You wouldn’t think that the question remains up in the air, but then, something that’s been discussed for years, acknowledged by pretty much everyone who has a clue and accepted as given reality by thinking people everywhere doesn’t exist in law until a Court says so. We’re still waiting for a judge somewhere to proclaim that the earth is round. Until then, you could fall off the edge, so be careful out there.

Tasers inflict pain. It’s what they are meant to do. But the question of whether the infliction of pain is an acceptable use for getting someone to comply with a cop’s command, even if the person poses no threat of harm to the cop, was the core issue before the Fourth Circuit in Armstrong v. Village of Pinehurst.

The case involved the death of Ronald Armstrong, who suffered from bipolar disorder and paranoid schizophrenia. He escaped from the hospital and the Pinehurst police were called to catch him.

Armstrong was acting strangely, however. When Officer Gatling first initiated conversation, Armstrong was wandering across an active roadway that intersects with the Hospital’s driveway. Gatling successfully convinced him to withdraw to the relative safety of the roadside, but Armstrong then proceeded to eat grass and dandelions, chew on a gauze-like substance, and put cigarettes out on his tongue while the police officers waited for the commitment order.

As soon as they learned that the commitment papers were complete, the three police officers surrounded and advanced toward Armstrong — who reacted by sitting down and wrapping himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge.

So they could have waited him out, talked him down, gotten a shrink to help or, well, let’s cut to the chase.

Appellees did not prolong this stalemate. Nor did they attempt to engage in further conversation with Armstrong. Instead, just thirty seconds or so after the officers told Armstrong his commitment order was final, Lieutenant McDonald instructed Officer Gatling to prepare to tase Armstrong. Officer Gatling drew his taser, set it to “drive stun mode,” and announced that, if Armstrong did not let go of the post, he would be tased. That warning had no effect, so Gatling deployed the taser — five separate times over a period of approximately two minutes.

Because giving a command to someone undergoing a psychotic episode is sure to work. Long story short, they killed Armstrong, though it may be from post tasing asphyxiation rather than the tasing itself.  Armstrong’s family sued for the harm, including the pain and suffering from the five times he was tased.

The court began its inquiry with the question of whether the use of excessive force constituted a constitutional deprivation at all. I know, but the earth is flat unless a court holds otherwise. On the bright side, the court finally spelled out the obvious:

Appellees understand these cases to proscribe tasing when a subject has already been restrained but to sanction the practice when deployed against active resistance. Since Armstrong was unrestrained and actively resisting, they contend, their taser use must be permissible. We disagree. While the questions whether an arrestee has been restrained and is complying with police directives are, of course, relevant to any inquiry into the extent to which the arrestee “pose[s] a continuing threat to the officers’ safety,” Meyers, 713 F.3d at 733, they are not dispositive. A rule limiting taser use to situations involving a proportional safety threat does not countenance use in situations where an unrestrained arrestee, though resistant, presents no serious safety threat.

Despite the lengthy discussion of prior epiphanies that Tasers hurt and burn flesh, together with a somewhat bizarre discussion about whether resistance is active or passive, the court ultimately reaches the point, that tasing someone who presents no serious safety threat, is a bad thing.

Painful, injurious, serious inflictions of force, like the use of a taser, do not become reasonable simply because officers have authorization to arrest a subject who is unrestrained.

And lest this controversial holding be misunderstood, the court goes on to say:

And this conclusion, that taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger, is consistent with our treatment of police officers’ more traditional tools of compliance. We have denied summary judgment on excessive force claims to an officer, who “punched [an arrestee][,] threw him to the ground,” and, subsequently, “used a wrestling maneuver” on him, because there was no “real evidence that [a] relatively passive, [mentally delayed] man was a danger to the larger, trained police officer.”

And if it’s still unclear, the court says it again:

Our precedent, then, leads to the conclusion that a police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force. At bottom, “physical resistance” is not synonymous with “risk of immediate danger.”

So, Armstrong wins?  Well, not exactly.

Appellees, therefore, are not entitled to summary judgment on the question whether they violated the Constitution. Viewing the record in the light most favorable to Appellant, Appellees used excessive force, in violation of the Fourth Amendment.

We, nevertheless, affirm the district court’s grant of summary judgment in Appellees’ favor because we conclude that Appellees are entitled to qualified immunity.

Huh?

The constitutional right in question in the present case, defined with regard for Appellees’ particular violative conduct, is Armstrong’s right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure.

While our precedent supports our conclusion that Appellees violated that right when seizing Armstrong, we acknowledge that this conclusion was not so settled at the time they acted such that “every reasonable official would have understood that” tasing Armstrong was unconstitutional.

But now that the court’s repeated it a dozen different ways, parsing every minute detail of potential variation that might flow through a police officer’s head when deciding whether to tase a mentally ill guy who poses no threat of harm, certainly it’s finally clear: there is a settled right not to be tased as a quick and easy method of compliance when there is no threat of harm, right?

We conclude, therefore, that Armstrong’s right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established on April 23, 2011. Indeed, two months after Appellees’ conduct in this case, one of our colleagues wrote, “the objective reasonableness of the use of Tasers continues to pose difficult challenges to law enforcement agencies and courts alike. . . . ‘That the law is still evolving is illustrated in cases granting qualified immunity for that very reason.’”

And the earth is still flat as long as some judge, somewhere, leaves the tiniest crack.