Divided Panel Holds Officer Who Tasered Victim in the Head Entitled to Qualified Immunity

Wilson v. City of Lafayette, 2013 WL 518558 (2/13/13) (Col.) (unpub'd) - An officer was entitled to qualified immunity where it was alleged he tasered a man suspected of cultivating marijuana. The suspect was tasered in the head from 10 to 15 feet away after a foot chase and after the suspect reached for his pocket when he was backed against a fence. The suspect died of cardiac arrythmia. The law was not clear that this constituted excessive force because no case in any circuit had held officers used excessive force tasering someone actively resisting arrest, even where the suspected offense was minor, there was little risk of escape and the suspect had not yet physically harmed anyone. Here the suspected offense was a felony and the officer was trained that marijuana growers tend to be armed and ready to use force. There was no evidence how dangerous a taser shot to the head is. "A reasonable officer need not await the glint of steel before taking self-protective action." The 10th did admit this was a "deeply saddening case." Judge Matheson concurred, but noted that to avoid qualified immunity there need not be a case specifically on point where the officer's conduct was "obviously egregious." It was not clear enough to him that the conduct was "obviously egregious." Judge Briscoe dissented. She found it significant that the officer was alleged to have deliberately tasered the suspect in the head from close range and the training manual warned against doing so. Judge Briscoe also thought it was not clear the officer could have reasonably believed the suspect posed an immediate danger, since at worst he was carrying a knife small enough to fit in a pocket. A taser to the back would have sufficed to deflect any danger, she felt.