Police officers arrived at a gym on a noise complaint. The gym owner expressed his displeasure at the officers’ presence. As they started to detain him, he went back into his gym and told the officers they could not enter. But they did enter and tased him and took him to the ground, and arrested him. Here’s the issue. The Fourth Amendment does not allow police to go inside your home and arrest you without a warrant. But what about your business? Did they need a warrant under the Fourth Amendment to arrest this gym owner?
Body cam footage submitted by Janet, of Union County, Illinois, shows her son, who suffered from meth-induced mental illness, being tased by police officers. Imagine parents calling 911 for an ambulance, and instead, police officers, aware that they have a warrant for the son, show up instead, and without an ambulance. Instead of medical treatment, the use force.
Jacob Anderson’s father called 911 seeking an ambulance for his son, who was suffering a mental illness emergency due to his meth addiction. An ambulance never arrived however. But several police officers did arrive, including Deputy Schildknecht, who turned on his body cam after arriving at the Anderson home. According to his report, he noted that he received a report that Jacob was having a mental health crisis, described as psychotic, and that an ambulance was needed. He then wrote, “I also knew that Jacob had a felony warrant . . . as well as history of running away naked from help when we arrived.” Upon arriving, the deputy made contact with Jacob’s parents, who indicated that Jacob was inside the residence, and appear to have let them in.
Deputy Schildknecht wrote in his report, “As I approached the door I could hear a male yelling. I then withdrew my taser and knocked on the door. I then heard the male yell “come on through, I’m going to the side door.” “As I walked through the residence and came the side door, Jacob saw me, turned and began to run away from me. “At this point i raised and fired my taser at him as he ran away.” “I was unable to issue a warning to him because the situation evolved so quickly.”
The deputy wrote that he “allowed the taser to run for the five second cycle until Sheriff Harvel and Chief Wilkins could get there to assist.”
This offers a good example of what I would classify as controversial use of a taser: against someone who poses no threat, but is merely starting to run away, and doing so immediately without explanation or warning. Let’s take a look at the footage, and then we’ll go into the law on tasering unarmed suspects in Union County, Illinois, which is the 7th Circuit.
Here’s the relevant portion of raw footage that Youtube won’t let me show without restricting the video:
He also mentioned in his report that, “After the arrest of Jacob, I realized he broke my Oakley Mercenary sunglasses [he] had been wearing…” He attached a photo of them, noting that he paid approximately $140.00 for them two years ago.
to protect the officer or others from reasonably perceived immediate threat of physical harm from the person to be exposed to the ECW;
to restrain or subdue an individual who is actively resisting or evading arrest; or
to bring an unlawful situation safely and effectively under control.
Should not be used:
on individuals who passively resist and are not reasonably perceived as an immediate threat or flight risk;
on individuals in restraints, except as objectively reasonable to prevent their escape or prevent imminent bodily injury to the individual, the officer, or another person;
however, in these situations, only the minimal amount of force necessary to control the situation shall be used;
when the officer has a reasonable belief that deployment may cause serious injury or death from situational hazards including falling, drowning, or igniting a potentially explosive or flammable material or substance, except when deadly force would be justified;
when the suspect’s movement or body positioning prevents the officer from aiming or maintaining appropriate body part targeting unless the risk of increased injury to the suspect is justified because of a perceived threat or flight risk.
Union County, Illinois is in the 7th federal circuit, which has quite a few published cases on when taser usage is considered excessive. Lewis v. Downey(7th Cir. 2009) held that the tasing of a jail inmate with no warning who wasn’t threatening the officer would be excessive, and ultimately categorized tasers as an intermediate level of force that is designed to cause severe pain. The Court noted that Courts generally hold that the use of a taser against an actively resisting suspect either does not violate clearly established law or is constitutionally reasonable. Thus, “actively resisting” may, or may not be sufficient justification for police to use a taser on a suspect.
But, what about active resistance from someone known to be mentally ill, who is not actively threatening anyone, but merely trying to run away?
In the 9th Circuit opinion in Bryan v. Mcpherson, the Court warned that, “The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.” “[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 be justified against a person who has committed a crime or who poses a threat to the community.” Bryan v. MacPherson(9th Cir. 2010).
The 7th Circuit has cited the 4th Circuit published opinion in Estate of Armstrong v. Pineville, which held that, “Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force.” Estate of Armstrong v. Vill. of Pinehurst (4th Cir. 2016).
Utilizing the Graham Factors, we can skip to the most important Graham Factor, whether the suspect poses an immediate threat to the safety of the officers, or anyone else at the scene. The video proves conclusively that there was no safety threat posed to any individual. He was running away and clearly wasn’t holding a weapon. Nor was he threatening anyone. Reviewing the deputy’s report, he admits that he tased Jacob in the back as Jacob turned to run away. He mentions no immediate safety threat as his basis for the use of force.
Now the second Graham Factor is met to some extent for the officers. He was actively evading them. However, they had not announced their presence, nor the reason for their presence. They had not identified themselves, or mentioned that they had a warrant. They pretty much instantaneously encountered him and then tased him. Was merely running away from the sight of law enforcement sufficient to constitute “active resistance” sufficient for a 5 second shock from the deputy’s taser?
Let’s look at the first and final Graham factor, the severity of the crime. There’s no allegation that Jacob had committed a crime. But he apparently did have an outstanding unnamed felony warrant. The officer’s report doesn’t mention any serious crime Jacob was alleged to have committed so as to necessitate an immediate tasing. Moreover, the reports also indicate that the officer was well aware of the fact that Jacob was suffering from a mental illness episode. Thus, the courts expect the officer to take that knowledge into account when deciding whether to tase Jacob, as opposed to tasing first, and asking questions later.