Jeremy Boudoin v. Terral Harsson, 962 F.3d 1034

Background

On Aug. 27, 2017 multiple officers broadcast about a fleeing suspect: white male on a black motorcycle with no plate, traveling >100 mph. Harsson learned this information before encountering Boudoin.
Harsson located Boudoin on the highway, activated lights, and forced him onto the shoulder; Boudoin did not immediately deploy a kickstand and made movements (shifting weight, moving left leg, “clicking” gear shifter) Harsson reasonably interpreted as potential flight.
About ten seconds after the stop Harsson radioed another officer, “if you want to taser him, taser him,” then exited his cruiser and tased Boudoin without a warning; the taser struck neck and chest, Boudoin collapsed and his motorcycle fell on his leg.
Boudoin was arrested for speeding; the original fleeing-suspect charge was later dismissed and he pleaded guilty only to speeding.
Boudoin sued under 42 U.S.C. § 1983 (excessive force) and state law (assault/battery). The district court denied qualified immunity and statutory immunity; the Eighth Circuit reversed, granting summary judgment for Harsson.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harsson used excessive force in violation of the Fourth Amendment by tasering Boudoin	Boudoin: taser use was excessive because he was stopped for a nonviolent misdemeanor, not resisting, and not posing a threat; no warning given	Harsson: he reasonably perceived Boudoin as attempting to flee based on dispatch and Boudoin’s conduct, so taser use was reasonable	Court: Harsson entitled to qualified immunity; use of taser was not a clearly established constitutional violation under the circumstances
Whether the right was clearly established on Aug. 27, 2017	Boudoin: Brown and related precedent put officers on notice that tasering a nonviolent, nonfleeing misdemeanant is unconstitutional	Harsson: no directly on-point precedent squarely governing tasering a suspect reasonably perceived as resuming flight; law was not particularized	Court: law not clearly established for these facts; reasonable officer could mistake conduct as flight
Whether disputed facts (subjective intent) precluded summary judgment on qualified immunity	Boudoin: factual dispute whether he actually intended to flee (subjective intent) requires jury	Harsson: review limited to facts knowable to officer; undisputed observable conduct supports reasonableness as a matter of law	Court: objective facts known to Harsson could reasonably support belief Boudoin was fleeing; no triable fact issue defeats immunity
Whether Harsson is entitled to Arkansas statutory immunity for assault/battery (malice requirement)	Boudoin: Harsson’s comment to House and failure to warn show malice/willfulness	Harsson: no evidence of malice or conscious violation of law; use of force was authorized and not clearly illegal	Court: Harsson entitled to statutory immunity because no triable evidence of malice or conscious law violation

Key Cases Cited

Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009) (tasing a restrained, nonviolent passenger without warning was excessive force)
Graham v. Connor, 490 U.S. 386 (1989) (use-of-force analysis requires consideration of crime severity, immediate threat, and resistance/flight)
Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity framework and bright-line guidance caution)
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (clearly established right must be particularized)
Nance v. Sammis, 586 F.3d 604 (8th Cir. 2009) (deadly-force principles and threat analysis)
McKenny v. Harrison, 635 F.3d 354 (8th Cir. 2011) (Taser is greater than trivial force but less than deadly force in general)
Cook v. City of Bella Villa, 582 F.3d 840 (8th Cir. 2009) (use of taser without warning can be reasonable in rapidly escalating situations)
Plumhoff v. Rickard, 572 U.S. 765 (2014) (use of force to stop a dangerous high-speed flight can be reasonable)
Hope v. Pelzer, 536 U.S. 730 (2002) (obvious cruelty or clear constitutional violation can negate qualified immunity)