Jinia Armstrong Lopez was worried about her brother, Ronald Armstrong, who had been diagnosed with bipolar disorder and paranoid schizophrenia, had stopped taking the drugs prescribed for those conditions, and was poking holes in the skin of his legs "to let the air out." Lopez convinced Armstrong to come with her to Moore Regional Hospital in Pinehurst, North Carolina, where he was initially cooperative but soon bolted. The examining doctor filled out a form identifying Armstrong as a danger to himself and called police to capture him. But the cops proved to be more of a danger to Armstrong than he was to himself, and he was dead less than seven minutes after the commitment papers were finalized.
This week the U.S. Court of Appeals for the 4th Circuit ruled that the police who protected Armstrong to death used excessive force during the 2011 incident—in particular, by shocking him with a stun gun five times in two minutes in a vain attempt to disengage him from a stop sign post to which he was clinging with his arms and legs. The cops ultimately pulled him off the post and pinned him to the ground facedown, one of them kneeling on his back and another standing on it, then handcuffed him and shackled his legs. "During the struggle," the court noted, "Armstrong complained that he was being choked." After the officers "stood up to collect themselves," his sister noticed that he was motionless and unresponsive. When the cops rolled him over, they found that "his skin had turned a bluish color, and he did not appear to be breathing."
Although Armstrong arguably posed a danger to others at first because it seemed he might run into traffic, the 4th Circuit said, that was no longer the case by the time he had sat down and wrapped himself around the post, which was when police decided to repeatedly shock him with a Taser in "drive stun" mode, hoping that the "excruciating pain" would encourage compliance. "Rather than have its desired effect," the court observed, "the tasing actually increased Armstrong's resistance." It noted that the weapon's manufacturer says police should "avoid using repeated drive-stuns on such individuals if compliance is not achieved."
The 4th Circuit had little trouble concluding, based on the facts as presented by Armstrong's family, that police violated his Fourth and 14th Amendment rights by using more force than was justified in the circumstances. "When Officer Gatling deployed his taser," it said, "Armstrong was a mentally ill man being seized for his own protection, was seated on the ground, was hugging a post to ensure his immobility, was surrounded by three police officers and two hospital security guards, and had failed to submit to a lawful 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."
As a general rule, the 4th Circuit said, a Taser "may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser." It added that "the subject of a seizure does not create such a risk simply because he is doing something that can be characterized as resistance." Furthermore, "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, the officer effecting the seizure has a lessened interest in deploying potentially harmful force."
The court nevertheless upheld a judge's ruling that the officers are entitled to qualified immunity because at the time of the incident "Armstrong's right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established." Now it is.
Under the rule enunciated by the 4th Circuit, a state trooper who pulled a car over for a minor traffic violation presumably would not be justified in using a Taser to force the driver out her car after she declined to extinguish her cigarette. Nor would a Border Patrol agent be allowed to shock an unarmed woman who objected when he grabbed her, for no apparent reason, during a random checkpoint stop.
[Thanks to CharlesWT for the tip.]