Does The Rest of the 11th Circuit Agree?

James Cook, representing the extraordinarily sad and depressed human being, Jesse Buckley, who was tasered three times on the roadside with the approval of the 11th Circuit, is offering the court a second chance to show it’s humanity.  Cook’s motion for rehearing en banc was received last night, and it’s an excellent effort.

In his effort to check the pulse of the Circuit, Cook has presented his argument largely by way of a fascinating analogy to the 1960s:


Police use of force became a critical public issue in the U.S. in the 1960’s at the time of the civil rights movement. Newspaper photographs showed police deploying attack dogs and fire hoses against crowds of demonstrators. Cattle prods were also used for crowd control. The late Stokely Carmichael (Kwame Ture) remembered the use of cattle prods by police officers during the 1960’s. ”When those points touched your skin,” he wrote, ”the pain was sharp and excruciating, at once a jolting shock and a burn. You could actually see and smell your skin burning.” Weisbrot, Robert, Stokely Speaks, New York Times, Nov. 23, 2003.

Buckley, you may recall, was stopped for speeding, but rather than cooperate promptly with Deputy Jonathon Rackard by signing the ticket, did the unthinkable.

Financially destitute and homeless, Buckley began sobbing after Rackard pulled him over and gave him a speeding ticket, which Buckley refused to sign.

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.

After Rackard warned Buckley that he would taze him if he didn’t cooperate, Buckley responded, “I don’t care anymore. Tase me.”   And Rackard did.  Three times.

So is Cook’s analogy to the passive resistance movement of the 1960s accurate?  The answer would seem to depend on whether one looks to the objective conduct or the subjective intent.  Certainly, Buckley was not protesting when he sat on the ground sobbing.  He had lost all hope.  But his conduct was indistinguishable from that of historic figures who used passive resistance to make their point.


The tradition of passive resistance, which migrated from American Henry David Thoreau to Indian pacifist Mohandas Gandhi, back to Dr. Martin Luther King, Jr., and others, ultimately led Americans at all points of the political spectrum, to adopt passive resistance as a form of peaceful protest. It was used in abortion clinic protests as it was in desegregation demonstrations. Public reaction to police overreaction disciplined public officials and law enforcement officers to show tolerance for this form of protest in causes that frequently attracted young or frail and elderly demonstrators, so that activists could essentially go limp and force officials to have them arrested without fear of clubs or chemicals or electric prods.

As a result of the use of cattle prods, the direct linear ancestor of the Taser, the law prohibited the use of “pain compliance techniques” against those who threatened no harm, but merely refused to happily comply. 

Cook seeks rehearing en banc in this case, notably in light of prevailing before the District Court, and then the stinging 17 page dissent by Judge Beverly B. Martin.  This decision, which was unpublished but highlighted across the blawgosphere because it was so outrageous, reflects a degree of callousness by an appellate court toward citizens that is shocking.  Hopefully, the other judges on the 11th Circuit will recognize just how disconnected the decision by Chief Judge J.L. Edmondson is from the harsh reality of this newfound cattle prod.

This was one sick decision.  Let’s hope the Court sees the light of day, and it doesn’t try to bury the outrage by denying rehearing.

4 thoughts on “Does The Rest of the 11th Circuit Agree?

  1. Joel Rosenberg

    Well, I think the analogy sucks, specifically because of the intent issue.

    Still, I hope the brief is persuasive to get a rehearing on the merits of the case and the issue, if not the analogy.

    I looked around to see if there was some suggestion that the Sheriff, Haddock (one of the defendants, being the boss of the tasering cop), had expressed any remorse over the action of his officer.

    Nope; Haddock is, it appears, one cold fish.

  2. Shaula

    Scott, I have a technical question, that I hope you or your readers might answer.

    My understanding is that a taser acts to incapacitate the target–unless it is a taser that can inflict pain in  drive stun mode.

    So if a civilian is already lying limp on the ground, and police want to make him comply…isn’t incapacitating him counterproductive?

    Have you noticed in the coverage of the Buckley case which kind of taser he was hit with?

  3. SHG

    You are absolutely right, but the fact that the Taser made him unable to comply with the direction, which was also related in the mtoion for rehearing, was a distinct criticism of the initial decision and apparently meant nothing to the court.

  4. Karl Mansoor

    Older style electrical stun devices from years back produced primarily pain with minimal incapacitation if any. They are still on the market today. Any “incapacitation” was because it hurt like hell and not so much because it shut down the body.

    Tasers (Taser is the brand name for products from Taser Intl.) have both the ability to incapacitate with the accompanying pain and to produce pain only without incapacitation in the “drive stun” mode.

    It is reasonable to assume that the deputy, Rackard, used a Taser from Taser International because he first of all told Buckley he was going to “Tase” him (Police use that term to mean a Taser) and secondly because Taser Intl. is top dog in supplying electrical stun weapons to LE these days.

    When viewing the video clip of Buckley receiving application of the Taser, it appears he received the “drive stun” mode application meaning that it caused pain but no incapacitation (in the same sense as neuromuscular incapacitation as Taser Intl. describes it). However, if someone is cuffed, and on their butt, side, back, or stomach, and the Taser is applied in the “drive stun” mode, for all intents and purposes he is still “incapacitated.” He can’t fight against it or really do anything to comply with a directive while being Tased.

    FYI – Rand released a report commissioned by NYPD. Rand is recommending expanded use of electrical stun devices at NYPD.  Here is the report: http://www.rand.org/pubs/monographs/2008/RAND_MG717.pdf

    [Ed. Note: The Rand Report was previously discussed, and link to Taser website has been deleted.  Commenters are not allowed to include links to commercial websites.)

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