Mike Cernovich at Crime & Federalism has the amazing ability to see into the future, as demonstrated by his finding this Law.com post dated 2 days from today. But I’m thankful he did, as this is one decision that we should all be aware of, and wary of.
In a 2-1 unpublished decision in Buckley v. Haddock, an 11th Circuit panel headed up by Chief Judge J.L. Edmondson reversed the district court and held that it was not unconstitutional for a deputy to repeatedly taser a man for sitting on the ground, sobbing, after he had refused to sign a traffic ticket, because the man wouldn’t cooperate by walking to the cruiser.
The appellate ruling stems from a 2004 traffic stop at night on a dark, two-lane highway in Washington County, Fla. Financially destitute and homeless, Buckley began sobbing after Rackard pulled him over and gave him a speeding ticket, which Buckley refused to sign, according to Edmondson’s account of the events in question.After warning Buckley twice to sign or he would face arrest, Buckley said, “Arrest me.” Still in his vehicle, he allowed Rackard to cuff him, then exited his car. But as Rackard began walking the still distraught Buckley to the patrol car, Buckley dropped to the ground, crossed his legs and remained there, still sobbing.
Rackard asked Buckley several times to stand up, then attempted unsuccessfully to lift Buckley to his feet, according to Edmondson’s opinion. When that effort failed, he warned Buckley that he would use his Taser if Buckley refused to cooperate.
When Buckley shouted, “I don’t care anymore. Tase me,” Rackard applied the Taser’s electrodes to Buckley’s back and chest and fired a five-second burst. When Buckley still refused to get up, Rackard discharged his Taser a second time.
Rackard then walked to his patrol car and radioed for backup. When he returned, he again ordered Buckley, who had remained on the ground, to stand up, then attempted a second time to lift the 180-pound, 6-foot-2-inch Buckley to his feet. When that effort failed, Rackard used his Taser on Buckley a third time.
Thankfully, Buckley didn’t shout “just shoot me.” I wonder how that would have played out. But if you think that Rackard’s conduct was scary, it’s nothing compared to Judge Edmondson’s rationale:
Edmondson found that Rackard’s use of the Taser was “not outside the range of reasonable conduct under the Fourth Amendment” because the traffic stop occurred at night on the side of a highway “with considerable passing traffic,” Buckley resisted arrest, and Rackard used the Taser “only after trying to persuade [Buckley] to cease resisting and warned him the Taser would be used.“Although, as the district court observed, the underlying offense of refusing to sign a traffic citation was relatively minor, we nevertheless credit the government with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee,” Edmondson wrote.
“The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. Even though [Buckley] was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions — that is, to stand up and to walk to the patrol car.”
In a footnote, Edmondson added, “That plaintiff did not attack or menace the deputy does not shield plaintiff from the use of force, even if it might result in pain.”
Apparently, the 11th Circuit’s construction of the Constitution is that people have rights, unless they interfere with the primary authority of law enforcement to make people do what they want. When that happens, all bets are off. The second judge in the majority, Joel F. Dubina, in a single-paragraph concurrence, “agreed that Rackard should be shielded from prosecution by the doctrine of qualified immunity because the constitutional violation ‘was not clearly established’ at the time it occurred.” Would 4 Taser jolts have been clearer?
Sitting by designation, Judge Beverly B. Martin of Georgia’s Northern District wasn’t buying, and issued a strong 17 page dissent:
“[T]he Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant — who is sitting still beside a rural road and unwilling to move — simply to goad him into standing up.
“I also conclude that at the time of the incident, Deputy Rackard was on fair notice that his conduct was unconstitutional,” Martin’s dissent continued. “Not only did Deputy Rackard unnecessarily discharge his Taser gun against Mr. Buckley three times, but each time he did so, he repeatedly prodded Mr. Buckley’s body with the stun gun’s live electrodes — inflicting additional pain and leaving Mr. Buckley with 16 burn scars.”
While it’s long been clear that the Taser has become the means of expediency for law enforcement, this decision not only provides support for the lazy cop’s resort to the Taser as the easiest way to get respect, but elevates this expediency above the right of non-violent people to be free from violent attack by police. It’s just plain screwy how Judge Edmondson perceives the relative constitutional priorities.
Edmondson also rejected the Florida district court’s rationale that if Rackard had simply waited for backup, both officers could have carried Buckley to the patrol car without any use of force.
“A single officer in the deputy’s situation confronting a non-compliant arrestee like [Buckley] need not — as a matter of federal constitutional law — wait idly for backup to arrive to complete an otherwise lawful arrest that the officer has started,” Edmondson wrote. “The federal courts must not dictate through their interpretation of the Constitution how the police should allocate their limited resources. In most circumstances where an arrestee is resisting, a single officer can constitutionally effectuate an otherwise lawful arrest by resorting to the use of moderate, nonlethal force. No constitutional basis exists for requiring two or more officers to make routine arrests, even if deploying more officers might result in less force actually being used.”
So Judge Edmondson’s Constitution puts little weight in protecting people from police violence, and great weight in allowing police to allocate their own resources? And Judge Martin called him on it:
“Chief Judge Edmondson emphasizes the state interest in roadside safety and efficiency in single-officer arrests in concluding that Deputy Rackard’s use of force was constitutionally reasonable. However, the individual interests protected by the Fourth Amendment do not so easily give way. Many police encounters occur on the roadside at night, and each carries risks that could theoretically be reduced if police officers were authorized to inflict pain as a way to expedite their law-enforcement efforts.”
This decision reflects a fundamental misapprehension of the purpose of the Constitution. The Constitution exists to protect the People from government, not to authorize the government to attack people whenever it makes their job easier.
There is a serious plague happening across the United States of police officers turning to their new darling weapon, the Taser, in lieu of exercising sound judgment and restraint. It’s just too easy, and wraps things up so much more quickly. This decision, though not precedent as it’s going unpublished, suggests that the quick and dirty use of Tasers whenever it makes a cop’s life easier has the support of the court.
When did the courts stop focusing on the “use of force” against non-violent citizens and decide to be enablers of police expediency instead? When did compliance with the government become the primary purpose of the United States? How does someone become the Chief Judge of the 11th Circuit with such a warped view of the Constitution?
Coming on the heels of this video from the Republican National Convention, it seems that we’ve got a new war a’brewing: The war on police violence.
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Hey, I guess we were wrong on the St. Paul girl-as-pepper-spray-target case, eh?
More seriously, I wonder if instead of “blasts from a Taser” we were talking about “thumps from a club, err, issue baton,” the judges would have ruled the same way.
Maybe, alas, they would have.
You’ve hit the nail on the head, J-dog. If there was no Taser, would a good beating be appropriate? Force is force. Either it is justified or it’s not. Tasers don’t fall into some mystery category of their own, because they are purportedly “non-lethal”, so that they can be used under essentially any circumstance where it makes a cop’s life easier.
That’s always been my (entirely amateur) analysis: think of it as an electronic club. I’m in favor of cops clubbing folks under some (lawful, proper) circumstances. But this?
Reading the dissent, and reading between the lines of the captured dialog, it seems to me that the cop, in this case, isn’t some willfully malign thug; he really isn’t looking for an opportunity to zap the guy, but just wants to, initially, give him a ticket and let him go on his way, and then, when he (feels, reasonably, IMHO), that he has to, hook him up and take him in, but really doesn’t see just waiting for backup to arrive as something he ought to do.
Pinky swear: I’m not sure if that makes it better, or worse, than if he was looking for another chance to play with the toy.
Agreed, this cop doesn’t seem like a bad guy at all. I see this as making it more problematic. It’s easy to pass off violence when done by another “one bad apple,” but it becomes increasingly troubling when it’s a good cop doing it. This is where violent conduct meets normalcy, and when we need to really be afraid.
“Financially destitute and homeless…Plaintiff began to sob. …Without resisting, Plaintiff allowed himself to be handcuffed…and continued to sob.”
“‘Arrest me.'” “‘My life would be better if I was dead,'” are among remarks attributed to Buckley.
These facts of record are from the majority, which controverts none of them, the record including a videotape and affidavits, construed in favor of the Plaintiff. Don’t they make you wince? They make me wince.
It should have been painfully evident to the cop, and the 11th Circuit, that Buckley was a potential suicide, near the bottom of a complete emotional collapse. He was mentally ill.
“By the way,” the majority tells us, in a note on page 3, Buckley pled no contest to counts of refusal to sign a traffic ticket and resisting arrest without violence.
Here in New York we do not have a “no contest” option. But he could have made the case that the intent element is missing from the charges, the culpable mental state necessary for refusing to sign a traffic ticket and resisting arrest. This appears to be a good case for dismissal in the interest of justice, or for a severe emotional disturbance defense. Dismissal dismissal or acquittal of one or both charges may have had an impact in this appeal. Though the Circuit would have found a way to blow it off, probably.
The makes close to the same point in its characterization of Buckley’s conduct, on page 29: “Finally, Mr. Buckley did not actively resist or attempt to flee. The video shows an emotionally overwrought individual, through sobs, passively refusing, if not unable, to comply with Deputy Rickard’s directive to pull himself up from the ground.”
If that were not enough, the dissent on page 31 refers to authority in the caselaw that “when used successfully, a taser renders an individual incapacitated, disoriented, and unable to move.” From this the dissenting judges is wondering where is the rocket science. This case does not present a consideration that the attack was a requisite for expediency, to make it somehow easier for the government to do its job, at pp. 31-32 and 34-35: “…Each five-second discharge in fact frustrated Deputy Rickard’s efforts in getting Mr. Buckley to stand and walk to the police car,” and the sheriff’s policy manual required that he call for assistance once he discharged his taser, which he did.
Hump. This is not a good cop. If he were, he would have acted differently. Say, put an arm around Buckley’s shoulders, handcuffed and sobbing as he was, and said, “there there. You need a good cry. When you’ve let it all out and you’re ready, I’ll finish arresting you.”
The father of a friend of mine once had a really ugly domestic/hostage situation: the husband had a knife to the wife’s throat; she was shouting at him to shoot the husband, and the husband was threatening to kill her.
He solved it by, well, crying. “I don’t know what to do — she wants me to shoot you, and you want me to go away.”
The husband put the knife down to comfort him, and told him to put him in cuffs, to end it all.
Not everybody can be as inspired, or gentle, and I don’t fault this cop for not having figured out the best way to handle things; I do fault him for electroclubbing the guy when he pretty clearly had another alternative that was both clearly lawful and really pretty simple. YMMV, of course.
Yes. The other alternative was to summon assistance to complete the arrest.
But the cop was mean to an arrestee in handcuffs in a complete emotional collapse. And then he had to get backup anyway, which he should have considered. Those things bother me, and it bothered the district court.
It doesn’t bother two judges on the circuit bench. Why not? Who knows?
What is astounding here is that a judge is saying that his own job is obsolete. That is, he’s saying that the police officer should be the one responsible for punishing those who commit crimes, not courts.
That way lies madness — or at the very least a police state — yet judges appear to be complicit in rendering obsolete their very own jobs. When is it, I wonder, that “due process” became “police officers are judge, jury, and punisher”? Given that the courts regularly are saying now that it is okay for police officers to mete out punishment beyond the minimum force needed to take a suspect (note the word suspect) into custody, why have courts, if we are to allow police officers to simply mete out punishment at will?
So much for “rule of law”. It was a good idea, I suppose, but doesn’t seem to be surviving impact with a Republican-packed judicial system that views itself as simply a rubber-stamp for whatever actions are taken by police officers…
If the cop wanted to knock Buckley down, the Taser was the right tool for the job. That’s what it does.
But the cop wasn’t Tasering him to knock him down, the cop was Tasering him because getting Tasered is unpleasant. As is getting 16 burns from the electrodes.
I believe this is what the police sometimes call a “pain compliance” technique. But hurting people until they do what you want is also known by another name…begins with the letter T.
I prefer not to focus on the mechanics of using a taser, whether to knock down or stand up, or whether to prod forward or incapacitate.
I make this choice because my basic premise is that weapons should not be used against people for non-violent non-compliance. They can be physically seized, but not harmed, for non-compliance with a lawful order. Weapons should only be used to address the use of force against officers.
… or against others, sure.
But let me give you a hypothetical. (Know how much you like those, but bear with me.) The cop has arrested somebody — legitimately — hooked him up and all, but instead of lying on the ground, he’s simply standing next to the cruiser, nonviolently but decidedly refusing to get in. (This is not just a hypothetical; such things have happened.)
I can easily list a lot of things that the cop shouldn’t do, but what should he (or, for that matter, she) do? Let’s assume that backup has already arrived, and the guy just won’t get in. Just to complicate things a bit, both of the cops on scene are 5’8″, and the guy is 6’2″, and and weighs 350; picking him up, turning him ninety degrees and sliding him in isn’t practical. Both cops are decent folks, who don’t have any desire to punish the guy for contempt of cop; they just want to take him in and do their job. (And I’m not going to add a sense of unnecessary urgency; they haven’t heard “shots fired” come over the radio, or some such.)
My guess is that what’s going to happen, after several warnings, is that the guy’s going to get sprayed a little. I’m not sure that’s wrong, and I’m pretty sure that’s not horribly wrong.
What would be wrong with the police physically placing the person in the car, without resort to the use of any weapon for non-compliance? It’s done all the time. Lots of people don’t want to get in the cruiser, but a couple of polite cops should be up to the task.
“I’m A’Fixin’ to Tase You” Rag
Following up on the 11th Circuit decision that a mere three taser jolts
Does The Rest of the 11th Circuit Agree?
James Cook, representing the extraordinarily sad and depressed human being, Jesse Buckley,
Does The Rest of the 11th Circuit Agree?
James Cook, representing the extraordinarily sad and depressed human being, Jesse Buckley,
Haddock Bookmarks
Bookmarked your page with keywords haddock!
The ACLU of Florida joined with attorney James V. Cook and filed a petition for writ of certiorari on February 2, 2009: SCOTUS docket no. 08-996. The cert petition can be viewed, minus the cover page, at http://aclufl.org/news_events/?action=viewRelease&emailAlertID=3696