Totality of the Circumstances: Tasing Okay in Immediate Passive Resistance

In a colorful opinion from the Sixth Circuit, the court found that it was not excessive force to tase the plaintiff when he refused to supply his hand for cuffing in the wake of more significant refusals to submit to the police officers’ authority. Feagin marks a return to the totality of the circumstances review, holding that there must be a comprehensive look at any relevant event that influences the use of force.

The officers first encountered Mr. Feagin driving a Lincoln SUV, windows down, drinking liquor, smoking marijuana and driving down the middle of the street, causing the police vehicle to go into the ditch. There was a short pursuit before Mr. Feagin pulled over into a crowded supermarket parking lot, at which time the officers noticed the rear window appeared to be shot out. As the officers approached the vehicle, Mr. Feagin rolled up the windows. When an officer reached the driver’s side window, the SUV began to roll backwards. The officers banged on the windows, and the SUV stopped rolling. Mr. Feagin opened the driver’s door, and the officers grabbed his arm, causing him to limply lean out the door, at which time he began to resist and struggled to keep his body inside the driver’s compartment. During this struggle, bullets were falling from Mr. Feagin’s pockets. Once on the ground, the two officers tried to get Mr. Feagin cuffed, one officer attempt to grab his left arm, while the other had a partial hold on his torso. Mr. Feagin’s right arm remained free and flailing against the SUV. The officer holding Mr. Feagin’s torso tased him, allowing the officers to fully detain Mr. Feagin and place him in the rear of the police cruiser.

Mr. Feagin alleged that the tase was excessive force, and the district court agreed, finding there was a question of fact, whether Mr. Feagin was actively or passively resisting at the time the taser was used.

The Sixth Circuit reversed, holding that the entire encounter with Mr. Feagin should be considered, during which there were numerous times of active resistance. The Circuit Court also held that, even if the taser was utilized during the “twilight” between active and passive resistance, the doubt should be resolved in favor of the officer making split second decisions where the threat or degree of resistance is unclear. The court held: “We impose liability on individual officers only in the rare instance where an officer tases a suspect who posed no danger and was fully compliant with officer’s commands or had completely ceased resisting at the time of tasing.” A dissenting opinion (J. Clay) pressed for a more limited review of the case, finding that the argument was based in fact, as opposed to legal analysis. In assessing the Circuit Court’s duty, the majority opinion railed against the dissent to hold:

"[T]he mere existence of ‘competing allegations on both sides’ does not stand in the way of us assessing whether legal arguments likewise exist. (***) We instead consider the facts in a light most favorable to the plaintiff. Any other approach risks eliminating our review altogether in this setting. After all, facts permeate every qualified immunity dispute. And qualified immunity exists to protect against a government official’s mistake of both fact and law. Those protections would be ‘effectively lost if’ an appeal were dismissed and a case ‘permitted to go to trial’ simply because a party highlighted factual disputes in the court of appeal. So rather than throwing up our hands whether the parties disagree over the facts or whenever the district court has assessed the record, we instead roll up our sleeves and train our attention on any remaining legal questions." (Internal citations omitted.)

The Feagin opinion should be cited by every defense practitioner in a tasing case or in a case where it seems the fact questions should outweigh the legal analysis.