Case Law: CEWs In Drive-Stun Mode

Brief Summary of Conducted Electrical Weapon Cases of Interest for Law Enforcement

The 9th Circuit’s Brooks en banc decision is the leading court decision analyzing use of an X26 CEW in drive-stun mode to gain volitional compliance of an actively resisting person who is not reasonably perceived as an immediate threat or a flight risk. In the Brooks portion of the Mattos en banc decision, the Court laid out the proper analysis for determining whether an officer’s use of force to gain volitional compliance of an actively resisting person by using a TASER X26 CEW in drive stun mode was objectively reasonable. The Court stated that before an officer uses an X26 CEW in drive-stun mode to attempt to gain volitional compliance of an actively resisting person, the officer must give the person a reasonable opportunity to comply with officer’s directives prior to each CEW drive-stun application. This “reasonable opportunity to comply” includes that the officer: (1) must not have a reasonable perception that the person is not capable of volitional compliance to officer’s commands; (2) must reasonably perceive that the person is “actively resisting;” (3) must give the person a warning of the imminent application of force to gain compliance before each force application; (4) must give the person time “to recover from the extreme pain” experienced; (5) must give the person a reasonable opportunity to “gather herself;” and (6) must give the person a reasonable opportunity to “consider her refusal to comply” with the officer’s commands before each X26 CEW drive-stun application.

Court held 2-3 applications of TASER CEW in drive-stun was not excessive force, when arrestee was a protester who chained himself to a 300lb barrel on private property and could have avoided the use of force by complying with officers’ commands and the officers progressed through varying levels of lesser force before deciding to apply the TASER CEW.

The court held that officer used unreasonable force when he applied the TASER in drive-stun mode to thigh and breast of female arrestee who was shackled, handcuffed and in the back of a patrol car. The court found that while arrestee’s language was and behavior was reprehensible, the officer’s use of the TASER was an unnecessary and wanton infliction of pain.

Holding that a sheriff's deputy did not use excessive force when he used a TASER CEW three times on a handcuffed arrestee who was sobbing and refusing to walk to the police car. The court observed that the incident occurred at night on the side of a highway with considerable passing traffic, the deputy could not complete the arrest because the arrestee was resisting, and the deputy resorted to using the TASER CEW only after trying to persuade the arrestee to cease resisting, after attempting to lift him, and after repeatedly and plainly warning that a TASER CEW would be used and then giving some time to comply. The Eleventh Circuit credited the government with a significant interest in enforcing the law on its own terms, rather than on the terms set by the arrestee. Recognizing that the electrical shock delivered by a TASER CEW hurts, and that the arrestee claimed emotional injury as well as 16 small TASER burns, which caused some scarring, the Eleventh Circuit concluded that the injuries were not severe.