by Christopher Dunn — Last June a report commissioned by the NYPD to examine police shooting practices recommended that the Department substantially expand its use of electricity-conducting guns known as “tasers.” The controversial nature of this recommendation hit home last month when an NYPD officer fired a taser at a naked man standing on the elevated housing of a building grate, causing him to fall to his death and leading to the tragic suicide of the NYPD lieutenant who ordered the taser’s use. Though law-enforcement officials have used tasers for more than two decades, neither the Supreme Court nor the Second Circuit has ever addressed constitutional restrictions on the use of these weapons (though the Supreme Court long ago endorsed the government’s ultimate use of electricity against people -- the electric chair ). A few other federal appeals courts, however, have considered this issue, and the recent events involving the NYPD warrant an examination of their views of tasers and the Constitution. Background Information A taser is a device that seeks to incapacitate a person through application of high-voltage electrical current. Though the specific design of this weapon is evolving, the general concept of the taser is as set out by the Sixth Circuit: The term “taser” refers to an electronic device used to subdue violent or aggressive persons. It is classified as a firearm by the federal government. The taser is a battery-charged unit approximately the size and appearance of a flashlight. It holds two cartridges, each containing a hooked barb, or dart, attached to the cartridge by a long, electricity-conducting wire. Each dart can be fired independently by depressing the corresponding lever located on the frame of the Taser. By continuing to press on the lever, a high voltage electrical current is transmitted through the wire to the target. According to a recent Amnesty International report, more than 250 people in this country have died after being struck by police tasers since 2001. There is considerable debate about the role the taser has played in these deaths. The potentially lethal nature of tasers, combined with their increasing use by law-enforcement authorities, assures that tasers will become a staple of civil rights litigation. While the Supreme Court and the Second Circuit have yet to confront tasers, a few other federal appeals courts have decided taser challenges under the Fourth Amendment, Fourteenth Amendment and Eighth Amendment involving, respectively, civilians, arrestees and prisoners. The results so far are not encouraging. Unreasonable Force Claims for Civilians One of the few federal appellate decisions addressing Fourth Amendment limits on the use of tasers on those not in police custody is Draper v. Reynolds, a 2004 decision from the Eleventh Circuit. The plaintiff Stacy Draper was a truck driver who a Georgia county deputy sheriff pulled over because the truck’s license plate “was not appropriately illuminated under Georgia law.” After the officer approached from the passenger side of the truck and shone a flashlight into the cab, Draper became agitated, exited the truck, and ended up along with the deputy in view of the camera mounted on the dashboard of the deputy’s cruiser. The deputy then unholstered a taser gun. From this point forward, the two engaged in a running and heated exchange, with Draper at one point saying, “How ‘bout you just go ahead and take me to fucking jail, then, man, you know, because I’m not going to kiss your damn ass because you’re a police officer.” The two continued to tussle verbally over the deputy’s demand that Draper produce various documents and, after a fifth request for the documents, the deputy “promptly discharged his taser gun at Draper’s chest,” at which point the truck driver “fell to the ground out of the police camera’s view.” Draper sued. In analyzing his claim challenging use of the taser, the Eleventh Circuit recognized that, pursuant to the Supreme Court’s seminal decision in Graham v. Connor, the Fourth Amendment’s freedom from unreasonable searches and seizure encompasses “the plain right to be free from the use of excessive force in the course of an arrest.” Whether this right is violated requires a court to look at the totality of the circumstances to determine whether the manner of the arrest was reasonable. In determining if force was reasonable, courts must examine (1) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted. It is well settled that the right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Moreover, the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation. Applying these standards, the Eleventh Circuit concluded that the deputy’s use of the taser gun was not unconstitutional because it was “reasonably proportionate to the difficult, tense and uncertain situation” he faced. And in rejecting the Fourth Amendment claim, the court minimized the threat of tasers: “Although being struck by a taser gun is an unpleasant experience, the amount of force [the deputy] used -- a single use of the taser causing a one-time shocking -- was reasonably proportionate to the need for force and did not inflict any serious injury.” “Wanton Pain and Suffering” of Arrestees Beyond Fourth Amendment constraints on taser use are those imposed by the Fourteenth Amendment’s due process clause. The only reported Court of Appeals addressing such a claim is Orem v. Rephann, decided by the Fourth Circuit last May. The plaintiff Sonja Orem, a West Virginia woman, was arrested after reacting hostilely to having been served with an order of protection that barred her from contact with her son for six months. A police officer handcuffed her, placed her in the caged back seat of his cruiser, and then secured her with a foot restraint device, which was designed to prevent her from moving about. Notwithstanding this, Orem continued her tirade against the officer, banged her head against the cruiser’s window, and lurched about so as to rock the car. The deputy then pulled the car over to calm Orem and resecure the restraints when a deputy in a separate car arrived and approached the rear of the vehicle with his taser drawn. Following a heated exchange between this deputy and Orem, the deputy “shocked Orem twice with a taser gun – underneath her left breast and on her left inner thigh. Orem then became compliant and was transported ... without further incident.” In analyzing the excessive-force claim Orem asserted in a subsequent civil suit, the Fourth Circuit first stated that the claim did not arise under the Fourth Amendment since the court had earlier ruled that that amendment’s protections do not extend to arrestees or pretrial detainees. Rather, according to the court, such individuals are limited to claims under the due process clause of the Fourteenth Amendment. And to succeed on such a claim, the plaintiff must show that the officer inflicted unnecessary and wanton pain and suffering. In determining whether this constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain and restore discipline or maliciously or sadistically for the very purpose of causing harm. Though this is a very rigorous standard, the Fourth Circuit found it had been met. In doing so, the court emphasized that the transporting officer had not sought the deputy’s assistance, that the deputy seemingly applied the taser in reaction to Ms. Orem having cursed him, that the taser’s use did not adhere to the sheriff office’s taser policy, and that application of the taser to an area below Orem’s breast and on her inner thigh suggested it was done “for the very purpose of harming and embarrassing Orem.” Parting ways with the Eleventh Circuit’s approach in Draper, the Fourth Circuit also strongly rejected the deputy’s claim that the taser inflicted only de minimus injury. To the contrary, it quoted an Eighth Circuit ruling in support of the proposition that tasers inflict “painful and frightening” injuries that amount to “torment.” Finally, and crucially, the court rejected the claim that the deputy was entitled to qualified immunity. Though it did not point to any prior taser cases, the Fourth Circuit noted that the constitutional guarantee against excessive force had long been established, finding that general proposition sufficient to preclude an immunity claim. Cruel and Unusual Punishment of Prisoners The use of tasers on prisoners is the third area that has produced appellate law, in this instance about the Eighth Amendment’s ban on cruel and unusual punishment. The one reported federal appeals decision squarely addressing this issue is Michenfelder v. Sumner, a 1988 ruling from the Ninth Circuit. The plaintiff Robert Michenfelder was incarcerated in a maximum-security unit of the Nevada State Prison. The prison required strip searches every time a prisoner left or returned to the unit, and the prison allowed its officers to threaten to use or to use tasers to force compliance with the strip-search policy. After Michenfelder was threatened with a taser, he sued, claiming the practice violated the Eighth Amendment. As the Ninth Circuit explained, prisoners, despite their convictions, do not surrender their constitutional rights: The whole point of the [eighth] amendment is to protect persons convicted of crimes. Punishments repugnant to the Eighth Amendment are those incompatible with the evolving standards of decency that mark the progress of a maturing society or which involve the unnecessary and wanton infliction of pain. Among unnecessary and wanton inflictions of pain are those that are totally without penological justification. Applying this standard, the appeals court concluded that the Nevada prison’s use of tasers was constitutional because “[t]he taser was used to enforce compliance with a search that had a reasonable security purpose, not as punishment.” It therefore rejected the Eighth Amendment claim. Harsh as this finding was, it was somewhat mitigated by the court’s commentary -- now 20 years old -- about how little evidence there was in the record about the actual harms tasers caused. In addition, the court stated that its holding that the taser practice was not “per se unconstitutional would not validate its unrestricted use.” Rather, the court emphasized that use of tasers would violate the Eighth Amendment “when unnecessary or for the sole purpose of punishment or the infliction of pain.” Looking Forward Though the appellate case law about tasers is quite limited, several significant points emerge. First, notwithstanding the fact that tasers are designed to shock people with electricity, the courts have endorsed their use in routine law-enforcement circumstances. Second, the courts are not developing new constitutional doctrine particular to tasers but instead are applying well-developed doctrine that governs excessive force claims generally. Finally, and perhaps most importantly, the minimal case law that exists may grow and change dramatically as more becomes known about the dangers of tasers, particularly if, as many believe, they are killing people. Christopher Dunn is associate legal director of the New York Civil Liberties Union