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Tasering Detainee as Corporal Inducement Violates Eighth Amendment

Tasering Detainee as Corporal Inducement Violates Eighth Amendment

by David Reutter

The Eighth Circuit Court of Appeals has held a pre-trial detainee’s claim that a guard used excessive force could proceed where a jury could find the guard used a Taser on a non-aggressive detainee as corporal inducement to comply with verbal orders.

A few hours after being booked into jail in Conway County, Arkansas on drug charges, Dwain Smith began yelling that he was in pain from pre-existing lower back problems. Jail administrator Rick Emerson instructed guards Jacob Zulpo and Jansen Choate to take Smith to the a medical observation cell.

When the guards entered Smith’s cell, he “was lying down rocking back and forth, moaning” on top of his bunk. Subsequent events were disputed. According to Zulpo, Smith began to “push and kick at him” and “started to turn violent” after he placed his hand on Smith’s shoulder. Smith then retreated back into the bunk, away from the guards. “Zulpo was trying to get ahold of [Smith], to kind of control him, and when doing this, Zulpo was accidentally kicked in the mouth,” Choate stated.

In response to the guards’ orders “to get up off of [his] bunk,” Smith replied that he was in pain and could not get up. Choate then handed a Taser to Zulpo, who had no training in its use. Zulpo told Smith, “You need to comply with our orders or else we’re going to be forced to tase [you].” Smith was then tased with a five-second burst.

As he lay on the bunk with Taser wires embedded in his abdomen, Smith again told the guards he could not get up. Zulpo insisted Smith get up or he would be tased again. Smith repeated he was unable to stand; Zulpo again insisted he do so, then tased Smith a second time as he attempted to get up. He warned Smith afterwards, “We can do this all night.” Smith fell to the floor crying; he eventually got up and walked to the front of the cell, leaning on the walls for support. Zulpo continued to threaten further tasing.

Smith sued Zulpo, Choate and Emerson. The federal district court denied their motion for summary judgment on qualified immunity grounds, and they appealed.

On July 16, 2014, the Eighth Circuit held that while a reasonable officer could conclude deployment of a Taser was necessary because he thought Smith’s kick was purposeful and aggressive, a jury could also credit Choate’s observations that the kick was “accidental” and “unintentional,” negating the need for force.

“As to the second Taser strike, a jury could find Smith was nonviolent and an objectively reasonable officer would not use a Taser on Smith as corporal inducement,” the appellate court wrote. While force can be used to preserve “discipline,” the evidence showed a “nonviolent pretrial detainee in pain, seeking help, having Taser probes affixed to his abdomen, no longer acting aggressively towards the jailers (if he ever was), and attempting to comply with Zulpo’s orders to get up.”

Having found no necessity for the second use of force, the Court of Appeals also held that Choate had a duty to stop Zulpo from punishing Smith. The Court found Emerson had authorized Zulpo and Choate to use Tasers in the past, and had “posted signs on the jail walls warning prisoners they would be tased for non-compliance.” The district court’s denial of qualified immunity to the defendants was affirmed and the case remains pending on remand. See: Smith v. Conway County, Arkansas, 759 F.3d 853 (8th Cir. 2014).

 

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