Monday, September 29, 2014

Eugene Carl De Boise, et al. v. Taser International, Inc., et al.

Opinion issued
July 28, 2014

Link to U.S. Court of Appeals for the Eight Circuit Opinion

Family members of Samuel De Boise brought a lawsuit under 42 U.S.C. § 1983 against individual officers of St. Louis County and also filed an action under the Americans with Disabilities Act (ADA) against St. Louis County.[i] The defendant officers each tased Samuel De Boise multiple times while attempting to apprehend him, and these actions resulted in his death.[ii] The district court granted motions for summary judgment filed by the independent officers and St. Louis County, finding that the officers were entitled to qualified immunity under the facts of the case, and that the county had not violated the ADA.[iii] Plaintiffs appealed, and the Eighth Circuit affirmed, finding that the officers were entitled to qualified immunity because their actions did not violate any clearly established right, and that St. Louis County had not violated De Boise’s rights under the ADA by failing to utilize appropriate officer training in the relevant situation.[iv] The majority opinion engendered a dissent from one justice on the issue of qualified immunity.[v]

I.                 Facts and Holding

Samuel De Boise suffered from schizophrenia, and on July 7, 2008, he became delusional and left his home naked.[vi] He did not return home until the next day, after neighbors reportedly saw him roaming the neighborhood during that day naked, beating houses with a stick, and claiming that he was God.[vii] Once he returned home, he demanded of his mother that she worship him, and held her head to the floor.[viii] She called 911, and the St. Louis Police Department dispatched officers to the residence.[ix]

When the first officer arrived on the scene, De Boise’s mother recounted her son’s “behavior and physical aggression toward her.”[x] The officer saw De Boise emerge from the house still naked and claiming to be God, and called for additional officers and an ambulance.[xi] Five more officers arrived, and heard “extremely loud noises coming from the home, including screaming, glass breaking, and heavy furniture being thrown” by De Boise.[xii] When De Boise re-exited the house, the officers instructed him to lie face down on the ground.[xiii] De Boise initially complied, but as one of the officers approached to handcuff him, he “immediately jumped to his feet, clenching his fist, and glaring at the officer.”[xiv] De Boise disregarded further instructions to lie on the grass, so the officer discharged his taser in “barb mode,” which delivered a five-second long electrical shock to De Boise.[xv] Although the shock caused De Boise to fall to the ground, he continued to ignore orders to be still, so the same officer tased him again.[xvi] Because of the position of his hands in relation to the wires discharged by the taser, the officers did not think it was safe to approach and attempt to handcuff him.[xvii]

De Boise regained his feet, and the same officer applied a third shock. [xviii] As two officers approached to handcuff him, De Boise struggled once more to his knees and “swung his arms around.” [xix] The officer applied a fourth taser cycle.[xx] Although De Boise fell back to the ground after every tasing, he continued to rise back to his feet, leading the offer to deliver two additional taser cycles, but the last one appeared completely ineffective.[xxi] De Boise then began walking toward the officers, so a different officer discharged his taser in barb mode at De Boise.[xxii] After this tasing, De Boise fell but then stood again and “assum[ed] a stance as if he were getting ready to charge or attempt to run.”[xxiii] Officer Lively delivered another shock, and officers once again unsuccessfully tried to handcuff De Boise as he “kicked at them.”[xxiv] At this point, Officer Lively applied the taser directly to De Boise’s leg twice in “drive stun mode,” after which the other officers were able to control his limbs as an EMT gave him a sedative[xxv]. Soon thereafter, De Boise went into cardiac arrest, and he was pronounced dead on arrival at the hospital despite unsuccessful attempts to revive him.[xxvi]

De Boise’s family alleged that the two officers who tased him repeatedly used excessive force against him, and that the St. Louis County violated the ADA.[xxvii] The district court found that the force used by the officers was “objectively reasonable” under the circumstances, and that their actions did not violate a “clearly established right.”[xxviii] That court also held that the County did not violate the ADA because “the officers were faced with unexpected and exigent circumstances to which no reasonable accommodations could be made until the scene was safely secured.”[xxix]

On appeal, the Eighth Circuit affirmed.[xxx] The court held that the officers were immune to a § 1983 action because their conduct in delivering multiple taser cycles to De Boise did not “violat[e] a clearly established constitutional or statutory right of which a reasonable person would have known.”[xxxi] The court noted that no precedent clearly established that delivering multiple tasings to a violent, aggressive, actively resisting person constituted excessive force.[xxxii] Additionally, the court determined that a reasonable officer presented with De Boise’s aggressive behavior would not have considered the multiple tasings “so disproportionate and unnecessary as to amount to violation of De Boise’s rights.”[xxxiii]

The majority also rejected the plaintiffs’ argument that the officers’ failure to use their specialized training in the situation with De Boise denied him reasonable accommodations as required by the ADA.[xxxiv] The officers were confronted with “unexpected and rapidly evolving circumstances,” prompting them to make “split-second decisions” to contain the situation.[xxxv] Their actions were not prompted due to De Boise’s “disability,” but instead were made necessary because of his “objectively verifiable misconduct,” so there was no violation of the ADA on the facts of the case.[xxxvi]

Judge Bye dissented from the majority opinion insofar as it found that the officers who tased De Boise were entitled to qualified immunity. [xxxvii] He opined that a jury should have determined whether the officer’s actions constituted excessive force in violation of De Boise’s Fourth Amendment rights.[xxxviii] He noted that although De Boise appeared aggressive and did not comply with the officer’s orders, he was also completely naked, he carried no weapons, and there were six officers present at the scene.[xxxix] Based on these facts, Judge Bye determined that a jury could reasonably conclude that the officers acted unreasonably in tasing De Boise repeatedly rather than making other efforts to handcuff him or subdue him.[xl]

Additionally, Judge Bye believed that the officers were “on notice” that tasing a person continually until his death was against the law, and therefore were not protected by qualified immunity.[xli]

II.                Legal Background

A.    Qualified Immunity

Qualified immunity protects public officials from liability for actions filed under 42 U.S.C. § 1983, a statute that provides a civil remedy to individuals whose federal rights were violated by the actions of public actors.[xlii] Courts follow a two-step process in determining whether a public official is entitled to qualified immunity.[xliii] First, the court asks “whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right.”[xliv] If so, the court next inquires “whether that right was clearly established at the time of the defendant’s alleged misconduct.”[xlv] Even if the court determines that the plaintiffs rights were violated by the official’s conduct, that officer can still successfully assert the defense of qualified immunity against a § 1983 action if the right violated was not “clearly established” in the law at the time of the conduct that gave rise to the suit.[xlvi]

The test for determining if an action violated a clearly established right is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”[xlvii] A certain action need not be previously held unlawful by a court for that action to be deemed to violate “a clearly established right” in a given situation.[xlviii]

Applying these rules to the facts of the officers’ fatal encounter with De Boise, the court stated that “the contours of De Boise’s right to be free from excessive force must be so sufficiently clear that a reasonable officer would know that the multiple tasings under the circumstances were a violation of that right” in order to override their defense of qualified immunity.[xlix] The court noted that the law relating to the use of tasers was still being formulated in 2008 at the time of the incident with De Boise.[l] The Eighth Circuit had held in 2009 that “non-violent, non-fleeing subjects have a clearly established right to be free from tasers.”[li] However, the court had not yet decided whether “a violent subject, acting aggressively toward officers” had the same clearly established right.[lii]

B.     Reasonable Accommodations Under the ADA

The Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, by reason of such disability… be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”[liii] A plaintiff seeking to prevail in such a claim must show that he is a “qualified individual” with a “disability” who was “denied participation in, or the benefits of” a service, program or activity provided by the public entity due to his disability.[liv]

The Eighth Circuit evaluates whether a law enforcement officer has “reasonably accommodated” an individual with a disability under the ADA by looking at “the circumstances of each case, including the exigent circumstances presented by criminal activity and safety concerns.”[lv] The court is unwilling to “second guess” the officer’s judgment if there were “exigent or unexpected circumstances” in a case.[lvi]

De Boise’s family directed the court’s attention to a holding from the 11th Circuit Court of Appeals that tasing a mentally ill subject repeatedly constituted excessive force and violated that person’s clearly established right.[lvii] However, the Eighth Circuit was not persuaded by the comparison, noting the many factual distinctions between the two cases.[lviii]

In this case, the court determined that there were “unexpected and rapidly evolving circumstances” caused by De Boise’s actions require the officers to make “split-second decisions.”[lix] The officers knew that he was violent, aggressive, and unpredictable, so the court would not require them to “hesitate to consider other possible actions” in responding to this situation.[lx] Additionally, the court stated without analysis or explanation that “the use of force” on De Boise was not due to his disability, but rather due to his “objectively verifiable misconduct,” and therefore he did not have a claim under the ADA.[lxi]

III.             Comment

The court clearly held that the officers who were sued in this case were protected by qualified immunity given their actions under the circumstances of their encounter with De Boise.[lxii] This holding will certainly provide some assurance to officers that repeated discharge of their tasers under situations involving noncompliant, potentially dangerous subjects is unlikely to land them in hot water.

The majority’s holding fails to determine whether the multiple tasings under the circumstances did in fact constitute excessive force in violation of the subject’s Fourth Amendment rights.[lxiii] This omission did not go unnoticed by the dissent.[lxiv] Skipping the first step of the test may have several important implications. Most obviously, it means that this case cannot be relied on to establish that multiple tasings under certain circumstances is in fact excessive force. However, although the court ultimately found that the officers had qualified immunity in this case, the court did not determine that their treatment of De Boise was not excessive force. By avoiding the first step in the qualified immunity analysis, the court avoided determining whether subjects like De Boise have a right to be free from multiple tasings in situations like the one presented in this case. As a result, the law in this area remains anything but “clearly established” in the Eighth Circuit, making it that much harder for future subjects with similar claims to bring a § 1983 claim against individual officers. 
- Kristen Shively

[i]No. 13-2742 at 2, July 28, 2014, available at                                                      
[ii] Id. at 2-5.
[iii] Id. at 5.
[iv] Id.
[v] Id at 11 (Bye, J. dissenting).
[vi] Id. at 2.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id. at 3.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id. at 4.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id.
[xxiv] Id.
[xxv] Id. at 4-5
[xxvi] Id. at 5.
[xxvii] Id.
[xxviii] Id.
[xxix] Id.
[xxx] Id. at 2.
[xxxi] Id. at 6.
[xxxii] Id. at 7.
[xxxiii] Id. at 8.
[xxxiv] Id. at 10.
[xxxv] Id. at 10-11.
[xxxvi] Id. at 11.
[xxxvii] Id. (Bye, J., dissenting).
[xxxviii] Id.
[xxxix] Id. at 12.
[xl] Id.
[xli] Id. at 12-13.
[xlii] Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009).
[xliii] Id. at 496.
[xliv] Id.
[xlv] Id.
[xlvi] See id; Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 212).
[xlvii] Shekleton, 677 F.3d at 367 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001).
[xlviii] See Hope v. Pelzer, 536 U.S. 730, 741 (2002).
[xlix] De Boise, No. 13-2742 at 6.
[l] Id. at 7; see McKenney v. Harrison, 635 F. 3d 354, 361-62 (8th Cir. 2011) (Murphy, J. concurring).
[li] Brown, 574 F.3d at 499-500.
[lii] De Boise, No. 13-2742 at 7.
[liii] 42 U.S.C. § 12132.
[liv] Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998).
[lv] Bahl v. County of Ramsey, 695 F.3d 778, 784-85 (8th Cir. 2012).
[lvi] Id.
[lvii] De Bois, No. 13-2742 at 7; Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009).
[lviii] De Bois, No. 13-2742 at 7; Oliver, 586 F.3d at 907-08. In Oliver, the mentally ill subject had been tased several times with no warning even though he did not act aggressively toward the officers, complied with many of their orders, and was not suspected of any crimes. Oliver, 586 F.3d at 907-08. The Eighth Circuit stated that “based on the[se] facts alone, no reasonable officer would have believed” that repeatedly tasing that subject was constitutional. De Boise, No. 13-2742 at 8.
[lix] De Bois, No. 13-2742 at 11.
[lx] Id.
[lxi] Id.
[lxii] Id. at 2
[lxiii] Id. at 6 (stating the “two-part inquiry” used to determine whether a public official’s actions were protected by qualified immunity, but then beginning and ending its analysis with “the second inquiry”).
[lxiv] Id. at 11 (Bye, J. dissenting) (“The court analyzes only the second prong of the qualified immunity analysis.”).