may begin to stem the tide of departments that feel that a quick jolt is somehow safer than a physical struggle. Although marketed as “less than lethal,” tasers kill about a person a week in the United States. And while the Taser brand loves to market itself as a science fiction style device that kills only through “excited delirium” (the weird coincidence that some people die of heart attacks right as they’re being tased and choked by officers), it may have to start telling police departments to be careful, or risk having grieving families reaching into its pockets.

As tasers and pepper spray start getting bumped up the continuum of force, we may just have to see a return to unorthodox strategies. Sitting patiently with someone. Talking to them. Seeing if you can call a family member to calm them down. Sometimes, even crazy tactics can start to seem appealing if they mean you won’t be sued.

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