Clark v. Ware, 2012 U.S. Dist. LEXIS 76855

Clark, a plaintiff under 42 U.S.C. § 1983, sues Deputy Johnson for excessive force and Deputy Ware for failure to intervene after a domestic disturbance call in November 2009.
Defendants moved for summary judgment; the court grants the motion.
Clark was on the porch, drunk and injured, and resisted handcuffing by grabbing the railing; Ware tasered him once, then handcuffed him and placed him in a rocking chair.
Johnson assisted in removing Clark to the patrol car; Clark kicked and refused to enter the car, leading to multiple taser deployments in the abdomen.
Clark remained insolent and noncompliant, threatening to kick Johnson; Ware opened the patrol car door as Clark was moved inside.
The court analyzes Counts I and II under the Fourth Amendment and qualified immunity; it finds no underlying constitutional violation and grants qualified immunity to both defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson's taser use against Clark was excessive	Clark contends repeated taser shocks were excessive	Use was necessary, reasonable, given resistance and danger	Yes, Johnson's taser use was objectively reasonable; summary judgment granted
Whether Ware failed to intervene	Ware could have prevented or interrupted Johnson's conduct	Ware had no knowledge or time to react; no underlying rights violation	Ware not liable; failure to intervene claim fails
Whether Johnson and Ware are entitled to qualified immunity	Rights not clearly established for taser use under these facts	Reasonableness and lack of clearly established law at that time	Qualified immunity applies to both claims

Graham v. Connor, 490 U.S. 386 (U.S. 1989) (reasonableness under the Fourth Amendment for use of force)
United States v. Martinez, 406 F.3d 1160 (9th Cir. 2005) (domestic disturbance context; danger and volatility to officers)
Howard v. Kansas City Police Dept., 570 F.3d 984 (8th Cir. 2009) (factors for reasonable force include severity of crime and threat)
Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997) (factors in assessing force; number of officers and context)
Mann v. Yarnell, 497 F.3d 822 (8th Cir. 2007) (consideration of injuries and procedures in use-of-force analysis)
Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009) (reasonableness in force application on scene)
Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994) (jury question for reasonableness unless one-sided)
McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011) (tasering not clearly established as of 2007 under certain circumstances)
Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (tasering not clearly established where there is resistance)
Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) (grouped taser immunity analyses; differing contexts for seizures)
Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993) (taser use and force considerations in resistance)
White v. Pierce County, 797 F.2d 812 (9th Cir. 1986) (contextual factors in excessive force review)