Page 43 - TPA Journal January - February 2019

factual disputes about whether or not McGregor the first prong of the qualified immunity inquiry is
ever formally commanded Samples to enter his satisfied: the evidence is sufficient to show that
patrol car or stop moving—as opposed to merely Vadzemnieks violated Samples’s Fourth
cajoling him to do so repeatedly—and whether Amendment right to be free of excessive force.
Samples “broke away” from McGregor and
entered a “fighting stance,” or whether he merely A constitutional violation is necessary but not
clenched his fists and tensed up when McGregor sufficient for a denial of qualified immunity. We
must also decide whether Vadzemnieks’s conduct
grabbed him. For the purposes of assessing their
materiality, we assume that all of these disputes violated “clearly established . . . constitutional
rights of which a reasonable person would have
will be resolved in the light most favorable to
Samples. known.”

We conclude that the evidence is sufficient for a 23 Clearly established law must be particularized
jury to find that Vadzemnieks used excessive force to the facts of a case. Thus, while a case need not
in violation of the Fourth Amendment. We have be “directly on point,” precedent must still put the
repeatedly held in the past that a taser is a force underlying question beyond debate. Vadzemnieks
that, deployed when not warranted, can result in a and Samples each marshal caselaw asserting to
constitutional deprivation. First, the record resolve the question of clearly established law. In
indicates that the only call McGregor and our view, Carroll v. Ellington provides the closest
Vadzemnieks received was for a “possible analogue. In Carroll, an officer repeatedly
disturbance” in which a “white male, deployed a taser on a schizophrenic man who, like
approximately 40 years old[] [was] calling for Samples, spoke incomprehensibly when
help.” Vadzemnieks thus had little reason to questioned about his identity and conduct, such
believe Samples was in the process of perpetrating that the officer believed him to be on drugs. As
a crime. Second, assuming that Samples was here, the officer in Carroll knew that the suspect
indeed “not attempting to flee”—and, indeed, that was unarmed and nonviolent when the officer first
he had never been formally commanded to stop— elected to tase him. And like Samples, the suspect
it cannot be sustained that he was “actively only weighed approximately 160 pounds.29 Some
resisting arrest or attempting to evade arrest by aspects of Carroll distinguish it from this case—
flight” such that a taser was necessary. The record the suspect in Carroll was theoretically under
suggests that Samples was wandering around suspicion for a minor crime, and the officer in that
when the officers found him, declined to heed case issued repeated commands, not requests, that
their requests, and tensed up when McGregor he stop moving. But the primary contours are the
grabbed him. This is not active resistance or flight. same. In both cases, officers confronted a suspect
Third, and finally, since Samples was “clearly whom they believed to be on drugs, attempted to
unarmed” and not “combative,” nothing suggests verbally secure the suspect’s compliance, and
that Samples “pose[d] an immediate threat to the chose to deploy a taser despite their knowledge
safety of the officers or others”—particularly in that the suspect was unarmed. Faced with these
light of his relatively advanced age and slight size. facts, the Carroll panel decided that, as of three
The officers’ statements to the opposite effect are years ago, no clearly established law made the
overwrought. officer’s decision to resort to the taser
unreasonable. And equally important, the Carroll
In short, the officers lacked reason to believe that panel “decline[d] to reach the close constitutional
Samples committed a crime, sought to flee, or question” of whether the officer’s actions
posed a threat of danger to them. We conclude that amounted to a Fourth Amendment violation,

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