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Fourth Circuit: Three Tasings in 70 Seconds May Constitute Excessive Force

by David M. Reutter

The Fourth Circuit Court of Appeals reversed a grant of summary judgment to guards who tased a prisoner three times during a 70-second period. In its May 10, 2019 ruling, the appellate court also found error in the district court’s dismissal of a defendant for failure to perform timely service and denial of a discovery request for the prison’s use-of-force policy.

Before the Fourth Circuit was the appeal of South Carolina prisoner Altony Brooks. His pro se complaint alleged excessive force in violation of the Eighth Amendment. At issue was an incident that occurred on September 18, 2013 at the Hill-Finklea Detention Center, where Brooks had arrived the day before to attend a court hearing.

Brooks claimed he was “sovereign” and refused to comply with a policy that required his picture to be taken. Guards allowed the refusal to pass the day he arrived, but insisted on the photo as he was preparing to leave to return to his assigned prison. Five guards took the handcuffed Brooks to the photo room, and they reasoned with him for about seven minutes to allow the picture to be taken. He responded with what the appellate court termed “aggressive” verbal resistance, and continued to refuse.

The incident was recorded on video, and Sergeant Sheila Johnston was seen pointing her Taser at Brooks. She warned him that she would deploy it if he did not cooperate, and did so when he again refused to be photographed. Brooks “fell to the ground, writhed and kicked for approximately five seconds, and ultimately laid still.” Roughly 16 seconds after the first shock, Johnston activated the Taser a second time. Brooks was brought to his feet, but continued to move so a picture could not be taken. About 45 seconds after the second shock, Johnston again tased Brooks. The photo was subsequently taken.

Brooks appealed the district court’s dismissal of Johnston for failure to timely serve her, denial of a discovery request for the prison’s use-of-force policy and grant of qualified immunity to two of the defendant guards. The Fourth Circuit found error on all three issues.

As to service on Johnston, Brooks had her name spelled incorrectly and her rank listed as a lieutenant. The Fourth Circuit noted that “Brooks made multiple attempts during the 120-day service window to advise the Marshals and the district court of Johnston’s service information, including her correct name and title.” Those efforts constituted “good cause” under Fed.R.Civ.P. 4(m), which provides “the court must extend the time for service for an appropriate period” if good cause for failure to effect timely service is shown.

The Court of Appeals further found error in not compelling production of the prison’s use-of-force policy. Adherence to that policy could “provide powerful evidence that the application of force was tempered and that officers acted in good faith.” The Court noted the policy could be redacted to limit text not relevant to the case to protect the defendants’ purported security concerns.

In reviewing the use of force against Brooks, the Fourth Circuit said the relevant question was motive and the matter could only be resolved by a jury. “[W]hether or not the first use of the Taser, standing alone, would give rise to any inference of malice, a reasonable jury viewing the three shocks together – three uses of an instrument designed to inflict excruciating pain in under 70 seconds – could infer ‘wantonness in the infliction of pain,’ intended not to restore order and induce compliance, but to punish Brooks for his belligerence.”

The district court’s orders were reversed, and counsel was appointed to represent Brooks following remand. See: Brooks v. Johnson, 924 F.3d 104 (4th Cir. 2019). 

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Related legal case

Brooks v. Johnson