Jones v. TreubigJones v. Treubig
JOSEPH F. BIANCO, Circuit Judge:
Matthew Jones (“Jones”) appeals from the judgment entered on November 27, 2018 in the United States District Court for the Southern District of New York in favor of Lieutenant Christopher Treubig (“Lt. Treubig”). After a jury found that
The underlying claims stem from an arrest that occurred on April 7, 2015 in Jones’s apartment building in East Harlem, New York, during which Jones was subjected to force by the police, including the use of a taser by Lt. Treubig. Jones filed the instant lawsuit under
BACKGROUND
I. Factual Background
The following facts are drawn from the record on appeal and are construed in the light most favorable to Jones unless otherwise noted. See Kerman v. City of New York, 374 F.3d 93, 114 (2d Cir. 2004). Jones lives in an apartment building in East Harlem, New York. On the evening of April 7, 2015, he was descending the stairs of his apartment building to meet his uncle to return a bottle of prescription medication and $70 in cash. As Jones met his uncle in the stairwell, New York Police Department (“NYPD”) Officers Michael Vaccaro and Adam Muniz encountered them while patrolling the building. The officers instructed Jones and
Other police officers quickly arrived at the scene in response to a radio call from Officer Vaccaro, including Undercover Officer #349 (“UC #349”) and her partner. As Jones remained pinned down by Officer Vaccaro, another officer hit Jones with an expandable metal baton (referred to as an “asp”) until Jones’s left arm went numb. Officer Vaccaro testified that, as the officers attempted to secure Jones’s left arm for cuffing, Jones stated, “I’m not going to jail.” J. App’x at 51. One of the officers then pepper-sprayed Jones in his face. The officer who used
Lt. Treubig and his partner then arrived on the scene, and Lt. Treubig announced that he was going to use his taser. Jones claimed that he did not hear the warning, and managed to “force [himself] up off the ground” when he heard someone say, “hit him.” J. App’x at 28, 42. At that point, Lt. Treubig used his taser against Jones in “cartridge mode.”1 J. App’x at 87, 89. When Lt. Treubig deployed the taser the first time, two metal prongs struck Jones in his lower back, and an
According to Lt. Treubig, the initial tasing “didn’t stabilize [Jones] enough to the point where the officers were able to grab his hands.” J. App’x at 84. Lt. Treubig then “[r]eassess[ed] the situation” and depressed the trigger of the taser again, thereby re-cycling the taser and sending another electrical charge into Jones’s body.3 J. App’x at 54, 84. After the second tasing cycle, Jones was handcuffed and brought to the hospital by ambulance. Approximately three minutes passed between the time that Officer Vaccaro radioed for assistance and the time that Lt. Treubig called for an ambulance. Jones was later charged with a controlled substance offense and resisting arrest. He was released without bond, and all charges were ultimately dismissed.
II. Procedural History
A jury trial commenced on May 21, 2018, and the jury reached a verdict on May 24, 2018. At trial, Jones and the police officers vigorously disputed the degree of resistance that Jones offered during the incident; Jones claimed that he repeatedly inquired why he was under arrest, did nothing to resist, and was unable to provide his arm for cuffing because it was pinned under him on the ground, while the officers who testified claimed that he resisted arrest “aggressively and actively.” J. App’x at 82. Defendants argued to the jury that they should not be held liable for two principal reasons. First, they contended that Jones could not identify which specific officer beat him with the asp and pepper-sprayed him, so no one could be held accountable for the force that preceded the tasing. Second, defendants urged the jury to credit their version of events in which
a. Jury Trial and Verdict
Following deliberations, the jury found that only Lt. Treubig used excessive force in violation of Jones’s constitutional rights.5 It found that Officers Vaccaro, Muniz, and UC #349 did not use excessive force against Jones. The jury did not award compensatory damages, and initially awarded Jones solely punitive damages against Lt. Treubig in the amount of $30,000. After the district court instructed the jury to reconsider the award of nominal damages, the jury awarded Jones twenty-five cents.
At the close of evidence, Lt. Treubig had requested that the district court dismiss the excessive force claim on qualified immunity grounds, and he renewed that motion after the jury returned its verdict. Over Jones’s objection, the district court asked the following questions to the jury in a special verdict form to assist the district court in resolving the qualified immunity issue, and the jury provided the following answers:
- Did Lieutenant Treubig say he would use the taser before he used it?
A: Yes. - Was a second taser cycle needed to gain control of the plaintiff’s arms? A: No.
- Did Lieutenant Treubig believe that a second taser cycle was needed to gain control of the plaintiff’s arms? A: Yes.
- Was the plaintiff resisting arrest when Lieutenant Treubig used the taser the first time? A: Yes.
- Did Lieutenant Treubig believe that the plaintiff was resisting arrest when Lieutenant Treubig used the taser the first time? A: Yes.
- Was the plaintiff resisting arrest when Lieutenant Treubig used the taser the second time? A: No.
- Did Lieutenant Treubig believe that the plaintiff was resisting arrest when Lieutenant Treubig used the taser the second time? A: Yes.
J. App’x at 137-38, 185-88. In short, the jury found that Jones was resisting arrest at the time that Lt. Treubig first used the taser. The jury also found that Jones was not resisting when Lt. Treubig used the taser the second time and that the second taser cycle was not needed to gain control of Jones’s arms for handcuffing, but that Lt. Treubig believed the opposite to be true as to both facts.
As to his renewed motion for judgment as a matter of law, Lt. Treubig argued that the jury’s answers demonstrated that he was entitled to qualified immunity. Given his belief that Jones was resisting arrest throughout the entire
b. The District Court’s Ruling
Turning to the second tasing, the district court held that Lt. Treubig was entitled to qualified immunity because “there is nothing in the cases from the Supreme Court or the Court of Appeals for the Second Circuit that gave ‘fair warning’ that the second use of the taser was unconstitutional at the time of the plaintiff’s arrest.” J. App’x at 164. First, the district court found that the re-cycling of thе taser was reasonable because the first tasing did not “subdue the plaintiff
After reaching this reasonableness conclusion, the district court explained that the punitive damages award did not prevent the court from granting judgment as a matter of law. Specifically, the district court stated that qualified immunity is a question of law for courts that pertains to the conduct of reasonable officers, while punitive damages pertain to the “subjective motivation of a defendant’s actions.” J. App’x at 177-78.
This appeal followed.
Jones appeals the district court’s order granting judgment as a matter of law to Lt. Treubig on qualified immunity grounds. Jones argues on appeal that, in its decision, the district court incorrectly drew inferences in favor of Lt. Treubig, despite the standard of review that applies to motiоns for judgment as a matter of law. For example, Jones asserts that the district court erred when it stated that “[t]he parties agree that despite being tased, the plaintiff was not incapacitated.” J. App’x at 153. Jones contends that the parties agreed that Jones attempted to push himself off the ground at the time of the first tasing, but “whether the initial deployment of the taser incapacitated Mr. Jones was a hotly disputed issue.” Appellant Br. at 18 n.6. The district court further stated that, after the first tasing, “[t]he plaintiff maintained control of his arms and began pushing himself off the ground.” J. App’x at 153. However, Jones highlights portions of the testimony in which he asserted that he was lying face down at the time of the second tasing. Jones argues accordingly that, when the jury’s findings and the evidence supporting those findings are correctly construed in the light most favorable to him, Lt. Treubig is not entitled to qualified immunity because he violated clearly established law by (1) using his taser the first time even though Jones was only
We review de novo a district court’s decision on a
I. The Qualified Immunity Standard
Qualified immunity protects government officials from civil damages liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, pursuant to the two-step framework articulated by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), when an official raises qualified immunity as a defense, the court must consider whether: “(1) . . . the official violated a statutory or constitutional right, and (2) . . . the right was ‘clearly established’ at the time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
As it relates to the second step, the focus is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.6 The Supreme Court has explained that the “clearly established right,” particularly in excessive force cases, “must be defined with specificity.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). Indeed, “[a]n officer ‘cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014)). Although the Supreme Court “do[es] not require a case directly on point, . . .
The Second Circuit has set forth the procedure by which district courts should resolve disputes on factual issues at trial that are relevant to the qualified immunity analysis. In particular, “[i]f there are unresolved factual issues which prevent an early disposition of the defense [of qualified immunity], the jury should decide these issues on special interrogatories.” Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990); see also Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (“We believe that use of special interrogatories in this case resolves the difficulty of requiring the jury to decide what the facts were that the officer faced or perceived and
II. Clearly Established Law and the Use of Tasers
The first step of the qualified immunity test—namely, whether the defendant violated a statutory or constitutional right—was determined by the jury in this case, which found that Lt. Treubig used excessive force against Jones in violation of the Fourth and Fourteenth Amendments. As stated above, Lt. Treubig does not appeal this finding. Accordingly, our task here is to determine whether the right at issue was “clearly established”—that is, whether “it was objectively reasonable for [Lt. Treubig] to believe [his] acts did not violate those rights.” See Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994).
Before the incident at issue here in April 2015, it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others. Tracy v. Freshwater, 623 F.3d 90, 98-99 (2d Cir. 2010). In Tracy, we confronted an arrest that occurred in 2000 and involved the use of pepper spray against an individual who asserted that he was already in handcuffs and “offering no further active resistance.” Id. at 98. We concluded that
Notwithstanding that the focus of this appeal is the use of a taser, not pepper spray, we have warned that “[a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.” Terebesi v. Torreso, 764 F.3d 217, 237 (2d Cir. 2014) (quoting Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994)); see also Hope, 536 U.S. at 741 (“[O]fficials can still be on notice that their conduct violates [clearly] established
It is beyond doubt that any reasonable police officer would know that the use of a taser, like pepper spray, constitutes significant force. See, e.g., Abbott v. Sangamon Cty., 705 F.3d 706, 726 (7th Cir. 2013) (“[T]he use of a taser, like the use of pepper spray or pain-compliance techniques . . . falls somewhere in the middle of the nonlethal-force spectrum.”); Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010) (“The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the [Taser] X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted” including, among other things, pepper spray.). This obvious fact was known to Lt. Treubig, who testified that he was trained to “deploy the taser on individuals that are actively resisting, active aggression” or for “perceived violent threats.” J.
In fact, Tracy itself made the broad scope of its holding abundantly clear. For example, in addressing the Fourth Amendment issue in Tracy, we did not only refer to pepper spray, but rather noted that the use of such a weapon constitutes a “significant degree of force” and emphasized that “a number of our sister circuits have made clear that [pepper spray] should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer.” 623 F.3d at 98 (collecting cases). Thus, the language in Tracy left no question that, on the issue of significant force against an arrestee no longer posing an immediate threat, we joined our sister circuits in concluding that summary judgment on the excessive force claim relating to the use of pepper spray was unwarranted for the defendant officer. See id. at 99. Moreover, in briefly addressing the second step of the qualified immunity analysis, we restated our holding “that the use of entirely gratuitous force is unreasonable and therefore excessive,” id. at 99 n.5, and then, in dicta, noted that
In light of Tracy, we have held, as it relates to tasers, that it was clearly established before April 2015 that “officers may not use a taser against a compliant or non-threatening suspect.” Muschette, 910 F.3d at 69-70 (citing Tracy, 623 F.3d at 96-98); see also Soto v. Gaudett, 862 F.3d 148, 158 (2d Cir. 2017) (“Though the use of force may be reasonable against a suspect who is fleeing, it may be objectively unreasonable against that suspect when he has been stopped and no longer poses a risk of flight.” (citing Tracy, 623 F.3d at 96-98)). Although Lt. Treubig argues that these decisions are inapposite because they were issued after the conduct at issue here in April 2015, we disagree. For this argument, Lt. Treubig relies on the Supreme Court‘s decision in Kisela, which emphasized that cases published after the incident should not be considered in determining clearly established law “because a reasonable officer is not required to foresee judicial decisions that do not yet exist.” Kisela, 138 S. Ct. at 1154. However, the Supreme Court‘s concern specifically related to opinions published after the officer‘s conduct at issue that establish the right in the first instance. See id. Consistent with the holding in Kisela, we have considered cases published after the conduct at issue that do not establish
III. Clearly Established Law in the Particular Context of this Case
Our holding regarding Tracy as it applies to tasers, however, does not end our analysis. The Supreme Court has “repeatedly told courts . . . not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742. Instead, “[t]he dispositive question is whether the violative nature of particular conduct is clearly established,” and, thus, “[t]his inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotations marks omitted). Accordingly, we now turn to whether the right articulated in Tracy was clearly established in the more particular context in which the challenged conduct regarding the taser occurred in this case.
With respect to the second tasing cycle, the district court concluded that “there is nothing in the cases from the Supreme Court or the Court of Appeals for the Second Circuit that gave ‘fair warning’ that the second use of the taser was unconstitutional at the time of the plaintiff‘s arrest.” J. App‘x at 164. As discussed below, in reaching this conclusion, the district court erroneously relied upon a
a. The Level of Resistance Before the Second Tasing
A critical fact for purposes of qualified immunity in this case is whether Jones was resisting arrest in any way at the time of the second tasing, because there was no clearly established law that would fairly warn police officers that a taser could not be used against a resisting arrestee. Indeed, to the contrary, “[o]ur precedents suggest that it is not excessive force to deploy tasers, after a warning, against arrestees who are dangerous or resisting arrest.” Penree by Penree v. City of Utica, 694 F. App‘x 30, 33 (2d Cir. 2017) (addressing a 2012 incident); see also MacLeod v. Town of Brattleboro, 548 F. App‘x 6, 8 (2d Cir. 2013) (concluding that the use of a taser “to subdue an actively non-compliant suspect . . . who posed a real and imminent threat to the safety of the officers and any bystanders” was objectively reasonable where the officers gave “repeated, clear commands that [the plaintiff] return to the ground“); Crowell v. Kirkpatrick, 400 F. App‘x 592, 595 (2d Cir. 2010) (concluding that the use of taser was reasonable where protestors “were actively resisting their arrest” when they chained themselves to a barrel drum and the “apparently imminent arrival of some number of their compatriots added a degree of urgency” to the situation). On the other hand, if Jones was no longer resisting arrest and posed no threat to the safety of police officers or others after the first tasing, then qualified immunity would not protect Lt. Treubig when he re-cycled the taser in violation of the clearly established law under Tracy.
Thus, a factual lynchpin to the district court‘s qualified immunity analysis was its post-trial conclusion, with respect to the second tasing cycle, that “[t]he plaintiff was rising from the floor at the time.” J. App‘x at 164. In connection with this factual finding, the district court suggested that Jones conceded that he still exhibited a certain level of ongoing resistance after the first tasing:
The parties agree that despite being tased, the plaintiff was not incapacitated. The taser did not stabilize the plaintiff enough for the officers to be able to grab his hands. The plaintiff continued to try to pull his right arm away from the officers and under his body after the first taser cycle. The plaintiff maintained control of his arms and began pushing himself off the ground. The defendant reassessed the situation and believed that the plaintiff was still resisting arrest. The defendant then recycled the taser.
J. App‘x at 153 (citations omitted).
Even in the absencе of an agreement on this factual issue, Lt. Treubig suggests that the uncontroverted evidence still demonstrated that Jones continued to resist arrest at the time of the second tasing. Lt. Treubig supports his position by pointing to Jones‘s own trial testimony in which he stated that, after the first tasing, though he felt the muscles in his legs and his back “lock[] up,” the muscles in his arms did not. J. App‘x at 43. Accepting Lt. Treubig‘s argument, the district
Although Lt. Treubig places great weight on the fact that Jones also testified that his arm muscles did not lock up when he was on the ground after the first tasing, that alone cannot possibly establish that he was resisting arrest in any way at the time of the second tasing. Indeed, Jones counters that “the jury plainly could have inferred that a man lying face down with his back and legs locked up is incapacitated irrespective of the sensation he recalled in his arms.” Reply Br. at 8.
Not only was there evidence in the record to support that Jones was no longer resisting arrest at the time of second tasing, but the jury made that specific factual finding in a special interrogatory. Because that jury finding was rationally supported by the above-referenced evidence in the record (if credited), it must be accepted for purposes of the qualified immunity analysis utilizing, to the extent any other factual issues remain, the underlying evidence in the light most favorable to Jones. See Kerman, 374 F.3d at 114. Upon doing so here, our qualified
b. Lt. Treubig‘s Belief Regarding the Level of Resistance Before the Second Tasing
In reaching this conclusion, we have also carefully considered the second ground for qualified immunity articulated by the district court—namely, even though the jury found that Jones was not resisting arrest at the time of the second tasing, Lt. Treubig is still entitled to qualified immunity because the jury also found Lt. Treubig mistakenly believed that Jones was continuing to resist. The district court explained that Lt. Treubig‘s mistaken belief in that regard “does not preclude a determination that Lt. Treubig is entitled to qualified immunity.” J. App‘x at 164. However, in the absence of more detailed findings by the jury, we conclude that this mistaken belief does not shield Lt. Treubig from liability because
The Supreme Court has made clear that “[t]he protection of qualified immunity applies regardless of whether the government official‘s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (quotation marks omitted). However, qualified immunity only protects “reasonable mistakes.” Saucier, 533 U.S. at 206; Moore v. Vega, 371 F.3d 110, 117 (2d Cir. 2004) (“[D]efendants believed they were entering the residence of an absconded parolee. If such belief was reasonable, qualified immunity protects them from liability, even if that belief was mistaken.“); accord Singh v. Cordle, 936 F.3d 1022, 1033 (10th Cir. 2019) (“A mistake of fact must, of course, be a reasonable one.“); Henry v. Purnell, 652 F.3d 524, 532 (4th Cir. 2011) (“[I]t is not the honesty of [the police officer‘s] intentions that determines the constitutionality of his conduct; rather it is the objective reasonableness of his actions. It is certainly true that mistaken, but reasonable, decisions do not transgress constitutional bounds. All actions, however, mistaken or otherwise, are subject to an objective test.” (citation omitted)).
As a threshold matter, we have explained that the reasonableness of a mistake of fact regarding the use of force does not pertain to the ultimate qualified immunity determination, but rather whether there was a constitutional violation in the first instance—which is “step one” of the Saucier inquiry. See Stephenson, 332 F.3d at 78 (“[A]s the Supreme Court clarified in Saucier, claims that an officer made a reasonable mistake of fact that justified the use of force go to the question of whether the plaintiff‘s constitutional rights were violated, not the question of whether the officer was entitled to qualified immunity.“); see also Saucier, 533 U.S. at 205 (“If an officer reasonably, but mistakenly, believed that a suspect was likely
And, importantly, disputed material issues regarding the rеasonableness of an officer‘s perception of the facts (whether mistaken or not) is the province of the jury, while the reasonableness of an officer‘s view of the law is decided by the district court. See Green v. City of New York, 465 F.3d 65, 83 (2d Cir. 2006) (“If there is a material question of fact as to the relevant surrounding circumstances, the question of objective reasonableness is for the jury. If there is no material question of fact, the court decides the qualified immunity issue as a matter of law.” (citations omitted)); see also Cugini v. City of New York, 941 F.3d 604, 614 n.6 (2d Cir. 2019) (concluding that, with respect to an excessive force claim regarding handcuffing, “[a] reasonable jury could also find that it was unreasonable for [the officer] to assume that the plaintiff was all right based on her silence following the handcuffing“).
For example, in Wilkins v. City of Oakland, 350 F.3d 949, 953, 956 (9th Cir. 2003), the Ninth Circuit held that summary judgment on qualified immunity grounds was unwarranted, where officers mistakenly shot a fellow plain-clothes officer, because the jury needed to decide the reasonableness of that mistake. The court explained:
The objective reasonableness of the officers’ conduct in this case turns on their mistake of fact with regard to [the plain-clothes officer‘s] status and purpose at the scene that night. In turn, whether this mistake of fact was reasonable depends on which version of the facts is accepted by a jury. . . . The only question for resolution is whether their belief in the necessity of their actions was objectively reasonable. That is, was it reasonable for them not to understand that the person they were shooting was another police officer? Because the answer to that question depends on disputed issues of material fact, it is not a legal inquiry, but rather a question of fact best resolved by a jury.
Id. at 955; see also Curley v. Klem, 499 F.3d 199, 214 (3d Cir. 2007) (“At the risk of understating the challenges inherent in a qualified immunity analysis, we think the most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified
Therefore, in determining whether Lt. Treubig used excessive force with respect to tasering Jones, it was the jury‘s role to consider the reasonableness of Lt. Treubig‘s stated belief regarding Jones‘s continued resistance at the time of the second tasing. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene . . . at the moment” the force is used. (citations omitted)). In the instant case, consistent with that legal framework, the district court specifically instructed the jury on the need to consider the evidence at the arrest scene from the perspective of a reasonable officer. See J. App‘x at 116 (instructing the jury that, “[b]ecause police officers are often forced to make split-second judgments about the amount of force that is necessary in a given situation, the reasonableness of a particular use of force must be judged from the perception of a reasonable officer on the scene rather than with the 20/20 vision of hindsight“). Given that the jury reached its verdict under the correct instructions, the district court cannot “substitute its view for adequately supported findings that were
Although it is the jury‘s province to resolve the reasonableness of an officer‘s perception of the facts that confronted him, we recognize that those same facts, or some portion thereof, can also sometimes be critical in deciding the qualified immunity analysis at step two of Saucier. Put another way, the reasonableness of a particular mistake of fact may dictate whether any reasonable officer would have understood that his conduct was unlawful. In situations where the court may not be able to discern from the general verdict how the jury may have resolved a particular disputed issue that is a dispositive part of the step-two Saucier analysis, it is necessary (as the district court did here) to ask additional questions to the jury through special interrogatories. See Stephenson, 332 F.3d at 81.
Jones argues that, in finding in his favor on the excessive force claim, the jury necessarily implied that it found unreasonable any mistaken belief by Lt. Treubig about the facts (including additional resistance after the first taser) that allegedly prompted him to re-cycle the taser. Jones further asserts that any cоnceivable doubt about the jury‘s view on the reasonableness of Lt. Treubig‘s beliefs was eliminated by its award of punitive damages which required the jury
Jones‘s argument goes too far. In particular, Jones overlooks the fact that the jury was considering multiple uses of force by Lt. Treubig as part of one excessive force claim (i.e., an initial tasing and a re-cycling of the taser), and the
Here, for purposes of determining whether Lt. Treubig should have known that he violated clearly established law under Tracy as it relates to the second tasing, the critical issues at step two of Saucier are whether: (1) Jones was still resisting arrest at that time, or (2) even if Jones was no longer resisting arrest at that point, Lt. Treubig reasonably believed he was still resisting. Thus, in order to ensure that the jury decided both of those issues against Lt. Treubig within its general verdict, it was entirely appropriate to utilize special interrogatories to address those precise questions. As to the first issue, the jury‘s special interrogatory made clear that the jury concluded that Jones was not resisting arrest
Thus, the jury should have been asked, “Did Lieutenant Treubig reasonably believe that the plaintiff was resisting arrest when Lieutenant Treubig used the taser the second time?” In fact, when considering how to frame these questions following the jury‘s general verdict, defense counsel framed the proposed question to include the word “reasonable.” See J. App‘x at 127 (defense counsel proposing the question: “[D]id Lieutenant Treubig reasonably believe, even if
Because qualified immunity is an affirmative defense, “[t]o the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant
In other words, in light of Jones‘s testimony that he offered no resistance after the first tasing because he was on the ground with his arms spread, the district court could only find that Lt. Treubig‘s mistaken belief regarding continued resistance was reasonable by construing the conflicting evidence in the light most favorable to Lt. Treubig rather than Jones, which the district court was not permitted to do. See Zellner, 494 F.3d at 371 (emphasizing that the district court is not “permitted to make findings on factual questions not submitted to the jury where those findings take the evidence in the light most favorable to the moving party, rather than the opposing party“); Stephenson, 332 F.3d at 78 (refusing to
Accordingly, given the absence of any finding by the jury as to the reasonableness of the mistaken factual belief by Lt. Treubig regarding resistance
c. Two Taser Cycles in Rapid Succession
Lt. Treubig also contends, and the district court agreed, that the two taser cycles occurred within rapid succession of each other, and as a result, it was reasonable for Lt. Treubig to act in the heat of the moment as he did with respect to re-cycling the taser against Jones. However, we conclude that, in light of the undisputed facts in this record, the rapid succession of the two taser cyclеs does not change the qualified immunity analysis.
We certainly recognize that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97. As the Supreme Court has emphasized, it
This is not a case where a police officer did not have a reasonable opportunity to re-assess the circumstances before utilizing additional force. Notwithstanding thе fact that Lt. Treubig‘s two uses of the taser occurred in rapid succession, there was clear evidence that he had enough time to re-assess the
It was clearly established at the time of the incident here that, under the Fourth Amendment, the reasonableness of the amount of force used is assessed “at the moment” the force is used. Graham, 490 U.S. at 396; see also Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“The reasonableness inquiry depends only upon the officer‘s knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.“). Thus, any reasonable officer would have understood in April 2015 that, if he or she has an opportunity to re-assess a situation after firing a taser, any additional force (such as re-cycling the taser) must be justified under the Fourth Amendment based upon the totality of the circumstances that existed at the time of the re-assessment.
This fundamental Fourth Amendment rule of law was not only clear at the time of Lt. Treubig‘s conduct from Supreme Court cases and this Court‘s decisions, but also was reinforced by a compelling consensus of cases in our sister circuits,
Accordingly, because there was evidence (from Lt. Treubig himself) that he had time to re-assess whether Jones was still resisting arrest before using the taser a second time against Jones, the rapidly evolving nature of the situation as a whole does not cloak Lt. Treubig with qualified immunity for the unreasonable use of force following that re-assessment.
Lt. Treubig‘s argument that qualified immunity should also attach here because Jones was still uncuffed at the time of the second use of the taser is similarly flawed. In making this assertion, Lt. Treubig points to the fact that the holding in Tracy addressed a situation where there was evidence that the plaintiff was already handcuffed at the time the pepper spray was used. Thus, Lt. Treubig suggests that a reasonable officer would not understand from Tracy that the officer could violate the Fourth Amendment by re-cycling a taser into an arrestee who had been resisting and was still uncuffed. As discussed earlier, such a narrow reading of Tracy is simply incompatible with the language in Tracy which, while referencing the evidence that the plaintiff was handcuffed when pepper sprayed, made clear that it was relying on a broader Fourth Amendment principle that “a significant degree of force . . . should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer.” Tracy, 623 F.3d at 98. It was established long before Tracy that, although the fact that an individual initially resists arrest “no doubt justifies the officer‘s use of some degree of force, . . . it does not give the
Thus, although the fact that a previously resisting arrestee had not yet been handcuffed may be an important factor in assessing the reasonableness of an officer‘s force, we have never held that the need to complete the arrest authorizes an additional level of force which would not be reasonably necessary to allow the officers to handcuff that arrestee safely and without further incident. See generally Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015) (“The officers could be entitled to a summary judgment only if there existed a per se rule that an arrestee‘s refusal to submit to the easy application of handcuffs always permitted police officers to use substantial force, including taking a person to the ground and incapacitating her with pepper s[p]ray, to accomplish handcuffing. We know of no such rule.“).
Here, even though Jones‘s hands were not yet cuffed at the time of the second tasing, there was more than sufficient evidence for a rational jury to conclude that he was no longer resisting arrest after the first tasing or posing an ongoing threat to the safety of the officers or others. Thus, any belief by Lt. Treubig that the second tasing was necessary to effectuate handcuffing Jones was
This Court‘s analysis as it relates to the scope of Tracy‘s holding for purposes of qualified immunity, as applied to the particular factual circumstances of this case (including the need to handcuff an arrestee who had been resisting), is completely consistent with our decision in Soto v. Gaudett, 862 F.3d 148 (2d Cir. 2017). In Soto, we held that one officer, who tased a fleeing suspect, was entitled to qualified immunity as a matter of law. Id. at 156. On the other hand, the Court found that two different officers who tased the suspect a second time after he fell “flat on his face” were not entitled to qualified immunity as a matter of law at the summary judgment stage because of disputed issues of material fact. Id. at 153, 156, 161. With respect to the latter officers, the complaint alleged that Officer Robinson “tased Soto ‘[w]hen Mr. Soto, who posed no physical threat to the officers pursuing him, attempted to return to his feet.‘” Id. at 159 (alteration in original). Although Soto was decided after the events in this case, the incident in Soto occurred in 2008, seven years before the incident here, and we held it was clearly established at that time that officers violated the Fourth Amendment when they tased a subject who was already “on the ground, completely entangled in taser wires,” in close proximity to the officers, and “struggling even to get into a push-up position.” Id. at 160. In so holding, citing Tracy, we emphasized that “[t]hough the use of force may be reasonable against a suspect who is fleeing, it may be objectively unreasonable against that suspect when he has been stopped and no longer poses a risk of flight.” Id. at 158 (citing Tracy, 623 F.3d at 96-98). Therefore, in Soto, as is the situation here, we concluded that qualified immunity would not immunize an officer for tasing an uncuffed arrestee a second time where the arrestee was no longer resisting and was not posing a threat to the safety of officers or others.
Lt. Treubig seeks to distinguish Soto because, unlike the plaintiff there, “Jones suffered no injuries from the taser at all.” Appellee Br. at 32. We find that
Although we hold that Lt. Treubig had fair warning of this clearly established law based upon our decision in Tracy years before his conduct, we again note the additional warning provided by the overwhelming persuasive
In sum, upon a review of the relevant legal authority, we hold that it was clearly established as of April 2015 that a police officer cannot use significant force, such as a taser, against an individual who is no longer resisting or posing a threat to the officers or others. In light of the jury‘s findings and viewing the record on the remaining factual disputes in the light most favorable to Jones, we must assume for the qualified immunity analysis that Jones was subdued when Lt. Treubig re-cycled his taser, in that Jones was no longer resisting arrest or posing a threat to the officers or others, but rather lying face down on the ground with his
CONCLUSION
Based on the foregoing, we conclude that Lt. Treubig is not entitled to qualified immunity for the second tasing of Jones. Accordingly, the judgment of the district court is REVERSED, and this case is REMANDED for proceedings consistent with this opinion.
Notes
Lt. Treubig explained “cartridge mode” as follows:
When you want to deploy it you put the “on” switch on. Depress the trigger. The prongs come out of the cartridge and then into the subject and then there’s an electrical current that goes through and from the two prongs and it completes a circuit so the electric charges [enter] into the subject’s body.
J. App’x at 87. Lt. Treubig further testified that the taser model that he deployed would result in approximately 1,200 to 1,600 volts of electricity entering Jones’s body when he pressed the trigger.