PUBLISHEDUNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

No. 15-1191

THE ESTATE OF RONALD H. ARMSTRONG,
Administratrix, Jinia Armstrong Lopez,

by

and

throughhis

Plaintiff - Appellant,v.
THE VILLAGE OF PINEHURST; OFFICER JERRY MCDONALD, In his
official and individual capacity; OFFICER TINA S. SHEPPARD,
In her official and individual capacity; OFFICER ARTHUR LEEGATLING, JR., In his official and individual capacity,
Defendants - Appellees,
and
TASER INTERNATIONAL, INC.,
Defendant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00407-CCE-JLW)

Argued:October 28, 2015

Decided:January 11, 2016

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Affirmed by published opinion.
in which Judge Keenan joined.
opinion concurring in part.

Judge Thacker wrote the opinion,
Judge Wilkinson wrote a separate

ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro,
North Carolina, for Appellant.
Dan McCord Hartzog, CRANFILLSUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees.
ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte,
North Carolina, for Appellant.
Dan M. Hartzog, Jr., CRANFILLSUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J.
Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North
Carolina, for Appellees.

2

THACKER, Circuit Judge:
The Estate of Ronald H. Armstrong (“Appellant” whenreferring to the estate, or “Armstrong” when referring to the
decedent)
Villageappeals
of

an

order

Pinehurst,

grantingNorthsummary

Carolina,

judgmentandto

Lieutenant

the

Jerry

McDonald, Sergeant Tina Sheppard, and Officer Arthur Gatling,
Jr.,

of

districtthePinehurst

court

Appellant’s
executingdetermined

claim
an

Policethat

Department
that

Appellees

involuntary(“Appellees”).

qualifiedusedcommitment

The

immunity

excessiveorder,

bars

force

which

when

required

Armstrong’s immediate hospitalization.
Onreview,

we

hold

that

Appellees

usedunconstitutionally excessive force when seizing Armstrong, but
we, nevertheless, agree with the district court that Appellees
are entitled to qualified immunity.

We, therefore, affirm the

grant of summary judgment in Appellees’ favor on the grounds
explained below.
I.
We

review

judgment de novo.
Cir.

2011)

(en

the

district

court’s

grantofsummary

See Henry v. Purnell, 652 F.3d 524, 531 (4thbanc).

facts . . . establish

We“determine

the

de

deprivation

novo

whether

of

an

the

actualconstitutional right,” Leverette v. Bell, 247 F.3d 160, 166 (4thCir.

2001),

and“[w]ereview

de
3

novo

an

award

of

summary

judgment on the basis of qualified immunity,” Durham v. Horner,
690

F.3d

183,

appropriate

188

only

(4th

if

Cir.

taking2012).

the“Summary

evidenceandjudgment

allisreasonable

inferences drawn therefrom in the light most favorable to thenonmoving party, ‘no material facts are disputed and the moving
party is entitled to judgment as a matter of law.’”

Henry, 652

F.3d at 531 (quoting Ausherman v. Bank of Am. Corp., 352 F.3d
896, 899 (4th Cir. 2003)).
II.
A.
RonaldArmstrongparanoid schizophrenia.

sufferedfrombipolardisorderand

On April 23, 2011, he had been off his

prescribed medication for five days and was poking holes throughthe skin on his leg “to let the air out.”

J.A. 675. 1

Hissister,worried

his

Jinia

Armstrong

Lopez(“Lopez”),

bybehavior, convinced Armstrong to accompany her to Moore Regional
Hospital(“Hospital”)

inPinehurst,

North

Carolina.

Hewillingly went to the Hospital and checked in, but “[d]uring thecourse of the evaluation he apparently became frightened andeloped from the [emergency department].”
flightand

Lopez’sreport

about

1

his

odd

Id.

Based on thatbehavior

over

the

Citations to the “J.A.” refer to the Joint Appendix filedby the parties in this appeal.

4

previous week, the examining doctor judged Armstrong a danger tohimself and issued involuntary commitment papers to compel his
return.
himaArmstrong’s doctor could have, but did not, designate
dangertoothers,checking

only

the

box

that

reads

“[m]entally ill and dangerous to self” on the commitment form.
Id.
The Pinehurst police were called as soon as Armstrong
left the Hospital, and three members of the department -- allAppellees in this case -- responded in short order.

Officer

Gatling appeared on the scene first, followed a minute or twolater by Sergeant Sheppard.

Lieutenant McDonald arrived about

ten minutes after Sheppard.

Armstrong had not traveled far when

Gatling arrived.

He was located near an intersection near the

Hospital’s main entrance.
When the police arrived, Armstrong’s commitment order
had not yet been finalized. 2

Therefore, Gatling and Sheppard

engaged Armstrong in conversation.

By all accounts, the parties

were calm and cooperative at this point in time.

2

North Carolina law required that Armstrong’s involuntarycommitment order be certified in writing and notarized before it
took effect.
See N.C. Gen. Stat. § 122C-262(b).
Policeofficers are sometimes authorized to seize individuals toprevent them from harming themselves without a commitment orderin place, see id. § 122C-262(a), but Appellees did not go thatroute.
Rather, they rely solely on the involuntary commitment
order as authorization for their seizure of Armstrong.

5Armstrong was acting strangely, however.
Gatling

first

initiatedconversation,

Armstrong

When Officer
waswanderingacross an active roadway that intersects with the Hospital’s
driveway.

Gatling successfully convinced him to withdraw to therelative safety of the roadside, but Armstrong then proceeded toeat grass and dandelions, chew on a gauze-like substance, andput

cigarettes

out

on

his

tonguewhile

thepoliceofficers

waited for the commitment order.
As soon as they learned that the commitment papers
were complete, the three police officers surrounded and advanced
toward Armstrong -- who reacted by sitting down and wrapping
himself around a four-by-four post that was supporting a nearby
stop sign.

The officers tried to pry Armstrong’s arms and legs

off of the post, but he was wrapped too tightly and would notbudge.
Immediately following finalization of the involuntarycommitment order, in other words, Armstrong was seated on the
ground, anchored to the base of a stop sign post, in defiance of
theorder.

The

threepoliceofficers

at

the

scene

were

surrounding him, struggling to remove him from the post.

Lopez

was

Jack

in

the

immediatevicinity

as

well,

along

with

Blankenship and Johnny Verbal, two Hospital security officers.
So

Armstrongwas

encircledbysixpeople--three

Pinehurst

police officers tasked with returning him to the Hospital, two
6

Hospital

security

guardstaskedwithreturning

him

to

the

Hospital, and his sister, who was pleading with him to return to
the Hospital.
Appellees did not prolong this stalemate.

Nor didthey attempt to engage in further conversation with Armstrong.
Instead,justthirtyseconds

or

so

after

the

officers

told

Armstrong his commitment order was final, Lieutenant McDonald
instructed

Officer

Gatlingtoprepareto

tase

Armstrong.

Officer Gatling drew his taser, set it to “drive stun mode,” 3 andannounced that, if Armstrong did not let go of the post, hewould be tased.

That warning had no effect, so Gatling deployed

the taser -- five separate times over a period of approximately
two minutes. 4

Rather than have its desired effect, the tasing

actually increased Armstrong’s resistance.

3

Tasers generally have two modes. “In dart mode, a taser
shoots probes into a subject and overrides the central nervous
system.”Estate of Booker v. Gomez, 745 F.3d 405, 414 n.10
(10th Cir. 2014). Drive stun mode, on the other hand, “does notcause an override of the victim’s central nervous system”; thatmode “is used as a pain compliance tool with limited threat
reduction.” Id. (internal quotation marks omitted). Appellees’
expert confirmed that the drive stun mode on the TASER X26 ECD
that Officer Gatling was carrying is intended to be used forpain compliance rather than incapacitation.
4

The number of times Armstrong was tased is a disputed
fact.
But Lopez testified that she saw it happen five times,
and because summary judgment was granted in favor of Appellees,
this court must accept her version of the facts.
See Henry v.
Purnell, 652 F.3d 524, 527 (4th Cir. 2011) (en banc).

7

But shortly after the tasing ceased, Blankenship andVerbal jumped in to assist the three police officers trying topull Armstrong off of his post.

That group of five successfully

removed Armstrong and laid him facedown on the ground.
During the struggle, Armstrong complained that he was
being

choked.

Whilenowitnesssaw

thepoliceapply

anychokeholds, Lopez did see officers “pull[] his collar like they
were choking him” during the struggle.
With
restrained

Armstronghim.

separated

Lieutenant

J.A. 192.
from

McDonald

the
and

post,

Appellees

Sergeant

Sheppard

pinned Armstrong down by placing a knee on his back and standingon his back, respectively, while handcuffs were applied.

Buteven after being cuffed, Armstrong continued to kick at Sergeant
Sheppard, so the police shackled his legs too.
The

officers

then

stood

up

to

collect

themselves.

They left Armstrong facedown in the grass with his hands cuffedbehind his back and his legs shackled.
longer moving -- at all.

At this point, he was no

Lopez was the first to notice that her

brother was unresponsive, so she asked the officers to check on
Appellees did so immediately, 5 but Armstrong’s condition

him.

5

It is not clear exactly how long Armstrong was left
facedown on the ground after he had been secured.
But Lopez
conceded that it “happen[ed] pretty quickly really” and that theofficers responded “immediately” when asked to check on(Continued)
8

had already become dire.

When the officers flipped him over,

his skin had turned a bluish color and he did not appear to bebreathing.
Sergeant Sheppard and Lieutenant McDonald administered
CPR, and Lieutenant McDonald radioed dispatch to send Emergency
Medical Services (“EMS”).
tothe

Hospital’s

EMS responders transported Armstrong

emergency

department

whereattempts continued but were unsuccessful.
dead shortly after admission.

resuscitation

He was pronounced

According to the Pinehurst Police

Department’s summary of communications during the incident, just
six

and

Appellees

one-halfthat

minutes

Armstrong’s

elapsedbetweencommitment

dispatch

paperswereadvising
final

and

Appellees radioing for EMS.
B.
Based on the foregoing, Appellant filed a complaint in
the Superior Court of Moore County, North Carolina, on April 16,
2013.

Appellant

sued

each

policeofficer

involvedinArmstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging thatthe officers used excessive force, in violation of Armstrong’s

Armstrong. J.A. 241. Other witnesses estimated the time as “acouple of seconds” and “15 to 20 seconds.” Id. at 346, 446.

9

FourthandFourteenth

Amendmentrights,whenhim. 6seizing

Appellees removed the case to the United States District Court
for the Middle District of North Carolina on May 20, 2013.
The

district

Appelleeson

January

doubtful

that

the

violation

at

all,

court
27,

granted2015,

evidencebut

summaryreasoning,establishes

assuming

it

does,

judgment

“[i]t
a

is

to

highlyconstitutional

thedefendants

areentitled to qualified immunity.”

Estate of Ronald H. Armstrongv.

1:13-cv-407,

Villageof

Pinehurst,

No.

(M.D.N.C. Jan. 27, 2015) (citation omitted).

slip

op.

at

4

Appellant filed atimely notice of appeal on February 24, 2015.
III.
A.
“Qualified
constitutional
establishedviolations

law,were lawful.”immunity

could

protects

but

who,

reasonably

officersinbelievewho

commitlightofclearly

that

their

actions

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

6

Appellant’s complaint alleges additional causes of action
and names additional defendants.
But Appellant’s brief on
appeal presses only one claim: The officers attempting to
execute the involuntary commitment order used unconstitutionallyexcessive force.
“Failure to present or argue assignments oferror in opening appellate briefs constitutes a waiver of thoseissues,” IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d
303, 308 (4th Cir. 2003), so the excessive force claim is the
only matter that remains pending in this appeal.
See Fed. R.
App. P. 28(a)(8)(A).

102011) (en banc).

A “qualified immunity analysis,” therefore,“typically involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)whether that right was clearly established at the time of thealleged violation.”Cir. 2015).

Raub v. Campbell, 785 F.3d 876, 881 (4thThe court “may address these two questions in ‘theorder . . . that will best facilitate the fair and efficientdisposition(quotingofeach

Pearsoncase.’”

Id.

(alterationinoriginal)

Callahan,

555

U.S.

242

(2009)).

v.

223,

Appellant’s case survives summary judgment, however, only if weanswer both questions in the affirmative.

See Pearson, 555 U.S.

at 232.
In this case, we adhere to “the better approach toresolving cases in which the defense of qualified immunity israised,” that is, we “determine first whether the plaintiff has
allegedadeprivationofaconstitutional

right

at

all.”

Pearson, 555 U.S. at 232 (quoting Cnty. of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998)).

Though this sequence is “nolonger . . . regarded as mandatory,” it is “often beneficial,”and “is especially valuable with respect to questions that do
notfrequently

arise

in

defense is unavailable.”

cases

in

which

Id. at 236.

aqualifiedimmunity

Because excessive force

claims raise such questions, see Nancy Leong, Improving Rights,
100 Va. L. Rev. 377, 393 (2014) (“[E]xcessive force claims are11

litigated over 98% of the time in the civil context . . . .”),
we

exerciseourdiscretiontoaddress

theconstitutionalquestion presented by this appeal first.
B.
Our

initialinquiry,

then,

is

this:

“Takeninthelight most favorable to the party asserting the injury, do thefacts

allegedshow

theconstitutional right?”

officer’s

conduct

violatedaBrosseau v. Haugen, 543 U.S. 194, 197(2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201(2001)).

In this case, the answer is yes.

Viewed in the lightmost favorable to Appellant, the record before us establishes
that,

when

seizing

Armstrong,

Appellees

usedunreasonably

excessive force in violation of the Fourth Amendment.
A “claim that law enforcement officials used excessive
force in the course of making an arrest, investigatory stop, orother ‘seizure’ of [a] person” is “properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.”

Grahamv. Connor, 490 U.S. 386, 388 (1989); see also Scott v. Harris,
550 U.S. 372, 381 (2007).

“The test of reasonableness under the

FourthcapableAmendmentisnotmechanical application.”(1979).

ofprecisedefinition

orBell v. Wolfish, 441 U.S. 520, 559

But the Court has counseled that the test “requires acareful balancing of the nature and quality of the intrusion ontheindividual’s

FourthAmendment
12interests

againstthecountervailing governmental interests at stake.”

Smith v. Ray,781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at
396).

There are, moreover, three factors the Court enumerated

to guide this balancing.

First, we look to “the severity of thecrime at issue”; second, we examine the extent to which “thesuspect poses an immediate threat to the safety of the officers
or others”; and third, we consider “whether [the suspect] isactively

resistingarrestorattempting

to

evade

arrestbyflight.” Id. (alteration supplied) (quoting Graham, 490 U.S. at
396).

“To properly consider the reasonableness of the force

employed we must ‘view it in full context, with an eye toward
theproportionality

circumstances.’”

of

the

force

in

light

of

all

the

Id. (quoting Waterman v. Batton, 393 F.3d 471,

481 (4th Cir. 2005)).
1.
Here,

the

first

GrahamfactorfavorsAppellant.

Appellees have never suggested that Armstrong committed a crimeor that they had probable cause to effect a criminal arrest.
When the subject of a seizure “ha[s] not committed any crime,
this factor weighs heavily in [the subject’s] favor.”

Bailey v.

Kennedy, 349 F.3d 731, 743-44 (4th Cir. 2003); see also Turmon
v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005) (“[T]he severity of
the crime cannot be taken into account because there was no
crime.” (internal quotation marks omitted)).
13

And this factor

would still favor Appellant if Appellees had argued that their
seizure was converted to a criminal arrest when Armstrong failed
to obey the officers’ lawful orders.

“Even in a case in which

the plaintiff ha[s] committed a crime, when the offense [i]s aminor one, we have found that the first Graham factor weigh[s]in plaintiff’s favor . . . .”Jones v. Buchanan, 325 F.3d 520,

528 (4th Cir. 2003) (internal quotation marks omitted).
But we have also recognized that this first Grahamfactorisintended

officer

[had]

any

as

a

reason

proxy
to

for

believe

determining
that

[the

whethersubject

seizure] was a potentially dangerous individual.”
F.3d at 102.

“an
of

a

Smith, 781

And while Armstrong committed no crime, the legal

basis of his seizure did put Appellees on notice of two facts
that bear on the question of whether Appellees had reason tobelieve Armstrong was dangerous.
First,
order,

executedasthesubject

pursuant

to

of
N.C.

an

involuntary

Gen.

Stat.

Armstrong was necessarily considered “mentally ill.”
N.C. Gen. Stat. § 122C-261(a).

commitment§ 122C-262,
See also

Armstrong’s mental health wasthus one of the “facts and circumstances” that “a reasonableofficer on the scene” would ascertain.

Graham, 490 U.S. at 396.

And it is a fact that officers must account for when deciding
when and how to use force.

See Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“It cannot be forgotten
14that the police were confronting an individual whom they knew tobe mentally ill . . . .

The diminished capacity of an unarmed

detainee must be taken into account when assessing the amount offorce exerted.”).
tobeemployed“The problems posed by, and thus the tactics
against,anunarmed,emotionally

distraught

individual who is creating a disturbance or resisting arrest are
ordinarily

different

efforts

subdue

to

from

an

those

armed

involved

anddangerous

recently committed a serious offense.”
F.3d

805,

829

(9th

Cir.

2010)

in

law

enforcement

criminal

whohas

Bryan v. MacPherson, 630(alteration

omitted)(quoting

Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001)).
“[T]he use of force that may be justified by” the government’s
interest in seizing a mentally ill person, therefore, “differs
both in degree and in kind from the use of force that would bejustified against a person who has committed a crime or who
poses a threat to the community.”

Id.

Mental illness, of course, describes a broad spectrumof conditions and does not dictate the same police response inall situations.

But “in some circumstances at least,” it means

that

the

“increasing

situation.”
officers

and

use

of

force

may . . .

Deorle, 272 F.3d at 1283.
otherstrainedintheexacerbatetheAccordingly, “the use ofartofcounselingisordinarily advisable, where feasible, and may provide the bestmeans of ending a crisis.”Id.

And even when this ideal course15

is not feasible, officers who encounter an unarmed and minimallythreatening

individual

who

is

“exhibit[ing]conspicuous

signsthat he [i]s mentally unstable” must “de-escalate the situation
and adjust the application of force downward.”

Martin v. Cityof Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013).
The second relevant fact that Appellees could glean
from Armstrong’s commitment order is that a doctor determined
him

to

be

a

dangertohimself. 7

Where

a

seizure’ssolejustification is preventing harm to the subject of the seizure,
the government has little interest in using force to effect that
seizure.

Rather, using force likely to harm the subject is

manifestly contrary to the government’s interest in initiatingthat seizure.

See Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052, 1059 (9th Cir. 2003) (When “a mentally disturbed

7

Armstrong’s involuntary commitment order could have issued
in order “to prevent harm to self or others,” N.C. Gen. Stat.
§ 122C-262(a) (emphasis supplied), and it is not entirely clear
from the record whether reasonable officers at the scene would
have known that Armstrong had only been judged a danger tohimself or would have thought that a doctor may consider him adanger to others.
The officers did, however, speak to Wayne
Morton, the behavioral assessment nurse who assisted withpreparation of Armstrong’s commitment papers, prior to seizing
Armstrong.
In addition, the officers observed Armstrong forover 20 minutes before the involuntary commitment order was
issued.
During this period, Armstrong engaged in behavior
mildly harmful to himself, but he exhibited no risk of flight orrisk of harm to others.
Taking these facts in the light mostfavorable to Appellant, objectively reasonable officers would beaware of the basis underlying Armstrong’s commitment order.

16

individual not wanted for any crime . . . [i]s being taken into
custody to prevent injury to himself[,] [d]irectly causing [thatindividual]

grievous

injury

does

not

serve

th[e

officers’]

objective in any respect.”).
The first Graham factor thus weighs against impositionof force.
prevent

The government’s interest in seizing Armstrong was toamentally

ill

man

from

harming

himself.

Thejustification for the seizure, therefore, does not vindicate any
degree of force that risks substantial harm to the subject.
2.
The second and third Graham factors, whether Armstrong
threatened the safety of others and resisted seizure, do justify
some -- limited -- use of force, though.

Appellees had observed

Armstrong wandering into traffic with little regard for avoiding
the passing cars, and the seizure took place only a few feet
from

an

activeroadway.

Armstrong,moreover,

fled

from

Hospital earlier that day, although he did not go far.

the

Under

such circumstances, Appellees concerns that Armstrong may try toflee into the street to avoid being returned to the Hospital,
therebywereendangering

objectively

himself

andindividuals

reasonable.

Ainpassing

cars,

of

force

was,

the

degreeflight.

Whendegreeconsequently, justified.
Butreasonably

thatjustifiedcalculatedtodegreeprevent
17

of

force

Armstrong’s

isAppellees decided to begin using force, Armstrong, who stood
5’11”

tall

clinging

andweighed

262

to

a

post,

outnumberedandsurrounded

guards.

andpounds,wasrefusingbytopolicestationary,seated,

move.

He

was

also

officers

andsecurity

The degree of force necessary to prevent an individual

who is affirmatively refusing to move from fleeing is obviously
quite limited.
Armstrong was also resisting the seizure.

There is noquestion that, prior to being tased, Armstrong was refusing to
let go of the post he had wrapped himself around despite verbal
instruction to desist and a brief -- 30-second -- attempt tophysically

pull

him

off.

Noncompliancewith

lawfulordersjustifies some use of force, but the level of justified force
varies based on the risks posed by the resistance.
630

F.3d

at

830

(“‘Resistance,’

understoodasacompletely

passivebinarystate,

or

however,withshouldresistanceactive. . . . Even

See Bryan,
not

being

be

eitherpurelypassive

resistance can support the use of some force, but the level offorce an individual’s resistance will support is dependent on
the factual circumstances underlying that resistance.”)
here,

the

factualcircumstancesdemonstrate

little

risk

And,
--

Armstrong was stationary, non-violent, and surrounded by people
willing to help return him to the Hospital.

That Armstrong was

not

the

allowing

his

arms

to

be

pulled
18

from

post

and

was

refusing to comply with shouted orders to let go, while cause
for some concern, do not import much danger or urgency into asituation that was, in effect, a static impasse.
3.
When we turn “an eye toward the proportionality of theforce in light of all the[se] circumstances,’” Smith, 781 F.3d
at 101 (alteration and emphasis supplied) (quoting Waterman, 393
F.3d

at

481),

it

Appellees

chose

Appellees

wereexigencies

wherebecomestouse

evident
was

not

with

a

confronted
thedegree of force.

that

Grahamthelevelobjectively
situation

factors

justifyofforce

reasonable.

involving
only

a

few

limitedImmediately tasing a non-criminal, mentally

ill individual, who seconds before had been conversational, was
not a proportional response.
Deploying a taser is a serious use of force.
weaponisdesignedto“caus[e] . . .

excruciatingThe
pain,”

Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.
2010), and application can burn a subject’s flesh, see Orem v.
Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) abrogated on othergrounds

byWilkinsv.

Gaddy,

559

U.S.

34,

37

(2010);

cf.

Commonwealth v. Caetano, 26 N.E.3d 688, 692 (Mass. 2015) (“[W]econsider

the

stun

law.”).

We have observed that a taser “inflicts a painful andfrightening blow.”

gun

a

per

se

dangerous

weaponat

commonOrem, 523 F.3d at 448 (quoting Hickey v.
19

Reeder, 12 F.3d 754, 757 (8th Cir. 1993)).
madesimilarobservations. 8

See,

e.g.,

Other circuits have
EstateofBookerv.

Gomez, 745 F.3d 405, 414 n.9 (10th Cir. 2014) (“A taser delivers
electricity into a person’s body, causing severe pain.”); Abbott
v. Sangamon Cnty., 705 F.3d 706, 726 (7th Cir. 2013) (“Thiscourt has acknowledged that one need not have personally endured
a

taser

jolt

severalofintensepain

quotation

to

our

know
sisterinflicted

marks

the

pain

that

must

circuits

havetaser.”

byomitted));aBryan,

it,andlikewiserecognizedthe(internal

citations

and

630

accompany

F.3d

at

825

(“The

physiological effects, the high levels of pain, and foreseeablerisk of physical injury lead us to conclude that the X26 andsimilar devices are a greater intrusion than other non-lethal
methods of force we have confronted.”).

8

Officer Gatling deployed his taser in drive stun mode,
which is intended to cause pain but is not intended to cause
paralysis.
See supra n.3.
Our conclusions about the severityof taser use, however, would be the same had he used dart mode.
Dart mode, no less than drive stun mode, inflicts extreme pain.
See David A. Harris, Taser Use by Law Enforcement: Report of the
Use of Force Working Group of Allegheny County, Pennsylvania, 71
U. Pitt. L. Rev. 719, 726-27 (2010) (“I remember only one
coherent thought in my head while this was occurring: STOP!
STOP! GET THIS OFF ME!
Despite my strong desire to dosomething, all through the Taser exposure I was completely
paralyzed.
I could not move at all.” (emphasis in original)).
And the risk of injury is increased because a paralyzed subject
may be injured by the impact from falling to the ground.
See
Bryan, 630 F.3d at 824.
Taser use is severe and injurious
regardless of the mode to which the taser is set.

20

These observations about the severe pain inflicted bytasers apply when police officers utilize best practices.

The

taser use at issue in this case, however, contravenes current
industry and manufacturer recommendations.

Since at least 2011,

the Police Executive Research Forum (“PERF”) and the DepartmentofJustice’s

OfficeofCommunity

Oriented

Policing

Services(“COPS”) have cautioned that using drive stun mode “to achieve
pain compliance may have limited effectiveness and, when used
repeatedly, may even exacerbate the situation.”

PERF & COPS,

2011 Electronic Control Weapon Guidelines, at 14 (March 2011)(emphasis

omitted).

The

organizations,

therefore,

recommend

that police departments “carefully consider policy and training
regarding when and how personnel use the drive stun mode[] and .
. . discourage its use as a pain compliance tactic.”

Id.

In

2013,

of

the

moreover,

Taser

International,

themanufacturer

taser Appellees used in this case, warned, “Drive-stun use may
not be effective on emotionally disturbed persons or others who
may not respond to pain due to a mind-body disconnect.”

CherylW. Thompson & Mark Berman, Stun guns: ‘There was just too much
use,’

Wash.

Post,

Nov.

27,

2015,

at

A1.

Taser

users,

thewarning goes on, should “[a]void using repeated drive-stuns onsuch individuals if compliance is not achieved.”
companythatmanufactures

tasers,

in

other

Id.

words,

Even the
now

warns

against the precise type of taser use inflicted on Armstrong.
21Forcethat

imposessignificant circumscription.

seriousconsequences

requiresOur precedent, consequently, makes

clear that tasers are proportional force only when deployed in
responsetoasituation

in

which

a

reasonableofficer

wouldperceive some immediate danger that could be mitigated by usingthetaser.

In

defendant-officer’s
resistancetheresistanceposedadministered.

Meyersv.

taser

arrestee

Baltimore

deployments

a

the

level

of

danger

that

when

each

shock

was

See 713 F.3d 723, 733-34 (4th Cir. 2013).

The

officers--

onparsedthetheoffering

based

we

and

to

was

County,--“first three deployments of [the] taser did not amount to an
unreasonable or excessive use of force[] [because the arrestee]
was acting erratically, was holding a baseball bat that he did
not relinquish until after he received the second shock, and wasadvancing toward the officers . . . .”Id. at 733.

But sevenlater deployments of the taser did amount to excessive force:
It is an excessive and unreasonable use offorce for a police officer repeatedly toadminister electrical shocks with a taser on
an individual who no longer is armed, has
beenbroughttotheground,has
been
restrained
physicallybyseveralother
officers,
andnolongeris
actively
resisting arrest.
Id. at 734.

Immediate danger was thus key to our distinction --tasing the arrestee ceased being proportional force when the22

officer “continued to use his taser” after the arrestee “did notpose a continuing threat to the officers’ safety.”
In
Fourteenth

Orem

v.

Amendment

Rephann,test

rather

Id. at 733.

though

we

were

than

the

FourthapplyingaAmendment’s

objective reasonableness test, we rejected an officer’s argumentthat the taser deployment in question was intended to prevent anarrestee from endangering herself because the facts belied any
immediate danger.

See 523 F.3d at 447-49.

Rather, those facts-- that “Orem was handcuffed, weighed about 100 pounds, had herankles loosened in the hobbling device which Deputy Boyles wastightening,

and

was

locked

in

the

back

seat

cage

of

DeputyBoyles’s car until Deputy Rephann opened the door” -- indicatedthat “the taser gun was not used for a legitimate purpose[,]such as protecting the officers, protecting Orem, or preventing
Orem’s escape.”
taser

use

to

Id.

As in Meyers, then, we tied permissible

situations

thatpresent

some

exigency

thatissufficiently dangerous to justify the force.
Appellees understand these cases to proscribe tasing
when a subject has already been restrained but to sanction thepracticewhen

deployedagainstactiveresistance.

Since

Armstrong was unrestrained and actively resisting, they contend,
their taser use must be permissible.
We disagree.

While the questions whether an arrestee

has been restrained and is complying with police directives are,23

of course, relevant to any inquiry into the extent to which thearrestee “pose[s] a continuing threat to the officers’ safety,”
Meyers, 713 F.3d at 733, they are not dispositive.

A rulelimiting taser use to situations involving a proportional safety
threatdoes

notunrestrained

countenancearrestee,usethoughinsituations

resistant,presents

where
no

an

serioussafety threat.
Indeed, application of physical restraints cannot be
the

only

way

to

ensurethat

anarresteedoes

sufficient safety threat to justify a tasing.

not

pose

a

If it were, useof a taser would be justified at the outset of every lawful
seizure,beforeanarresteecourse,

is

the

law.

not

has

been

Courtsrestrained.

recognize

seizures present different risks of danger.

that

This,

of

different

See, e.g., Parker

v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (“Though driving while
intoxicated is a serious offense, it does not present a risk ofdangertothearrestingofficerthatispresented

when

an

officer confronts a suspect engaged in an offense like robberyor assault.”).

Firing a taser “almost immediately upon arrival”

at the scene of an altercation, before an officer “could . . .
have

known

what

was

constitutionally proscribed.

going

on,”

is,

consequently,

Casey v. City of Fed. Heights, 509

F.3d 1278, 1285 (10th Cir. 2007); see also id. at 1286 (“[I]t is
excessive to use a Taser to control a target without having any
24reason to believe that a lesser amount of force -- or a verbal
command -- could not exact compliance.”).

Painful, injurious,

serious inflictions of force, like the use of a taser, do not
become reasonable simply because officers have authorization toarrest a subject who is unrestrained.
Even
violent

noncompliancephysicalwithresistancedopolicenotnecessarily

continuing threat to the officers’ safety.”
733.

Examplesprevalent.

ofminimallyrisky

directives

and

non-

create“aMeyers, 713 F.3d at

physicalresistanceare

Refusing to enter an out-of-state officer’s police

car until a local officer is summoned is not a sufficient threat
tothearrestingarrestee.

officertojustifyphysicallystriking

theSee Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995).

Nor is an arrestee pulling her arm away when a police officer
attempts to grab her without explanation.
at 103.

See Smith, 781 F.3d

An arrestee “yank[ing] his arm away” from a police

officer, similarly, does not justify “being tackled.”

Goodsonv. City of Corpus Christi, 202 F.3d 730, 733, 740 (5th Cir.
2000).
Unsurprisingly,

then,

other

circuits

have

held

that

taser use can constitute excessive force when used in response
to non-violent resistance.

The subject of a seizure “refus[ing]to release his arms for handcuffing,” for example, “is no[t]evidence suggesting that [he] violently resisted the officers’
25

attempts to handcuff him.”

Cyrus v. Town of Mukwonago, 624 F.3d

856, 863 (7th Cir. 2010) (emphasis supplied).

Such a refusal,

therefore, does not justify deploying a taser when the subject“[i]s unarmed and there [i]s little risk [he] could access a
weapon,” according to the Seventh Circuit.
Ninth

Circuit

has

drawn

a

similar

Id.

conclusion:

The en bancAsuspect“actively resist[s] arrest [when] she refuse[s] to get out ofher car when instructed to do so and stiffen[s] her body andclutche[s] her steering wheel to frustrate the officers’ efforts
to remove her from her car,” but when she also “d[oes] not evadearrest by flight, and no other exigent circumstances exist[] atthetime[,] . . .

conclude . . .

that

[a]
the

reasonableofficers’usefact-finder
of

[a

could

taser]

unreasonable and therefore constitutionally excessive.”

Mattosv. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc).
Eighth Circuit agrees as well.

was

The

See Brown v. City of Golden

Valley, 574 F.3d 491, 497 (8th Cir. 2009) (refusal to terminate
a telephone call after police ordered an arrestee to do so does
not justify tasing even though the police officer was concernedthat the arrestee could use glass tumblers near her feet as
weapons or could kick the officer).
And this conclusion, that taser use is unreasonable
force in response to resistance that does not raise a risk of
immediate danger, is consistent with our treatment of police
26

officers’ more traditional tools of compliance.

We have denied

summary judgment on excessive force claims to an officer, who“punched[anarrestee][,]

threw

him

to

the

ground,”and,subsequently, “used a wrestling maneuver” on him, because there
was no “real evidence that [a] relatively passive, [mentally
delayed]manofficer.”
1994).

wasadangertothelarger,trainedpoliceRowland v. Perry, 41 F.3d 167, 172, 174 (4th Cir.

In doing so, we rejected the argument that such force

was a reasonable response to “the resistance offered by [thearrestee]duringresistance,theanyone else.”thestruggle,”arrestee“posedreasoning

that,

no

to

threatdespitethethisofficeror

Id. at 173-74.

We have similarly held that punching and throwing anarrestee to the ground because she “took only a single step backoff of the small stoop in front of the door” and “pulled her arm
away”

duringanattempted

Smith, 781 F.3d at 102-03.

handcuffing

wasexcessive

force.

This nominal resistance did notjustify the officer’s use of force where a reasonable officer at
the

scene

would

not

have

“any

reasontobelieve

that

[the

arrestee] was a potentially dangerous individual” or “was at all
inclined to cause [the officer] any harm.”

Id. at 102.

And we have treated pepper spray, a use of force thatcauses“closing

eyelids, . . .

of

the

immediateeyes

through

respiratory27

swellingoftheinflammation, . . .

and . . . immediate burning sensations,” similarly, having held
it excessive when used on an arrestee’s wife, who was sprinting
toward police officers to assist her husband upon seeing him
placed in handcuffs.

Park v. Shiflett, 250 F.3d 843, 848-49,

852 (4th Cir. 2001).

Though the officers at the scene thoughtrunning full-bore toward their detainee was basis to arrest the
wife

for

“disorderly

conduct[][and]obstruction

of

a

law

enforcement officer in the performance of his duties,” id. at
854

n.*

(Traxler,J.,

concurring

in

part

and

dissentinginpart), we rejected any notion that such behavior justified theapplication
Rather,ofpepperbecausespray,

“[i]t

see

[wa]s

id.

at

difficult852-83

(maj.

op.).

to

imaginetheunarmed [wife] as a threat to the officers or the public,” theofficers’ “irresponsible use of pepper spray twice from close
range . . . was indeed excessive.”

Id.

In all of these cases, we declined to equate conductthatapoliceofficercharacterizedasresistance

with

an

objective threat to safety entitling the officer to escalate
force.

Our precedent, then, leads to the conclusion that apoliceofficermaytaser,

when

objectively

an

only

use

serious

injurious

force,

likeareasonableofficerwouldconcludethat the circumstances present a risk of immediate danger that28

could be mitigated by the use of force.

At bottom, “physicalresistance” is not synonymous with “risk of immediate danger.” 9Therefore, in the case before us, Appellees’ use of
force

is

only

“proportional[] . . .

in

light

of

all

the

circumstances,” Smith, 781 F.3d at 101 (quoting Waterman, 393
F.3d

at

481),

if

Armstrong’s

resistanceraised

a

risk

of

immediate danger that outweighs the Graham factors militating
against harming Armstrong.

But when the facts are viewed in thelight most favorable to Appellant, they simply do not support
that conclusion.
Under these facts, when Officer Gatling deployed histaser, Armstrong was a mentally ill man being seized for his own
protection, was seated on the ground, was hugging a post toensure his immobility, was surrounded by three police officers

9

Graham’s test “requires careful attention to the facts andcircumstances of each particular case.”
Graham, 490 U.S. at
396. Our holding, therefore, does not rule out the possibility
that taser use could be justified in some cases where anarrestee’s non-compliance could be described as non-violent.
Such a situation would require the existence of facts from which
an officer could reasonably conclude that the resistancepresents
some
immediate
dangerdespiteits
non-violent
character.
See Casey v. City of Fed. Heights, 509 F.3d 1278,
1285 (10th Cir. 2007) (“While we do not rule out the possibility
that there might be circumstances in which the use of a Taser
against a nonviolent offender is appropriate, we think areasonable jury could decide that [a police officer] was notentitled under these circumstances to shoot first and ask
questions later.”).

29

and two Hospital security guards, 10 and had failed to submit to alawful seizure for only 30 seconds.

A reasonable officer would

have perceived a static stalemate with few, if any, exigencies - not an immediate danger so severe that the officer must beget
the exact harm the seizure was intended to avoid.
That Armstrong had already left the Hospital and wasacting strangely while the officers waited for the commitment
order to be finalized do not change this calculus.

If merely

acting strangely in such a circumstance served as a green lightto taser deployment, it would then be the rule rather than the
exception when law enforcement officials encounter the mentallyill.

That cannot be.

force,

any

threathad

By the time Appellees chose to inflict
sunk

to

its

nadir

--

Armstronghad

immobilized himself, ceased chewing on inedible substances, andceased burning himself.
excruciating

pain,”

Use of force designed to “caus[e] . . .

Cavanaugh,

625

F.3d

at

665,

in

these

circumstances is an unreasonably disproportionate response.
We are cognizant that courts ought not “undercut thenecessary element of judgment inherent in a constable’s attempts
to control a volatile chain of events.”
10

Brown v. Gilmore, 278

Indeed, it was not the deployment of the taser that
ultimately resulted in Armstrong’s removal from the post, butrather, the additional aid of the two security guards, whojumped in to assist the three police officers prying him off the
post.

30

F.3d 362, 369 (4th Cir. 2002).

And we certainly do not suggestthat Appellees had a constitutional duty to stand idly by andhope that Armstrong would change his mind and return to the
Hospital on his own accord.

But the facts of this case makeclear that our ruling does not hamper police officers’ ability
to do their jobs: Tasing Armstrong did not force him to succumbto Appellees’ seizure -- he actually increased his resistance in
response.

When

Appellees

stoppedtasingandenlistedthe

Hospital’s security guards to help pull Armstrong off of thepost, however, the group removed Armstrong and placed him in
restraints.

Had

Appellees

limitedthemselvestopermissible

uses of force when seizing Armstrong, they would have had every
tool

neededtocontrol

andresolvethesituation

at

their

disposal.
Appellees,

therefore,

are

not

entitled

tosummary

judgment on the question whether they violated the Constitution.
Viewing the record in the light most favorable to Appellant,
Appellees

usedexcessive

force,

inviolationoftheFourthAmendment. 11

11

We have reviewed Appellant’s additional theories ofexcessive force but have determined that they lack merit. Thosetheories are based on Appellees’ conduct while handcuffing andshackling
Armstrong.
Applying“justenoughweight”
toimmobilize an individual “continu[ing] to struggle” during
handcuffing is not excessive force. Estate of Phillips v. Cityof Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997).
Appellant(Continued)
31

C.
We, nevertheless, affirm the district court’s grant ofsummary judgment in Appellees’ favor because we conclude that
Appellees are entitled to qualified immunity.
Qualified immunity “shields government officials fromliability for civil damages, provided that their conduct does
notviolateclearly

establishedstatutoryor

constitutionalrights within the knowledge of a reasonable person.”
713

F.3d

at

“violat[ions

731.

Not

of]

clearly

all

constitutional

established . . .

Meyers,violations

areconstitutionalrights,” id., so “a plaintiff may prove that an official has
violated his rights, but an official [may still be] entitled toqualified immunity.”

Torchinsky v. Siwinski, 942 F.2d 257, 261(4th Cir. 1991).
Theinquiry

intowhetheraconstitutional

right

is

clearly established requires first that we define the precise
right into which we are inquiring.

Because “[t]he dispositive

concedes that Armstrong was resisting Appellees’ efforts torestrainhim,
that
Appellees
stoppedapplying
force
toArmstrong’s back when their restraints were secure, and that
Armstrong was left in the prone position for a very short periodof time after being restrained. Lopez, herself, even placed herfoot on Armstrong’s leg to assist Appellees’ efforts toimmobilize
Armstrongandapply
restraints.
In
those
circumstances, an officer at the scene could conclude that theforce used to hold Armstrong down and the length of time
Armstrong was left on the ground were objectively reasonable.

32

question is ‘whether the violative nature of particular conduct
is clearly established,’” Mullenix v. Luna, 136 S. Ct. 305, 308(2015) (per curiam) (emphasis in original) (quoting Ashcroft v.
al-Kidd,

563

U.S.

731,

742

(2011)),

courtsmust“not . . .

define clearly established law at a high level of generality,”
al-Kidd, 563 U.S. at 742.
After
clearlydefining

theright,

at

the

time

standardwhenitestablishedsatisfies

this

we

ask

Appelleesiswhether
acted.

“sufficiently

it

was

A

right

clear

that

every reasonable official would have understood that what he isdoingviolatesthatright.”

Mullenix,

136

S.

Ct.

at

308

(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
“This
protected

by

is

not

qualifiedtosay

immunitythat

anunlessofficial

actionistheactioninveryquestion has previously been held unlawful, but it is to saythat in the light of pre-existing law the unlawfulness must be
apparent.”

Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“[O]fficials

can . . . be on notice that their conduct violates establishedlaw even in novel factual circumstances.”
U.S. 730, 741 (2002).

Hope v. Pelzer, 536

But they must, in fact, have notice inorder to be held liable.
The constitutional right in question in the present
case, defined with regard for Appellees’ particular violative
33

conduct,isArmstrong’s

right

not

to

be

subjected

totasingwhile offering stationary and non-violent resistance to a lawful
seizure.

Cf. Hagans v. Franklin Cnty. Sheriff’s Office, 695

F.3d 505, 509 (6th Cir. 2012) (“Defined at the appropriate levelof generality -- a reasonably particularized one -- the questionat hand is whether it was clearly established in May 2007 thatusing a taser repeatedly on a suspect actively resisting arrest
and refusing to be handcuffed amounted to excessive force.”).
While

our

precedent

supports

ourconclusion

thatAppellees

violated that right when seizing Armstrong, we acknowledge that
this conclusion was not so settled at the time they acted suchthat“everyreasonableofficialwould

tasing Armstrong was unconstitutional.

have

understoodthat”

Mullenix, 136 S. Ct. at

308 (quoting Reichle, 132 S. Ct. at 2093).
To

be

sure,

substantial

case

law

indicated

Appellees were treading close to the constitutional line.

that
As

discussed, we have previously held that tasing suspects after
they have been secured, see Meyers, 713 F.3d at 734; 12 Bailey,

12

Meyers v. Baltimore County was decided after Appellees’
conduct in the instant case, but Meyers did not clearly
establish any right for the first time.
Rather in Meyers, wefound that the officer in question violated a right that had
been clearly established since, at least, Bailey v. Kennedy,
which was decided in 2003.
See Meyers, 713 F.3d at 734-35(citing Bailey, 349 F.3d at 744-45).
Appellees in the instantcase, therefore, were on notice that tasing an individual who(Continued)
34

349

F.3d

suspects

atin

744-45,
response

and
to

that

punching

minimal,or

non-violent

pepperspraying

resistance,

see

Park, 250 F.3d at 849-53; Rowland, 41 F.3d at 172-74, constituteexcessive force.
These

cases,

however,aresusceptible

toreadings

which would not extend to the situation Appellees faced when
seizing Armstrong.

Unlike in Meyers and Bailey, Appellees did

not

force

continue

using

after

Armstrongwassecured.

Meyers, 713 F.3d at 734; Bailey, 349 F.3d at 744.

See

And unlike inPark and Rowland, Appellant does not contend the officers inquestion

initiatedtheexcessiveforce

opportunity to cease any noncompliance.
848; Rowland, 41 F.3d at 171-72.

without

warningor

See Park, 250 F.3d at

It would not necessarily havebeen clear to every reasonable officer that those cases applied
to force inflicted after warning an individual exhibiting nonviolent

resistancetodesistanddiscontinued

beforethat

individual was secured.
A survey of other circuits’ case law confirms that
Appellees did not have sufficiently clear guidance to forfeit
qualified immunity.

Again, there were many decisions that ought

to have given Appellees pause.

See Bryan, 630 F.3d at 826-27“wasunarmedandeffectively
unconstitutional. Id. at 735.

35

was

secured”

isclearly(taser use against individual exhibiting “unusual behavior” and“shoutinggibberish[]stationary . . .,and . . .

[and]facingexpletives”

who

was

away

an

officer

from“unarmed,atadistance of fifteen to twenty-five feet” constitutes excessive
force); Cyrus, 624 F.3d at 863 (taser use when misdemeanant wasnotviolent

and

did

not

try

to

flee

but

resistedbeing

handcuffed constitutes excessive force); Brown, 574 F.3d at 499(“[I]twas

unlawful

to

Taser

a

nonviolent,suspected

misdemeanant who was not fleeing or resisting arrest, who posed
littletonothreattoanyone’ssafety,

and

whose

only

noncompliance with the officer’s commands was to disobey twoorders to end her phone call to a 911 operator.”)
But
Appellees’
Circuitotherdecision

held,arrest . . .

“use

was

cases

could

to

a

of

use

be

[a]

taser.
taser

reasonably

construedtosanctionIn

theEleventhgun

proportionate

2004,
to
to

effectuate
the

[an]

difficult,tense and uncertain situation” faced by a police officer when anarrestee“usedagitation, . . .
refusedtoprofanity,yelledcomply

at

moved
[the

with . . .

aroundand

paced

officer],”and“repeatedly

verbalcommands.”

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)).

Draperinv.

When reviewing

the law as of 2007, moreover, the Sixth Circuit found, “[c]ases
from this circuit and others, before and after May 2007, adhere
to this line: If a suspect actively resists arrest and refuses36

to be handcuffed, officers do not violate the Fourth Amendment
by using a taser to subdue him.”

Hagans, 695 F.3d at 509.

The

Hagans court proceeded to provide examples in which the Sixth
Circuit had held tasing reasonable simply because “[t]he suspectrefused to be handcuffed” or “the suspect . . . refused to movehis arms from under his body.”

Id.

have

sometimes

permissible

tasingbasedondistinguishedfacts

establishing

Other circuits, in short,barethan facts establishing a risk of danger.

andimpermissible

noncompliancerather

Because Armstrong was

not complying with Appellees’ commands, these cases negate theexistence of any “consensus of cases of persuasive authority”
across our sister circuits “such that a reasonable officer could
not have believed that his actions were lawful.”

Wilson, 526

U.S. at 617.
We conclude, therefore, that Armstrong’s right not tobe tased while offering stationary and non-violent resistance toa lawful seizure was not clearly established on April 23, 2011.
Indeed, two months after Appellees’ conduct in this case, one of
our colleagues wrote, “the objective reasonableness of the useofTaserscontinues

to

pose

difficultenforcement agencies and courts alike. . . .
still

evolvingisillustrated

immunity for that very reason.’”

37

in

cases

challenges

to

law

‘That the law is
granting

qualifiedHenry, 652 F.3d at 539-40

(Davis, J., concurring) (quoting McKenney v. Harrison, 635 F.3d
354, 362 (8th Cir. 2011) (Murphy, J., concurring)).
D.
This

ought

indefinitely though.
rule[s]”remainanevolving

field

of

law

“Without merits adjudication, the legal

governing“remain unclear.”notevolvingfieldsofconstitutionallaw

John C. Jeffries, Jr., Reversing the Order ofBattle in Constitutional Torts, 2009 Sup. Ct. Rev. 115, 120.
“What may not be quite so obvious, but is in fact far more
important, is the degradation of constitutional rights that may
result when . . . constitutional tort claims are resolved solely
on grounds of qualified immunity.”

Id.

This degradation ismost pernicious to rights that are rarely litigated outside thecontextof§ 1983

actions

subject

toqualifiedimmunity--rights like the Fourth Amendment protection against excessive
force at issue here.

See id. at 135-36.

“For [such rights],

the repeated invocation of qualified immunity will reduce themeaning of the Constitution to the lowest plausible conceptionof its content.”

Id. at 120.

Rather than accept this deteriorative creep, we intend
this

opiniontoclarify

when

taser

use

force in, at least, some circumstances.

amounts

toexcessive

A taser, like “a gun, abaton, . . . or other weapon,”

Meyers, 713 F.3d at 735, is

expected

injurytoinflict

pain

or
38

when

deployed.

It,therefore,

may

only

be

deployedwhenapoliceofficerisconfronted with an exigency that creates an immediate safety
risk and that is reasonably likely to be cured by using thetaser.

The subject of a seizure does not create such a risk

simply because he is doing something that can be characterized
as resistance -- even when that resistance includes physically
preventing

anofficer’s

manipulations

of

his

body.

Erratic

behavior and mental illness do not necessarily create a safety
risk either.

To the contrary, when a seizure is intended solely

to prevent a mentally ill individual from harming himself, theofficer

effectingtheseizurehasalessenedinterest

in

deploying potentially harmful force.
Where, during the course of seizing an out-numberedmentally ill individual who is a danger only to himself, police
officers choose to deploy a taser in the face of stationary andnon-violent resistance to being handcuffed, those officers use
unreasonably excessive force.

While qualified immunity shields

the

from

officers

in

this

case

liability,law

enforcement

officers should now be on notice that such taser use violates
the Fourth Amendment.
IV.
For

the

foregoingreasons,thejudgmentof

thedistrict court is
AFFIRMED.
39

WILKINSON, Circuit Judge, concurring in part:I am happy to concur in the judgment of affirmance and inPart III.C of the majority opinion. Having resolved the case byproperly awarding judgment to defendants on qualified immunity
grounds, the majority had no need to opine on the merits of theexcessive force claim. In fact, it runs serious risks in doingso.
This was a close case, the very kind of dispute in which
judicial hindsight should not displace the officers’ judgmental
calls.

Idonotcontendthat

theofficers’

behaviorwas

impeccable here, but I do believe, with the district court, that
it was not the kind of action that merited an award of monetarydamages.
I.
These are difficult situations. It is undisputed that on
April 23, 2011, Armstrong had been off his medications for days
and was in an unpredictable and erratic state. J.A. 210-19. It
is undisputed that by the time Officer Sheppard arrived at thescene,

Armstrongwas

engagedinself-destructive

behavior--

eating grass, dandelions, and gauze, and burning his arms andtongue with cigarettes. Id. at 507-08. It is undisputed that thepoliceobtainedaninvoluntarycommitment

order

to

bring

Armstrong back to the hospital. Id. at 534. It is undisputedthat Armstrong did not want to return to the hospital despitehis sister’s pleas to stop resisting authorities. Id. at 231. It
is undisputed that Armstrong was a strong man, and weighed about
260 pounds. Id. at 297-98, 411. It is undisputed that before theofficers

ultimately

detained

Armstrong

they

did

not

have

an

opportunity

to

frisk

him

for

weapons.

Id.

at

464.

It

is

undisputed

that

the

sign

post

Armstronggripped

was

near

a

trafficked intersection. Id. at 461. It is undisputed that theofficers“hadobserved

Armstrongwanderinginto

traffic

withlittle regard for avoiding the passing cars and the seizure took
place only a few feet from an active roadway.” Maj. Op. at 17.
It is undisputed that the officers applied graduated levels of
force -- first verbal commands and then a “soft hands” approach-- prior to Officer Gatling’s use of his Taser. J.A. 514. It is
undisputed that Armstrong tried to kick the officers as they put
handcuffs

on

his

legs.

Id.

at

573.

“The

calculusof

reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments -- incircumstances that are tense, uncertain, and rapidly evolving -about the amount of force that is necessary in a particularsituation” Graham v. Connor, 490 U.S. 386, 396-97 (1989). That
pretty much describes the situation here.

41

II.
Havingthoughtfully

grounds, *immunitytheresolvedmajority

theappeallaunchesonqualifiedanextended

into

discussion on the merits of the excessive force claim. This is
so unnecessary. Sometimes it is best for courts not to write
large upon the world but to discharge our simple rustic duty to
decide the case.
The(2009),

Supreme

Court

gave

the

us

in

Pearsondiscretion

tov.

Callahan,

do

just

555

that.

U.S.

223

Pearsonisadmittedly a decision with a bit of back and forth, but its
salient contribution was to liberate the lower federal courts
from the onerous shackles of the Saucier v. Katz regime andallow them to proceed directly to a qualified immunity analysis
without addressing the merits first. In this regard, Pearson
recognizedtheforemost

dutyofcourtstoresolve

cases

and

controversies. Id. at 242. That, at least, is what Article III
established us to do.
In

fact,

proceeding

in

such

a

manner

is

often

the

preferable course. The majority says it must go further in order*

Normally, “clearly established” law is found by looking toSupreme Court cases and the cases in the circuit in which theofficers are located. See Marshall v. Rodgers, __ U.S. __, 133
S.Ct. 1446, 1450 (2013). My good colleagues range somewhat
further afield here, but I think doing so in this case in no way
affected the outcome.

42

to provide clarity in future cases, Maj. Op. at 38-39, but thatclarityis

often

illusory.

tomorrow’s

facts

and

Today’sprescription

circumstances.

Our

may

rathernot

fit

abstract

pronouncements in one case may be of little assistance with therealities and particulars of another.
As the Supreme Court noted, “the rigid Saucier procedure
comes

with

a

substantial

price.

The

expenditureprocedureofscarcesometimes

results

injudicial

resourcesaondifficult questions that have no effect on the outcome of thecase. There are cases in which it is plain that a constitutionalright is not clearly established but far from obvious whether infact there is such a right.” Pearson, 555 U.S. at 236-37. So I
would respectfully prefer not to get into the first prong of the
Saucier analysis here. It is “far from obvious,” to use the
Court’s

term,“[a]dditional

that

the

reasonable

trial

force

court’swasconclusion

appropriate

under

that
these

circumstances” was unsound. J.A. 767.
Clarity is arguably most difficult to achieve in Fourth
Amendment cases because bright-line rules at most imperfectly
take account of the slight shifts in real-life situations that
can

alter

what

are

inescapably

close

judgment

calls.

As

Supreme Court noted,
Although the first prong of the Saucier procedure isintended to further the development of constitutional
precedent, opinions following that procedure often
43

thefail to make a meaningful contribution to suchdevelopment. For one thing, there are cases in which
the constitutional question is so factbound that thedecision provides little guidance for future cases.
See Scott v. Harris, 550 U.S. 372, 388 (2007) (BREYER,
J., concurring) (counseling against the Saucier twostep protocol where the question is “so fact dependentthat the result will be confusion rather thanclarity”); Buchanan v. Maine, 469 F.3d 158, 168 (C.A.1
2006) (“We do not think the law elaboration purpose
will be well served here, where the Fourth Amendment
inquiry involves a reasonableness question which ishighly idiosyncratic and heavily dependent on thefacts”).
Pearson, 555 U.S. at 237.
My fine colleagues in the majority have done as good a job
as

can

be

expected

given

the

circumstances.

But

the

very

exemplary quality of the effort serves to illustrate the perilsof the enterprise. The majority notes “that different seizures
present different risks of danger,” Maj. Op. at 24, but fails torecognize that the spectrum of risk presented cannot be easily
sketched by an appellate court. It is hard to disagree with the
majority’s

highlygeneralized

assertion

that

Taser

use

is

unwarranted “where an unrestrained arrestee, though resistant,presents

noserioussafetythreat.”

Id.

But

of

course,what

conduct qualifies as “resistant,” and what rises to the level ofa “serious safety threat” is once again dependent on the actual
and infinitely variable facts and circumstances that confront
officers on their beat.

44

Tasers came into widespread use for a reason. They were
thought preferable to far cruder forms of force such as canines,
sprays, batons, and choke-holds, and it was hoped that their use
would

make

the

deploymentoflethalforce

unnecessaryoratleast a very last resort. None of this of course justifies theirpromiscuous use. The majority “tie[s] permissible taser use tosituations

thatpresent

some

exigency

thatissufficiently

dangerous to justify the force.” Maj. Op. at 23. But with allduerespect,

that

abstract

formulation

will

be

of

less

than

limited help to officers wondering what exactly they may and may
not do.
We are told further that the officers, though armed with acivilcommitment

order,

donotpossessthesame

degreeoflatitude with regard to a mentally ill person as with someone
whom there is reason to believe has committed a crime. Id. at
14-15.

All“[m]ental

well

and

illness,

of

good,

but

course,themajority

describes

a

then

broad

notes

that

spectrumofconditions and does not dictate the same police response in all
situations.”
appellate

Id.

at

15.

Again,

whatmay

nostrum

isoflimitedutility

to

seem

a

those

comforting
faced

with

volatile situations far removed from the peaceful confines ofappellate chambers. The majority goes on to note that “in somecircumstances
exacerbate

.

the

.

.

increasing

situation.”

the

Id.
45

use

of

(internal

force

may

quotation

.

.

.

marks

omitted). But what those circumstances are neither my colleagues
nor I can really say.
I finally cannot agree that the plaintiff here posed noreal danger. He certainly posed a danger to himself having been
off medication and engaging in self-destructive behaviors to the
point

that

his

sisterwaspleadingforherbrother’s

promptreturn to the hospital where he might receive some help. As forthe danger to others, it was hardly unlikely that the plaintiff,asizeableandunrestrained

individual,

would

bolt

into

the

street and cause a traumatic accident for motorists who, if notthemselves

injured,would

regrettheharm

inflicted

on

this

pedestrian for years to come. I say this not to contend that thecase was easy, but that it was hard. The district court rightly
recognized that its intrinsic difficulty afforded no reason todeliver these officers an unnecessary rebuke.
III.
The

majority

has

left

approach

to

this

case

is

majorityofmentally

ill

it

not

all

up

without

persons

pose

in

the

air.

And

consequence.

The

no

dangerserious

its

great
to

themselves or others and the challenge of society is to help
these good people lead more satisfying lives. A smaller subsetof the mentally ill do pose the greatest sort of danger, notonly to themselves but to large numbers of people as the stringof mass shootings in this country will attest.
46

It is difficult sometimes for even seasoned professionals
to predict which is which, not to mention officers and otherswith more limited training. And yet it is important in this areathat law not lose its preventive aspect. It can be heartbreaking
to wait until the damage is done. Delivering vague proclamations
about do’s and don’ts runs the risk of incentivizing officers totake no action, and in doing so to leave individuals and theirprospective victims to their unhappy fates. Law enforcement will
learn

soon

actionable.

enough
See

that

sins

of

omission

Deshaneyv.

Winnebago

are

Cty.

generally

Dep’t

of

not

SocialServices, 489 U.S. 189 (1989). And in the face of nebulae fromthecourts,thenaturalhumanreaction

will

be

to

desist.

Perhaps this is what we mean to achieve, but over-deterrence
carries its own risks, namely that those who badly need help
will receive no help, and we shall be the poorer for it.

47