Estate of Armstrong Ex Rel. Armstrong v. Village of Pinehurst

capacity; imprisonment months’ and individual Officer Ar- his sentence of 216 Jr., Gatling, necessary” and that the thur Lee in his official “greater than capacity, emphasis undue and individual Defendants- “placed district court Appellees, general the offense and the seriousness of arriving at that sentence. deterrence” Alquza similarly argues the district International, Inc., Taser Defendant. findings of adequate

court failed “to make 3553(a) U.S.C..§ find the 18 factors.” We No. 15-1191. no merit to either of contentions. these Appeals, United States Court sentencing hearings, Throughout Fourth Circuit. explained district court its chosen sen- 3553(a) § tences reference to the fac- Argued: Oct. 2015. tors, have not and the defendants shown Decided: Jan. that the district court abused its discretion selecting appropriate sentence in See Gall United light of those factors.

States, 552 U.S. S.Ct. (2007).

L.Ed.2d sum, we affirm both defendants’ con- sentences, vacate

victions but their re-

manding to allow the district court to re- finding light

evaluate its loss of our

opinion and to resentence the defendants. PART,

AFFIRMED IN VACATEDIN

PART, AND REMANDED RE- FOR

SENTENCING.

The ESTATE OF Ronald H. ARM

STRONG, by through his Admin

istratrix, Lopez, Jinia ARMSTRONG

Plaintiff-Appellant, PINEHURST;

The VILLAGE OF Offi Jerry McDonald,

cer in his official capacity;

and individual OFFICER SHEPPARD,

TINA S. her official by published opinion. Judge

Affirmed THACKER wrote the opinion, which Judge joined. Judge KEENAN separate opinion WILKINSON wrote a concurring part.

THACKER, Judge: Circuit The Estate of H. Armstrong Ronald (“Appellant” estate, when referring to the “Armstrong” referring to the de- cedent) appeals granting order sum- Pinehurst, mary judgment Village to the Carolina, North Jerry Lieutenant Mc- Donald, Tina Sergeant Sheppard, and Offi- Jr., Gatling, cer Arthur of the Pinehurst Police Department (“Appellees”). The dis- trict qualified court determined that immu- nity Appellant’s Appellees bars claim that executing used excessive force when an order, involuntary commitment which re- quired Armstrong’s immediate hospitaliza- tion. review,

On we that Appellees hold used unconstitutionally excessive force when we, nevertheless, seizing Armstrong, but agree with the district court that We, qualified immunity. are entitled to therefore, affirm grant summary judgment Appellees’ favor on the grounds explained below. Truzy, Karonnie R.

ARGUED: CRUM- ROBERTS, LLP, Greensboro, LEY North I. Carolina, Appellant. for Dan McCord grant the district court’s We review Hartzog, & CRANFILL SUMNER summary judgment Henry de novo. See LLP, Carolina, Raleigh, HARTZOG North (4th Cir.2011) Purnell, 652 F.3d 531 Appellees. for ON BRIEF: David J. Ven- (en banc). We “determine de novo wheth tura, ROBERTS, LLP, CRUMLEY Char- ... deprivation er the facts establish the lotte, Carolina, Appellant. North for Dan right,” anof actual constitutional Leverette Jr., Hartzog, M. CRANFILL SUMNER & Bell, Cir.2001), LLP, Carolina; Raleigh, North HARTZOG and review de novo award of “[w]e Newman, CAMP, Michael J. VAN MEAC- summary judgment quali on the basis of PLLC, Pinehurst, HAM & NEWMAN Horner, immunity,” Durham v. fied Carolina, North for Appellees. (4th Cir.2012). “Summary F.3d WILKINSON, KEENAN, if judgment appropriate only taking Before is THACKER, Judges. evidence and all reasonable inferences Circuit first, light favor Gatling appeared therefrom in the most Officer the scene drawn party, Sergeant material later nonmoving by to the ‘no followed minute or two able arrived disputed moving party Sheppard. are and the Lieutenant McDonald facts ” about ten minutes after Arm- Sheppard. as a matter of law.’ judgment entitled strong Gatling had far (quoting Ausher not traveled Henry, 652 at 531 Corp., arrived. He was located near an intersec- v. Bank Am. man (4th Cir.2003)). Hospital’s tion near the main entrance. arrived, Armstrong’s When II. yet commitment order had not final- been Therefore, Gatling Sheppard ized.2 A. By engaged Armstrong conversation. Armstrong bipolar Ronald suffered from accounts, parties all were calm and paranoid On schizophrenia. disorder cooperative point time. had been April pre he off his Armstrong acting strangely, howev- days medication for five and was scribed Gatling er. initiated When Officer first leg through holes skin on his poking conversation, Armstrong wandering sister, air 675.1 “to let the out.” J.A. His roadway across an active intersects Armstrong Lopez (“Lopez”), worried Jinia Hospital’s driveway. Gatling with the suc- behavior, his convinced cessfully convinced him to to the withdraw accompany Regional Hospi her to Moore safety roadside, relative of the Arm- but Pinehurst, (“Hospital”) in Car tal North proceeded then to strong grass eat and to willingly Hospital olina. He went the dandelions, gauze-like chew on sub- in, “[djuring and checked but the course of stance, put cigarettes and on his out he apparently the evaluation became tongue police while the for officers waited frightened eloped [emergen and from the the commitment order. cy department].” flight Id. Based on that as Lopez’s report they and about his odd As soon learned that the com- behavior week, previous examining papers complete, over the mitment were the three the judged Armstrong a him officers danger police doctor to surrounded and advanced involuntary Armstrong by sitting and toward self issued commitment reacted —who papers compel Armstrong’s wrapping to return. down and himself a four- his around have, not, designate by-four post supporting nearby doctor could did that was but others, danger sign. Arm- checking only stop pry him a to the The officers tried to “[m]entally reads ill arms danger strong’s legs post, box that off of the but wrapped to on tightly ous self’ the commitment form. he was too and would not budge. police were soon Pinehurst called as Armstrong Hospital, Immediately following as left the and three finalization of the involuntary order, department Appellees members the commitment in other —all words, in this order. responded Armstrong short on the seated case— prevent 1. Citations to "J.A.” the Joint refer to ized to seize individuals to them from Appendix by parties appeal. filed in this harming without themselves a commitment 122C-262(a), place, § order see id. required 2. North law that Arm- Carolina Rather, Appellees go they did not that route. strong’s involuntary be commitment order rely solely involuntary commitment writing certified in and notarized before it as for order authorization their seizure of § took effect. See N.C. Gen.Stat. 122C- Armstrong. 262(b). Police are author- officers sometimes ground, stop sign police anchored to the base of a sist the three trying officers to pull in defiance of the order. The three post, Armstrong off of post. his That group of police officers at the scene were surround- five successfully removed Armstrong and him, ing struggling to remove him from laid him ground. facedown on the in the post. Lopez immediate During struggle, Armstrong com- well, vicinity along as with Jack Blanken- plained that he was being choked. While Verbal, ship Johnny Hospital two se- no witness saw the police apply any choke- Armstrong officers. So was encir- curity holds, Lopez did “pull[] see officers his by people cled six Pinehurst —three they collar like choking during were him” returning officers tasked with him to the struggle. J.A. 192. security Hospital, Hospital guards two him returning Hospital, tasked with to the With Armstrong separated from the sister, pleading and his who was with him post, Appellees restrained him. Lieuten- Hospital. to the return ant McDonald and Sergeant Sheppard prolong did not this stalemate. pinned Armstrong down placing a knee they Nor did attempt engage further back, on his back and standing on his Instead, Armstrong. conversation with respectively, while handcuffs applied. were just thirty seconds or so after the officers cuffed, But even being after Armstrong Armstrong told his commitment order was continued to kick at Sergeant Sheppard, so final, Lieutenant McDonald instructed Of the police legs shackled his too. Gatling ficer prepare Armstrong. tase taser, Gatling Officer drew his it set The officers then up stood to collect mode,”3 that, “drive stun and announced if They themselves. Armstrong left face- go post, did not let of the he down in the grass with his hands cuffed would be tased. That warning had no behind his back and legs his shackled. At effect, Gatling deployed so the taser —five point, longer he was no moving—at separate period approxi times over a Lopez all. was the first to notice that her mately two minutes.4 Rather than have unresponsive, brother was so she asked effect, tasing actually its desired the in the officers to check on him. Appellees Armstrong’s creased resistance. immediately,5 did so but Armstrong’s con shortly ceased, already

But dition had tasing after become dire. When Blankenship over, in jumped flipped Verbal to as- officers him his skin had times, generally 3. happen Tasers have two modes. “In dart she saw it five and because mode, probes subject a taser shoots into a summary judgment granted was in favor of system." and overrides the central nervous Appellees, accept this court must her version Gomez, 405, Estate Booker v. 414 Purnell, Henry of the facts. See v. (10th Cir.2014). mode, n. 10 Drive stun on 524, (4th Cir.2011) (en banc). 527 hand, the other "does not cause an override system”; of the victim’s central nervous exactly long Armstrong 5.It is not clear how pain compliance mode "is used as a tool with ground was left facedown on the after he had (internal quo- limited threat reduction.” Id. Lopez been secured. But conceded that it omitted). Appellees’ expert tation marks "happen[ed] pretty quickly really” and that confirmed that the drive stun mode on the responded "immediately” the officers when Gatling TASER X26 ECD that Officer was Armstrong. asked to check on J.A. 241. Oth- carrying pain is intended to be used for com- couple er estimated "a witnesses the time as pliance incapacitation. rather than of seconds” and "15 to 20 seconds.” Id. at 346, 4. The of times number was tased 446. disputed Lopez ais fact. But testified that 898 (M.D.N.C. 27, cv-407, op. at 4 Jan. appear slip color and he did

turned bluish 2015) (citation omitted). Appellant filed a breathing. to be February 24, timely notice of on appeal Lieutenant Mc- Sheppard and Sergeant 2015. CPR, and Lieutenant administered Donald Emer- dispatch to send radioed McDonald III. (“EMS”). EMS Services gency Medical Armstrong to the transported responders A. emergency where department Hospital’s “Qualified immunity protects of attempts but were continued

resuscitation who commit constitutional violations ficers dead pronounced He unsuccessful. who, law, light clearly in established According to the shortly after admission. reasonably that their actions could believe summary Department’s Police Pinehurst Purnell, 652 Henry were lawful.” F.3d incident, just during the of communications (4th (en banc). Cir.2011) “qual A 531 elapsed six minutes between and one-half therefore, immunity analysis,” “typi ified Arm- advising Appellees that dispatch (1) cally inquiries: involves two whether final papers commitment were strong’s has plaintiff established the violation of radioing for EMS. Appellees (2) right, a constitutional and whether that time clearly at the right established

B. alleged Campbell, Raub v. violation.” Cir.2015). filed a foregoing, Appellant Based on the Superior in of Moore Court complaint “may questions address two in court these Carolina, April County, North on 2013. order ... will best facilitate the ‘the ” each officer involved Appellant sued case.’ disposition fair and efficient of each seizure, (alteration to 42 Armstrong’s pursuant (quoting Pear original) 1983, alleging Callahan, § the officers U.S.C. U.S. son force, (2009)). Arm in violation of Appel used excessive 172 L.Ed.2d 565 S.Ct. Amend strong’s Fourth Fourteenth summary judgment, case lant’s survives rights, seizing Appellees however, ment him.6 questions if we answer both See Pearson, the case to removed the United States affirmative. U.S. for the District of 232, 129 District Court Middle S.Ct. 808. May 20, on

North Carolina case, we In this adhere to “the better summary court granted approach resolving The district cases which the raised,” January qualified immunity judgment defense is, 2015, reasoning, we highly “[i]t is doubtful “determine first whether the alleged a constitu has of a plaintiff deprivation the evidence establishes a con does, Pearson, all, assuming right at it at 555 tional violation stitutional all.” U.S. 232, Cnty. qualified (quoting are entitled to 129 S.Ct. defendants 808 of Lewis, 833, H. Arm v. 841 immunity.” Estate Ronald Sacramento 523 U.S. n. of Pinehurst, 1708, 140 (1998)). 5, 118 Village No. 1:13— S.Ct. L.Ed.2d 1043 strong v. complaint alleges opening appellate Appellant's 6. additional in briefs constitutes waiv- issues,” Int’l, defen- causes of action names additional those Inc. v. er of IGEN Roche Appellant's appeal press- GmbH, 303, (4th dants. But brief on Diagnostics F.3d 308 335 only attempting es one claim: officers Cir.2003), claim is so excessive force involuntary order execute the commitment pending ap- matter that remains in this unconstitutionally "Fail- used excessive force. 28(a)(8)(A). peal. R.App. Fed. See P. present argue assignments or of error ure

899 sequence longer is “no ... Though this counseled that the test “requires a careful mandatory,” it regarded balancing as is “often bene- of the nature and quality of the ficial,” especially and “is valuable with re- intrusion on the individual’s Fourth that do not Amendment spect questions frequently against interests the counter vailing governmental in in a qualified arise cases which immuni- interests at stake.” 236, (4th 95, ty Ray, defense is unavailable.” Id. 129 Smith v. 781 F.3d 101 Cir. 2015) Graham, (quoting 396, 808. Because excessive force claims S.Ct. 490 U.S. at 1865). questions, Nancy Leong, are, moreover, such 109 S.Ct. raise see There 377, Rights, 100 three Improving Va. L.Rev. 393 factors the Court enumerated to (2014) (“[EJxcessive guide First, balancing. force claims are liti- this we look to issue”; “the gated severity over 98% of the time the civil the crime at sec context....”), ond, we exercise our discretion we examine the extent to which “the question suspect poses to address the constitutional an pre- immediate threat to the safety others”; third, of the appeal sented this first. officers or

we consider “whether suspect] [the is ac B. tively resisting arrest or attempting to (alteration by flight.” evade arrest Id. then, inquiry, Our initial is this: Graham, supplied) (quoting 490 U.S. at light “Taken most favorable to the 396, 1865). 109 S.Ct. “To properly consid party asserting injury, do the facts er the reasonableness of the force em alleged show the officer’s conduct violated ployed context, we must it in ‘view full right?” a constitutional v. Brosseau Hau eye with an the proportionality toward 194, 197, 596, gen, 543 125 U.S. S.Ct. 160 light the force in of all the circum (2004) curiam) L.Ed.2d (per (quoting 583 ” stances.’ (quoting Waterman v. Bat Katz, 194, 201, v. Saucier 533 U.S. 121 ton, (4th 471, Cir.2005)). (2001)). S.Ct. 150 L.Ed.2d 272 case, yes. the answer is Viewed light Appellant, most favorable to the rec that, ord before us establishes when seiz Here, the first factor Graham favors

ing Armstrong, Appellees used unreason Appellant. Appellees suggest- have never ably excessive force violation of the ed that Armstrong committed a crime or Fourth Amendment. they probable had cause effect A “claim that subject law enforcement criminal arrest. When the of a officials crime, used excessive force in the course any seizure not committed “ha[s] arrest, making investigatory stop, weighs heavily subject’s] this factor in [the person” other ‘seizure’ of “properly Bailey Kennedy, [a] favor.” analyzed Cir.2003); under the Fourth Amendment’s 743-44 see also Turmon v. Jordan, (4th Cir.2005) ‘objective reasonableness’ standard.” Gra Connor, (“[T]he 386, 388, ham v. severity U.S. of the crime cannot be (1989); S.Ct. 104 L.Ed.2d 443 see taken into account because there was no Harris, (internal also Scott 550 U.S. 127 crime.” quotation marks omit- (2007). ted)). S.Ct. 167 L.Ed.2d 686 “The And this factor still would favor test of Appellant reasonableness under the Fourth if Appellees argued had that Amendment not capable is defi their seizure a precise was converted to criminal nition or application.” mechanical v. Armstrong obey Bell arrest when failed to the Wolfish, 1861, 441 U.S. in in 99 S.Ct. officers’ lawful orders. “Even a case (1979). 60 L.Ed.2d 447 plaintiff But the Court has which the committed a ha[s] 900 in law en one, from those involved a minor different

crime, [i]s the offense when an armed first fac efforts to subdue that the Graham forcement have found we recently favor----” Jones has plaintiffs dangerous criminal who weights] tor and (4th 520, Buchanan, Cir. Bryan F.3d 528 v. 325 a offense.” v. committed serious omitted). 2003) (internal (9th marks quotation MacPherson, F.3d 829 Cir. 2010) (alteration omitted) (quoting Deorle that recognized have also But we 1282-83 Rutherford, proxy as a is intended factor first Graham (9th Cir.2001)). use of force that “[T]he [had] “an officer determining whether for in justified by” government’s the may be subject of a that [the to believe any reason ill seizing mentally person, a terest indi- dangerous potentially awas seizure] therefore, degree both in “differs And Smith, F.3d at 102. vidual.” that would be kind from the use of force crime, no the Armstrong committed while com justified against person who has put did of his seizure legal basis a threat to poses mitted a crime or who on the facts that bear notice of two community.” reason Appellees had of whether question dangerous. Armstrong believe illness, course, bf describes a Mental and does not spectrum broad of conditions First, subject of an invol as the in all order, police response pur executed dictate the same untary commitment 122C-262, § But “in some circumstances to N.C. GemStat. situations. suant necessarily least,” considered use of Armstrong “increasing it means that N.C. Gen.Stat. “mentally ill.” See also may ... exacerbate the situation.” force 122C-261(a). Armstrong’s mental § Deorle, Accordingly, at 1283. “facts and one of the health was thus of officers and others trained “the use reasonable officer that “a circumstances” ordinarily advisa counseling the art of is Graham, ascertain. on the scene” would ble, feasible, may provide where 1865. And it is 109 S.Ct. 490 U.S. ending a crisis.” Id. And best means of for must account a fact that officers feasible, this ideal course is not even when force. and how to use See deciding when unarmed and officers who encounter an Nashville, Inc., Champion Outlook minimally threatening individual who (“It (6th Cir.2004) cannot “exhibiting] conspicuous signs that he [i]s were con forgotten be mentally must “de-escalate the unstable” they knew fronting an individual whom adjust application situation and capac ill.... The diminished mentally be City Martin v. force downward.” must be taken ity of an unarmed detainee Heights, 712 F.3d Broadview assessing the amount into account when .2013). Cir exerted.”). posed problems “The of force Ap The second relevant fact employed to be by, thus the tactics Armstrong’s from pellees glean could unarmed, emotionally dis against, an commitment order is that a doctor deter creating who is a dis traught individual himself.7 ordinarily danger mined him to be resisting arrest are turbance ger thought would have that a Armstrong’s involuntary commitment order to himself or may danger to others. prevent doctor consider him a order “to harm have issued in could did, however, others," speak Wayne § 122C- The officers to self or N.C. Gen.Stat. Morton, 262(a) assessment nurse who (emphasis supplied), and it is not en- behavioral Armstrong’s preparation com- tirely assisted with clear from the record whether reason- Armstrong. prior seizing papers, would have known able officers at the scene mitment addition, Armstrong judged the officers observed had been a dan- cars, justification pre objectively a seizure’s sole is were Where reasonable. A de- subject was, venting gree harm to the of the sei consequently, justified. force zure, has little government interest justified But that degree of force is the Rather, using force to effect that seizure. degree reasonably calculated to prevent subject using likely force to harm the is Armstrong’s flight. When de- manifestly contrary government’s to the force, begin using cided to Armstrong, who initiating interest that seizure. See stood 5'11" tall weighed pounds, and City Drummond ex rel. Drummond v. seated, was stationary, clinging post, to a Anaheim, Cir. refusing to move. He was also out- (When 2003) mentally “a indi disturbed numbered and by police surrounded offi- any vidual not wanted for crime ... [i]s security cers and guards. degree being custody into to prevent injury taken necessary force prevent to an individual himself[,] [djirectly causing indi [that who is affirmatively refusing to move from grievous injury vidual] does not serve th[e fleeing obviously quite limited. objective any respect.”). officers’] Armstrong was also resisting the sei- that, zure. There is no question prior to weighs The first Graham factor thus tased, being Armstrong was refusing to let against imposition govern- of force. The go of the post wrapped he had himself seizing Armstrong ment’s interest was despite around verbal instruction to desist prevent mentally ill man from harm- and a 30-second—attempt physi- ing justification himself. The for the sei- brief — cally pull him off. Noncompliance with zure, therefore, not any does vindicate de- justifies force, lawful orders some use of gree of force that risks substantial harm to justified but the level of force varies based subject. on posed by the risks the resistance. See Bryan, (“‘Resistance,’ 630 F.3d at 830 however, should not be understood as a factors, state, The second and binary third Graham with being resistance either whether Armstrong safety completely passive threatened the or active.... Even seizure, justify passive others and resisted do purely support resistance can force, though. force, some—limited—use of Ap- use of some but the level of force an pellees Armstrong had observed support wander- individual’s resistance will is de- ing regard into traffic with little for avoid- pendent the factual circumstances un- cars, resistance.”) ing passing And, here, derlying and the seizure took place only a few feet from an active road- factual circumstances little demonstrate moreover, way. Armstrong, stationary, fled from the non-vio- risk — Hospital day, lent, earlier that although he did people willing surrounded circumstances, go far. Under such him help Hospital. return to the That Appellees concerns that Armstrong may Armstrong allowing was not his arms to be try to flee into being pulled the street to avoid from the post refusing Hospital, thereby returned to the comply go, endan- with shouted orders to let while gering concern, passing himself and individuals in for import cause some do not involuntary light Appellant, for over 20 minutes before the facts in the most favorable to During commitment order was issued. objectively reasonable officers would be

period, Armstrong engaged mildly in behavior underlying Armstrong's aware of the basis himself, harmful to but he exhibited no risk of commitment order. flight Taking or risk of harm to others. these 902 See, Booker v. Go e.g., tions.8 Estate a situation urgency into danger or

much of Cir.2014) (10th 405, mez, 414 n. F.3d 9 745 was, effect, impasse. a static (“A per into a electricity taser delivers Abbott causing pain.”); severe body, son’s (7th 706, 726 Sangamon Cnty., 705 F.3d eye pro toward the turn “an we When Cir.2013) (“This acknowledged court has light of all force of the portionality personally have endured that one need not ” Smith, circumstances,’ 781 the[se] pain the that must jolt a taser to know (alteration emphasis supplied) and at 101 it, our sister and several of accompany 481), Waterman, it F.3d at 393 (quoting in recognized the circuits have likewise level of force evident that the becomes (internal by inflicted a taser.” pain tense objectively chose to use was Appellees omitted)); and marks quotation citations . were confronted reasonable (“The physiological at Bryan, 630 F.3d 825 exigencies few involving with a situation effects, pain, levels of and fore high the only justify factors a the where Graham us to physical injury lead seeable risk of Immediately tas- of force. degree limited that the X26 and devices conclude similar individual, non-criminal, mentally ill ing a non intrusion than other greater are a conversation before had been who seconds confront methods of force we have lethal al, proportional response. not a ed.”). is a serious use Deploying a taser the observations about severe These designed is weapon force. The of by apply tasers pain inflicted excruciating pain,” ... Cava “caus[e] practices. best The taser officers utilize 661, City, 625 F.3d naugh v. Woods Cross however, case, contra- in this use at issue (10th Cir.2010), application and can 665 industry and manufacturer venes current flesh, v. Re subject’s see Orem 2011, burn Since at least recommendations. Cir.2008) 523 F.3d 447-48 phann, Forum Police Executive Research grounds by Wilkins v. abrogated (“PERF”) on other Department and the Justice’s 34, 37, 130 S.Ct. 175 Gaddy, 559 U.S. Community Policing Office of Oriented (2010); (“COPS”) Commonwealth L.Ed.2d 995 that us- have cautioned Services cf. Caetano, 774, 26 N.E.3d pain 470 Mass. com- ing drive stun mode “to achieve (“[W]e (2015) and, gun the stun consider pliance may have limited effectiveness at dangerous weapon may common even exacer- per repeatedly, se when used law.”). COPS, that a taser PERF We have observed bate the situation.” & Guidelines, frightening Weapon blow.” painful “inflicts a Electronic Control omitted). (March 2011) Orem, Hickey (emphasis v. 14 (quoting 523 F.3d at 448 (8th Cir.1993)). therefore, Reeder, recommend organizations, “carefully pol- consider police departments circuits have made similar observa- Other my thought head Gatling deployed ber one coherent his taser in drive 8. Officer mode, occurring: GET pain STOP! STOP! intended to cause while this stun which is Despite my strong ME! desire paralysis. See THIS OFF but is not intended to cause through exposure something, all the Taser severity do supra n. 3. Our conclusions about the use, however, paralyzed. completely I could not the same had I was of taser would be mode, (emphasis original)). And at all.” no less than move he used dart mode. Dart mode, paralyzed injury increased because a pain. See risk of drive stun inflicts extreme Harris, impact subject may injured by from be Use Law David A. Taser Enforce- ground. Bryan, Working falling See Report Force ment: the Use injurious re- Pennsylvania, use is severe and Group Allegheny County, 824. Taser (2010) ("I taser is set. gardless of the mode to which L.Rev. 726-27 remem- U. Pitt. training regarding brought when and how has been icy ground, has use the drive stun personnel mode[] physically by been restrained several discourage pain compliance ... its use as a officers, longer other and no is actively moreover, tactic.” Id. In Taser In- resisting arrest. ternational, the manufacturer of the taser danger Id. at 734. Immediate was thus case, warned, in this

Appellees used key to our tasing the arrestee distinction — not may “Drive-stun use be effective on being ceased proportional force when the emotionally persons disturbed or others officer “continued to use his taser” after may not due to a respond pain who the arrestee “did not a pose continuing Cheryl mind-body disconnect.” W. safety.” threat to the officers’ Id. at 733. Berman, Thompson guns: & Mark Stun In Rephann, though Orem we use,’ were Post, just ‘There too much was Wash. applying a Fourteenth Amendment users, test at Al. Nov. Taser the rather than the on, Fourth Amendment’s ob- warning goes using should re- “[a]void jective test, rejected reasonableness we peated drive-stuns on such individuals if an argument officer’s compliance is not achieved.” Id. Even that the taser deploy- the tasers, in ment in company question that manufactures oth- was prevent intended to words, against er now precise warns an arrestee from endangering herself be- type Armstrong. of taser use inflicted on cause any the facts belied immediate dan- ger. Rather, See 523 F.3d at 447-49. imposes Force serious conse- handcuffed, those facts—that “Orem was quences requires significant circumscrip- weighed pounds, about 100 had her ankles precedent, consequently, tion. Our makes in the hobbling loosened device which Dep- proportional clear that tasers are force uty Boyles tightening, was and was locked deployed response when to a situa- cage Deputy Boyles’s the back seat tion in which a reasonable officer would Deputy Rephann car until opened the perceive danger some immediate door”—indicated that “the gun taser was mitigated by using could be the taser. legitimate purpose!,] not used for a such as Meyers County, parsed v. Baltimore a we officers, Orem, protecting protecting deployments defendant-officer’s taser preventing escape.” Orem’s Id. As based on the level of resistance the arres- then, offering Meyers, permissible tee we tied taser danger was that re- —and posed sistance to the use to that present exigen- officers—when each situations some shock was cy sufficiently administered. See 713 F.3d dangerous justify is (4th Cir.2013). 733-34 The “first the force. deployments three taser did not [the] to pro- understand these cases amount to an unreasonable or excessive tasing subject already scribe when a has use of force[ ] [because arrestee] was prac- been restrained sanction the acting erratically, holding a baseball against deployed tice when active resis- relinquish bat that he did not until after he tance. Since was unrestrained shock, received the second ad- contend, actively resisting, they their ” vancing toward the officers.... permissible. taser use must be 733. But seven deployments later of the taser did amount to excessive force: disagree. questions We While whether an arrestee has restrained been

It is an excessive and unreasonable use are, complying police and is with directives police of force for a repeatedly officer course, any inquiry a relevant to into the administer electrical shocks with taser armed, on an longer “pose[s] individual who no is extent to which the arrestee officer’s enter an out-of-state safety,” Refusing to officers’ to the continuing threat until a local officer is summoned car they police are Meyers, arresting to the use to not a sufficient threat limiting taser A rule dispositive. striking the safety justify physically proportional officer to involving a situations Daley, use situa- arrestee. See Rambo not countenance threat does Cir.1995). arrestee, Nor is an arrestee unrestrained tions where resistant, away police no serious safe- officer presents her arm though pulling explanation. grab her without ty attempts threat. Smith, An arrestee 781 F.3d at 103. See re Indeed, physical application away” from a “yank[ing] his arm only way to ensure cannot be straints officer, justify “being not similarly, does pose not a sufficient does that an arrestee City Corpus tackled.” Goodson v. of If it justify tasing. a safety threat (5th Christy 740 Cir. 202 F.3d justified were, a taser would be use of 2000). seizure, before every lawful the outset of This, of has been restrained. an arrestee then, circuits have other Unsurprisingly, recognize course, Courts not the law. constitute exces- that taser use can held different present seizures that different response used in non- sive force when See, e.g., Parker v. Gerr danger. risks of subject of a sei- resistance. The violent (1st Cir.2008) 1, (“Though ish, 9 547 to release his arms for “refusing] zure a of intoxicated is serious driving while “is evi- handcuffing,” example, no[t] for danger of fense, present not a risk it does violently that resist- suggesting [he] dence presented that is arresting officer to the him.” attempts to handcuff ed the officers’ suspect a en an officer confronts when Mukwonago, 624 F.3d v. Town Cyrus of robbery as like gaged in an offense (7th Cir.2010) sup- (emphasis sault.”). immedi Firing a taser “almost refusal, therefore, does not Such a plied). an the scene of ately upon arrival” subject a taser when the justify deploying altercation, an officer “could ... before there little risk [i]s [he] unarmed and “[i]s on,” is, conse going what was have known according a to the weapon,” could access constitutionally Ca proscribed. quently, Id. The en banc Ninth Circuit. Seventh Heights, Fed. 509 F.3d sey City v. of A has drawn a similar conclusion: Circuit (10th Cir.2007); at 1286 see also id. “actively arrest suspect resist[s] [when] (“[I]t use a Taser to control is excessive to car get out of her she refuse[s] having any reason to be target a without body her stiffen[s] instructed to do so a amount of force—or lieve that a lesser to frus- steering her wheel clutche[s] compli not exact verbal command—could to remove her trate the officers’ efforts ance.”). Painful, inflic injurious, serious car,” when she also “d[oes] from her taser, force, a do like the use of tions of and no other by flight, evade arrest not offi simply reasonable because not become time[,] at the exigent ] circumstances exist[ subject a authorization to arrest cers have con- ... reasonable fact-finder could [a] who is unrestrained. [a taser] ... that the officers’ use of clude and therefore constitu- di- was unreasonable noncompliance police with Even Agarano, tionally v. resistance excessive.” Mattos physical and nonviolent rectives Cir.2011) banc). (9th (en 433, 446 necessarily continuing “a not create do agrees as well. See Meyers, Eighth Circuit safety.” officers’ threat to the Valley, 574 F.3d minimally City Golden Examples of Brown 713 F.3d at 733. Cir.2009) (refusal to termi- risky prevalent. resistance are physical telephone police any [the a call after ordered dined to cause harm.” officer] nate Id. at 102. tasing justify arrestee to do so does not though was con- police officer even And we have treated pepper spray, glass use that the arrestee could cerned “closing use of force causes of the weapons or tumblers near her feet as ... eyes through swelling eyelids, of the officer). kick the could inflammation, respiratory immediate ... sensations,” ... burning immediate conclusion, taser use is And similarly, having held it excessive when to resis- response unreasonable force wife, sprint- used on an arrestee’s who was of immedi- tance does raise risk ing toward officers to her assist our danger, is consistent treat- ate with seeing husband him upon placed hand- traditional police officers’ more ment Shiflett, cuffs. Park 848- denied sum- compliance. We have tools (4th Cir.2001). Though the officers force mary judgment on excessive claims thought running at the to- scene full-bore officer, “punched who [an arrestee] to an ward their detainee was basis to arrest the and, [,] threw him the subse- ground,” “disorderly wife for ob- conduct[] [and] wrestling “used a maneuver” quently, struction a law enforcement officer him, because there “real evidence was no duties,” performance the of his id. at relatively passive, [mentally de- [a] that * (Traxler, J., n. and concurring in part danger larger, man was a to the layed] dissenting part), rejected any we notion police Perry, officer.” trained Rowland justified that application such behavior the (4th Cir.1994). 41 F.3d pepper spray, see id. at 852-83 so, that doing rejected argument we the Rather, (maj.op.). because “[i]t diffi- [wa]s response force a to such was reasonable imagine cult to the unarmed as a [wife] by “the resistance offered [the arrestee] public,” threat to the officers or the the that, during struggle,” reasoning the de- “irresponsible pepper spray officers’ use of resistance, “posed spite the arrestee range close ... twice from was indeed anyone threat to the officer else.” no excessive.” Id. at 173-74. cases, In all of these we declined similarly punching have held that We equate police conduct that a officer ground the throwing an arrestee to objec as resistance characterized with an step she “took a back single because safety entitling tive threat to the officer stoop off of the small in front the door” then, precedent, escalate force. Our leads “pulled away” during her arm an at- may police to the conclusion that a officer tempted handcuffing force. force, was excessive injurious like a only use serious Smith, 781 at This nominal taser, 102-03. offi objectively reasonable when justify did not the officer’s use resistance that the circumstances cer would conclude at the of force where a reasonable officer that present danger a risk immediate to be- At “any mitigated by scene would not have reason the use of force. could be bottom, potentially that “physical synon [the lieve was a resistance” is not arrestee] dangerous ymous danger.”9 at all in- with “risk of immediate individual” or “was "requires justified attention to some cases where an arrestee's 9. Graham’s test careful particular non-compliance facts and could be described as non- the circumstances of each Graham, require a 109 S.Ct. violent. Such situation would case.” 490 U.S. at therefore, facts from which could holding, Our does not rule existence of an officer pres- possibility reasonably use could be conclude that the resistance that taser out substances, burning him- us, and ceased ible Therefore, Appel- case before in the ... designed to “caus[e] of force self. Use only “proportional! ] of force lees’ use 625 F.3d circumstances,” pain,” Cavanaugh, excruciating all the light ... unrea- circumstances is an Smith, in these (quoting at 101 Water- 781 F.3d 481), response. Armstrong’s sonably disproportionate if re- man, danger a risk of immediate raised sistance ought not cognizant that courts We are factors militat- outweighs that Graham necessary judg element of “undercut Armstrong. But harming against ing attempts in a inherent constable’s ment most light in the the facts are viewed Brown chain of events.” control volatile not they simply do Appellant, favorable Gilmore, 362, 369 Cir. support that conclusion. 2002). suggest certainly do not And we facts, Gatling these when Officer Under duty to Appellees had a constitutional taser, Armstrong was a men deployed his Armstrong idly by hope stand pro for his own tally being ill man seized mind and return to the change his would tection, ground, was seated on accord. But the facts Hospital on his own immobility, to ensure his hugging post ruling make clear that our of this case three officers was surrounded ability to hamper police officers’ does security guards,10 and Hospital and two jobs: Tasing Armstrong did not do their a lawful seizure for failed to submit to had Appellees’ sei him to succumb to force A reasonable officer only 30 seconds. actually increased his resistance zure-he perceived a static stalemate would have tasing Appellees stopped response. When few, an imme any, exigencies if with —not security Hospital’s guards and enlisted the the officer danger so severe diate Armstrong post, off of the help pull beget the exact harm the seizure must however, group removed to avoid. intended Appel- him in Had placed restraints. permissible limited themselves to uses lees already had left the That seizing Armstrong, they of force when acting strangely while Hospital and was to con every have had tool needed would for the commitment the officers waited at their dis trol and resolve the situation change finalized do not order to be posal. in merely acting strangely If calculus. served, a green as

such a circumstance therefore, are not enti Appellees, it would then be light deployment, to taser question summary judgment on the exception than the when tled the rule rather they whether violated Constitution. officials encounter law enforcement Viewing light the record in the most favor By the time mentally ill. That cannot be. force, used excessive any Appellant, Appellees able to to inflict threat Appellees chose force, in violation of the Fourth Amendm Armstrong had im- had sunk to its nadir — himself, ent.11 chewing ceased on med- mobilized to shoot first and danger despite its non- under these circumstances immediate ente some later.”). questions ask Casey City Fed. character. See violent 1278, (10th Cir.2007)

Heights, 1285 509 F.3d Indeed, deployment it was not the of the (“While possibility we do not rule out Armstrong’s ultimately resulted in taser that might circumstances in which there be rather, post, the addi- removal from the but against a nonviolent offender is use of a Taser security guards, two who tional aid of the jury appropriate, we think a reasonable could jumped police officers in to assist the three post. prying him off the was not entitled officer] decide that [a

907 c. generality,” al-Kidd, level of 563 U.S. at 742, 131 S.Ct. 2074. nevertheless, We, affirm the district After defining right, we ask summary grant judgment Ap- court’s clearly whether it was established at the pellees’ favor because we conclude that time Appellees acted. A right satisfies qualified are entitled to immuni- this standard when it is “sufficiently clear ty. that every reasonable official would have understood that what doing he is violates Qualified immunity gov “shields Mullenix, that right.” 136 S.Ct. 308 liability ernment officials from for civil — Howards, (quoting Reichle v. U.S. damages, provided their conduct does -, 2088, 2093, 132 S.Ct. 182 L.Ed.2d 985 clearly statutory not violate established (2012)). rights constitutional knowledge within the say “This is not to that an official of a person.” Meyers, reasonable protected action is by qualified immunity at 731. all Not constitutional violations very unless the question action in pre has are clearly established ... of] “violations viously unlawful, been held but say it is to id., rights,” plaintiff constitutional so “a light of pre-existing law the may prove that an official has violated his apparent.” unlawfulness must be Wilson rights, [may official still be] entitled Layne, 603, 615,119 1692, 526 U.S. S.Ct. to qualified immunity.” Torchinsky v. Si (1999) 143 L.Ed.2d 818 (quoting Anderson (4th Cir.1991). 257, winski v. Creighton, 483 U.S. 107 S.Ct. (1987)). “[Ojfficials 97 L.Ed.2d 523 inquiry into whether a can ... be on notice that their conduct constitutional right clearly established violates established law even in novel fac requires precise first that we define the Pelzer, tual circumstances.” Hope v. right into U.S. inquiring. which we are S.Ct. Be L.Ed.2d (2002). must, fact, But they have dispositive question cause “[t]he is ‘wheth notice in order to be held liable. er the particular violative nature of con ” established,’ clearly duct is Mullenix v. The constitutional right ques —Luna, -, 305, U.S. 136 S.Ct. case, present tion in the defined with re (2015) curiam) (em- 193 L.Ed.2d 255 (per gard for Appellees’ particular violative phasis in original) (quoting v. al- conduct, Armstrong’s right not to be Ashcroft Kidd, 563 U.S. 131 S.Ct. subjected tasing offering to while station (2011)), 179 L.Ed.2d 1149 courts must “not ary and non-violent resistance to a lawful ... clearly define established at a high Hagans law seizure. Cnty. v. Franklin Cf. Appellant’s 11. We Armstrong’s have reviewed additional force to back when their re- secure, theories of excessive force but have deter- Armstrong straints were and that was they mined prone position that lack merit. very Those theories left in the for a short Appellees’ are period based on conduct being Lopez, while hand- of time after restrained. herself, cuffing shackling Armstrong. Applying placed Armstrong’s even her foot on “just enough weight” leg Appellees’ to immobilize an indi- to assist efforts to immobilize "continu[ing] struggle” during Armstrong vidual apply to restraints. In those cir- cumstances, handcuffing is not excessive force. Estate an officer at the scene could con- Milwaukee, Phillips City 123 Armstrong F.3d clude that the force used to hold (7th Cir.1997). Appellant 593 length Armstrong concedes that down and the of time was Armstrong resisting Appellees’ ground objectively was efforts to left on the were reason- him, Appellees stopped applying restrain that able. Rowland, 41 F.3d at It would not Office, 695 F.3d 171-72. Sheriff's Cir.2012) (“Defined appropriate every at the lev necessarily have been clear to rea- reasonably particularized generality-a el of sonable that those to applied officer cases hand is it question at whether one—the warning force inflicted after an individual May 2007 that clearly established was exhibiting nonviolent resistance to desist on a ac using repeatedly suspect a taser and discontinued before that individual tively resisting refusing arrest and to be was secured. force”). to excessive handcuffed amounted A survey of other law con- circuits’ case our precedent supports our conclu While Appellees firms did have suffi- that not Appellees right that violated that sion ciently to guidance qualified clear forfeit seizing Armstrong, acknowledge we there immunity. Again, many were deci- not so at that this conclusion was settled ought given sions to have Appellees they “every rea the time acted such pause. Bryan, 630 at 826-27 See F.3d official have sonable would understood (taser exhibiting against use individual tasing Armstrong that” was unconstitu “unusual and “shouting gibber- behavior” Mullenix, at 308 (quoting tional. 136 S.Ct. expletives” ... was “un- ] and who ish 2093). Reichle, 132 S.Ct. at armed, ..., stationary facing away [and] sure, case law To be substantial indicat from an at a fifteen to officer distance of Appellees treading were to ed close twenty-five feet” excessive constitutes discussed, the constitutional line. As we force); (taser 624 F.3d at use Cyrus, tasing previously suspects have held that when misdemeanant was violent and not secured, they have see Meyers, after been not try being did to flee but hand- resisted 734;12 Bailey, at F.3d at Brown, force); cuffed excessive constitutes 744-45, punching pepper and that or (“[I]t 574 F.3d at 499 unlawful to was minimal, suspects in spraying response nonviolent, suspected Taser a misdemean- Park, resistance, non-violent see arrest, fleeing ant who or resisting 849-53; Rowland, 172-74, posed anyone’s who to no little threat constitute excessive force. safety, and whose with noncompliance cases, however, susceptible These are disobey officer’s commands was to two

readings which would not extend to the phone orders to end her call to a 911 Appellees seizing situation faced when operator.”) Armstrong. Meyers Bailey, Unlike in But other cases could construed to be using did not continue force af- Appellees’ sanction decision use a taser. Meyers, ter was secured. See held, 734; the Eleventh Circuit “use of Bailey, 713 F.3d at 349 F.3d at 744. Rowland, taser ... gun [a] unlike in to-effectuate arrest Appel- [an] And Park and reasonably proportionate lant does not contend the officers in to the diffi- ques- cult, tion initiated the excessive force tense and uncertain faced without situation” warning opportunity by police cease any non- officer when arrestee “used Park, 848; compliance. profanity, agi- See at moved around paced and Meyers County Meyers, (citing 12. v. 2003. Baltimore decided See 713 F.3d at 734-35 case, Appellees’ 744-45). after in the Bailey, conduct instant 349 F.3d at in the Meyers clearly any right did therefore, not establish case, instant that were on notice Meyers, the first for time. Rather in we found tasing who and an individual "was unarmed question right officer violated a effectively clearly was secured” unconstitu- since, clearly that had been established at tional. Id. at 735. least, Bailey Kennedy, v. which was decided in officer],” tation, yelled ... at [the D. comply ... “repeatedly refused to with ought This not remain an evolving field Draper Reynolds,

verbal commands.” indefinitely though. law “Without mer- (11th Cir.2004). 1270, 1278 When 369 F.3d adjudication, legal its govern- rule[s]” 2007, moreover, law as of reviewing the ing evolving fields of constitutional law found, from “[c]ases the Sixth Circuit this Jeffries, Jr., “remain unclear.” John C. others, May after circuit and before and Reversing the Order Battle in Constitu- suspect adhere to this line: If a Torts, Sup.Ct. tional Rev. 120. actively arrest and to resists refuses be obvious, may quite “What not be so but is handcuffed, officers do not violate the in fact far more important, degrada- is the by using Fourth Amendment a taser to tion of rights may constitutional result Hagans, him.” 695 F.3d 509. subdue at when ... constitutional tort claims are proceeded provide court to Hagans solely grounds qualified resolved on im- examples in which the Sixth Circuit had munity.” degradation Id. This is most tasing simply held reasonable because pernicious to rights rarely that are litigat- suspect refused to be handcuffed” or “[t]he § ed outside the context of 1983 actions ... suspect “the refused to move his arms subject qualified to immunity rights like — circuits, body.” from under his Id. Other the Fourth Amendment protection against short, distinguished have sometimes excessive force at issue here. See id. at permissible impermissible tasing rights], 135-36. “For repeated [such establishing based on facts bare noncom qualified immunity invocation of will re- pliance establishing rather than facts a meaning duce the of the Constitution to danger. risk of Because plausible conception the lowest of its con- commands, complying Appellees’ not with tent.” Id. at 120. negate any these cases the existence of persuasive “consensus of cases of authori accept Rather than this deteri ty” across our sister circuits “such that a creep, orative opinion we intend this reasonable officer could not have believed clarify when taser use amounts to exces Wilson, that his actions were lawful.” in, least, at sive force some circumstances. 617, 119 at U.S. S.Ct. 1692. taser, baton, A ... gun, like “a a or other conclude, therefore, weapon,” Meyers, that Arm We is ex strong’s right not to pected pain injury be tased while offer to inflict when de It, therefore, ing stationary may only ployed. non-violent resistance be de clearly ployed a lawful officer seizure was established is confronted Indeed, April exigency two months with an that creates an immedi case, Appellees’ safety reasonably likely conduct one of ate risk and that is after wrote, colleagues objective by using our “the rea to be cured the taser. The sub ject sonableness of the use of Tasers continues of a seizure does not such a risk create pose simply doing something he is challenges difficult law enforce because agencies ment and courts alike.... ‘That can characterized as resistance-even be evolving physically the law is still is illustrated in when that resistance includes immunity of his granting qualified preventing manipulations cases for that officer’s ” very body. Erratic and mental illness Henry, 652 F.3d 539-40 behavior reason.’ (Davis, J., concurring) (quoting McKenney necessarily safety do not create a risk Harrison, contrary, either. To the when a seizure is Cir. 2011) J., solely mentally ill (Murphy, concurring)). prevent intended himself, that harming undisputed by the offi- J.A. 210-19. It is the individual from Sheppard has time Officer arrived at the cer the a lessened effecting seizure scene, Armstrong engaged in harmful was self-de- deploying potentially interest in grass, eating structive dande- force. behavior— lions, gauze, burning and and his and arms Where, of an during seizing the course tongue cigarettes. with at It Id. 507-08. ill who is mentally individual out-numbered undisputed that the an police is obtained himself, danger only to officers involuntary to bring commitment order in face of deploy choose to a taser the Armstrong to at hospital. back the Id. to stationary and non-violent resistance be- It is undisputed Armstrong 534. that did handcuffed, ing officers use unrea- those to hospital despite not want return the sonably qualified excessive force. While stop resisting pleas his sister’s authori- case immunity shields the officers It undisputed ties. Id. at 231. is that liability, from law enforcement officers Armstrong strong man, weighed was a and that should on notice such taser now be 297-98, pounds. about 260 It use violates the Fourth Amendment. undisputed is that the ulti- before officers mately Armstrong they detained did not IV. opportunity an weap- have frisk him for reasons, foregoing judgment For the the undisputed ons. Id. 464. It is that the of the district court is sign post Armstrong gripped was near a trafficked AFFIRMED. intersection. Id. at 461. It is

undisputed that the “had officers observed WILKINSON, Judge, Circuit Armstrong wandering into traffic with lit- part: concurring regard avoiding passing tle for the cars place the and seizure took a few feet judgment I am to concur in the of happy roadway.” Maj. Op. from an active at 901. majori- affirmance and Part III.C the undisputed It is applied the officers ty opinion. Having resolved the case graduated levels force—first verbal properly awarding judgment defendants commands then a ap- and “soft hands” qualified majori- on immunity grounds, the proach prior Gatling’s to Officer use of — ty had on the opine no need merits his Taser. It undisputed J.A. 514. is fact, the force it runs excessive claim. Armstrong tried to kick officers as serious in doing risks so. they put on legs. handcuffs his Id. at 573. case, This very was a close kind of “The calculus reasonableness must em- judicial dispute in which hindsight should body allowance for fact that police displace judgmental calls. officers’ split- officers are often forced to make I do not contend that the officers’ behavior judgments second circumstances —in believe, here, I impeccable but do with tense, uncertain, rapidly are evolv- court, the district that it was not the kind ing the amount of force that —about of action that merited an award of mone- necessary particular in a situation” Gra- tary damages. Connor, 386, 396-97, ham v. U.S. (1989). S.Ct. 104 L.Ed.2d 443 That

I. pretty much describes the situation here. These are difficult It is un- situations. II.

disputed April that on days had off his for Having been medications thoughtfully appeal resolved unpredictable immunity qualified grounds,* erratic state. ma- 37, jority launches into an extended discussion 129 S.Ct. 808. ISo would respectfully of the prefer merits excessive force claim. not to get into the prong first of the unnecessary. This is so Sometimes it is analysis Saucier here. It is “far from for courts not large upon obvious,” best to write term, to use the Court’s that the discharge simple “[ajdditional world but to our rustic trial court’s conclusion that duty to decide the case. reasonable force was appropriate under these circumstances” was unsound. J.A. The in Supreme Court Pearson v. Calla- han, 223, 808, 555 U.S. S.Ct. (2009), gave Clarity arguably L.Ed.2d 565 us the is discretion most difficult just admittedly to do that. Pearson is achieve in Fourth a Amendment cases be- forth, bright-line decision with a bit of back cause rules at imperfectly most its salient contribution take account slight was to liberate the of the in shifts real-life lower federal courts from the onerous situations that can alter what are inescapa- bly shackles of regime judgment the Saucier v. Katz close calls. As the Supreme noted, allow them to proceed directly quali- to a Court immunity analysis fied without addressing Although the prong first of the Saucier the merits first. In this regard, Pearson procedure is intended to further the de recognized the duty foremost of courts to velopment of precedent, constitutional resolve cases and controversies. opinions following that procedure often That, least, 129 S.Ct. 808. is what fail meaningful to make a contribution to Article III established us to do. such development. For thing, one there are cases which the constitutional fact, proceeding such a manner is question is so factbound that the deci often the preferable course. The majority provides sion guidance little for future says it go must further in provide order to Harris, cases. See Scott 550 U.S. clarity cases, 909-10, Maj. future atOp. 372, 388, 127 1769, 167 S.Ct. L.Ed.2d 686 clarity but that is illusory. Today’s often (2007) (BREYER, J., (coun concurring) prescription may fit tomorrow’s facts seling against the Saucier two-step pro and circumstances. Our rather abstract tocol question where the is “so fact de pronouncements in may one case be pendent that the result will be confusion little assistance with the par- realities and rather than clarity”); Buchanan ticulars of another. Maine, (C.A.1 2006) noted, Supreme As the Court rigid “the (“We do not think the law elaboration procedure Saucier price. comes with a here, purpose will be well served where procedure sometimes results in a sub- the Fourth inquiry Amendment involves expenditure stantial judicial of scarce re- question high reasonableness which is sources on difficult questions that have no ly idiosyncratic heavily dependent effect on the outcome of the case. There facts”). on the are cases in which it plain that a consti- Pearson, 555 U.S. at 129 S.Ct. 808. tutional right clearly is not established but far from obvious whether in My fact there is fine colleagues majority have Pearson, a right.” such job 555 U.S. at 236- done good expected as as can be * -, Normally, "clearly established” law is found 133 S.Ct. 185 L.Ed.2d 540 (2013). by looking Supreme My good colleagues range Court cases and the somewhat here, cases in the circuit in which the doing officers are further afield but I think so in this - Rodgers, located. See way Marshall v. U.S. case in no affected the outcome. very- Again, may comforting appel- But seem a the the circumstances. what given utility to late of to those quality of the effort serves nostrum is limited exemplary enterprise. the The faced far removed perils illustrate the of with volatile situations majority peaceful appellate notes “that different seizures from the confines of danger,” Maj. majority goes different risks of The on to note present chambers. recognize increasing “in at but fails to that the that circumstances ... Op. some presented may cannot ... the of risk be easi- the use force exacerbate spectrum of (internal court. It ly appellate quotation situation.” Id. marks sketched omitted). majority’s disagree highly to the But what circumstances hard with those really Taser my colleagues assertion that use is un- are I can generalized neither nor say. unrestrained arres- “where an warranted resistant, no tee, though presents serious agree I finally plaintiff cannot that the course, safety threat.” But of what Id. posed danger. certainly real here no He “resistant,” qualifies conduct as and what off posed danger having to himself been safety the of a “serious rises to level engaging medication and in self-destruc- again dependent is once on the threat” point tive behaviors to the that his sister facts infinitely actual and variable and cir- her re- pleading prompt was for brother’s that officers on cumstances confront their turn to re- hospital might the where he

beat. As to help. danger ceive some for the others, hardly unlikely it was the widespread came Tasers into use for plaintiff, a indi- They thought preferable sizeable unrestrained reason. were to vidual, canines, bolt into the and cause forms such as would street 'far cruder of force who, batons, choke-holds, if a traumatic accident for motorists sprays, and it was injured, regret not the make themselves would hoped that their use would the de- years harm pedestrian inflicted on this for unnecessary of lethal force ployment say not to that the very of to come. I contend least a last resort. None this of easy, case that it hard. The justifies promiscuous but course their use. rightly district court its majority permissible recognized The taser use “tie[s] difficulty intrinsic afforded no reason to present exigency situations some sufficiently unnecessary deliver these officers an re- dangerous justify that is the Maj. Op. force.” at 903. But with buke. all due

respect, that abstract formulation will be III. than help of less limited to officers won- dering exactly they may may what not majority The has left it in the air. up all do. And its to this with- approach case is not great majority out consequence. of officers, told We are further that mentally pose persons danger ill no serious though armed with a civil or- commitment challenge or others themselves and the der, possess not degree do the same of society help good people of is to these lead regard mentally latitude with to a ill per- more A of satisfying lives. smaller subset son as with someone whom there is reason mentally pose greatest.sort ill do has a crime. believe committed Id. danger, large to themselves but to All good, 899-900. well and ma- string as of mass people numbers of “[mjental jority illness, then notes that shootings country in this will attest. course, spectrum describes a broad of con- and does It is sea- po- ditions not dictate same difficult sometimes for even response professionals predict all soned which is lice situations.” at 900. which, not to mention 'officers and others Federation Corporate Of Defense & Counsel; Liability Product training. yet with more limited And it is Advisory Council, Incorporated; important in this area that law not lose its Cook Biotech Incorporated; preventive aspect. It can be heartbreak- Chamber of Commerce ing to wait until the damage is done. De- America; the United States of Cook livering vague proclamations about do’s Incorporated; LLC, Cook Medical and don’ts runs the risk incentivizing Supporting Amici Appellant, action, officers to take no in doing so Justice; Public National Center for to leave individuals prospective and their Health, Supporting Amici victims to their unhappy fates. Law en- Appellees. forcement learn enough will soon that sins of omission are generally not actionable. Bard, In Incorporated, Re: C.R. MDL. DeShaney Winnebago Cty. See v. Dep’t of 2187, Repair System No. Pelvic Services, Social 489 U.S. 109 S.Ct. Liability Litigation. Products (1989). 103 L.Ed.2d 249 And courts, face of nebulae from the the natu- Cisson; Cisson, Donna Dan ral human reaction will be to desist. Per- Plaintiffs-Appellants, haps achieve, this is what we mean to risks, over-deterrence carries its own Bard, Incorporated, C.R. namely that badly help those who need will Defendant-Appellee, receive no help, poorer and we shall be the for it. Olens, Attorney Samuel S. General of Georgia,

the State of Intervenor. Federation Corporate of Defense & Counsel; Chamber of Commerce of America; the United States of Prod Liability Advisory Council, uct Incor porated, Supporting Appellee, Amici Justice; Public National Center for Health, Supporting Amici Appellants. BARD, INCORPORATED, re C.R. 15-1102, Nos. 15-1137. MDL. No. REPAIR PELVIC SYSTEM LIABILITY PRODUCTS United States Court of Appeals, LITIGATION. Fourth Circuit. Argued: Sept. 2015. Cisson; Cisson,

Donna Dan Plaintiffs-Appellees, Decided: Jan. Bard, Incorporated,

C.R. Defendant-

Appellant, Olens, Attorney

Samuel S. General Georgia,

the State of Intervenor.

Case Details

Case Name: Estate of Armstrong Ex Rel. Armstrong v. Village of Pinehurst

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 11, 2016

Citation: 810 F.3d 892

Docket Number: 15-1191

Court Abbreviation: 4th Cir.