On January 11, 2016, the 4th Circuit U.S. Court of Appeals held, in the case of Armstrong v. Village of Pinehurst et al, that the Fourth Amendment prohibits the use of a taser [an electronic control device (ECD)], unless the police can articulate an “immediate danger” to the officer or others, apart from mere resistance by the subject.

The Court held that “noncompliance with police directives and non-violent physical resistance do not necessarily create a ‘continuing threat to the officer’s safety.’”

The Court stated further that “a police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force.  At bottom, ‘physical resistance’ is not synonymous with ‘risk of immediate danger.’”


Ronald Armstrong suffered from bipolar disorder and paranoid schizophrenia. On April 23, 2011, he had been off his prescribed medication for five days and was poking holes through the skin on his leg “to let the air out.”  His sister convinced him to go to the hospital but shortly after arriving he left.

Based on his leaving the hospital and his sister’s report about his odd behavior over the previous week, “the examining doctor judged Armstrong a danger to himself and issued involuntary commitment papers to compel his return. Armstrong’s doctor could have, but did not, designate him a danger to others, checking only the box that reads ‘[m]entally ill and dangerous to self’ on the commitment form.”

The Pinehurst police were called and they located him a short distance away from the hospital.  Officers engaged Armstrong in conversation. By all accounts, the parties were calm and cooperative at this point in time.  However, Armstrong proceeded to eat grass and dandelions, chew on a gauze-like substance, and put cigarettes out on his tongue while the police officers waited for the commitment order from the hospital to be completed.

“As soon as they learned that the commitment papers were complete, the three police officers surrounded and advanced toward Armstrong — who reacted by sitting down and wrapping himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge.”

Armstrong was seated on the ground, holding on to the base of a stop sign post, and refused to let go. The three police officers at the scene were surrounding him, struggling to remove him from the post.

“Appellees did not prolong this stalemate. Nor did they attempt to engage in further conversation with Armstrong. Instead, just thirty seconds or so after the officers told Armstrong his commitment order was final, Lieutenant McDonald instructed Officer Gatling to prepare to tase Armstrong. Officer Gatling drew his taser, set it to ‘drive stun mode,’ and announced that, if Armstrong did not let go of the post, he would be tased. That warning had no effect, so Gatling deployed the taser — five separate times over a period of approximately two minutes.  Rather than have its desired effect, the tasing actually increased Armstrong’s resistance.  But shortly after the tasing ceased, (hospital security officers) Blankenship and Verbal jumped in to assist the three police officers trying to pull Armstrong off of his post. That group of five successfully removed Armstrong and laid him facedown on the ground.”

“They left Armstrong facedown in the grass with his hands cuffed behind his back and his legs shackled. At this point, he was no longer moving — at all. Lopez was the first to notice that her brother was unresponsive, so she asked the officers to check on him. Appellees did so immediately, but Armstrong’s condition had already become dire. When the officers flipped him over, his skin had turned a bluish color and he did not appear to be breathing.”  He was transported to a hospital and died shortly after arriving.

Appellant (his estate and his sister) filed a complaint in the Superior Court of Moore County, North Carolina, on April 16, 2013. Appellant sued each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that the officers used excessive force, in violation of Armstrong’s Fourth and Fourteenth Amendment rights, when seizing him.

Appellees removed the case to the United States District Court for the Middle District of North Carolina on May 20, 2013.  The district court granted summary judgment to Appellees on January 27, 2015, reasoning, “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.”

The matter was appealed to the Court of Appeals which held that “Appellees used unconstitutionally excessive force when seizing Armstrong. . . ,” but agreed that the Appellees were entitled to qualified immunity from civil liability.

Violating a Constitutional Right/ Excessive Force

“Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.”  In this case, the court noted, it must “adhere to ‘the better approach to resolving cases in which the defense of qualified immunity is raised,’ that is, we ‘determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.’”

The court said that “(o)ur initial inquiry, then, is this: ‘Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’”  The court concluded that the facts did.

Citing to Graham v. Connor, 490 U.S. 386, 388 (1989), the court stated that “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. But the [Supreme] Court has counseled that the test ‘requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’”

Three factors are always to be considered when analyzing force by officers: “First, we look to ‘the severity of the crime at issue;’ second, we examine the extent to which ‘the suspect poses an immediate threat to the safety of the officers or others;’ and third, we consider ‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.’”

The court noted that first, Armstrong committed no crime but he was to be considered “mentally ill,” although his doctor concluded he was only a threat to himself.  “When ‘a mentally disturbed individual not wanted for any crime . . . [i]s being taken into custody to prevent injury to himself[,] [d]irectly causing [that individual] grievous injury does not serve th[e officers’] objective in any respect.’”

“The second and third Graham factors, whether Armstrong threatened the safety of others and resisted seizure, do justify some – limited – use of force, though. Appellees had observed Armstrong wandering into traffic with little regard for avoiding the passing cars. . . . Appellees concerns that Armstrong may try to flee into the street to avoid being returned to the Hospital, thereby endangering himself and individuals in passing cars, were objectively reasonable. A degree of force was, consequently, justified.”

Armstrong was also resisting arrest. “Armstrong was refusing to let go of the post he had wrapped himself around despite verbal instruction to desist and a brief – 30 second – attempt to physically pull him off. Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance.”

However, said the court, “(w)hen we turn ‘an eye toward the proportionality of the force in light of all the[se] circumstances, it becomes evident that the level of force Appellees chose to use was not objectively reasonable. Appellees were confronted with a situation involving few exigencies where the Graham factors justify only a limited degree of force. Immediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.”

“Appellees, therefore, are not entitled to summary judgment on the question whether they violated the Constitution. Viewing the record in the light most favorable to Appellant, Appellees used excessive force, in violation of the Fourth Amendment.”

Use of the Taser

“Deploying a taser is a serious use of force. The weapon is designed to ‘caus[e] . . . excruciating pain. . . .”  The court referred to studies conducted regarding the taser and stated that “(s)ince at least 2011, the Police Executive Research Forum (“PERF”) and the Department of Justice’s Office of Community Oriented Policing Services (“COPS”) have cautioned that using drive stun mode ‘to achieve pain compliance may have limited effectiveness and, when used repeatedly, may even exacerbate the situation.’ The organizations, therefore, recommend that police departments ‘carefully consider policy and training regarding when and how personnel use the drive stun mode[] and . . . discourage its use as a pain compliance tactic.’”

In addition, “(e)ven the company that manufactures tasers, . . .  now warns against the precise type of taser use inflicted on Armstrong.”

The fact that Armstrong was not restrained, although resisting, did not justify its use. “A rule limiting taser use to situations involving a proportional safety threat does not countenance use in situations where an unrestrained arrestee, though resistant, presents no serious safety threat.”

This conclusion, “that taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger, is consistent with our treatment of police officers’ more traditional tools of compliance.”

The court then discusses other uses of force and states that “a police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force. At bottom, ‘physical resistance’ is not synonymous with ‘risk of immediate danger.’  Therefore, in the case before us, Appellees’ use of force is only ‘proportional[] . . . in light of all the circumstances,’ if Armstrong’s resistance raised a risk of immediate danger that outweighs the Graham factors militating against harming Armstrong. But when the facts are viewed in the light most favorable to Appellant, they simply do not support that conclusion.”


The 4th Circuit U.S. Court of Appeals covers five states: North Carolina, South Carolina, Maryland, Virginia and West Virginia.  Law enforcement agencies in those states will now have to modify their policies and practices to comport with the court’s finding: Tasers can only be used when officers’ can articulate “immediate danger” to themselves or others.  Mere physical resistance by a subject will not, in and of itself, justify the use of an ECD.

However, states not covered by the 4th Circuit are not bound by that decision.  A U.S. Supreme Court decision is mandatory on all lower federal courts, both courts of appeals and district courts. However, a federal circuit decision is mandatory on all federal courts within its circuit, but not federal courts in other circuits.

But federal courts of appeal decisions can be cited as persuasive authority in all future cases involving similar circumstances.  As such, local agencies should note this decision and consider whether or not to follow it.  Certain circuits, like the 9th Circuit U.S. Court of Appeal, are recognized as being somewhat liberal and are more likely to follow a decision such as this one if a similar case comes before it.

As the Armstrong court points out, there have been numerous decisions involving the use of force at all levels.  The use of an electronic control device has been held to be an intermediate level of force.  In all applications of force, law enforcement must justify its use based on the factors set forth in Graham v. Connor and the higher the level of force, the more justification is needed.

It would also behoove law enforcement, in anticipation of additional litigation on this subject, to prepare for challenges to the use of an ECD.  For example, ensure that officers are currently trained on the proper use of an ECD. In addition, officers must be able to articulate why any particular use of force was necessary under the circumstances confronting them.  Recognizing that other levels of force might be needed to gain compliance, such as OC spray, batons, or hands on contact, training and guidance in those areas become more urgent than before.

As with all matters involving the application of the law, law enforcement must consider the issues and seek out and secure advice and guidance from its respective legal counsel.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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