Page 32 - Nov Dec 2015
P. 32
whether the suspect poses an immediate excessive. We decline to reach the close con-
threat to the safety of the officers or others, stitutional question and instead decide the
and whether he is actively resisting arrest or case on the second prong of qualified immu-
attempting to evade arrest by flight.” Graham nity.
v. Connor. “The ‘reasonableness’ of a partic-
ular use of force must be judged from the per- The issue, then, is whether an officer’s appli-
spective of a reasonable officer on the scene, cation of a Taser to an unarmed, seated sus-
rather than with the 20/20 vision of hind- pect who fails to comply with an order to get
sight.” “The calculus of reasonableness must on the ground is “objectively unreasonable in
embody allowance for the fact that police light of clearly established law.”
officers are often forced to make split-second We conclude that it is not. Testimony at trial
judgments—in circumstances that are tense, and case law establish that officers are trained
uncertain, and rapidly evolving—about the to use nonlethal force to gain compliance if a
amount of force that is necessary in a partic- subject actively resists arrest and does not
ular situation.” comply with verbal task directions to get on
the ground. Officers are trained in this man-
The evidence from Viruette’s Taser log estab- ner because a police officer who is standing
lishes that Deputy Viruette successfully over a suspect who is on the ground has a
deployed his Taser seven times: four times for “position of advantage over that subject,”
five seconds, once for six seconds, once for meaning the officer “can control [the sub-
nine seconds, and once for eleven seconds. ject’s] body movement,” and that “the subject
Deputy Viruette first fired Taser probes at will offer less resistance.”
Barnes when Barnes was sitting in a wicker
chair in his living room—and it is undisputed Deputies Celestial and Sims responded to
that Barnes’s arms were in full view and that Viruette’s call for backup from about a mile
he was not brandishing any weapons. Viruette away and arrived soon after Viruette applied
deployed his Taser because Barnes, who the Taser to Barnes, as the struggle moved
entered the home to avoid detention and from the living room into the kitchen. Viruette
arrest, would not comply with Viruette’s order was continually giving Barnes verbal com-
that Barnes get on the floor. The ensuing mands to get on the ground. At this point, nei-
struggle in the kitchen between Barnes and ther Celestial nor Sims had knowledge of the
Viruette followed directly from the initial offense for which Viruette was attempting to
application of the Taser to the seated Barnes, make an arrest, just that Viruette could not get
and Barnes’s active resistance at that point Barnes restrained and handcuffed. Viruette
rendered Viruette’s escalation of force—to appeared winded from the struggle, so
include additional Taser applications and Deputy Celestial and Deputy Sims stepped
hand-to-hand strikes—objectively reasonable between Barnes and Viruette. Because Barnes
in the circumstances. However, the initial was actively resisting Deputy Viruette,
application of the Taser to the seated and deputies Celestial and Sims delivered non-
unarmed Barnes on suspicion of vandalism lethal force: Deputy Celestial repeatedly
and trespass presents a difficult question struck Barnes in the leg and thigh area with a
whether a reasonable jury could find this first hickory stick, and Deputy Sims kicked Barnes
use of force to be clearly and objectively in the stomach area. Finally, Sims tackled
28 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal
