CITE AS 91 N.C. L. REV. 606 (2013)

Power Down: Tasers, The Fourth Amendment, and Police
Accountability in the Fourth Circuit*
INTRODUCTION ..........................................................................................606
I.
THE FOURTH CIRCUIT AND TASERS: OREM AND HENRY.................617
A. Orem v. Rephann .....................................................................618
B. Henry v. Purnell.......................................................................619
C. Treatment of Tasers by the Federal District Courts of the
Fourth Circuit ..........................................................................620
II.
VOLITIONAL VERSUS NON-VOLITIONAL NON-COMPLIANCE .........624
III. THE FOURTH AMENDMENT AND THE DE MINIMIS INJURY
DOCTRINE .......................................................................................636
IV. THE PROPHYLACTIC EFFECT OF OVERCHARGING ..........................643
V.
PAIN COMPLIANCE AND THE EROSION OF THE
REASONABLENESS STANDARD .......................................................646
CONCLUSION ..............................................................................................650
“It has been repeatedly decided that these amendments should
receive a liberal construction, so as to prevent stealthy
encroachment upon or ‘gradual depreciation’ of the rights secured
by them, by [the] imperceptible practice of courts . . . .”1
INTRODUCTION
It may look like a gun. It may fire like a gun. Police have been known
to confuse it with a gun.2 At one point in the not-too-distant past, it even
used gunpowder to fire projectiles at those unfortunate enough to find

* © 2013 Ian A. Mance.
1. Henderson v. United States, 12 F.2d 528, 529 (4th Cir. 1926) (referencing the Fourth and
Fifth Amendments).
2. See, e.g., Henry v. Purnell, 652 F.3d 524, 528 (4th Cir.) (en banc) (explaining that the
defendant officer shot the plaintiff with his pistol because he “ ‘had grabbed the wrong
weapon’ ’’), cert. denied, 132 S. Ct. 781 (2011); Johnson v. Bay Area Rapid Transit, 790 F. Supp.
2d 1034, 1061 (N.D. Cal. 2011) (“[Defendant officer] intended to tase [plaintiff], but mistakenly
drew his pistol.”); Atak v. Siem, CIV. 04-2720DSDSRN, 2005 WL 2105545, at *1 (D. Minn.
Aug. 31, 2005) ([“Defendant officer] alleges that he mistook his Glock for his Taser.”); Torres v.
City of Madera, CIVFF02-6385AWILJO, 2005 WL 1683736, at *2 (E.D. Cal. July 11, 2005)
(explaining that the defendant officer was “involved in another incident in which she had
confused her [Taser] and her Glock service weapon”), aff’d sub nom. Torres v. Taser Int’l, Inc.,
277 F. App’x 684 (9th Cir. 2008); Yount v. City of Sacramento, 183 P.3d 471, 476 (Cal. 2008)
(“[After shooting an arrestee, the officer] looked down at the weapon in his hand and saw he had
mistakenly grabbed his pistol.”).

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themselves in its path.3 Despite the similarities, however, the Thomas A.
Swift Electric Rifle—or “taser”4 as it is better known—is no firearm. The
replacement of gunpowder with high-tech nitrogen cartridges was enough
to free its manufacturer, TASER International, from the regulatory grip of
the Bureau of Alcohol, Tobacco & Firearms (ATF), opening the door to its
enthusiastic adoption by law enforcement agencies across the country.5
Loaded with cartridges that shoot a pair of small hooked metal
electrodes, the taser can hit a target at a distance of thirty-five feet.6 Upon
impact, its hooks lodge into the target’s skin, delivering a charge of 1,200
volts of electricity at a rate of nineteen pulses per second.7 The standard
cycle delivers five seconds of continuous electrical current for each pull of
the trigger,8 but some versions of the device are designed to allow the user
to deliver a continued charge for an essentially unlimited period of time.9 In
close contact situations, the taser can be administered in what is known as
“drive-stun” mode, permitting an officer to deliver electric shocks by
holding the device directly against a suspect’s skin or clothing.10
The taser temporarily paralyzes its subject by interrupting “the
command and control systems of the body to impair muscular control.”11 It
is, by a large margin, the most popular form of stun gun on the market and
the preferred choice of law enforcement agencies, which have used the
3. Wayne
Adam,
Police
Use
of
Tasers,
EHOW,
http://www.ehow.com/about_5305054_police-use-tasers.html (last visited Jan. 4, 2013); see also
Taser TF-76, FORTRESS TACTICAL, LLC, http://shop.fortresstactical.com/TASER-Systems-TF76-p/tf-76.htm (last visited Jan. 4, 2013) (featuring images of the original taser and related ATF
regulations).
4. There appears to be no consensus among courts, including the Fourth Circuit, regarding
the capitalization of the word “taser.” Compare Henry, 652 F.3d at 527 (using “Taser”), with
Orem v. Rephann, 523 F.3d 442, 444 (4th Cir. 2008) (using “taser”). Although the word is
technically an acronym, it is rarely treated as such, and in recent years it “has become
synonymous” with electro-muscular incapacitation devices in general. Thompson v. Carrollton
Twp. Police Dep’t, No. 283772 2009 WL 1564529, at *1 n.2 (Mich. Ct. App. June 2, 2009) (per
curiam). For the sake of simplicity, this Comment adopts the convention of not capitalizing the
word.
5. Michelle E. McStravick, The Shocking Truth: Law Enforcement's Use and Abuse of
Tasers and the Need for Reform, 56 VILL. L. REV. 363, 365–66 (2011).
6. Law Enforcement Technology: Versatile Solutions for Your Force, TASER INT’L,
http://www.taser.com/products/law-enforcement (last visited Jan. 4, 2013).
7. MICHAEL BRAVE, TASER X26—ELECTRICAL DEMONSTRATIONS 2, 4 (Oct. 24, 2006),
http://www.ecdlaw.info/outlines/TASER%20X26%20demos%2010-24-06%20005.pdf
(discussing the “TASER X26,” TASER International’s best-selling device).
8. Id. at 2.
9. Id. (noting that each battery can sustain up to 195 five-second discharges without
replacement).
10. See Cockrell v. City of Cincinnati, 468 F. App’x 491, 492 (6th Cir. 2012) (describing the
use of tasers in drive-stun mode).
11. TASER X26 ECD, TASER INT’L, http://www.taser.com/products/law-enforcement/taserx26-ecd#features (last visited Jan. 4, 2013).

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device with ever increasing frequency in recent years.12 Studies suggest that
tasers have been remarkably effective in reducing injuries to both law
enforcement officers and criminal suspects alike.13 In some cases, tasers
undoubtedly save lives. This is most commonly illustrated in those
situations in which police succeed in disabling armed and dangerous
individuals without having to resort to using their firearms. For this reason,
calls for their abandonment are unlikely to ever gain much currency, as the
law enforcement community has assembled considerable evidence of their
life-saving ability.14
Taser critics, which include the human rights organization Amnesty
International15 and the United Nations Committee Against Torture,16 lodge
two principal objections to law enforcement’s use of the device. These
groups highlight the high number of in-custody deaths that have been
associated with tasers—a number that, depending on the system of
accounting, has been estimated to approach, or even exceed, 500 total
deaths in the United States alone.17 They also point to the unique potential
of the device to be used excessively against criminal suspects in the course

12. Brian Wolf & Joseph De Angelis, Tasers, Accountability, and Less Lethal Force: Keying
In on the Contentious Construction of Police Electroshock Weapons, 4 INT’L J. CRIMINOLOGY &
SOC. THEORY 657, 657 (2011) (“Tasers . . . have recently gone from a relatively obscure novelty
to a widely adopted police restraint technology. Indeed, the Government Accounting Office
(GAO) estimate[d in a 2005 report that] almost half of law enforcement agencies in the U.S. have
adopted some form of electroshock device.”).
13. See, e.g., BRUCE TAYLOR ET AL., POLICE EXEC. RESEARCH FORUM, COMPARING
SAFETY OUTCOMES IN POLICE USE-OF-FORCE CASES FOR LAW ENFORCEMENT AGENCIES THAT
HAVE DEPLOYED CONDUCTED ENERGY DEVICES AND A MATCHED COMPARISON GROUP THAT
HAVE
NOT:
A
QUASI-EXPERIMENTAL
EVALUATION
(2009),
available
at
http://www.policeforum.org/library/use-of-force/CED%20outcomes.pdf.
14. See generally AM. MED. ASS’N, COUNCIL ON SCI. & PUB. HEALTH, REPORT 6: USE OF
TASERS BY LAW ENFORCEMENT AGENCIES (2009) [hereinafter USE OF TASERS], available at
http://www.ama-assn.org/ama1/pub/upload/mm/443/csaph-rep6-a09-exec-summ.pdf
(summarizing the medical and policy literature on police use of tasers, including the use of tasers
in place of firearms).
15. AMNESTY INT’L, ‘LESS THAN LETHAL’? THE USE OF STUN WEAPONS IN US LAW
ENFORCEMENT 1–5 (2008) [hereinafter LESS THAN LETHAL], available at
http://www.amnesty.org/en/library/asset/AMR51/010/2008/en/530be6d6-437e-4c77-851b9e581197ccf6/amr510102008en.pdf.
16. U.N.: Tasers Are a Form of Torture, CBS NEWS (Feb. 11, 2009, 3:49 PM),
http://www.cbsnews.com/stories/2007/11/25/national/main3537803.shtml.
17. LESS THAN LETHAL, supra note 15, at 20 (collecting 334 cases as of August 31, 2008);
532 Taser-Related Deaths in the United States Since 2001, ELECTRONIC VILLAGE,
http://electronicvillage.blogspot.com/2009/05/taser-related-deaths-in-united-states.html
(last
updated Sept. 14, 2012) (providing an unofficial list of alleged taser-related fatalities in the
United States); 758+ Dead After Taser Use, TNT–TRUTH . . . NOT TASERS (Apr. 25, 2011, 9:15
AM) [hereinafter TNT], http://truthnottasers.blogspot.com/2008/04/what-follows-are-nameswhere-known.html (providing an unofficial database maintained by the family of a taser victim
chronicling over 700 instances in North America of individuals who died after being tased).

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of arrest.18 Because the continued depression of the trigger on some models
delivers an uninterrupted shock,19 the device affords officers an opportunity
to administer a great deal of pain to suspects while seeking to secure their
compliance.
The United States Department of Justice (DOJ) recommended in 2011
that tasers only be used “against subjects who are exhibiting active
aggression or who are actively resisting in a manner . . . likely to result in
injuries to themselves or others.”20 The Maryland Attorney General’s
Office has similarly said that tasers “should not be used . . . to counter
passive noncompliance, absent an imminent threat of physical harm” 21 and
that the “act of fleeing or destroying evidence, in and of itself, should not
justify [their] use.”22 Nevertheless, although “[e]xperts and advocates alike
agree that Tasers should be used only where there is active aggression by a
subject or a documented threat of physical harm to another person,”23 use
of the device against non-violent, passive arrestees is not uncommon.24
The taser is distinguished from the more traditional tools at an
officer’s disposal in that it leaves significantly less in the way of visible
injuries. Use of a baton, for example, tends to leave significant bruising;
18. Tasers—Potentially Lethal and Easy to Abuse, AMNESTY INT’L (Dec. 16, 2008)
[hereinafter Easy to Abuse], http://www.amnesty.org/en/news-and-updates/report/taserspotentially-lethal-and-easy-abuse-20081216 (“The problem with Tasers is that they are inherently
open to abuse, as they are easy to carry and easy to use and can inflict severe pain at the push of a
button, without leaving substantial marks.”).
19. Neal-Lomax v. Las Vegas Metro. Police Dep’t, 574 F. Supp. 2d 1170, 1176 (D. Nev.
2008) (describing the popular X26z taser and noting that “if the person using the Taser holds
down the trigger, the device will continue to discharge until he releases the trigger or the battery
runs out” (internal quotation marks omitted)).
20. U.S. DEP’T OF JUSTICE & POLICE EXEC. RESEARCH FORUM, 2011 ELECTRONIC
CONTROL WEAPON GUIDELINES 20 (2011), http://cops.usdoj.gov/Publications/e021111339PERF-ECWGb.pdf.
21. REPORT OF THE MARYLAND ATTORNEY GENERAL’S TASK FORCE ON ELECTRONIC
WEAPONS 3 (2009), available at http://www.oag.state.md.us/Reports/ECWReport.pdf.
22. Id.
23. N.Y. CIVIL LIBERTIES UNION, TAKING TASERS SERIOUSLY: THE NEED FOR BETTER
REGULATION OF STUN GUNS IN NEW YORK 19 (2011) [hereinafter NYCLU REPORT], available
at http://www.nyclu.org/files/publications/nyclu_TaserFinal.pdf.
24. See id. (“In 35 percent of incident reports reviewed, . . . the subject was only engaged in
defensive or passive resistance . . . . This misuse appears to be widespread.”); MARK
SILVERSTEIN, TASERS: EVALUATING CLAIMS OF EXCESSIVE FORCE 4 (Oct. 19, 2006),
http://www.acluvt.org/issues/tasers/evaluating_excessive_force_claims.pdf (presented at the
National Police Accountability Project Skills Seminar) (“[I]n over one-third of the cases in which
police officers have discharged tasers, the reported level of resistance is ‘verbal noncompliance.’ ” (citation omitted)); Andrew Wolfson, Tasers Help Save Lives But Use Also
Criticized, LOUISVILLE COURIER-JOURNAL, Oct. 2, 2006, at A1, available at http://www.courierjournal.com/article/20070221/NEWS01/102210002/Tasers-help-save-lives-use-also-criticized
(noting that in a survey of 344 taser incidents, police “used the weapons in dozens of situations in
which neither they nor others appeared to be at risk”).

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excessive use of pepper spray visibly irritates the skin and can cause
chemical burns.25 These weapons thus provide a natural incentive for
officers to minimize their use, lest they expose themselves to civil action
and departmental reprimand.26 Tasers, by contrast, are in this respect
considerably more ripe for abuse,27 as a protracted application can easily
leave as little physical evidence on a suspect’s body as a routine fivesecond cycle.28 It is perhaps in part for this reason that an increasing
number of arrestees have reported being tased far beyond their complete
physical capitulation.29 Many have described the experience as the most
painful of their lives, an opinion widely shared among law enforcement
officers themselves, many of whom are subjected to a controlled fivesecond application in the course of their mandatory training exercises.30
The rules that govern how and when a taser may be deployed are
largely determined locally. Only the state of Florida, which for a time was
among the leaders in taser-related fatalities, has set meaningful statutory
limitations on the circumstances in which the device can be used against
25. Arrests Made During Occupy Protest At UC Davis, KCRA.COM (Nov. 18, 2011, 11:30
PM), http://www.kcra.com/r/29809851/detail.html.
26. See Jason Dearen, UC Davis Pepper Spray Incident Prompts Suspension of Officers,
HUFFINGTON POST (Nov. 20, 2011, 5:03 PM), http://www.huffingtonpost.com/2011/11/20/ucdavis-pepper-spray-inc_n_1104104.html.
27. NAT’L INST. OF JUSTICE, NIJ RESEARCH IN BRIEF: POLICE USE OF FORCE, TASERS AND
OTHER LESS-LETHAL WEAPONS 15 (2011), available at https://ncjrs.gov/pdffiles1/nij/232215.pdf
(noting that tasers’ “ease of use and popularity among officers raise the specter of overuse”); see
also AMNESTY INT’L, EXCESSIVE AND LETHAL FORCE? AMNESTY INTERNATIONAL’S CONCERNS
ABOUT DEATHS AND ILL-TREATMENT INVOLVING POLICE USE OF TASERS 67 (2004) [hereinafter
POLICE USE OF TASERS], available at http://www.hopenetworks.org/Taser_report.pdf (“[E]lectroshock weapons are inherently open to abuse as they can inflict severe pain at the push of a button
without leaving substantial marks, and can further be used to inflict repeated shocks.”).
28. See Easy to Abuse, supra note 18 (observing that “[m]any [people are] subjected to
repeated or prolonged shocks” and stating that one of the “problem[s] with Tasers is that
they . . . can inflict severe pain at the push of a button, without leaving substantial marks”).
29. Interview with C. Scott Holmes, Partner, Brock, Payne & Meece, P.A., in Durham, N.C.
(June 13, 2011) (on file with the North Carolina Law Review) [hereinafter Holmes Interview].
Holmes has, since 2006, represented plaintiffs in taser-related lawsuits brought under 42 U.S.C.
§ 1983. See Civil Litigation, BROCK, PAYNE & MEECE, P.A., http://www.bpm-law.com/practiceareas/civil-litigation/ (last visited Jan. 4, 2013).
30. See, e.g., POLICE USE OF TASERS, supra note 27, at 5–6 (quoting police officers in
various media reports describing the experience as “the most profound pain I have ever felt,”
“like getting punched 100 times in a row,” “like a finger in a light socket many times over,” and
“the longest five seconds of their life”); DURHAM POLICE DEP’T, TASER TECHNOLOGY REPORT 1
(2007),
available
at
http://durhamnc.gov/ich/op/DPD/Documents/Taser%20Report%204%2026%2007%20Final%20
Report%20_2_.pdf (describing a police offer’s description of being tased as “a very painful
experience”); Joshua Young, MPs Give Marines, Sailors Shocking Experience, DEF. VIDEO &
IMAGERY DISTRIBUTION SYS. (Sept. 30, 2011), http://www.dvidshub.net/news/77875/mps-givemarines-sailors-shocking-experience#.UE1KxKRYuXQ (quoting police officer describing a taser
as “probably the most pain you can experience within five seconds of your life”).

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criminal suspects.31 The ATF’s classification has excluded the weapon
from federal oversight.32 The DOJ’s suggestion that the weapon be
classified as “less lethal” and located just below deadly force on the use-offorce continuum33 is not binding on state, county, or municipal law
enforcement agencies, many of which authorize use of the device at the
level of verbal non-compliance.34 With very little substantive regulation to
complicate matters, sales have been strong. TASER International reports
having filled purchase orders from more than 16,575 different “public
safety agencies”;35 revenues for the quarter ending June 30, 2012 exceeded
$28 million.36 The mainstreaming of the device into police arsenals has had
the transformative effect of normalizing the infliction of pain in situations
that would have been unthinkable just ten years ago.37
In North Carolina, the most populated state in the Fourth Circuit,38
police enjoy unusually wide discretion to use tasers39 and are authorized to
31. See FLA. STAT. ANN. § 943.1717 (West 2006) (“A decision by a law enforcement
officer, correctional officer, or correctional probation officer to use a dart-firing stun gun must
involve an arrest or a custodial situation during which the person who is the subject of the arrest
or custody escalates resistance to the officer from passive physical resistance to active physical
resistance and the person: (a) Has the apparent ability to physically threaten the officer or others;
or (b) Is preparing or attempting to flee or escape.”). New Jersey has banned the use of stun guns
by law enforcement officers outright, and Georgia has a very broadly worded and arguably
inconsequential statute on the books. See N.J. STAT. ANN. § 2C:39-3(h) (West 2011); GA. CODE
ANN., § 35-8-26 (2012).
32. See generally JEFFREY DIEBEL, MINN. HOUSE OF REPRESENTATIVES RESEARCH DEP’T,
TASERS IN MINNESOTA: HOW ENERGY-CONDUCTED WEAPONS ARE REGULATED 5 (2009),
available at http://www.house.leg.state.mn.us/hrd/pubs/taserreg.pdf (discussing lack of federal
oversight and noting that “[s]ince the Bureau of Alcohol, Tobacco, Firearms and Explosives no
longer classifies ECWs as firearms, federal regulations . . . do not apply to ECWs”).
33. Letter from Steven H. Rosenbaum, U.S. Dep’t of Justice Civil Rights Div., to Alejandro
Vilarello, City Attorney, City of Miami, Fla. 10 (Mar. 13, 2003), available at
http://www.justice.gov/crt/about/spl/documents/miamipd_techletter.pdf.
34. See sources cited supra note 24.
35. News Release, TASER Int’l, Inc., TASER International Reports Second Quarter Results
(July 26, 2012), available at http://investor.taser.com/phoenix.zhtml?c=129937&p=irolnewsArticle&ID=1719100.
36. Id.
37. See Rep. of the Human Rights Comm’n, 87th Sess., July 10–28, 2006, U.N. Doc.
CCPR/C/USA/CO/3/Rev.1; GAOR, 60th Sess., Supp. No. 40 (2006) [hereinafter U.N. Human
Rights Rep.] (“The Committee is concerned in particular by the use of so-called less lethal
restraint devices, such as electro-muscular disruption devices (EMDs), in situations where lethal
or other serious force would not otherwise have been used.”); see also id. (expressing concern
that “police have used tasers against unruly schoolchildren; . . . elderly people; pregnant
women; . . . and people who argue with officers or simply fail to comply with police
commands”).
38. See State Rankings—Statistical Abstract of the United States: Resident Population—July
2009, U.S. CENSUS BUREAU, http://www.census.gov/compendia/statab/2012/ranks/rank01.html
(last visited Jan. 4, 2013).
39. See REBECCA C. HEADEN & IAN A. MANCE, THE N.C. TASER SAFETY PROJECT, NOT
THERE YET: THE NEED FOR SAFER TASER POLICIES IN NORTH CAROLINA 11 (April 2008),

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deploy them in a broad array of circumstances. The device has been used
by police in the state as a disciplinary device against even non-arrestees,
from recipients of parking citations40 to young public school children.41 In
one twelve-month period spanning from 2006 to 2007, “the state had the
unfortunate distinction of having the third-highest number of TASERproximate deaths” in the country, trailing only the much more populous
states of California and Florida.42 Arrestees are frequently tased as a
precursor to being handcuffed for exhibiting mere verbal disagreement,43
and even when they are cuffed and restrained, many North Carolina
departments still permit officers to use the device to compel further
compliance.44 In many of the district courts that periodically review such
conduct,45 little weight is accorded to the Supreme Court’s famous
admonition in Graham v. Connor46—a case that overturned a Fourth
Circuit excessive force decision47 and set the standard for all future abuse
claims. In Graham, the Court held that, when evaluating the reasonableness
of an officer’s use of force, courts must pay “careful attention to . . . the
severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”48

available at http://www.acluofnc.org/files/NotThereYet.pdf (concluding from a survey of all 100
North Carolina sheriffs’ offices that the state “lags significantly behind the national norms with
respect to nearly every facet of TASER regulation”); see also id. at 4 (“North Carolina . . . lags
almost 50% behind the national average, with only 42.9% of TASER-deploying counties
reporting restrictions on use against pregnant women in the 2007 survey.”); id. at 8 (“[O]nly
18.6% of TASER-deploying counties report[ed] in 2007 that they restricted or prohibited the
practice [of tasing passive resisters] in their use of force policies.”).
40. Denise Sherman, Knightdale Police Chief Exonerates Officer in Tasing, E. WAKE NEWS,
Mar. 23, 2011, http://www.easternwakenews.com/2011/03/23/10390/knightdale-police-chiefexonerates.html (describing how a North Carolina officer repeatedly tased a non-arrestee, who
had committed a parking infraction, resulting in hospitalization).
41. See, e.g., Gloria Lopez, Police Stand Behind Use of Tasers in Wake County Schools,
CBS NEWS-WRAL RALEIGH (Sept. 28, 2005), http://www.wral.com/news/local/story/120194;
Ken Ward, Girl Tasered at School, ABC NEWS-WTVD (Jan. 13, 2006),
http://abclocal.go.com/wtvd/story?section=news/local&id=3806891.
42. HEADEN & MANCE, supra note 39, at 1.
43. See SILVERSTEIN, supra note 24, at 5.
44. See, e.g., HEADEN & MANCE, supra note 39, at 9 (“69.1% of sheriffs nationwide have
adopted policies restricting the use of TASERs against people in handcuffs or restraints. In North
Carolina, a mere 20% of counties have taken similar steps.”).
45. See infra Part V.
46. 490 U.S. 386 (1989). See infra note 196 for further discussion as to why the “severity of
the crime” prong of the Graham inquiry is sometimes accorded so little weight in the context of
Fourth Amendment taser claims.
47. Graham v. City of Charlotte, 827 F.2d 945, 950 (4th Cir. 1987), vacated sub nom.
Graham, 490 U.S. at 399.
48. Graham, 490 U.S. at 396.

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This absence of regulation with respect to the circumstances under
which the device can be used has had significant financial consequences for
TASER International in North Carolina. In 2011, a federal jury in
Mecklenburg County returned a $10 million dollar verdict against the
company in a case brought by the family of seventeen-year-old Darryl
Turner, who died after being tased by a Charlotte police officer during a
tense, but otherwise non-violent, confrontation.49 As of 2012, it stands as
only the second time in 127 attempts that the company has lost in court.50
The verdict, however, reflected the jury’s judgment that the company erred
in failing to warn police that the device could cause heart problems if it
struck near the chest;51 it did not speak to the ultimate reasonableness of the
officer’s decision to use the device against the teenager. For the various
reasons explained below,52 scrutiny of such decisions by juries in the
Fourth Circuit remains exceedingly rare.53
Upon hearing the verdict, Charlotte City Attorney Mac McCarley,
who had earlier settled with the teenager’s family out of court for $625,000
without admitting any wrongdoing,54 told the Charlotte Observer it would
have no effect on the city’s taser policies and continued to characterize the
device as “nonlethal.”55 Within just a few hours, however, another
Charlotte man, twenty-one-year-old Lareko Williams, died after being
tased by police officers attempting to take him into custody.56 The next day,
Charlotte police suspended use of the device.57
Charlotte took the uncommon step of ultimately regulating itself. It
made a unilateral decision to re-examine its practices despite the fact that it
operates in a federal circuit that has yet to explicitly proscribe the sort of
conduct that led to Darryl Turner’s death. However, the practice of using
49. Gary L. Wright & Cleve R. Wootson, Jr., 17-Year-Old’s Family Wins $10 Million in
Taser Verdict, CHARLOTTE OBSERVER, July 21, 2011, at A1.
50. Michaela L. Duckett, Qcity Lawyer Ken Harris Talks About $10 Million Taser Verdict,
QCITY METRO (July 28, 2011),
http://www.qcitymetro.com/news/articles/qcity_lawyer_ken_harris_talks_about_10_million_taser
_verdict091448534.cfm.
51. See Wright & Wootson, supra note 49.
52. See infra Parts II–V.
53. See infra Part V.
54. See Wright & Wootson, supra note 49 (“The city of Charlotte paid $625,000 to Turner's
family in 2009, though the city denied wrongdoing. It was the largest police-related claim the city
had paid out in nearly a decade.”).
55. Id.
56. Cleve R. Wootson, Jr., & Gary L. Wright, Police Shelve Tasers for Now After Another
Suspect Dies, CHARLOTTE OBSERVER, July 22, 2011, at A1.
57. Id. The Charlotte-Mecklenburg Police Department would later lift the suspension after
spending $1.83 million to purchase new tasers outfitted with special safety features to limit each
electrical charge to five seconds. See Cleve R. Wootson, Jr., Newer Taser Model Joins CMPD
Arsenal, CHARLOTTE OBSERVER, Jan. 26, 2012, at B1.

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tasers to inflict pain against non-violent arrestees to secure their
compliance has certainly not been without its critics on the bench in other
parts of the country. Many federal courts have taken steps in recent years to
push back against the practice of police treating tasers as a weapon of first
resort.58 And, as one Texas state judge recently observed:
[I]t is easy to say that [tasers have] proved effective. So too would a
cane and club be effective if used enough times. The problem,
however, is that our United States Supreme Court [has] condemned
beatings and whippings as a means of obtaining evidence. Given that
those measures and the application of a taser are founded upon the
concept of compliance through pain and the rather accurate premise
that the more inflicted the greater the chance of compliance, it would
be reasonable to view the two . . . as alike . . . . [B]oth can be quite
brutal depending upon the manner of and circumstances surrounding
their application.59
This Comment focuses its attention on the phenomenon of taser abuse
in the states that comprise the Fourth Circuit: Maryland, North Carolina,
South Carolina, Virginia, and West Virginia. It assesses the state of the law
as presented to genuine victims of police abuse who wish to vindicate their
right to be free of excessive force under 42 U.S.C. § 1983,60 the federal
58. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 907, 908 (11th Cir. 2009) (denying an officer
qualified immunity for repeatedly tasing a suspect, despite the lack of case law on point, because
“the force employed was so utterly disproportionate to the level of force reasonably necessary”);
Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008) (“Even without precise knowledge that
the use of the taser would be a violation of a constitutional right, the officers should have known
based on analogous cases that their actions were unreasonable.”).
59. Hereford v. State, 302 S.W.3d 903, 910–11 (Tex. App.) (citation omitted), aff’d, 339
S.W.3d 111 (Tex. Crim. App. 2011). The Chief Justice of the Seventh Court of Appeals of Texas
opened the opinion with a rhetorical device designed to emphasize the gravity of the force used:
One thousand-one, one thousand-two, one thousand-three, one thousand-four, one
thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousandnine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousandthirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one
thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousandtwenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr.,
according to the instrument’s log.
Id. at 904.
60. The statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983 (2006).

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statute under which plaintiffs can seek relief for violations of their
constitutional rights by state actors. This Comment has been informed by a
comprehensive review of the existing case law in the circuit; conversations
and correspondence with all 100 sheriff’s departments in North Carolina
regarding their taser policies;61 meetings with more than a dozen alleged
victims of taser abuse and the families of those deceased;62 and the
experiences of those litigating taser-related civil rights actions on their
behalf.63 The Comment briefly examines the positive developments with
respect to taser accountability as represented by the Fourth Circuit’s recent
decisions in Henry v. Purnell64 and Orem v. Rephann.65 Despite some
encouraging language in both opinions, however, the Comment contends
that neither does much to substantively improve the condition of those most
likely to find themselves subject to taser abuse. As the case law discussed
in this Comment demonstrates, arrestees are among those most likely to be
tased by police. And, as the court made clear in Orem, police conduct
against them—as opposed to conduct against pretrial detainees—is, at least
in the Fourth Circuit, to be evaluated exclusively under the Fourth
Amendment’s guarantees against unreasonable seizure.66 Unlike many of
its sister circuits,67 however, the Fourth Circuit has yet to meaningfully
consider a claim of excessive force by taser under the Fourth Amendment.68
This fact, combined with the lack of any meaningful regulatory oversight,
has meant that the task of restraining improper use of the device against
arrestees has fallen almost exclusively to the federal district courts. Civil
actions brought by the victims themselves are, in effect, the beginning and
the end of police accountability when it comes to tasers.
In the federal district courts of the Fourth Circuit, however, this lack
of proper guidance has made accountability in cases of genuine abuse hard
to come by, despite clear signals from other circuits as to the proper scope

61. HEADEN AND MANCE, supra note 39, at 2.
62. Some of these individuals were victims met in preparation of the report cited, supra note
39, which was co-authored by the author of this Comment. See id. Others were clients met while
the author was employed at various law firms.
63. Between 2006 and 2012, the author worked with a number of attorneys actively
litigating taser claims in the circuit.
64. 652 F.3d 524 (4th Cir. 2011).
65. 523 F.3d 442 (4th Cir. 2008).
66. Id. at 446.
67. See infra note 167 and accompanying text.
68. See Meyers v. Balt. Cnty., 814 F. Supp. 2d 552, 561 n.10 (D. Md. 2011) (noting that the
Fourth Circuit’s most prominent taser case, Orem, was “analyzed under the Fourteenth
Amendment rather than the Fourth Amendment, [and] do[es] not speak authoritatively on the
issue”); Thompson v. City of Danville, No. 4:10CV00012, 2011 WL 2174536, at *8 (W.D. Va.
June 3, 2011) (“The Fourth Circuit has examined an officer’s use of a Taser under the Fourteenth
Amendment . . . but not the Fourth Amendment.”), aff’d, 457 F. App’x. 221 (4th Cir. 2011).

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of the inquiry. This need not be the case. In recent years, a burgeoning
body of taser law has emerged outside the Fourth Circuit, placing
reasonable limitations upon—and enunciating important considerations
with respect to—law enforcement’s use of the device.69 Courts should give
fuller effect to the rule—set out by the Supreme Court and expressly
acknowledged by the Fourth Circuit—that “[a] clear violation of federal
law may occur when . . . a consensus of cases from other circuits[] puts
[an] officer on notice that his conduct is unconstitutional.”70 For the sake of
public safety, courts must begin to enforce reasonable restrictions on the
use of a device linked to more than fifty deaths71 and, presumably,
countless more injuries, within the circuit in recent years.
Analysis proceeds in five parts. Part I summarizes the Fourth Circuit’s
general treatment of tasers thus far. Part II explains how the federal district
courts in the Fourth Circuit have yet to join many federal courts outside the
circuit in recognizing the crucial distinction between volitional and nonvolitional non-compliance that lies at the heart of many legitimate taser
claims. Part III explains how the Fourth Circuit’s past imposition of a de
minimis72 injury threshold in excessive force claims may have the
pernicious effect of encouraging rogue officers to abuse the device, given
its unique ability to inflict “torment without marks.”73 Part IV discusses
Fourth Circuit doctrine that may incentivize the filing of unwarranted
resisting-arrest charges against genuine taser victims, in turn insulating
officers from civil liability. Part V then examines how the qualified
immunity doctrine has contributed to an erosion of the Fourth
Amendment’s reasonableness standard in the context of evaluating the use
of tasers and other forms of pain compliance techniques. This Comment
looks to the more effective approaches to the issue taken in other circuits
and concludes by making several recommendations for the Fourth Circuit
to take into account when it ultimately considers its first Fourth
Amendment taser claim.

69. See infra Part II (discussing how other circuits have explicitly proscribed unnecessary
taser use and taken judicial notice of tasers’ ability to cause involuntary non-compliance); infra
Part III (noting how most circuits do not include a de minimis injury inquiry into Fourth
Amendment excessive force tests); infra Part V (discussing other courts’ recognition that the pain
of being tased can be easily underestimated due to the nature and design of the device).
70. Altman v. City of High Point, 330 F.3d 194, 210 (4th Cir. 2003) (citing Wilson v. Layne,
526 U.S. 603, 604 (1999)).
71. See TNT, supra note 17.
72. The phrase “de minimis non curat lex” translates to “The law does not concern itself with
trifles.” BLACK’S LAW DICTIONARY 496 (9th ed. 2009).
73. Orem v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008) (quoting Hickey v. Reeder, 12 F.3d
754, 757 (8th Cir. 1993)).

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Among these recommendations is that the Fourth Circuit join other
courts in taking judicial notice of the taser’s unique capacity to strip a
person of his motor faculties in such a way that complying with an officer’s
orders becomes difficult, if not impossible.74 Many victims of taser abuse
are people who, after the device’s initial application, genuinely want to
surrender but find themselves physiologically incapable of following
officers’ orders. Because of this, the Comment argues that courts should be
careful not to reflexively conclude, in cases where the plaintiff has been
convicted of resisting arrest, that her claims for abuse by taser are barred by
the Heck doctrine.75 The Comment also suggests that the Fourth Circuit
should join the majority of circuits in explicitly rejecting the practice of
imposing a de minimis injury threshold in Fourth Amendment actions
under § 1983.76 To the extent the doctrine retains vitality in the Fourth
Amendment context, it poses danger to genuine victims of taser abuse, who
often do not bear much in the way of visible injuries on their bodies, but
whose experiences are often as or more painful than those of excessive
force plaintiffs whose claims commonly survive summary judgment. This
Comment argues that the Fourth Circuit should recognize, as other circuits
have, that it is the need for force that should rest at the heart of such claims,
not the extent to which a plaintiff can or cannot demonstrate a persisting
injury.
I. THE FOURTH CIRCUIT AND TASERS: OREM AND HENRY
The emerging issues surrounding police tasers and what they mean for
excessive force jurisprudence have not gone unnoticed by the Fourth
Circuit. Twice in the last five years, the court has heard and considered
cases involving tasers and allegations of excessive force against criminal
suspects.77 Although on both occasions members of the court appeared to
accord some weight to the unique dangers posed by the device and seemed
to treat its potential for abuse seriously, neither case presented the issue of
gratuitous use to the court in the context of the Fourth Amendment.
Because this is the standard under which most taser abuse claims are likely
to be reviewed,78 lower courts have continued to lament the lack of clear
74. See cases cited infra notes 173–76, 180.
75. See discussion infra note 246.
76. See Bryan N. Georgiady, An Excessively Painful Encounter: The Reasonableness of Pain
and De Minimis Injuries for Fourth Amendment Excessive Force Claims, 59 SYRACUSE L. REV.
123, 137 (2008).
77. Henry v. Purnell, 652 F.3d 524, 527–28 (4th Cir.) (en banc), cert. denied, 132 S. Ct. 781
(2011); Orem, 523 F.3d at 443–44.
78. Tasers are most often used in the course of taking a suspect into custody. The Supreme
Court has instructed that “all claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen

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authority assessing allegations of excessive force relating to taser use in the
course of arrests.79
A.

Orem v. Rephann

In the 2008 case of Orem v. Rephann, the Fourth Circuit had its first
opportunity to consider an excessive force claim brought by an arrestee
alleging abuse by taser. Sonja Orem sued West Virginia police officer Matt
Rephann, who had tased and arrested her “for disrupting and assaulting an
officer after being served with a Family Protective Order.”80 Although prior
to arriving at the Fourth Circuit the case had been litigated as a Fourth
Amendment excessive force claim, the court began its analysis by holding
that the district court had misapplied the law,81 thus stripping the case of
much of its precedential value for Fourth Amendment purposes. Because
Orem had been tased while secured in the backseat of Rephann’s cruiser,
restrained by both handcuffs and a “hobbling device” around her feet, the
court reasoned that the officer’s actions were properly analyzed under the
Fourteenth Amendment, rather than the Fourth.82
The court ultimately ruled against Officer Rephann, who had sought
qualified immunity for his actions,83 but the predictive value of Orem and
its implications for a Fourth Amendment analysis of similar conduct are
debatable. Aside from the fact that the analysis itself proceeds quite
differently from the Fourteenth Amendment, there is the inescapable fact
that, on the spectrum of people who are tased, Sonja Orem was decidedly
among the more acutely vulnerable. The court made a point of emphasizing
Orem’s small stature (“about 100 pounds”),84 the fact that she was fully
restrained in leg and arm shackles,85 the location of her wounds
(“underneath [her] left breast and inner thigh”),86 and the fact that she
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v.
Connor, 490 U.S. 386, 395 (1989); see also Orem, 523 F.3d at 446 (“[T]he Fourth Amendment
[only] governs claims of excessive force during the course of an arrest, investigatory stop, or
other ‘seizure’ of a person.” (quoting Riley v. Dorton, 115 F.3d 1159, 1161 (4th Cir. 1997) (en
banc), abrogated by Wilkins v. Gaddy, 130 S. Ct. 1175 (2010) (per curiam))).
79. See supra note 68.
80. Orem, 523 F.3d at 443–44.
81. Id. at 446.
82. Id. (“The point at which Fourth Amendment protections end and Fourteenth Amendment
protections begin is often murky. But here, Orem’s excessive force claim arises during her
transport to [jail], after she was arrested. While she had not been formally charged, her status as
an arrestee requires application of the Fourteenth Amendment to her claim.”).
83. Id. at 449 (“Deputy Rephann used the taser to punish or intimidate Orem—a use that is
not objectively reasonable, is contrary to clearly established law, and not protected by qualified
immunity.”).
84. Id. at 447.
85. Id.
86. Id.

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sustained permanent disfigurement from the taser (a “sunburn-like scar”).87
It is unclear if the court was merely being descriptive for the purposes of
illustrating the horror of Orem’s experience or because it considered those
facts, at least in their totality, to be determinative as to the reasonableness
of the officer’s use of the taser.88 In any event, as discussed in the pages
that follow, Orem did little to crack the door for subsequent arrestees
bringing Fourth Amendment actions for abuse by taser.
B.

Henry v. Purnell

More recently, in Henry v. Purnell, before the court for the fourth time
in six years,89 an en banc panel denied qualified immunity to a Maryland
police officer who, intending to pull his taser, instead pulled his firearm
and accidentally shot a fleeing suspect wanted for failure to pay child
support.90 The court relied on the Supreme Court’s central holding in
Tennessee v. Garner91 that “[a] police officer who shoots a fleeing suspect
without ‘probable cause to believe that the suspect poses a significant threat
of death or serious physical injury to the officer or others’ violates that
suspect’s Fourth Amendment rights.”92 Although the bullet did not kill
Henry, and although Officer Purnell did not intend to discharge his firearm,
the Fourth Circuit characterized the officer’s actions as “deadly force”93
and denied him qualified immunity.94 The court expressly declined to
decide, however, whether the officer’s intended action—using a taser to
stop the fleeing suspect—would have been objectively reasonable under a
Fourth Amendment analysis.95 The dissenting judges strongly suggested

87. Id.
88. A number of courts appear to have given considerable weight to Orem’s vulnerability.
See, e.g., Carter v. James, No. 1:08CV101, 2010 WL 3522219, at *5 (M.D.N.C. Sept. 7, 2010)
(awarding an officer qualified immunity and noting that “the facts in Orem differ greatly from
those presented here” and that Orem “was a 100–pound woman” and was “tased . . . in sensitive
areas”); Simpson v. Kapeluck, Civil Action No. 2:09–cv–00021, 2010 WL 1981099, at *7–8
(S.D.W. Va. May 14, 2010) (awarding summary judgment to a defendant officer and
distinguishing the case from Orem, emphasizing the location of Orem’s injury and her small
stature), aff’d, 402 F. App’x 803 (4th Cir. 2010), cert. denied, 131 S. Ct. 1501 (2011).
89. See 619 F.3d 323 (4th Cir. 2010); 501 F.3d 374 (4th Cir. 2007); 119 F. App’x 441 (4th
Cir. 2005).
90. Henry v. Purnell, 652 F.3d 524, 536–37 (4th Cir.) (en banc), cert. denied, 132 S. Ct. 781
(2011).
91. 471 U.S. 1 (1985).
92. Henry, 652 F.3d at 531–32 (quoting Garner, 471 U.S. at 3).
93. Id. at 536.
94. Id.
95. See id. at 537 (citations omitted) (Davis, J., concurring) (“The dissent (in some passages)
seems to be in agreement with the en banc majority (and the parties) that this case does not
present the hypothetical issue of whether the intentional use of the Taser by Deputy Purnell under
the circumstances would have comported with the Fourth Amendment.”).

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that it would, characterizing Purnell’s use of the gun as “a mistake in . . .
execution of an otherwise proper action.”96 In an opinion that gave some
hope to advocates of taser reform, however, Judge Davis concurred with
the majority and attacked the dissent’s “transparent confidence that the
intentional use of a Taser . . . under the circumstances in the case . . . would
have comported with the Fourth Amendment.”97 In Judge Davis’s view, the
Fourth Amendment’s “developing law on taser use must consider the
unique nature of this type of weapon.”98
Judge Davis also noted critically that, like most exercises of state
power, “tasers require[] sufficient justification for their use to be
reasonable,”99 and non-violent non-compliance might not meet the Fourth
Amendment’s reasonableness threshold.100 Although this may seem an
otherwise unremarkable proposition, in truth, and as discussed below, the
fact that the court itself has yet to make such an explicit recognition has
had significant real-world consequences for those seeking to vindicate their
rights under the Fourth Amendment.101 However, despite opening the door
for dialogue on what has been an underdeveloped legal issue in the circuit,
Judge Davis ultimately expressed his doubts that a workable approach
could be reached, and the threshold inquiry for evaluating the
reasonableness of taser use against non-violent arrestees was once again
left for another day.102
C.

Treatment of Tasers by the Federal District Courts of the Fourth
Circuit

In a recent law review article,103 Jeff Fabian summarized the
approaches taken by various federal courts around the country to assess the
reasonableness of an officer’s decision to employ a taser to effect an
arrest.104 Fabian’s survey of the case law across the federal appellate courts
suggests “that active resistance weighs heavily in the Fourth Amendment
reasonableness analysis”105 of many courts. However, “unlike active
96. Id. at 552 (Shedd, J., dissenting).
97. Id. at 537 (Davis, J., concurring).
98. Id. at 539 (quoting McKenney v. Harrison, 635 F.3d 354, 361 (8th Cir. 2011) (Murphy,
J., concurring)).
99. Id. at 540 (quoting McKenney, 635 F.3d at 364 (Murphy, J., concurring)).
100. Id. (observing that courts have held that it is “unreasonable to ‘discharge [a] Taser
because of insolence,’ especially given the tremendous pain tasers cause”) (quoting McKenney,
635 F.3d at 361 (Murphy, J., concurring)).
101. See infra Part II.
102. Henry, 652 F.3d at 540–41 (Davis, J., concurring).
103. Jeff Fabian, Don’t Tase Me Bro!: A Comprehensive Analysis of the Laws Governing
Taser Use by Law Enforcement, 62 FLA. L. REV. 763 (2010).
104. Id. at 776–89.
105. Id. at 781.

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resistance,” Fabian observed, “passive resistance may not overcome other
factors such as whether the plaintiff is in a vulnerable class of persons,
whether the plaintiff is already restrained by the police, or whether the use
of force was disproportionate to the underlying crime.”106 Fabian’s survey,
comprehensive as it is, does not include any discussion or analysis of
Fourth Circuit taser law.
A review of the case law in the lower district courts suggests that a
genuine victim of taser abuse by police in the Fourth Circuit will face more
difficulty vindicating his right to be free of excessive force than he would
in most other jurisdictions.107 Even those persons subjected to an excessive
assault in the context of an arrest for the most insignificant of infractions108
may encounter significant difficulties in holding their abuser accountable.
As explored in the pages below, in the federal district courts of the Fourth
Circuit, one’s mere verbal non-compliance,109 sporadic movement (even if
involuntary),110 lack of dramatic physical injury,111 or conviction for
resisting arrest112 may prove decisive in the court’s analysis in cases
involving allegations of taser abuse.
This analysis will, more often than not, take place in the context of a
pre-trial qualified immunity analysis. In 1982, the Supreme Court
introduced the doctrine of qualified immunity to American jurisprudence in
Harlow v. Fitzgerald,113 replacing the previous practice of inquiring into
the subjective motivations of government officials.114 The doctrine,
106. Id. at 783 (emphasis added) (citations omitted).
107. See infra Parts II–V.
108. In 2001, the Supreme Court, in a narrow five-to-four opinion, held that “[i]f an officer
has probable cause to believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The opinion was “roundly criticized” by
legal commentators, Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too
Much “Routine,” Not Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1847 n.15 (2004)
(collecting criticism), as well as by the four dissenting justices, who lamented that the majority
had given “police officers constitutional carte blanche to effect an arrest whenever there is
probable cause to believe a fine-only misdemeanor has been committed.” Atwater, 532 U.S. at
365–66 (O’Connor, J., dissenting). While the dissenters argued that the decision to afford officers
“[s]uch unbounded discretion” had created a “grave potential for abuse,” they did so largely in the
context of discussing “racial profiling” and general police harassment. Id. at 372. But Atwater
was also notable for the way it quietly expanded the universe of people potentially subjected to
police force, since “the right to make an arrest . . . necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396
(1989).
109. See HEADEN & MANCE, supra note 39, at 8; SILVERSTEIN, supra note 24, at 5.
110. See infra Part II.
111. See infra Part III.
112. See infra Part IV.
113. 457 U.S. 800 (1982).
114. Id. at 817–18.

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premised on a test of objective reasonableness,115 operates to shield
government officials from lawsuits relating to their discretionary functions,
including those actions which may later be found unlawful, so long as such
actions do not violate “clearly established” law.116 While all victims of
police abuse face the obstacle of overcoming an officer’s assertion of
qualified immunity, the hurdle sits at varying heights from circuit to
circuit.117 The problem it presents to plaintiffs depends on the extent to
which a court requires a “clearly established” right to be free from force in
a given situation to be embodied in the decisional law, as well as the scope
of the decisions to which a court considering the immunity question will
look.118 In the Fourth Circuit, commentators have observed that the doctrine
is applied more generously to police officers than perhaps anywhere else.119
Consequently, a plaintiff’s case may well be over before it even begins, in
effect denying her the opportunity to make a case before a judge or jury
that the officer’s actions were excessive and unreasonable.
Ask a plaintiff’s lawyer practicing in the Fourth Circuit, and he will
tell you that there is no shortage of people being tased.120 Very few,
however, are recovering in court. This tends to hold true even in the case of
people wanted for minor offenses who lose their lives on the receiving end
of a police taser.121 Successful examples of Fourth Amendment excessive
force cases are rare enough to dissuade many lawyers from even
considering bringing suit in a circuit known for being deferential to
police.122 Some point to the relative lack of dramatic injuries as compared
to more traditional police-brutality plaintiffs—although some taser victims

115. Id. at 818.
116. Id. at 817–18.
117. See Karen M. Blum, Qualified Immunity: A User’s Manual, 26 IND. L. REV. 187, 203–
05 (1993).
118. See Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. REV. 1467, 1510–
11 (1996).
119. See, e.g., J. Michael McGuinness, A Primer on North Carolina and Federal Use of
Force Law: Trends in Fourth Amendment Doctrine, Qualified Immunity, and State Law Issues, 31
CAMPBELL L. REV. 431, 439 (2009) (“The United States Court of Appeals for the Fourth Circuit
has emerged as perhaps the leading circuit court in curtailing alleged excessive force litigation by
frequent summary judgment dispositions that are often premised upon qualified immunity for the
officer.”); see also id. at 439 n.48 (listing the numerous “cases [that] have granted qualified
immunity to officers and reaffirmed the deferential standards applicable to officers”).
120. See Holmes Interview, supra note 29.
121. See, e.g., Gray v. Frederick Cnty, No. WDQ 08 1380, 2012 WL 2871624, at *6 (D. Md.
July 11, 2012).
122. See McGuinness, supra note 119, at 439‒40 & n.48 (comparing treatment of excessive
force cases in the Fourth Circuit to the other circuits); see also Orem v. Rephann, 523 F.3d 442,
450 (4th Cir. 2008) (Shedd, J., concurring) (“Generally, we have recognized . . . that law
enforcement officers must be accorded ‘due deference’ . . . . ” (quoting Grayson v. Peed, 195 F.3d
692, 696‒97 (4th Cir. 1999))).

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do bear permanent scarring123—and suggest that judges and juries are prone
to undervaluing the pain and trauma that can be associated with the
experience of being tased. Part of that may be attributable to the fact that
TASER International has done a good job of marketing the device as safe
and, in some cases, decidedly unserious,124 as well as the fact that the media
have often seemed to portray its use as more the stuff of humor than serious
contemplation.125 It is also the case that many people abused by tasers are
also charged with resisting arrest,126 itself a significant obstacle to any sort
of recovery.127 Those that have brought suit will note that it is common for
police officers to take the stand and report that they were in full compliance
with departmental policies governing use of force. More often than not,
they are telling the truth.128 In many jurisdictions, tasers are permitted to be
deployed even absent any physical resistance.129 Mere verbal disagreement
with an officer is enough to get one tased by many police and sheriffs’

123. See, e.g., Orem, 523 F.3d at 445 (noting that “a permanent sunburn-like scar was left
where the taser had been applied to [plaintiff’s] thigh”); TASER INT’L, INC., WARNINGS,
INSTRUCTIONS, AND INFORMATION: CITIZEN WARNINGS 3 (2011), available at
http://www.taser.com/images/resources-and-legal/product-warnings/downloads/citizen
_warnings.pdf (acknowledging the device can cause “tear[ing] or other injury to soft tissue”).
124. See, e.g., Taser Unveils Holster with Music Player, MSNBC (Jan. 7, 2008),
http://www.msnbc.msn.com/id/22541041/ns/technology_and_science-tech_and_gadgets/t/taserunveils-holster-music-player/#.TywhAORmnG4 (detailing a new taser holster with MP3 player
and new color schemes “for women who want fashion with a bite”).
125. See, e.g., Sarah Lai Stirland, ‘Don’t Tase Me, Bro!’ Jolts the Web, WIRED (Sept. 19,
2007), http://www.wired.com/threatlevel/2007/09/dont-tase-me-br/ (discussing media sensation
surrounding the phrase uttered by tased college student which quickly became “the newest
cultural touchstone of our pop-cultural lexicon” and collecting a wide variety of the related media
commentary).
126. See Holmes interview, supra note 29; Ray Gronberg, Hudson Tosses Lawsuit Against
DPD, HERALD-SUN (Durham, NC) Aug. 17, 2012, at C1, available at
http://www.heraldsun.com/view/full_story/19837500/article-Hudson-tosses-lawsuit-against-DPD.
127. See infra Part IV.
128. See U.N. Human Rights Rep., supra note 37, at 65 (expressing concern over a wide
variety of taser abuse scenarios and observing that “in most cases the responsible officers [were
not] found to have violated their departments’ policies”).
129. See Henry v. Purnell, 652 F.3d 524, 540 (4th Cir.) (en banc) (Davis, J., concurring)
(“Local law enforcement policies . . . reflect differing views of where the taser fits on the ‘force
continuum.’ Some allow taser use only as an alternative to deadly force, while others call for taser
use whenever any force is justified.” (quoting McKenney v. Harrison, 635 F.3d 354, 362 (8th Cir.
2011) (Murphy, J., concurring))), cert. denied, 132 S. Ct. 781 (2011); see also HEADEN &
MANCE, supra note 39, at 8 (noting that “[c]urrently in most jurisdictions there is nothing that
prevents law enforcement officers from deploying a TASER against a completely non-violent
individual”); MARK SCHLOSBERG, ACLU OF N. CAL., STUN GUN FALLACY: HOW THE LACK OF
TASER
REGULATION
ENDANGERS
LIVES
12–13
(2005),
available
at
https://www.aclunc.org/issues/criminal_justice/police_practices/asset_upload_file389_5242.pdf
(finding that “of the 54 police departments surveyed, only 8 (15 percent) have any policy
prohibiting or regulating the use of Tasers” on passive resisters).

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departments.130 TASER International itself reported at one time that more
than a third of all people subjected to the device had exhibited no more
than verbal resistance.131 In the Fourth Circuit, plaintiffs wishing to
challenge such practices face an uphill climb, forced to contend with a
rather haphazard doctrine in the lower district courts—one that routinely
imposes a higher degree of proof on free persons subjected to the device
than it does inmates, incentivizes the overcharging of tased arrestees, and
ignores crucial and fundamental facts about the unique nature of the
weapon and its physical effects on those against whom it is used.
II. VOLITIONAL VERSUS NON-VOLITIONAL NON-COMPLIANCE
In some respects, the recent district court ruling in Meyers v.
Baltimore County132 illustrates the inherent difficulty that plaintiffs face in
demonstrating the use of excessive force in the context of arrests involving
successive applications of a taser. Meyers is notable for two reasons. First,
it involved a vulnerable decedent—Ryan Meyers, a man known by officers
to be suffering from a significant mental illness133—whose own family had
called the police for assistance.134 Second, there was material dispute as to
whether the decedent was in fact actively resisting as opposed to reacting
involuntarily to the shocks of the taser in the moments immediately
preceding his death.135 Although the court found the facts of the case
troubling and expressed doubts as to the reasonableness of the officer’s
conduct,136 it nevertheless awarded the officer involved qualified immunity,
reasoning that he was not “on notice that he must in some circumstances
limit the use of his Taser in stun mode [when a] subject continues to
struggle.”137
Notably, the court reached this conclusion at a stage of the
proceedings in which deference is, as a rule, supposed to be given to the
plaintiff’s account.138 In Meyers, this account came from the decedent’s
130. See HEADEN & MANCE, supra note 39, at 8 (“[O]nly 18.6% of TASER-deploying
counties [in North Carolina] report[ed] in 2007 that they restricted or prohibited the practice in
their use of force policies.”).
131. See SILVERSTEIN, supra note 24, at 5 (“Taser International has confirmed that in over
one-third of the cases in which police officers have discharged tasers, the reported level of
resistance is ‘verbal non-compliance.’ ”).
132. 814 F. Supp. 2d 552 (D. Md. 2011).
133. Id. at 554.
134. Id.
135. Id. at 556, 560.
136. Id. at 560.
137. Id. at 561.
138. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule upon the
qualified immunity issue must consider . . . this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

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brother, William, a witness to the confrontation, who stood in his brother’s
stead and maintained that his resistance prior to the final applications
consisted of nothing more than “moving his legs”139 in a manner consistent
with the sort of involuntary convulsions brought on by a taser.140 According
to William, his brother was trying to surrender.141 William Meyers hoped
the court would find that the officers should have recognized that these
movements—which they had characterized as “active resist[ance]”142—
were non-volitional and could not form the objective basis for the
continued use of force.143 In making this argument, he effectively put to the
court the questions at the heart of many taser suits: To what extent are
officers permitted to continue using their tasers in circumstances where
they are justified in their initial application? If a taser renders a suspect
incapable of volitional movement, can his non-volitional movements
provide a legal basis for further applications of the device? After all, the
subjective motivation of a suspect who is making threatening motions is
usually irrelevant insofar as it concerns an officer’s objective assessment of
the threat the suspect may pose.144 In the case of tasers, however, might the
fact that the officer is the one deploying the weapon that could be causing
such movements factor into the court’s assessment?145 Can an officer plead
ignorance about a device’s ability to incapacitate when that is the very
reason he used it to begin with?
While the Fourth Circuit has typically held that an officer’s actions in
the moments preceding the fatal application of force are irrelevant for
a constitutional right?”), rev’d in part on other grounds, Pearson v. Callahan, 555 U.S. 223, 236
(2009).
139. Meyers, 814 F. Supp. 2d at 560.
140. “[N]on-volitional movements, such as kicking of the legs and flailing of the arms are not
an uncommon reaction to a taser application . . . .” Marquez v. City of Phoenix, CV-08-1132PHX-NVW, 2010 WL 3342000, at *2 n.4 (D. Ariz. Aug. 25, 2010).
141. Gadi Dechter, Man Dies After Hit from Stun Gun, BALT. SUN, Mar. 18, 2007, available
at
http://articles.baltimoresun.com/2007-03-18/news/0703180023_1_ryan-meyers-williammeyers-anna-meyers (“ ‘They killed my brother,’ said William Meyers Jr. yesterday. After being
stunned once, Ryan Meyers cried out, ‘I give up, I give up,’ said the victim’s brother . . . .”).
142. Meyers, 814 F. Supp. 2d at 560.
143. See Complaint at 4–5, Meyers, 814 F. Supp. 2d 552 (1:10-cv-00549-BEL) (asserting that
the “Officer . . . recycl[ed] . . . his taser numerous times” without “legitimate reason to believe
that Ryan Meyers posed a threat” and as a consequence of police having “not [been] trained in
procedures concerning multiple tasering”); see also Dechter, supra note 141 (quoting William
Meyers as saying Ryan Meyers was trying to surrender).
144. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”); Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (“[T]he
question is whether a reasonable officer in the same circumstances would have concluded that a
threat existed justifying the particular use of force.”).
145. See Fabian, supra note 103, at 784 (“[S]uccessive Taser shocks may actually frustrate an
officer’s attempt to secure suspect compliance.”).

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purposes of assessing the reasonableness of his conduct at the moment he
uses force,146 there is at least some reason to believe that the Meyers family
nevertheless had a valid complaint. Although it went unmentioned in the
Meyers opinion, the 2002 Fourth Circuit case of Clem v. Corbeau147 would
have appeared to provide the plaintiffs in Meyers a colorable argument with
respect to the officer’s continued use of the taser in the moments preceding
Ryan Meyers’s death. In Clem, the court broke with its traditional
approach148 when confronted with a similar instance that involved a
mentally disturbed man who was shot by police responding to his family’s
call for assistance.149 The Fourth Circuit held that “it would require no
improper second-guessing, or the application of ‘20–20 . . . hindsight,’ to
conclude that Officer Corbeau violated [the plaintiff’s] Fourth Amendment
right to be free from excessive police force”150 where his supposedly
threatening “movements [which prompted the officer to shoot were]
consistent with his recent subjection to pepper spray.”151 In that case, the
court refused to construe the plaintiff’s physical reactionary movements to
being pepper-sprayed as active resistance or voluntary non-compliance that
would justify using additional force in a Fourth Amendment analysis.152 As
a result, the plaintiff was afforded a day in court and an opportunity to
make his case that the officer’s actions had been objectively
unreasonable.153
Consistent with the approach taken by many other district courts in
cases involving tasers,154 however, and unlike the court in Clem, the court

146. See Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the
Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally
Disturbed People, 34 COLUM. HUM. RTS. L. REV. 261, 279, 281–82 (2003).
147. 284 F.3d 543 (4th Cir. 2002).
148. See Avery, supra note 146, at 280–82 (citing Elliott, 99 F.3d 640, Drewitt v. Pratt, 999
F.2d 774 (4th Cir. 1993), Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991)). But see Rowland v.
Perry, 41 F.3d 167, 173 (4th Cir. 1994) (“The better way to assess the objective reasonableness of
force is to view it in full context, with an eye toward the proportionality of the force in light of all
the circumstances.”).
149. Clem, 284 F.3d at 545–46.
150. Id. at 552 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
151. Id. at 548.
152. Id. (“Although Corbeau now asserts that Clem rapidly ‘charged’ him, both officers
originally told police investigators that Mr. Clem was ‘not running,’ but rather ‘stomping’
forward . . . with his hands open and waving in front of him, movements consistent with his recent
subjection to pepper spray.” (emphasis added)); id. at 552 (“[V]iewed in the light most favorable
to Clem, the evidence is that Corbeau shot a mentally disabled, confused older man, obviously
unarmed, who was stumbling toward the bathroom in his own house with pepper spray in his
eyes, unable to threaten anyone.”).
153. See id. at 554–55.
154. See, e.g., Griffin v. Catoe, Civ.A. No. 9:07-1609-JFA-GCK, 2008 WL 4558495, at *1–7
(D.S.C. Aug. 11, 2008) (failing to consider the voluntary or involuntary nature of the non-

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in Meyers gave little consideration to this distinction between volitional
and involuntary non-compliance. Instead, it relied on a concurring opinion
from Henry which observed that “the objective reasonableness of the use of
Tasers continues to pose difficult challenges to . . . courts”155 in granting
qualified immunity to the officer involved.156 The court noted its inability
to locate any “clearly established legal princip[le] . . . offering guidance as
to the point at which continued tasings become excessive when the suspect
is actively resisting”157—implicitly construing Meyer’s last movements as
volitional in character. Thus, despite the recognition in the same concurring
opinion that the Meyers court relied on that “a Taser is designed to
incapacitate instantly”158 by “inflict[ing] a painful and frightening blow
[that] . . . render[s] the victim helpless,”159 the fact that Meyers continued
“moving his legs”160 after being tased nearly a dozen times161 was thought
sufficient justification for keeping the issue of the reasonableness of the
officer’s conduct from reaching a jury.162
It is at this point that the Meyers court’s approach to qualified
immunity, consistent though it is with other federal district courts within
the Fourth Circuit, is most problematic and seems to diverge from the

compliance), report and recommendation adopted in part, C/A 0:07-1609-JFA, 2008 WL
4458947 (D.S.C. Sept. 26, 2008).
155. Meyers v. Balt. Cnty., 814 F. Supp. 2d 552, 561 (D. Md. 2011) (quoting Henry v.
Purnell, 652 F.3d 524, 539 (4th Cir. 2011) (Davis, J., concurring)). Interestingly, the concurring
opinion from which Meyers quoted is replete with language that raises considerable doubt, but
never outright reaches a conclusion, as to the reasonableness of tasing a non-compliant but nonviolent suspect. It may in fact be the strongest language anywhere in the circuit questioning the
constitutionality of the device against such persons under the Fourth Amendment. See Henry, 652
F.3d at 537–38 (Davis, J., concurring) (criticizing the dissent’s conclusion that “the intentional
use of a Taser [against the nonviolent arrestee] . . . would have comported with the Fourth
Amendment”).
156. See Meyers, 814 F. Supp. 2d at 561–62.
157. Id. at 561.
158. Henry, 652 F.3d at 539 (Davis, J., concurring) (emphasis added) (quoting McKenney v.
Harrison, 635 F.3d 354, 360 (8th Cir. 2011) (Murphy, J., concurring)).
159. Orem v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008) (quoting Hickey v. Reeder, 12 F.3d
754, 757 (8th Cir. 1993)). A number of the lower district courts appear to have given little weight
to this characterization. See, e.g., White v. Smereka, No. 3:09-cv-00257-W, r2010 WL 2465552,
at *4 (W.D.N.C. June 14, 2010) (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.
2004)) (characterizing the taser as something that can be used “to calm a belligerent [arrestee]”
(emphasis added)), aff’d, 410 F. App’x 714 (4th Cir. 2011). Draper was a controversial Eleventh
Circuit opinion that minimized the experience of being tased and upheld the use of the device
against a belligerent but nonthreatening suspect who “repeatedly refused to comply with . . .
verbal commands” to retrieve his proof of insurance and other documents. 369 F.3d at 1278. This
case has been cited at least seventeen times by the circuit’s lower district courts, including at least
eleven times since Orem was decided.
160. Meyers, 814 F. Supp. 2d at 560.
161. Id.
162. See id. at 562.

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larger body of Fourth Amendment doctrine in which it is subsumed. While
the Fourth Circuit has held that “force justified at the beginning of an
encounter is not justified even seconds later if the justification for the
initial force has been eliminated,”163 as Meyers and other cases illustrate,
this principle can ring hollow for plaintiffs seeking to vindicate their right
to seek redress for taser use that, though initially reasonable, crosses a line
and becomes wholly excessive or even fatal. In this respect, taser cases
deviate both from other “less lethal weapon” cases164 and the principle,
articulated by the Fourth Circuit on a number of occasions, that the fact that
a suspect was “the original aggressor . . . does not necessarily entail the
further conclusion that [officers] did not respond with excessive force.”165
Although taser use is no longer the rare occurrence it once was, many
of the federal district courts in the Fourth Circuit have persisted in
effectively treating allegations of gratuitous applications in the context of
arrests as an issue of first impression, noting that Orem, the circuit’s most
notable taser case to date, was “analyzed under the Fourteenth Amendment
rather than the Fourth Amendment, [and] do[es] not speak authoritatively
on the issue.”166 This parochial approach to an issue that has, in fact,
received considerable treatment in federal appellate courts across the
country in recent years,167 gives little or no weight to the rule that a “clear
163. Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (emphasis added); see also Hope
v. Pelzer, 536 U.S. 730, 743 (2002) (“[P]hysical abuse directed at [a] prisoner after he
terminate[s] his resistance to authority would constitute an actionable eighth amendment
violation.” (second and third alterations in original) (quoting Ort v. White, 813 F.2d 318, 324
(11th Cir. 1987))).
164. See infra note 183.
165. See, e.g., Ridley v. Leavitt, 631 F.2d 358, 359 (4th Cir. 1980) (citing Williams v.
Liberty, 461 F.2d 325, 328 (7th Cir. 1972)); cf. Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir.
1993) (stating that state court proceedings determining that the arrestee impeded an officer will
not estop the arrestee from bringing an excessive force claim in federal court).
166. Meyers v. Balt. Cnty., 814 F. Supp. 2d 552, 561 n.10 (D. Md. Sept. 28, 2011); see also
Thompson v. City of Danville, No. 4:10CV00012, 2011 WL 2174536, at *8 (W.D. Va. June 3,
2011) (noting lack of Fourth Amendment precedent in the Fourth Circuit regarding the use of
tasers).
167. See, e.g., Bryan v. MacPherson, 630 F.3d 805, 832–33 (9th Cir. 2010) (holding that
tasing an unarmed, non-compliant, mentally disturbed suspect stopped for a minor offense
violated the Fourth Amendment); Kijowski v. City of Niles, 372 F. App’x 595, 601 (6th Cir.
2010) (finding the “use of a Taser on a non-resistant subject” to violate the Fourth Amendment);
Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (“[R]epeated tasering . . . beyond [a
suspect’s] complete physical capitulation . . . establishe[s] a violation of the Fourth
Amendment.”); Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (finding “it
was unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting
arrest”); Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (affirming a district court denial of
officer’s post-trial motions and judgment in favor of tased arrestee who brought Fourth
Amendment claim under § 1983); Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008)
(“[G]ratuitous or excessive use of a taser would violate a clearly established constitutional
right.”); Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (“[I]t is excessive to

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violation of federal law may [also] occur when . . . a consensus of cases
from other circuits[] puts [an] officer on notice that his conduct is
unconstitutional.”168 As a consequence, qualified immunity often leaves
true victims of taser abuse with little recourse. Such a consensus arguably
exists already outside the Fourth Circuit for the proposition that the Fourth
Amendment is violated, and plaintiffs are entitled to their day in court,
when officers tase a suspect beyond the point where the threat justifying
the initial application of the device has been neutralized.169 And, though it
may be true that the issue of taser abuse is still a relatively new
phenomenon, there is nevertheless ample precedent, particularly in the
Eighth Amendment context, for the notion that merely gratuitous use of
electric weapons by government officers offends the Constitution.170 In any

use a Taser to control a target without having any reason to believe that a lesser amount of
force—or a verbal command—could not exact compliance.”); cf. Livingstone v. N. Belle Vernon
Borough, 91 F.3d 515, 531 (3d Cir. 1996) (characterizing application of a stun gun to genitalia as
“an outrageous instance of police abuse”); Titran v. Ackman, 893 F.2d 145, 148 (7th Cir. 1990)
(describing as unreasonable police officers’ deliberate restraint and jolting of nonviolent
plaintiff).
168. Altman v. City of High Point, 330 F.3d 194, 210 (4th Cir. 2003) (citing Wilson v. Layne,
526 U.S. 603, 617 (1999)); see also Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir.
2004) (“[W]e may look to ‘a consensus of cases of persuasive authority’ from other jurisdictions,
if such exists.” (quoting Wilson, 526 U.S. at 617)); Amaechi v. West, 237 F.3d 356, 363 (4th Cir.
2001).
169. See cases discussed supra note 167.
170. See Hudson v. McMillian, 503 U.S. 1, 13–14 (1992) (Blackmun, J., concurring)
(describing the practice of “shocking [inmates] with electric currents” as “state-sponsored torture
. . . ingeniously designed to cause pain but without a telltale ‘significant injury’ ”); Brown v.
Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (“Deliberately inflicted pain, as with an electric
cattle prod, does not become unimportant and unactionable under the eighth amendment simply
because the pain produced is only momentary.”); Titran v. Ackman, 893 F.2d 145, 148 (7th Cir.
1990) (noting that if “officers intentionally . . . jolted [plaintiff with an ‘XR 5000 cattle prod’]
without physical provocation . . . , their behavior was unreasonable”); Michenfelder v. Sumner,
860 F.2d 328, 335 (9th Cir. 1988) (noting that the “Supreme Court has said that administering
electric shocks to prisoners as punishment for misconduct was ‘unusual’ ” (citing Hutto v.
Finney, 437 U.S. 678, 682 n.5 (1978) (describing the so-called “ ‘Tucker telephone,’ a handcranked device . . . used to administer electrical shocks to various sensitive parts of an inmate’s
body”))); Johnson v. Garraghty, 57 F. Supp. 2d 321, 323 (E.D. Va. 1999) (considering whether
officers who “shocked [inmate’s] face with [an] electric shield, sending painful and visible
electrical currents through his face and eyes” should receive qualified immunity). For more recent
cases within the Fourth Circuit, see also Jackson v. Fletcher, No. 7:09CV00408, 2011 WL
197954, at *9 (W.D. Va. Jan. 18, 2011) (finding that “the misuse of . . . a shocking device . . . [is]
conduct that a reasonable jury could find ‘repugnant to the conscience of mankind,’ regardless of
whether [subject] suffered any severe or disabling injuries”); Malik v. Ward, No. 8:08–1886–
RBH–BHH, 2010 WL 1010023, at *8 (D.S.C. Feb. 4, 2010) (“[U]nwarranted use of an electric
shield . . . constitue[s] [sic] [an] act[] ‘repugnant to the conscience of mankind,’ regardless of the
extent of damage inflicted. . . . [This] implicate[s] basic issues of human ‘dignity.’ ” (quoting
Hope v. Pelzer, 536 U.S. 730, 738 (2002))), report and recommendation adopted by No. 8:08–
CV–01886–RHB, 2010 WL 936777 (D.S.C. Mar. 16, 2010)); Johnson v. Warner, No.
7:05CV00219, 2008 WL 619302, at *2 (W.D. Va. Mar. 5, 2008) (denying qualified immunity

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case, it “is not [always true] that an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful.”171 As the Supreme Court has noted, “a general constitutional
rule already identified in the decisional law may apply with obvious clarity
to [certain] conduct . . . , even though ‘the very action in question has [not]
previously been held unlawful.’ ”172
Implicit in nearly every award of qualified immunity in such cases
thus seems to be a weighty assumption, one which is rarely stated
explicitly, that courts are simply not well-positioned to second-guess
officers’ continued applications of force against suspects whose purported
resistance may indeed be involuntary.173 This approach significantly
undervalues the taser’s capacity to cause temporary muscle paralysis that
functionally “prevent[s] the type of coordinated motion that is required to
fight”174 and gives too little consideration to the fact that “after being tased,
a suspect may be dazed, disoriented, and experience vertigo”175 such that
complying with an officer’s orders is not always possible.176 The lower
district courts similarly seem to underestimate the competency of

where inmate was, among other abuses, “attacked by defendants . . . while they were armed with
two 50,000-volt electric shields”).
171. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citing Mitchell v. Forsyth, 472 U.S. 511, 535
n.12 (1985)); see also Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 313 (4th Cir.
2006) (explaining that “ ‘officials can still be on notice that their conduct violates established law
even in novel factual circumstances’ ” (quoting Hope, 536 U.S. at 731)).
172. United States v. Lanier, 520 U.S. 259, 271 (1997) (third alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635 (1987)).
173. For one of the more frank and extended discussions of the issue, see Armbruster v.
Marguccio, No. Civ.A. 05-344J, 2006 WL 3488969, at *6 (W.D. Pa. Dec. 4, 2006) (“[V]iewing
the so-called involuntary movements made by Plaintiff, the officers could have reasonably
interpreted Plaintiff’s movements as aggressive behavior and a refusal to comply, and could have
reasonably believed that . . . even the second, third and fourth use of the taser were all necessary
to get Plaintiff to comply . . . .”); see also Marquez v. City of Phoenix, No. CV-08-1132-PHXNVW, 2010 WL 3342000, at *10 (D. Ariz. Aug. 25, 2010) (“Had the officers known that [a
suspect] was simply flailing in response to the taser and yet continued to tase him, this factor
would weigh in favor of [the suspect’s estate]. However, . . . a reasonable officer could have
concluded that [suspect] was actively resisting arrest.”).
174. McDonald v. Pon, No. C05-1832-JLR-JPD, 2007 WL 4868270, at *2 (W.D. Wash. Oct.
15, 2007), adopted in part, rejected in part, No. C05-1832JLR, 2007 WL 4420936 (W.D. Wash.
Dec. 14, 2007)
175. Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1144 (W.D. Wash. 2007), aff’d, 301
F. App’x 704 (9th Cir. 2008).
176. See, e.g., Mattos v. Agarano, 661 F.3d 433, 445 (9th Cir. 2011) (“Three tasings in . . .
rapid succession provided no time for [plaintiff] to recover from the extreme pain she
experienced, gather herself, and reconsider her refusal to comply.”), cert. denied, 132 S. Ct. 2681,
2682, 2684 (2012).

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professional law enforcement officers to make responsible judgments with
a weapon they have been specifically trained to use.177
Granting immunity to officers who “continuously used a taser on an
unarmed, involuntarily non-compliant suspect, who kept moving only
because he was suffering from physical spasms beyond his control”178 thus
has opened a legal loophole of sorts for future abuses by protecting those
willing to plead ignorance to something that should typically be obvious to
someone with proper training179—the difference between willful noncompliance and a genuine inability to physically comply.180 In five years of
meeting with people who claimed to be victims of taser abuse, the author of
this Comment has encountered multiple arrestees who insisted they wanted
nothing more than to put their hands up and spare themselves the pain (and
in some cases, permanent scarring) of additional tasings, only to find
themselves rendered physically incapable of complying with the order as a
result of the device’s powerful lingering effects. Unless officers are
restricted by their own departmental policies from firing the device in rapid
succession without limit—and few are181—there exists very little in the way
177. See Aaron Sussman, Shocking the Conscience: What Police Tasers and Weapon
Technology Reveal About Excessive Force Law, 59 UCLA L. REV. 1342, 1407 (2012) (noting
that “it seems fair—and obvious—to assume that police officers understand the knowable effects
of the use of force they are deploying”). Taser training regularly involves subjecting the trainee
officer to a controlled application of the taser—an experience that is not itself without danger. See
Eric Nagourney, In Stun Gun Training, Officer’s Spine is Fractured, N.Y. TIMES, Sept. 18, 2007,
at F7 (reporting that a healthy thirty-eight-year-old North Carolina police officer suffered
numerous spinal fractures from a single five-second taser discharge during a training exercise).
178. Wargo v. Mun. of Monroeville, 646 F. Supp. 2d 777, 786 (W.D. Pa. 2009) (discussing
Armbruster v. Marguccio, No. Civ.A. 05-344J, 2006 WL 3488969, at *6 (W.D. Pa. 2006)).
179. Of course, just because an officer once sat through a taser training course does not
necessarily mean he paid attention. See Parker v. City of South Portland, No. 06-129-P-S, 2007
WL 1468658, at *12 (D. Me. May 18, 2007) (“Officers are . . . instructed to consider the subject's
‘active resistance’ or any attempt to evade arrest by flight . . . . Although ‘active resistance’ is a
common term in law enforcement, [the defendant officer] indicated that he did not know or use
this term.”), aff’d, No. 06-129-P-S, 2007 WL 2071815 (D. Me. July 18, 2007).
180. See Salinas v. City of San Jose, No. C 09-04410 RS, 2010 WL 7697467, at *2 (N.D. Cal.
Nov. 24, 2010) (“[T]he uncontrollable rigidity of the muscles caused by the Taser’s pulsating
electrical current makes it . . . impossible for the subject to comply with officer commands to
‘stop resisting’ or ‘[p]ut your arms behind your back.’ ” (last alteration in original)); Marquez v.
City of Phoenix, No. CV-08-1132-PHX-NVW, 2010 WL 3342000, at *2 n.4 (D. Ariz. Aug. 25,
2010) (“Taser’s director of training[] testified that non-volitional movements, such as kicking of
the legs and flailing of the arms are not an uncommon reaction to a taser application . . . .”).
181. In North Carolina, for example, of the state’s 100 counties, according to the most recent
available statistics, only three—Anson, Montgomery, and Sampson—explicitly limit the number
of times a taser may be deployed against a single suspect (to three, two, and three times,
respectively). HEADEN & MANCE, supra note 39, at 14–15. Use-of-force policies, however, only
place limits on officers’ conduct to the extent that they are enforced within the department. “It is
. . . settled law that a violation of departmental policy does not equate with constitutional
unreasonableness.” Abney v. Coe, 493 F.3d 412, 419 (4th Cir. 2007) (citing Davis v. Scherer, 468
U.S. 183, 193–96 (1984)).

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of meaningful deterrent to guard against abuse where the first application is
justified and the suspect thereafter ceases actively resisting.
It is this circumstance for which the law in the Fourth Circuit does not
yet adequately account. While the court purports to recognize criminal
suspects’ “right to be free of ‘seizures effectuated by excessive force,’ ”182
the right has proven exceptionally difficult to vindicate in the context of
challenging taser abuse. Much like the district courts’ treatment of other
purportedly “less lethal”183 or “less than lethal weapons,” judicial treatment
of taser use has generally afforded officers quite a considerable degree of
deference. It is notable, however, that courts in the circuit have typically
recognized at least some limits on officers’ abilities to employ other forms
of less lethal force.184 Moreover, several factors unique to the taser would
seem to advise against subjecting them to any lesser standard and might in
fact suggest the appropriateness of closer judicial scrutiny. Tasers are, in
many ways, quite different than pepper spray, and their effect is
fundamentally different than a baton. The analogies to other types of socalled less-lethal weapons in fact miss the mark in a number of respects.
The rate of taser-associated fatalities alone185—relative to other police

182. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006)), cert. denied, 132 S. Ct. 781 (2011).
183. See, e.g., United States v. Mohr, 318 F.3d 613, 623 (4th Cir. 2003) (observing that “use
of a K-9 would be considered ‘less lethal force’ and ‘would fall in the same area’ as ‘an
intermediate weapon,’ such as a baton”).
184. See, e.g., Iko v. Shreve, 535 F.3d 225, 239–40 (4th Cir. 2008) (holding that spraying an
inmate several times after he tried to comply “supports a finding that the [officer] violated [the
plaintiff’s] constitutional right to be free from excessive force”); Park v. Shiflett, 250 F.3d 843,
852–53 (4th Cir. 2001) (holding that the use of pepper spray was excessive when used to restrain
unarmed individual who posed no threat); Johnson v. Prince George’s Cnty., No. DKC 10-0582,
2011 WL 806448, at *6 (D. Md. Mar. 1, 2011) (“Even in the more permissive Eighth
Amendment context, ‘[i]t is generally recognized that it is a [constitutional] violation . . . to use
mace, tear gas, or other chemical agents in quantities greater than necessary.’ ” (alterations in
original) (quoting Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996))); Walters v. Prince
George’s Cnty., No. AW-08-711, 2010 WL 2858442, at *8 (D. Md. July 19, 2010) (“Reasonable
jurors could . . . conclude that [an officer’s] repeated spraying of [an arrestee] at close[] range . . .
served no legitimate law enforcement purpose . . . .”), appeal dismissed, 438 F. App’x 208 (4th
Cir. 2011); Sykes v. Wicomico Cnty., No. CCB-05-2846, 2007 WL 1073607, at *10–11 (D. Md.
Mar. 30, 2007) (denying summary judgment to defendant officers who struck and pepper sprayed
an unarmed trespassing suspect); McDerment v. Browning, 18 F. Supp. 2d 622, 627 (S.D. W. Va.
1998) (finding that “the objective unreasonableness, and indeed the unlawfulness and excess, of
the officers’ conduct should have been apparent to a reasonable law enforcement official” where
plaintiff, “known by law enforcement officials to be mentally and physically handicapped . . . was
knocked from his ATV with both physical force and pepper spray . . . [and] sprayed again while
flailing his arms and trying to regain his sight”).
185. See generally LESS THAN LETHAL, supra note 15, at 20 (chronicling 334 deaths in the
United States of people who were struck with police tasers between June 2001 and August 2008).

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weapons186—would certainly seem to demand a higher degree of caution
than is currently evident in the existing case law. In addition, “[u]nlike
other police weapons, tasers can be fatally confused with guns, which
further distinguishes them from older technologies.”187 Perhaps most
importantly, however, is the fact that people who have been tased do not
retain the same control of their faculties as individuals subjected to other
forms of “less lethal” force.188 Tasers thus augment the traditional
order/comply dichotomy that plays out in a typical arrest scenario,
something explicitly acknowledged by courts in other circuits189 but
virtually ignored by those in the Fourth Circuit.
To the extent officers remain incapable of recognizing the distinction
between voluntary and involuntary movements, courts would seem well
advised to approach the use of the weapon with more caution, given its
high potential for abuse and the greater risk of causing an accidental
fatality compared to other purported less-than-lethal weapons in police
186. See EVALUATION AND INSPECTIONS DIV., U.S. DEP’T OF JUSTICE, REVIEW OF THE
DEPARTMENT OF JUSTICE’S USE OF LESS-LETHAL WEAPONS, at i–ii (2009) [hereinafter LESSLETHAL WEAPONS], available at http://www.justice.gov/oig/reports/plus/e0903/final.pdf (“There
have been no reported fatalities resulting from the use of [batons, pepper spray, bean bag rounds,
or rubber projectiles] by Department components. However, fatalities have occurred at the state
and local level, particularly following the use of conducted energy devices.”); NAT’L INST. OF
JUSTICE, U.S. DEP’T OF JUSTICE, THE EFFECTIVENESS AND SAFETY OF PEPPER SPRAY 1 (2003),
available at www.ncjrs.gov/pdffiles1/nij/195739.pdf (stating that “exposure to pepper spray was
a contributing cause of death in 2 of the 63 fatalities [that occurred in-custody where pepper spray
was used during the arrest], and both cases involved people with asthma”).
187. McKenney v. Harrison, 635 F.3d 354, 362 (8th Cir. 2011) (Murphy, J., concurring); see
also cases cited supra note 2.
188. See McKenney, 635 F.3d at 362 (“[T]he newer tasers . . . [are] somewhat unique in that
they render even the most pain tolerant individuals utterly limp.”); LeBlanc v. City of L.A., No.
CV 04-8250 SVW (VBKx), 2006 WL 4752614, at *16 (C.D. Cal. Aug. 16, 2006) (noting that
“[u]nlike weapons that rely on blunt force—such as guns, batons, knives, or beanbag
shots—
Taser is an energy-based weapon whose inner workings and physiologic impact are not
obvious”).
189. See, e.g., Cyrus v. Town of Mukwonago, 624 F.3d 856, 862–63 (7th Cir. 2010)
(“[A]lthough [police] characterize[d] [suspect]’s barrel-roll down the driveway as an attempt to
flee, a jury might . . . reasonably conclude that the barrel-roll was an involuntary reaction to the
second Taser shock.”); Greenfield v. Tomaine, No. 09 Civ 8102(CS)(PED), 2011 WL 2714221,
at *4–5 (S.D.N.Y. May 10, 2011) (“Defendants have presented no evidence to indicate what the
alleged ‘struggle’ entailed, . . . or whether Plaintiff's ‘struggle’ was merely an adverse, and
perhaps involuntary, reaction to being hit in the chest with a taser.”), report and recommendation
adopted, No. 09-CV-8102 (CS)(PED), 2011 WL 2714219 (S.D.N.Y. July 12, 2011); Beaver v.
City of Fed. Way, 507 F. Supp. 2d 1137, 1145–46 (W.D. Wash. 2007) (“The defendants confuse
involuntary non-compliance with active resistance. . . . Involuntary actions cannot form the basis
of active resistance.”), aff’d, 301 F. App’x 704 (9th Cir. 2008); McDonald v. Pon, C05-1832JLR-JPD, 2007 WL 4868270, at *2 (W.D. Wash. Oct. 15, 2007) (“The involuntary muscle
contractions [caused by a taser] prevent the type of coordinated motion that is required to fight or
flee.”), report and recommendation adopted in part and rejected in part, No. C05-1832JLR, 2007
WL 4420936 (W.D. Wash. Dec. 14, 2007).

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arsenals.190 Moreover, the rationale for according such deference under
Fourth Amendment analysis to officers charged with abusing the device
has grown increasingly tenuous in light of the Fourth Circuit’s Fourteenth
Amendment analysis in Orem191 and ample Eighth Amendment precedent
suggesting that unnecessary use of the device offends the Constitution.192
Typically, officers are given greater leeway in using more force in
controlling those who have been adjudicated guilty and are held in state
custody193—a standard evaluated under the Eighth Amendment194—than
they are in taking into custody those who have merely been suspected of
crimes, conduct which is governed by a Fourth Amendment reasonableness

190. See LESS-LETHAL WEAPONS, supra note 186, at i–ii; see also McKenney, 635 F.3d at
361 (Murphy, J., concurring) (noting that “developing law on taser use must consider the unique
nature of this type of weapon and the increased potential for possibly lethal results”).
191. See 523 F.3d 442, 449 (4th Cir. 2008) (holding that use of a “taser to punish or
intimidate . . . is not objectively reasonable, is contrary to clearly established law, and [is] not
protected by qualified immunity”).
192. See, e.g., Hudson v. McMillian, 503 U.S. 1, 13–14 (1992) (Blackmun, J., concurring)
(observing that the Constitution does not protect “abuse[s] . . . designed to cause pain but without
a telltale ‘significant injury’ ” such as “shocking . . . with electric currents”); Williams v.
Benjamin, 77 F.3d 756, 762 (4th Cir. 1996) (“Mankind has devised some tortures that leave no
lasting physical evidence of injury. . . . [T]he [Eighth Amendment’s] objective component can be
met by ‘the pain itself,’ even if an inmate has no ‘enduring injury.’ ” (quoting Norman v. Taylor,
25 F.3d 1259, 1263 n.4 (4th Cir. 1994) (en banc), abrogated by Wilkins v. Gaddy, 130 S. Ct.
1175, 1179 (2010))); Jackson v. Fletcher, No. 7:09CV00408, 2011 WL 197954, at *9 (W.D. Va.
Jan. 18, 2011) (“[T]he misuse of . . . a shocking device . . . [is] conduct that a reasonable jury
could find ‘repugnant to the conscience of mankind,’ regardless of whether [subject] suffered any
severe or disabling injuries . . . .”).
193. Here it is important to acknowledge that the respective interests of the people being tased
and law enforcement officers using the taser are somewhat different in the Fourth versus Eighth
Amendment contexts. In the field, where use of the taser during the course of effecting an arrest is
evaluated according to the guarantees of the Fourth Amendment, the person being tased is
presumed innocent of a crime—a factor that, when contrasted with inmates, against whom use of
force is evaluated according to the Eighth Amendment, would seem to weigh in favor of
arrestees. On the other hand, as Jay M. Zitter has explained,
[U]nlike the situation where an arresting officer has to be constantly vigilant to make
sure the suspect is not reaching for a weapon, and thus a tasering may be reasonable, in
most, although not all, cases of inmate taserings, there is no issue of the inmate being
possibly armed. Similarly, while prisoners do occasionally break out of jails, stopping an
arrestee from fleeing is much more important in the case of taserings during arrests than
in inmate taserings. On the other hand, keeping order in a jail is of overriding
importance, because a disturbance by one prisoner, if not quelled immediately, can lead
to a prison-wide riot. This is the case, of course, regardless of the seriousness of the
tasered inmate’s crime, while what particular crime the arrestee was alleged to have
committed is certainly a major factor in determining whether a tasing was reasonable.
Jay M. Zitter, When Does Use of Taser Constitute Violation of Constitutional Rights, 45 A.L.R.
6th 1, 23 (2009).
194. See Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (holding that the Eighth Amendment
forbids “unnecessary cruelty”).

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standard195 that takes into account the severity of the suspect’s alleged
offense.196 With tasers, however, this general rule197 has, in some respects,
been turned on its head. Federal courts have disapproved of tasing
restrained inmates and recently arrested detainees.198 But when such
195. There is a notable circuit split as to precisely when the Fourth Amendment stops
controlling and the Fourteenth Amendment takes over. The Fourth Circuit “agree[s] with the
Fifth, Seventh, and Eleventh Circuits[, and not the Second, Sixth, and Ninth,] that the Fourth
Amendment does not embrace a theory of ‘continuing seizure’ and does not extend to the alleged
mistreatment of arrestees or pretrial detainees in custody.” Riley v. Dorton, 115 F.3d 1159, 1163–
64 (4th Cir. 1997), abrogated by Wilkins, 130 S. Ct. 1175. Thus, an officer’s conduct in seizing
and searching an individual while taking the individual into custody is evaluated under the Fourth
Amendment; but once a person is secured in custody, such as in the back of a squad car, as was
the case in Orem, it is the Fourteenth Amendment that controls. See Orem v. Rephann, 523 F.3d
442, 446 (4th Cir. 2008).
196. In Graham v. Connor, 490 U.S. 386 (1989), one of the key Supreme Court opinions on
police use of force, the court laid out a three-prong test to assess the lawfulness of police actions.
This required “careful attention to . . . the severity of the crime at issue.” Id. at 396. This idea has
long been a part of Fourth Amendment law, see Tennessee v. Garner, 471 U.S. 1, 8–11 (1985),
and also has roots in the common law. See Holloway v. Moser, 193 N.C. 185, 187, 136 S.E. 375,
376 (1927) (noting that under the common law, “[i]t was thought that to permit the life of one
charged with a mere misdemeanor to be taken, when not resisting, but only fleeing, would, aside
from its inhumanity, be productive of more evil than good”), disapproved of by Garner, 471 U.S.
at 12. The fact that this prong seems to be accorded so little weight in taser jurisprudence was
perhaps plainest to see in Buckley v. Haddock, 292 F. App’x 791 (11th Cir. 2008), in which the
plaintiff, destitute, despondent, and tearful about being given a traffic ticket, refused to sign his
citation and was arrested. Id. at 792. He then sat on the ground and refused to enter the patrol car.
Id. The arresting officer warned him that he would be tased if he did not comply. Id. When the
plaintiff did not move, he was tased, issued another warning, and then tased again. Id. at 792–93.
The incident was captured on videotape, id. at 792 n.1, and widely broadcast in the national
media after one of the judges, in a dissenting opinion, “suggest[ed] it be published together with
this opinion.” Id. at 799 (Martin, J., dissenting). “The court refused but the . . . suggestion
prompted someone to post the video to YouTube . . . .” Joe Hodnicki, Dissenting Judge’s
Suggestion that Police Video Introduced into Evidence Be Published Leads to Video’s YouTube
Upload,
LAW
LIBR.
BLOG
(Sept.
22,
2008),
http://lawprofessors.typepad.com/law_librarian_blog/2008/09/dissenting-judg.html. Many police
reform advocates anticipated that the videotape would essentially force the Supreme Court to
address the exponential increase of use of tasers against suspects accused of minor offenses. See,
e.g., Press Release, ACLU of Fla., To Tase or Not to Tase: ACLU Asks U.S. Supreme Court to
Answer the Question for the First Time (Feb. 5, 2009), available at
http://www.aclufl.org/news_events/index.cfm?
action=viewRelease&emailAlertID=3696&print=true. However, despite receiving considerable
media attention and perhaps more organizational support than any other taser case until that time,
the Supreme Court denied certiorari. Buckley v. Rackard, 129 S. Ct. 2381 (2009). The case
illustrated the device’s transition from being a weapon of just-short-of-last-resort to becoming
many officers’ first and primary option for dealing with even mildly non-compliant subjects.
197. See Graham, 490 U.S. at 398–99 (contrasting Fourth and Eighth Amendment protections
and describing the Eighth as “the less protective . . . standard [which] applies ‘only after the State
has complied with the constitutional guarantees traditionally associated with criminal
prosecutions’ ” (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977))).
198. See, e.g., Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (holding that a “use of the
taser was unnecessary and excessive given that [plaintiff] was handcuffed and in foot restraints”);
Crihfield v. City of Danville Police Dep’t, Nos. 4:07CV00010, 4:07CV00011, 2007 WL

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conduct is directed against an equally immobile subject in the field,
endeavoring to recover from the effects of being struck with a taser, courts
have been hesitant to let a jury evaluate the reasonableness of an officer’s
actions.199 This discrepancy in treatment illustrates how the illusion of
volition (i.e., continued physical movement absent corresponding intent)—
a factor somewhat unique to the taser—when combined with the regular
absence of an immediately apparent injury, has empowered officers to use
the device with relative impunity, little meaningful review, and in
circumstances which, absent ready access to the device, would often not
have resulted in any use of force whatsoever.200
III. THE FOURTH AMENDMENT AND THE DE MINIMIS INJURY DOCTRINE
The courts’ inclination to focus on the extent of a plaintiff’s injury is
particularly problematic for taser plaintiffs in the Fourth Circuit. Often
bearing little in the way of visible injuries, for years they have seen their
cases defeated by the court’s de minimis injury doctrine,201 under which a
3003279, at *3 (W.D. Va. Oct. 11, 2007) (denying motion to dismiss by officer alleged to have
“tased [plaintiff] up to 20 times after [he had] been handcuffed and placed under arrest” (internal
quotation marks omitted)); Shelton v. Angelone, 183 F. Supp. 2d 830, 835 (W.D. Va. 2002)
(holding that “repeatedly shock[ing an inmate] with a stun gun without justification while
restrained in leg irons and handcuffs . . . would be ‘repugnant to the conscience of
mankind,’ . . . and would not require proof of any permanent, serious physical effect” (quoting
Whitley v. Albers, 475 U.S. 312, 327 (1986))).
199. See infra Part V.
200. See U.N. Human Rights Rep., supra note 37, at 9.
201. See, e.g., Chisolm v. VonDoran, No. 4:08-cv-03242-RBH, 2010 WL 625381, at *6
(D.S.C. Feb. 19, 2010) (“Even . . . [use of] the taser . . . for 15–20 seconds . . . fail[s] to
establish . . . injuries [that are] more than de minimis.”); Benson v. DeLoach, C/A No. 8:0900041GRA-BHH, 2009 WL 3615026, at *2, *8 (D.S.C. Oct. 28, 2009) (finding plaintiff’s
injuries from four taser strikes and the subsequent staph infection they allegedly caused to be de
minimis and granting summary judgment to officers); Barnes v. Dedmondt, C/A No. 4:08-0002MBS, 2009 WL 3166576, at *10 (D.S.C. Sept. 29, 2009) (explaining that “the circumstances
must be examined in determining whether the use of the taser . . . results in more than a de
minimis injury,” but failing to explain how external circumstances are probative of the extent of
physical or psychological injury—an entirely separate issue from whether circumstances may
have justified the infliction of force and any consequent injury (emphasis added) (citing Orem v.
Rephann, 523 F.3d 442, 448 (4th Cir. 2008))), aff’d, 395 F. App’x 928 (4th Cir. 2010), cert.
denied, 131 S. Ct. 2154 (2011)); Henderson v. Gordineer, C.A. No. 3:06-1425-TLW-JRM, 2007
WL 840273, at *7 (D.S.C. Mar. 14, 2007) (holding inmate who alleged excessive force by taser
“fail[ed] to show that his Fourteenth Amendment rights were violated because any injuries
received were de minimis”); Wallace v. Thomas, C.A. No. 3:06-261-HMH-JRM, 2007 WL
397486, at *5 (D.S.C. Jan. 31, 2007) (granting defendant officers summary judgment and noting
that “there is no indication that Plaintiff suffered anything more than de minimis injury as a result
of the . . . use of tasers”); Tate v. Anderson, C.A. No. 8:05-3085-HMH-BHH, 2007 WL 28982, at
*4 (D.S.C. Jan. 3, 2007) (holding that an inmate who was tased for not following a verbal order
“fail[ed] to show that his Fourteenth Amendment rights were violated because any injuries he
received were de minimis”); Gilchrist v. Reid, No. CIVA 3:05-3338 PMD, 2006 WL 2927436, at
*1 (D.S.C. Oct. 11, 2006) (finding plaintiff’s injury de minimis and insufficient to state a claim

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de minimis injury constitutes “conclusive evidence that de minimis force
was used.”202 This problem has now been somewhat mitigated, at least with
respect to inmates, by Wilkins v. Gaddy,203 a 2010 case in which the
Supreme Court explicitly rebuked the circuit for its overreliance on the
doctrine in the Eighth Amendment context. In Wilkins, the Court’s per
curiam opinion—which drew no dissenters—held that, “[i]n requiring what
amounts to a showing of significant injury in order to state an excessive
force claim, the Fourth Circuit has strayed from the clear holding of this
Court.”204
While the doctrine should no longer bar inmates from bringing suit, a
few of the federal district courts in the circuit appear to take the view that a
taser does not generally inflict a type of injury cognizable by the Fourth
Amendment.205 That the de minimis doctrine had grown to be so commonly
invoked, such that Supreme Court intervention was even necessary in the
Eighth Amendment context, is itself a somewhat confusing quirk of
history. When Wilkins was decided, it had been over thirty years since the
Court first observed that “mental and emotional distress . . . is compensable
under § 1983.”206 And, as recently as fifteen years ago, the Fourth Circuit
where plaintiff was tased and alleged “heart problems . . . [and having] to go to the hospital” as a
result), aff’d, 209 F. App’x 353 (4th Cir. 2006); cf. Simpson v. Kapeluck, No. 2:09-cv-00021,
2010 WL 1981154, at *6 (S.D.W. Va. Feb. 4, 2010) (finding that “use of a taser does not carry
any risk of lasting injury to the subject” (internal quotations marks omitted)), report and
recommendation rejected, No. 2:09-cv-00021, 2010 WL 1981099, at *9 (S.D.W. Va. May 14,
2010) (holding that the tasing still was not excessive force), aff’d, 402 F. App’x 803 (4th Cir.
2010), cert. denied, 131 S. Ct. 1501 (2011).
202. Norman v. Taylor, 25 F.3d 1259, 1262 (4th Cir. 1994) (citation omitted), abrogated by
Wilkins v. Gaddy, 130 S. Ct. 1175 (2010) (per curiam).
203. 130 S. Ct. 1175 (2010) (per curiam).
204. Id. at 1178.
205. See, e.g., Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352, at *6 (E.D.N.C. Oct.
20, 2011) (dismissing notion that “any improper taser use equates to an excessive use of force”);
White v. Smereka, No. 3:09-CV-00257-W, 2010 WL 2465552, at *4 (W.D.N.C. June 14, 2010)
(citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that a single use of a
taser against a nonthreatening suspect was not excessive force where the plaintiff suffered no
serious injury)), reconsideration denied, No. 3:09-CV-00257-W, 2010 WL 2640554 (W.D.N.C.
June 29, 2010), aff’d, 410 F. App’x 714 (4th Cir. 2011), cert. denied, 132 S. Ct. 460 (2011); cf.
Dunbar v. New Ellenton Police Dep’t, Civil Action No. 9:08-2436-HFF-BM, 2010 WL 1073152,
at *6 (D.S.C. Feb. 24, 2010) (“[A]bsent the most extraordinary circumstances, a plaintiff cannot
prevail on a claim for violation of a constitutional right if his injury [is] de minimis . . . .” (citing
Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc)), adopted sub nom. Dunbar v.
Allentown Police Dep’t, Civil Action No. 9:08-2436-HFF-BM, 2010 WL 1007475 (D.S.C. Mar.
18, 2010); Byrd v. Hopson, 265 F. Supp. 2d 594, 613 (W.D.N.C. 2003) (“[A]llegations of
pain . . . without some evidence of more permanent injury are insufficient to support a claim of
excessive force.” (quoting Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003))
(internal quotation marks omitted)), aff’d, 108 F. App’x 749 (4th Cir. 2004).
206. Carey v. Piphus, 435 U.S. 247, 264 (1978); see also Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 307 (1986) (discussing that mental and emotional distress are
compensable under § 1983).

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itself appeared to explicitly disclaim the requirement that plaintiffs in
excessive force suits show more than a de minimis physical injury.207
Despite these developments, the Supreme Court’s 1992 decision in Hudson
v. McMillian208 gave the doctrine new life in the circuit. The Fourth Circuit,
unlike other circuits, read Hudson as instructing courts to “us[e] injury as a
proxy for force” in assessing excessive force claims.209 And although this
view was later deemed “not defensible”210 by the Supreme Court, it
nevertheless carried the day in the circuit for nearly fifteen years.211 It
continues to live on in the circuit’s Fourth Amendment jurisprudence,212 the
law by which most taser claims are evaluated.
207. See Williams v. Benjamin, 77 F.3d 756, 762 (4th Cir. 1996) (observing that psychic pain
has been held to satisfy the Eighth Amendment’s objective component). The Williams court noted
that “courts should be wary of finding uses of force that inflict ‘merely’ pain but not injury to be
de minimis.” Id. at 762 n.2.
208. 503 U.S. 1 (1992).
209. Wilkins v. Gaddy, 130 S. Ct. 1175, 1179 (2010) (characterizing the Fourth Circuit
approach).
210. Id.
211. See Douglas B. McKechnie, Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment
Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot
Withstand a Constitutional or Practical Challenge, 60 U. KAN. L. REV. 139, 156–58 (2011).
212. See, e.g., Sellers v. Waring, 141 F. App’x 121, 122 (4th Cir. 2005) (affirming dismissal
of plaintiff’s Fourth Amendment § 1983 claim because of failure to allege more than de minimis
injury); Housley v. Holquist, No. L-10-1881, 2011 WL 3880467, at *6 n.8 (D. Md. Aug. 30,
2011) (granting “summary judgment on [a] chokehold claim . . . [because the] force was de
minimis, the hold lasted for no more than a few seconds, and no lasting injuries were caused”);
Dunn v. Vanmeter, No. 5:09-CV-00085, 2010 WL 3154972, at *6 (W.D. Va. Aug. 9, 2010)
(“Under Fourth Circuit precedent, th[e] lack of any significant injury . . . counsels in favor of a
finding that the force used . . . was not unreasonable under the Fourth Amendment.”); Cohen v.
Cannon, No. 2:08-3327-HMH-RSC, 2009 WL 2207814, at *4–5 (D.S.C. July 22, 2009)
(“Determining whether the force used to carry out a particular arrest is ‘unreasonable’ under the
Fourth Amendment requires . . . consider[ation] [of] the extent of the injuries caused to the
plaintiff.”); Andrews v. Elkins, 227 F. Supp. 2d 488, 493 (M.D.N.C. Oct. 24, 2002) (“[A] de
minimus [sic] injury does not rise to the level of a constitutional violation [under the Fourth
Amendment].”), aff’d, 60 F. App’x 498 (4th Cir. 2003); Newman v. Green, 198 F. Supp. 2d 664,
668 (D. Md. April 29, 2002) (discussing the “wealth of . . . Fourth Circuit authority dealing with
excessive force claims and, specifically the need for a plaintiff to show more than an insubstantial
injury to sustain an excessive force claim” under the Fourth Amendment (citing Brown v.
Gilmore, 278 F.3d 362, 369 (4th Cir. 2002), and Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir.
1999))); Wilkerson v. Hester, No. 1:99CV130-T, 2000 WL 33422753, at *12 (W.D.N.C. Aug. 18,
2000) (“More than de minimis injury is essential to moving forward to a jury a claim under the
fourth amendment for excessive use of force.”), report and recommendation adopted, 114 F.
Supp. 2d 446 (W.D.N.C. 2000); Drake v. Higgins, No. CIV.A. 97-0143-C, 1999 WL 462987, at
*5 (W.D. Va. June 10, 1999) (“The court may also consider the degree of harm caused by the
application of force in determining whether it was excessive . . . .”); see also McKechnie, supra
note 211, at 158 n.137 (2011) (collecting cases). It should be noted, however, that not every
district court has adhered to this interpretation. See Clark v. Balt. Cnty., No. BPG-08-2528, 2009
WL 2913453, at *2 n.4 (D. Md. Sept. 1, 2009) (“[T]he de minimis injury rule does not apply to
claims of excessive force during the course of an arrest, for those claims assert a violation of the
arrestee’s Fourth Amendment right to be free from unreasonable seizures.” (citing Bibum v.

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While most circuits have rejected a requirement that plaintiffs
demonstrate an actual physical injury to state a claim for excessive force
under the Fourth Amendment,213 the Fourth, Fifth, Eighth, and Eleventh
Circuits have not.214 The Fourth Circuit is the doctrine’s pioneer—the first
of the four circuits to recognize the exception, at least in Eighth
Amendment claims.215 Two cases often cited by the federal district courts216
as embodying this principle in the Fourth Amendment context—Brown v.
Gilmore217 and Carter v. Morris218—were each authored by Judge
Wilkinson, and both involved relatively minor claims of excessive force
arising out of allegations that officers applied handcuffs too tightly.219
Given the ubiquitous role handcuffs play in nearly every arrest, however, it
would seem more appropriate for lower courts to read those cases narrowly
as evidence of the circuit’s intent to circumscribe only a particular type of
excessive force claim. The opinions’ language about “de minimis” injuries,
while unattributed, mirror an unpublished 1996 opinion, Ritchie v.
Jackson,220 in which the court granted the defendant officers summary
judgment in another Fourth Amendment claim for tight handcuffing.221 In
that case, the court concluded that the plaintiffs had “allege[d] no more

Prince George’s Cnty., 85 F. Supp. 2d 557, 562–63 (D. Md. 2000))); Bartram v. Wolfe, 152 F.
Supp. 2d 898, 907–08 (S.D.W. Va. 2001).
213. Georgiady, supra note 76, at 137; see also Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir.
2002) (“[A] trialworthy excessive force claim is not precluded merely because only minor injuries
were inflicted by the seizure. That view is widely held.” (alteration in original) (emphasis added)
(citations and internal quotation marks omitted)).
214. See Georgiady, supra note 76, at 137–38; see also McKechnie, supra note 211, at 151.
215. See Taylor v. McDuffie, 155 F.3d 479, 486 (4th Cir. 1998) (Murnaghan, J., dissenting)
(observing that the Fourth Circuit “stands alone among all other courts of appeal in holding that
de minimis injury, without more, is dispositive of an excessive force claim”), abrogated by
Wilkins v. Gaddy, 130 S. Ct. 1175 (2010); Troy J. Aramburun, The Role of “De Minimis” Injury
in Excessive Force Determination: Taylor v. McDuffie and the Fourth Circuit Stand Alone, 14
BYU J. PUB. L. 313, 315 (2000).
216. See, e.g., Trull v. Smolka, Civil Action No. 3:08CV460-HEH, 2008 WL 4279599, at *5
(E.D. Va. Sept. 18, 2008) (“Plaintiff has failed to allege more than a de minimis injury as required
by the Fourth Amendment.”), aff’d, 411 F. App’x 651 (4th Cir. 2011). Similarly, the Fourth
Circuit case Jones v. Buchanan, 325 F.3d 520 (4th Cir. 2003), approvingly cited Brown for the
proposition that “the severity of [a plaintiff]’s injuries provides . . . ground[s] for distinguishing
. . . [cases] in which a plaintiff has not established an excessive force claim.” Id. at 531 (citing
Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)).
217. 278 F.3d 362 (4th Cir. 2002).
218. 164 F.3d 215 (4th Cir. 1999).
219. See Brown, 278 F.3d at 369 (“Brown’s allegation of excessive force centers on her
assertion that [the officer] handcuffed her, causing her wrists to swell, dragged her to the car and
then pulled her into his cruiser.”); Carter, 164 F.3d at 219 n.3 (“Carter’s basis for her excessive
force claim [is] that her handcuffs were too tight and that an officer pushed her legs as she got
into the police car . . . .”).
220. 98 F.3d 1335 (4th Cir. 1996).
221. Id. at 1335.

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than de minimis injury; therefore, their claims of excessive force are
without merit.”222 It cited as authority a 1990 Eighth Circuit opinion223
dismissing a claim by a man who alleged he was improperly handcuffed224
and unlawfully arrested.225 Although the doctrine has vitality in the federal
district courts,226 its paper trail is thin.
Certainly if the Fourth Circuit had wished to establish the bright line
rule that lower courts have taken the published opinions to stand for, it
could have been much more unequivocal. The language of each opinion
suggests a concern for signaling any sort of receptiveness to claims born
out of a police practice as routine as handcuffing.227 To grant relief to the
plaintiffs in either case might have opened the door for their claims to be
easily duplicated by a multitude of aggrieved arrestees. This was, after all,
one of the principal concerns that animated the de minimis doctrine in the
Eighth Amendment context.228 The Fourth Circuit worried a contrary rule
could pose docket management problems for the courts and represent an
improper level of micromanagement of local law enforcement
authorities.229 Now that the de minimis threshold is off the table in Eighth
Amendment claims, inmates—the population perhaps most predisposed to
filing frivolous suits against officers230—are free to mount constitutional
challenges to inflictions of force previously deemed beyond the purview of
the law.231 Consequently, the rationale for the Fourth Circuit’s adherence to
the doctrine in Fourth Amendment jurisprudence has lost much of its force.

222. Id.
223. Id. (citing Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 1990)).
224. Foster, 914 F.2d at 1077.
225. Id. at 1078.
226. See supra note 205.
227. See, e.g., Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (“She alleges no injury of
any magnitude. . . . [A] standard procedure such as handcuffing would rarely constitute excessive
force where the officers were justified, as here, in effecting the underlying arrest.”); Carter v.
Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999) (“Carter’s . . . handcuffs [claim] . . . is so
insubstantial that it cannot as a matter of law support her claim under . . . the Fourth
Amendment . . . .”).
228. See Georgiady, supra note 76, at 162 n.258 (noting that “the Fourth Circuit warned that
repealing de minimis injury thresholds would ‘swamp the federal courts with questionable
excessive force claims’ ” (quoting Riley v. Dorton, 115 F.3d 1159, 1167 (4th Cir. 1997),
abrogated by Wilkins v. Gaddy, 130 S. Ct. 1175 (2010) (per curiam))).
229. See Riley, 115 F.3d at 1167 (“[S]uch a rule . . . would . . . constitute an unwarranted
assumption of federal judicial authority to scrutinize the minutiae of state detention activities.”).
230. See Anderson v. XYZ Corr. Health Serv., Inc., 407 F.3d 674, 676 (4th Cir. 2005) (noting
congressional concern that frivolous “prison-condition lawsuits . . . were threatening to
overwhelm the capacity of the federal judiciary”).
231. See, e.g., Gilchrist v. Reid, CIVA 3:05-3338 PMD, 2006 WL 2927436, at *3, *4 (D.S.C.
Oct. 11, 2006) (awarding summary judgment to detention officers who tased inmate who
“disobeyed orders” to move, finding “an excessive force claim should not lie where a prisoner’s
injury is de minimis”), aff’d, 209 F. App’x 353 (4th Cir. 2006).

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Although many would regard it as somewhat of a paradox, an incarcerated
inmate or pretrial detainee who is tased for refusing a direct order may now
have a stronger argument in court232 than a free person who fails to comport
with a similar order during the course of an otherwise routine encounter
with police on the street.233 To understand why, it is important to establish
that “the Fourth Circuit has determined that the analysis of Fourteenth
Amendment excessive-force claims is no different than . . . analysis of
Eighth Amendment claims.”234 These amendments govern excessive force
claims brought by pretrial detainees and inmates, respectively.235 For each,
the touchstone of analysis is the necessity of force.236 Specifically, the
inquiry looks to whether a defendant “inflicted unnecessary and wanton

232. See Bragg v. Hackworth, No. 1:10CV693 (GBL/IDD), 2012 WL 508596, at *6 (E.D. Va.
Feb. 13, 2012) (refusing to dismiss an Eighth Amendment “claim of excessive force against . . .
defendants [who] urge[d] the Court to find their use of [tasers] was justified because plaintiff was
being ‘uncooperative,’ ‘combative’ and ‘refusing to follow instructions’ ”). Numerous courts
have observed that prison officials are limited in their ability to use electric weapons simply to
compel compliance with jail or prison policies or officer orders. See, e.g., Orem v. Rephann, 523
F.3d 442, 448 (4th Cir. 2008) (citing with approval Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir.
1993), a case involving an inmate tased for disobeying an order to clean his cell, which held that
“[t]he law does not authorize the day-to-day policing of prisons by stun gun . . . [or the] use [of]
summary physical force to compel compliance with all legitimate rules”); Simpson v. Kapeluck,
Civil Action No. 2:09-cv-00021, 2010 WL 1981099, at *8 n.2 (S.D.W. Va. May 14, 2010)
(same), aff’d, 402 F. App’x 803 (4th Cir. 2010); Shelton v. Angelone, 183 F. Supp. 2d 830, 835
(W.D. Va. 2002) (same); Davis v. Lester, 156 F. Supp. 2d 588, 593 (W.D. Va. 2001) (same);
Velasco v. Head, 166 F. Supp. 2d 1100, 1104 (W.D. Va. 2000) (same); see also Davidson v. City
of Statesville, No. 5:10-CV-00182-RLV-DSC, 2012 WL 1441406, at *1, *3 (W.D.N.C. Apr. 26,
2012) (denying defendant’s motion for summary judgment referring to “potentially needless
means of restraining [inmate] as a general matter” where the inmate “passively resisted the
officers by refusing to walk”); Malik v. Ward, Civil Action No. 8:08-1886-RBH-BHH, 2010 WL
1010023, at *8 (D.S.C. Feb. 4, 2010) (“The Court believes that . . . [the] unwarranted use of an
electric shield against a defenseless inmate constitute[s] [an] act[] ‘repugnant to the conscience of
mankind,’ regardless of the extent of damage inflicted. . . . [and] implicate[s] basic issues of
human ‘dignity.’ ” (emphasis added) (citations omitted)), report and recommendation adopted,
Civil Action No. 8:08-CV-01886-RBH, 2010 WL 936777 (D.S.C. Mar. 16, 2010).
233. See, e.g., Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352, at *8 (E.D.N.C. Oct.
20, 2011) (dismissing plaintiff’s taser claim, explaining that because he “refused to comply with
the other officer’s instructions . . . taser use was reasonable”); Meyers v. Balt. Cnty., 814 F. Supp.
2d 552, 560 (D. Md. 2011) (“Courts have . . . found that use of a Taser can be reasonable even as
against restrained or nonviolent subjects who resist arrest and refuse to comply with lawful police
commands.”); Blair v. Cnty. of Davidson, No. 1:05CV00011, 2006 WL 1367420, at *8
(M.D.N.C. May 10, 2006) (observing that “courts have held that officers may use a taser devise
[sic] . . . to subdue a belligerent or unruly arrestee”).
234. McKechnie, supra note 211, at 142 (citing Orem v. Rephann, 523 F.3d 442, 446–48 (4th
Cir. 2008)).
235. Orem, 523 F.3d at 446.
236. See Whitley v. Albers, 475 U.S. 312, 319 (1986) (discussing the Eighth Amendment);
Wernert v. Green, 419 F. App’x 337, 340 (4th Cir. 2011) (discussing the Fourteenth
Amendment).

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pain and suffering” on the plaintiff.237 The standard governing the use of
tasers against inmates, most of whom police have probable cause to believe
have committed a crime, may thus be more favorable to plaintiffs than the
standard for tased non-arrestees and people being taken into custody, since
it focuses on the necessity of the taser’s use.238 The Fourth Amendment, by
contrast, is, in the Fourth Circuit, generally forgiving of some measure of
excessive force so long as it is directed against someone who is not entirely
compliant—even if that force is, objectively, wholly unnecessary.239
As it stands, only the most egregious of Fourth Amendment taser
suits—those in which the tased person either died240 or was deemed acutely
vulnerable241—have succeeded in surviving even the qualified immunity
stage, and those cases are themselves few and far between. In light of the
increasingly common use of tasers in everyday law enforcement and the
ever growing number of taser-related deaths—currently numbering in the
hundreds242—there is reason to think that the approach taken by the federal
district courts in the Fourth Circuit of granting only the rarest plaintiff the
opportunity to make his case is inadequate for dealing with the very real
issue of taser-related police brutality. It indeed makes little sense that
people who are not incarcerated should face a higher evidentiary hurdle
than a convicted inmate would in challenging the lawfulness of the very
same conduct.243
237. Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998) (quoting Whitley, 475 U.S. at
320), abrogated on other grounds by Wilkins v. Gaddy, 130 S. Ct. 1175, 1179 (2010) (per
curiam).
238. See, e.g., Davidson v. City of Statesville, 5:10-CV-00182-RLV, 2012 WL 1441406, at
*3 (W.D.N.C. Apr. 26, 2012) (finding “a genuine issue as to the reasonableness . . . of the
officers’ potentially needless means of restraining” plaintiff in a jail taser-case).
239. See supra notes 212, 215, and accompanying text.
240. See, e.g., Gray v. Torres, Civ. No. WDQ-08-1380, 2009 WL 2169044, at *1 (D. Md.
July 17, 2009) (denying an officer qualified immunity where he was alleged to have repeatedly
tased the plaintiff, who later died, when the plaintiff may have been trying to surrender).
241. See, e.g., Jackson v. City of Hyattsville, Civil Action No. 10-CV-00946-AW, 2010 WL
5173787, at *1 (D. Md. Dec. 13, 2010) (denying motion to dismiss excessive force claims against
officer alleged to have tased praying woman in the breast); Dent v. Montgomery Cnty. Police
Dep’t, 745 F. Supp. 2d 648, 652–53, 664 (D. Md. Sept. 17, 2010) (denying officers qualified
immunity for allegedly tasing a resisting woman whom they sought to have medically evaluated);
Williams v. Smith, C/A No. 3:08-2841-JFA, 2009 WL 4729975, at *1, *4 (D.S.C. Dec. 3, 2009)
(denying summary judgment to officers alleged to have repeatedly tased man who was bound at
both hands and feet); Crihfield v. City of Danville Police Dep’t, Nos. 4:07CV00010,
4:07CV00011, 2007 WL 3003279, at *1 (W.D. Va. Oct. 11, 2007) (denying qualified immunity
to officers alleged to have tased man over a dozen times after he was handcuffed).
242. See LESS THAN LETHAL, supra note 15, at 20 (chronicling 334 deaths in the United
States of people who were struck with police tasers between June 2001 and August 2008).
243. As the Fourth Circuit’s Judge Butzner explained more than twenty years ago in his
dissenting opinion in Graham, a case that would later be overturned by the Supreme Court in
perhaps the most significant modern decision relating to police abuse, “[t]he reason for
distinguishing between a convict and a free citizen is clear. The police are not privileged to inflict

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IV. THE PROPHYLACTIC EFFECT OF OVERCHARGING
Challenging as they can be for plaintiffs, the doctrinal problems posed
by non-volitional movement and so-called de minimis injuries are not the
only difficulties taser victims may face in seeking redress for genuine
instances of abuse. Those arrestees who find themselves charged with an
offense arising out of the act of being taken into custody may face an
additional burden. Although the Fourth Circuit ostensibly recognizes the
right of even those who are resisting arrest to be free of excessive force and
permits them in some circumstances to recover under § 1983 for their
injuries,244 the right is one of which would-be plaintiffs may not easily avail
themselves. The unique nature of the taser and its effect on the human body
suggest that victims of taser abuse may experience this difficulty more
acutely than others.245 This is because, where an officer’s use of a taser
causes a suspect to “actively” resist in a way that satisfies a state’s criteria
for resisting a lawful arrest, and a conviction is later secured, the arrestee
may be barred in the Fourth Circuit from bringing a federal action under
§ 1983.246 Some courts take the view that a person who complies with
officer directives to submit would not be found guilty or plead to resisting
arrest, and that there is thus nothing inequitable about barring them from
bringing an excessive force action.247 As has been discussed, however, the
any punishment on a free citizen.” Graham v. City of Charlotte, 827 F.2d 945, 950 (4th Cir. 1987)
(Butzner, J., dissenting), vacated sub nom. Graham v. Connor, 490 U.S. 386 (1989).
244. See, e.g., Riddick v. Lott, 202 F. App’x 615, 616 (4th Cir. 2006) (per curiam) (“Without
knowing the factual basis for [plaintiff’s criminal] plea, we cannot determine whether his claim of
police brutality would necessarily imply invalidity of his earlier conviction for assaulting an
officer while resisting arrest.”); Packer v. Hayes, 79 F. App’x 573, 574 (4th Cir. 2003) (per
curiam) (holding that the plaintiff was “not collaterally estopped from bringing an excessive force
claim against Defendants merely because she was convicted of assaulting [the same officer] . . . in
state court”).
245. Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1145–46 (W.D. Wash. 2007)
(“[D]efendants maintain that because [suspect] had not complied with Officer[’s] . . . commands
[to submit to handcuffs immediately after being tased], he was actively resisting arrest and further
tasing was warranted. The defendants confuse involuntary non-compliance with active
resistance.”), aff’d, 301 F. App’x 704 (9th Cir. 2008).
246. Bolden v. Rushing, 407 F. App’x 693, 694 (4th Cir. 2011) (holding that the plaintiff’s
“assertion[] that the district court improperly . . . determined that his conviction in state court
rendered Defendant’s [use of taser] objectively reasonable [was] without merit”); see also
Riddick, 202 F. App’x at 616 (interpreting Heck v. Humphrey, 512 U.S. 477 (1994)). Heck v.
Humphrey arguably precludes excessive force suits brought by plaintiffs convicted of resisting a
lawful arrest where the force complained of arose out of the same actions giving rise to the
conviction. See Heck v. Humphrey, 512 U.S. 477, 487 n.6 (1994). However, not all federal
appellate courts appear to have taken this view. See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.
1995) (“[W]e . . . assume, without deciding, that a finding of excessive force would not ‘imply
the invalidity’ of [a] conviction for resisting a search.” (quoting Heck, 512 U.S. at 487)).
247. See, e.g., Bolden v. Rushing, C/A No. 6:07-CV-2985-GRA, 2009 WL 1160938, at *2
(D.S.C. Apr. 28, 2009), aff’d, 407 F. App’x 693 (4th Cir. 2011). It is important to note, however,
that some resisting arrest statutes do not require that a suspect engage in any actual affirmative

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courts of the Fourth Circuit have yet to recognize, as other courts have, that
a suspect’s perceived uncooperativeness after being tased “may . . . [be] as
much a reaction to being tased as an intentional effort to resist arrest.”248 In
other words, tasers can, in some cases, render a suspect effectively
incapable of not resisting.249 Civil rights attorneys representing taser
victims have argued that this practice gives officers who excessively tase
arrestees—whether because they fail to recognize this fact or because they
intend to inflict gratuitous pain—a perverse incentive to take advantage of
the prophylactic effect of overcharging them with resisting arrest or other
crimes.250
In a recent Fourth Amendment taser case, the Fourth Circuit appeared
to endorse the reasoning of a district court251 that relied on the plaintiff’s
resisting arrest conviction to dismiss his excessive force claim.252 The
decision stands in contrast to cases from several other federal circuits that
do not take the view that a resisting arrest conviction mandates the
dismissal of an action for excessive force by taser.253 The court’s decision
resistance in order to be found guilty; merely delaying an officer in his duties can be enough for a
conviction. See, e.g., N.C. GEN. STAT. § 14-223 (2011) (“If any person shall willfully and
unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a
duty of his office, he shall be guilty of a Class 2 misdemeanor.”). In the cases of people charged
under such statutes, a conviction should not automatically serve as a bar to suit.
248. Beaver, 507 F. Supp. 2d at 1145.
249. Id. at 1145–46; see also cases cited supra notes 173, 175, 178, 180, and accompanying
text.
250. See, e.g., Holmes Interview, supra note 29; Gronberg, supra note 126 (quoting plaintiff’s
attorney in a civil rights action for abuse by taser discussing the filing of resisting arrest and other
“cover charges . . . intended to help justify the officer’s actions” (internal quotation marks
omitted)). In the Fourth Circuit, the incentive to overcharge may be even greater, as a number of
lower district courts assessing taser abuse allegations have taken the view that the doctrine bars,
not just plaintiffs convicted of resisting arrest, but also those convicted of assault-related offenses.
See, e.g., Eaglin v. Metts, C/A No. 0:08-2547-TLW-PJG, 2010 WL 1051177, at *5 (D.S.C. Feb.
16, 2010) (holding that plaintiff “cannot . . . recover damages in a § 1983 action” brought under
the Fourteenth Amendment for taser abuse due to his conviction for assault arising out of same
encounter), report and recommendation adopted, Civil Action No. 0:08-2547-TLW-PJG, 2010
WL 1051155 (D.S.C. Mar. 22, 2010); Parker v. Broadfoot, No. 7:06-CV-00169, 2006 WL
1288311, at *2 (W.D. Va. May 8, 2006) (finding Fourth Amendment taser “excessive force . . .
claims for monetary damages for conduct that allegedly contributed to [assault] convictions . . .
[not] actionable under § 1983”). This approach is not followed in every circuit. See, e.g., Swangin
v. Cal. State Police, 1999 U.S. App. LEXIS 3147, at *6 (9th Cir. 1999) (“It is entirely possible
. . . that [a plaintiff’s] assault conviction could coexist with a finding that [an officer] used
excessive force.”); Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (discussing
whether, under Heck, “Fourth Amendment claims . . . imply a conviction is invalid, so in all cases
these claims can go forward.”).
251. Bolden v. Rushing, 407 F. App’x 693, 694 (4th Cir. 2011).
252. Bolden, 2009 WL 1160938, at *2.
253. See, e.g., Greenfield v. Tomaine, No. 09 Civ 8102(CS)(PED), 2011 WL 2714221, at *7
(S.D.N.Y. May 10, 2011) (denying summary judgment for second of two taser applications and
noting that “[i]n the Second Circuit, it is ‘well established than [sic] an excessive force claim does

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to issue only a brief, unpublished, per curiam opinion might have evinced
its reluctance to engage too deeply with an opinion that rested on highly
questionable assumptions but that had a conclusion with which the court
otherwise agreed. Strangely, the lower court opinion not only characterized
the use of the taser as a necessity in what the court itself said was a nonviolent situation, but it also held that the arrestee’s subsequent guilty plea
to resisting arrest itself somehow retroactively justified the officer’s
decision to use a taser against him:
[T]he officers told the plaintiff to submit to the arrest . . . . The
plaintiff did not fight back[;] however, he would not allow the
officers to handcuff him. In order to get the plaintiff to submit to the
arrest, the officers had to use a Taser. . . . The use of the Taser
caused the plaintiff to fall and break his ankle. The plea of guilty to
the resisting arrest charge constitutes an admission of the
resistance. Therefore, the officers were entitled to use [the taser] to
subdue the plaintiff.254
Of course, as the Supreme Court has recognized, people may plead guilty
for purely pragmatic reasons, irrespective of their actual culpability. 255 In
the case of resisting arrest charges, a defendant often discovers his defense
amounts to little more than putting his word against that of an officer—one
who, in many cases, is in a position to bring forth evidence relating to
criminal offenses unconnected to the resistance charge and which
nonetheless cast the defendant in an unfavorable light. Although the burden
should theoretically lie with the state, in practice, courts view police
officers as having less incentive to lie than a criminal defendant and they
often enjoy their testimony being accorded more weight.256 Of course, as
Bolden and the other cases demonstrate, officers in some taser cases have

not usually bear the requisite relationship under Heck to mandate its dismissal’ ” (quoting Smith
v. Fields, No. 95 Civ. 8374, 2002 U.S. Dist. LEXIS 3529, at *3 (S.D.N.Y. Mar. 4, 2002)), report
and recommendation adopted, No. 09-CV-8102 (CS)(PED), 2011 WL 2714219 (S.D.N.Y. July
12, 2011); id. at *8 (noting that “[s]everal other Circuits [citing the Eleventh, Third, Ninth, and
Fifth], despite challenges under Heck, have upheld excessive force claims in the context of
searches and arrests”).
254. Bolden, 2009 WL 1160938, at *1–2 (emphasis added).
255. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (observing that even if appellee
“disbelieved his guilt . . . he had absolutely nothing to gain by a trial and much to gain by
pleading”).
256. See, e.g., Jackson v. United States, No. Civ. PJM 07-1326, 2008 WL 5083701, at *3 (D.
Md. Nov. 25, 2008) (“Experts and police officers tend to have less incentive to lie because they
have no personal stake in a case. Moreover, attacking the credibility of law enforcement officers,
who are typically well-respected by lay jurors, carries the risk that it will backfire . . . .”).

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just as much incentive to mischaracterize the arrest as the arrestee
himself.257
V. PAIN COMPLIANCE AND THE EROSION OF THE REASONABLENESS
STANDARD
Given the dearth of federal or state laws regulating tasers,258 the public
has never been afforded a meaningful opportunity to grapple with the
difficult questions presented by their increasing use.259 In the Fourth
Circuit, this remains true as well with juries, which have historically played
an important role in evaluating allegations of excessive force under the
Fourth Amendment, a constitutional provision designed in many respects to
give voice to society’s widely shared expectations260 about personal
autonomy.261 The reluctance of courts to put taser use to a jury may reflect
a fear that a verdict against an individual officer or department could be
perceived as a verdict against the weapon itself, dissuading future
officers262 from using a device that in many cases has saved lives.263 If this
is the case, the reasoning is unpersuasive. When juries are given taser
cases, they are not asked to make a blanket assessment as to the device’s
utility as a whole. Rather, they are tasked with determining whether the
257. See, e.g., Mayes v. Swift, Civil Action No. 6:10-2991-TMC-KFM, 2011 WL 7281938, at
*3 (D.S.C. Dec. 12, 2011) (holding that an excessive force claim was barred by Heck where
plaintiff claimed he was tased until “he could not breathe” after trying to surrender), report and
recommendation adopted, CA No. 6:10-2991-TMC, 2012 WL 463528 (D.S.C. Feb. 13, 2012).
258. See discussion supra note 31 and accompanying text. Since Florida passed its statute, no
other states appear to have taken similar action, and the prospect of that changing seems unlikely.
See Katherine N. Lewis, Fit to Be Tied? Fourth Amendment Analysis of the Hog-Tie Restraint
Procedure, 33 GA. L. REV. 281, 281 (1998) (noting the tendency of “politicians to shy away from
proposing laws that might restrict police in arrest situations”).
259. Most of the national dialogue surrounding tasers has been more in the vein of jokes than
that of serious contemplation. The title of an excellent recent law journal article—Don’t Tase Me
Bro!: A Comprehensive Analysis of the Laws Governing Taser Use By Law Enforcement—
directly alludes to the fact that invoking the device by name has become almost a running punch
line in some quarters. Fabian, supra note 103.
260. See, e.g., Georgia v. Randolph, 547 U.S. 103, 111 (2006) (“The constant element in
assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance
given to widely shared social expectations, which are naturally enough influenced by the law of
property, but not controlled by its rules.”); Bond v. United States, 529 U.S. 334, 338–39 (2000)
(explaining that in a Fourth Amendment analysis, “a court inquires whether the individual's
expectation of privacy is one that society is prepared to recognize as reasonable” (internal
quotation marks omitted)).
261. See Horton v. California, 496 U.S. 128, 133 (1990) (describing a seizure as “depriv[ing]
the individual of dominion over his or her person or property” (citing United States v. Jacobsen,
466 U.S. 109, 113 (1984))).
262. See Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (“For courts to fine-tune the
amount of force used in a situation . . . would undercut the necessary element of judgment
inherent in a constable’s attempts to control a volatile chain of events.”).
263. See USE OF TASERS, supra note 14.

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officer’s decision to use such force was consistent with the actions of a
reasonable officer, in light of the importance of his objective, and the
threat, if any, posed by the person against whom the taser was used—
including the extent to which that person was or was not resisting.264
In routinely denying juries the opportunity to answer this question, the
reflexive position of the federal district courts in the Fourth Circuit may
also reflect how, as an Eighth Circuit judge recently observed, “the
sensation of high voltage electrical shock is outside common experience
and can easily be underestimated.”265 This tendency to underestimate a
taser’s potential effects, reasoned Judge Murphy, makes it all the more
necessary that lower courts “consider the increased potential for possibly
lethal results” in the context of evaluating an officer’s decision to employ
the device.266 The recognition that each pull of the trigger has the potential,
however slight, to kill the person on the receiving end can change the
reasonableness calculus in some cases,267 particularly because many of the
conditions that make people most vulnerable to the effects of a taser are not
easily recognized.268 A suspect’s abnormal heart condition, among other
264. See, e.g., PATTERN JURY INSTRUCTIONS FOR CASES OF EXCESSIVE FORCE IN
VIOLATION OF THE FOURTH, EIGHTH AND FOURTEENTH AMENDMENTS FOR THE DISTRICT
COURTS OF THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT 4 (Jan. 24, 2011),
available
at
http://www.rid.uscourts.gov/menu/judges/jurycharges/OtherPJI/1st%20Circuit%20Pattern%20Ci
vil%20Jury%20Instructions%20Excessive%20Force.pdf.
265. McKenney v. Harrison, 635 F.3d 354, 362 (8th Cir. 2011) (Murphy, J., concurring).
266. Id. at 361.
267. See Fontenot v. TASER Int’l, Inc., No. 3:10CV125-RJC-DCK, 2011 WL 2535016, at *8
(W.D.N.C. June 27, 2011) (“[A]ssuming . . . that the X26 [taser] current did affect [decedent’s]
heart rhythms[,] a reasonable jury could conclude that a different warning would have resulted in
a different outcome.”). At trial, the defendant officer testified that he had no reason to believe that
tasing a seventeen-year-old in the chest could kill him or cause cardiac arrest. Id. at *7.
268. Of course, there is some authority for the proposition that a suspect’s medical
vulnerabilities should not bear on the determination as to whether an officer’s force was
reasonable. See Thomas v. Kincaid, No. Civ.A. 03-041-AM, 2004 WL 3321472, at *5 (E.D.Va.
June 30, 2004) (“[R]easonable force does not become excessive force when the force aggravates
(however severely) a pre-existing condition the extent of which was unknown to the officer at the
time.” (citing Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th Cir. 2002))). Nevertheless, force
from a taser, which carries the possibility of severe injury or death, when used against suspects
whose actions do not necessitate the use of any physical force at all is arguably not force that is
being applied in “good faith.” In addition, unlike the plaintiff’s injuries in Thomas, which were
unique to him as an individual and which a reasonable officer could not have known, officers are
aware, and are advised, of the taser’s potential to produce lethal results, just as they are aware that
a not-insignificant percentage of the population is afflicted with heart and respiratory ailments.
See TASER INT’L, TRAINING BULLETIN, 15.0 MEDICAL RESEARCH UPDATE AND REVISED
WARNINGS
2
(2009),
http://www.ecdlaw.info/outlines/10-15-09%20TASER%20ECD
%20Trng%20Memo%20w%20Trng%20Bulletin%20and%20Warnings.pdf (warning officers of
the “risk of an adverse cardiac event related to a TASER ECD discharge” and noting that
“Sudden Cardiac Arrest . . . is a leading cause of death in the United States”); see also id. at 8
(describing a revision to product warning to include instruction that “users should . . . avoid

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vulnerabilities, can transform an otherwise mildly contentious encounter
into an in-custody fatality in a matter of seconds.269 When courts require
police to at least account for this reality, tasers are less likely to be used in
situations in which they are unnecessary.
Nevertheless, a survey of the case law in the Fourth Circuit suggests
courts are simply not giving the same weight to the extreme pain and
heightened risk of lethality attendant to taser use as their counterparts in
other circuits. Both the court of appeals270 and the district courts have
repeatedly declined to meaningfully address the Fourth Amendment
implications of taser policies that explicitly authorize the infliction of pain
against non-violent arrestees.271 And what little they have said on the matter
gives reason for concern,272 even if Henry and Orem both represent steps—
albeit incremental ones—in the right direction. While strong arguments
have been advanced that “the application of ‘pain compliance’ [techniques]
on a passively resisting arrestee fails to pass the ‘objectively reasonable’
Graham test under the fourth amendment,”273 they have yet to be accounted
for in the circuit’s excessive force jurisprudence,274 which continues to look
more to injury than it does pain.275 This unwillingness to address an issue
intentionally targeting the chest area”). Consequently, in the context of taser deployment, officers
have a much higher level of awareness about the risks involved than the defendants in cases
addressing other forms of pre-existing conditions.
269. This point is apparently conceded even by TASER International, which has observed
that “it may not be possible to say that a[] [TASER] could never affect the heart.” RICK
GUILBAULT, TASER INTERNATIONAL’S PREFERRED TARGET ZONES 1, available at
http://www.taser.com/images/training/training-resources/downloads/taser
%20preferred%20target%20zones.pdf.
270. See, e.g., Henry v. Purnell, 652 F.3d 524, 533–34 (4th Cir.) (en banc), cert. denied, 132
S. Ct. 781 (2011); Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (deciding a taser abuse
question on Fourteenth Amendment grounds).
271. See, e.g., SILVERSTEIN, supra note 24, at 22 (“Cases that rule against plaintiffs have
downplayed the significance or degree of pain.”).
272. See Bolden v. Rushing, C/A No. 6:07-cv-2985-GRA, 2009 WL 1160938, at *2 n.1
(D.S.C. Apr. 28, 2009) (“[That] the plaintiff was not violent in his actions against the officers . . .
does not make the [use of the taser] unreasonable.”), aff’d, 407 F. App’x 693 (4th Cir. 2011).
273. Benjamin I. Whipple, Comment, The Fourth Amendment and the Police Use of “Pain
Compliance” Techniques on Nonviolent Arrestees, 28 SAN DIEGO L. REV. 177, 198 (1991); see
also Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000)
(“[W]here there is no need for force, any force used is constitutionally unreasonable.”), cert.
granted and judgment vacated, 534 U.S. 801 (2001).
274. See Redding v. Boulware, C/A No. 0:09-1357-HFF-PJG, 2011 WL 4501948, at *5
(D.S.C. Aug. 9, 2011) (“[T]his court has been unable to find[] case law clearly establishing in
2007 that [serious] force could not constitutionally be used to effect an arrest of a suspect who
resists arrest throughout her entire encounter with law enforcement, even if the suspect does not
pose an immediate safety threat and is suspected of a minor offense. In fact, subsequent nonbinding case law from within the Fourth Circuit suggests the contrary.”), report and
recommendation adopted, Civil Action No. 0:09-01357-HFF-PJG, 2011 WL 4527362 (D.S.C.
Sept. 29, 2011).
275. See supra Part III.

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that confronts criminal suspects on an increasingly regular basis has led to
a “gradual depreciat[ion]”276 of Fourth Amendment protections circuit-wide
and empowered police in the circuit to feel comfortable using potentially
deadly force in situations that would have been unthinkable just a decade
ago.277
Aside from the increased dangers born by criminal suspects—and, as
the aforementioned cases indicate, even the general public—there is
another consequence to the Fourth Circuit’s feeble treatment of the issue.
As Jeff Fabian has observed regarding the recent proliferation of tasers, the
quality of law enforcement itself suffers when police action “runs contrary
to many people’s expectations about what constitutes reasonable force.”278
When the perception develops that police are routinely evading
accountability, “it can spark fear, anger, and even protests that degrade law
enforcement’s relationship with the community”279 they are charged with
protecting.
A brief review of some of the questions that have evaded the scrutiny
of a jury in the federal district courts of the Fourth Circuit illustrates why
there may be reason for concern that officers might feel empowered to
gratuitously use the device: Does a suspect’s failure to immediately accede
to officers’ demands—even when such compliance is objectively
impossible—authorize an officer to tase someone who is not otherwise
presenting any sort of threat to the safety of the officers or others?280 Is it
objectively reasonable for officers to repeatedly tase a man they know to be
suffering from acute mental illness281 without first calling in the
276. See Henderson v. United States, 12 F.2d 528, 531 (4th Cir. 1926) (warning that “the
rights guaranteed by the Fourth Amendment are not to be . . . encroached upon or gradually
depreciated by [the] imperceptible practice of courts”); see also Henry v. Purnell, 652 F.3d 524,
540 (4th Cir.) (en banc) (Davis, J., concurring) (arguing that courts must guard against “police
technology . . . erod[ing] the [rights] guaranteed by the Fourth Amendment” (quoting McKenney
v. Harrison, 635 F.3d 354, 364 (Murphy, J., concurring) (8th Cir. 2011)), cert. denied, 132 S. Ct.
781 (2011).
277. See, e.g., U.N. Human Rights Rep., supra note 37, at 9; Lopez, supra note 41 (reporting
that a sixteen-year-old student was threatened with a taser for using profanity); Ward, supra note
41 (quoting North Carolina public high school principal as saying a taser can be used against
students if “they did not obey a specific rule”).
278. Fabian, supra note 103, at 793.
279. Id. at 792–93 (citing Jessica DaSilva, Protest Attracts Hundreds, THE INDEPENDENT
FLA.
ALLIGATOR,
Sept.
19,
2007,
available
at
http://www.alligator.org/articles/2007/09/19/news/campus/protest.txt; Martin Espinoza, Rally
Targets Stun-Gun Deaths, PRESS DEMOCRAT, Dec. 27, 2008, available at
http://www.pressdemocrat.com/article/20081227/NEWS/812270379/1350?Title=Rally_
targets_stun_gun_deaths).
280. See Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352, at *1 (E.D.N.C. Oct. 20,
2011) (dismissing the taser claim of man whose hands were raised, where some officers allegedly
told him to put his hands up and others told him to get on the ground).
281. See Meyers v. Balt. Cnty., 814 Fed. Supp. 2d 552, 558–59 (D. Md. 2011).

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department’s mental health clinicians, who are specially trained in nonviolent de-escalation tactics?282 Is society comfortable with male officers
tasing women in the thighs for resisting public searches that threaten to
expose their undergarments?283 Should officers be able to use tasers simply
to compel people to open their mouths?284 Can they use them to the point of
breaking a suspect’s bones even when he is “not violent” and “d[oes] not
fight back”?285 Is ignoring an officer and exhibiting an “aggressive
demeanor” enough to warrant being tased in the head,286 a tactic that even
TASER International advises against?287 These are a few of the real world
questions being raised and dismissed without much consideration under the
circuit’s current Fourth Amendment taser regime. To draw attention to
them is not to say that any given plaintiff should ultimately prevail in her
suit; it is only to illustrate the heavy consequences taser victims must
endure, live—and sometimes even die—with, without ever having an
opportunity to make an argument to a jury that an officer exceeded the
bounds of reasonable conduct.
CONCLUSION
This Comment has sought to highlight a number of factors that operate
to make vindication of one’s right to be free of excessive force by taser
particularly difficult in the federal courts of the Fourth Circuit. Other
authors have written about the overriding difficulty taser plaintiffs
generally face in overcoming qualified immunity and securing an
appearance before a jury;288 this Comment asserts there is reason to think
this phenomenon is more pronounced in the Fourth Circuit than elsewhere.
This is not necessarily the result of any conscious organized effort by the
lower courts to deprive plaintiffs of their day in court. Rather, it would

282. See
Behavioral
Assessment
Team,
BALT.
COUNTY,
MD.,
http://www.baltimorecountymd.gov/Agencies/police/workplace_violence/wvmobilecrisisteam.ht
ml (last updated Mar. 6, 2012) (describing functions of Baltimore County’s In-Home Intervention
Teams, Critical Incident Stress Management Team, and Mobile Crisis Teams).
283. See Thompson v. City of Danville, No. 4:10CV00012, 2011 WL 2174536, at *2 (W.D.
Va. June 3, 2011), aff’d, 457 F. App’x 221 (4th Cir. 2011).
284. See McDaniels v. Cleary, Civil Action No. 6:09-1518-TLW-WMC, 2010 WL 1052462,
at *2 (D.S.C. Feb. 26, 2010), report and recommendation adopted, Civil Action No. 609-1518TLW-WMC, 2010 WL 1052446 (D.S.C. Mar. 19, 2010).
285. Bolden v. Rushing, C/A No. 6:07-cv-2985-GRA, 2009 WL 1160938, at *1, *2 n.1
(D.S.C. Apr. 28, 2009), aff’d, 407 F. App’x 693 (4th Cir. 2011).
286. Griffin v. Catoe, Civ.A. 9:07-1609-JFA-GCK, 2008 WL 4558495, at *2 (D.S.C. Aug.
11, 2008), report and recommendation adopted in part, C/A No. 0:07-1609-JFA, 2008 WL
4458947 (D.S.C. Sept. 26, 2008).
287. See GUILBAULT, supra note 269, at 2 (“TASER International has warned since day one
to avoid aiming for the head.”).
288. See, e.g., McStravick, supra note 5, at 373.

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seem that the speed with which the majority of law enforcement agencies
adopted tasers, and the frequency with which they began to rely on them,
has placed lower courts in a difficult position and forced them to assess the
situational propriety of using a device that, in many respects, is without
legal analogue.289 These courts have approached this task with very little
direction from the Fourth Circuit,290 which has for years bucked the
practices of the other circuits with respect to excessive force cases.291 While
the Fourth Circuit’s treatment of police abuse of tasers in Orem did suggest
that the court recognized the dangers for abuse the devices posed to
criminal suspects,292 the distinctive context of the holding left many
questions unresolved and provided lower courts with little guidance for
assessing their use in Fourth Amendment claims.293 The general approach
of the lower district courts to these cases has arguably disregarded the
developing body of case law in the other circuits and the Fourth Circuit’s
own instruction that a “clear violation of federal law may occur when . . . a
consensus of cases from other circuits[] puts the officer on notice that his
conduct is unconstitutional.”294 For this and the other reasons discussed
herein, the time is right for the Fourth Circuit to clarify the law and provide
lower courts with meaningful guidance as to excessive force taser claims.
When and if it does, one of the most significant things the court can do
to discourage the abusive use of the device against criminal suspects is to
take judicial notice of the taser’s unique capacity to strip a suspect of his
motor faculties. The failure thus far to account for the meaningful
distinction between volitional and non-volitional “resistance” has arguably
been the deciding factor in a number of the court’s qualified immunity
analyses, working to deprive plaintiffs of their day in court. Although
police are typically expected to respond to the objective conduct of those
whom they confront,295 it is not equitable to taser suspects when officers
exacerbate the “resistance” cited to justify a further infliction of force.296
289. See supra Part II.
290. See supra Part I(a)–(b).
291. See supra note 215 and accompanying text.
292. See Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (expressing concern for “use of
the taser gun [that is] . . . not a good faith effort to maintain and restore discipline” (internal
quotation marks omitted)); id. at 448–49 (expressing concern where “the taser gun was not used
for a legitimate purpose”).
293. See cases cited supra note 64.
294. Altman v. City of High Point, 330 F.3d 194, 210 (4th Cir. 2003).
295. See Cunningham v. Hamilton, 84 F. App’x 357, 358 (4th Cir. 2004) (“[T]he proper
inquiry is whether the officers reasonably and objectively believed that their safety was in
danger.”).
296. Cf. Estate of Smith v. Marasco, 318 F.3d 497, 506–08 (3d Cir. 2003) (discussing state
created-danger theory of § 1983 liability); Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)
(adopting the theory).

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Those circuits that recognize this distinction have helped level the playing
field for plaintiffs at the qualified immunity stage without opening the
floodgates to excessive litigation. The Fourth Circuit should join them.
The Fourth Circuit should also reject the practice, common among
some of the federal district courts, of imposing a de minimis injury
threshold to Fourth Amendment actions brought under § 1983. This
requirement operates to deter and dismiss claims brought by genuine
victims of taser abuse who often do not bear the same visible evidence of
brutality on their bodies as other victims of police abuse, but whose
suffering—much of it psychological—is just as real. Although the circuit
has poignantly recognized in its Eighth Amendment decisions that
“[m]ankind has devised some tortures that leave no lasting physical
evidence of injury,”297 it has been slow to account for this reality in the
context of Fourth Amendment claims. Consequently, plaintiffs can face the
burden of demonstrating the existence of more than de minimis injuries
even in cases where the unnecessary nature of the force applied is selfevident.
Prior to the Supreme Court’s decision in Wilkins, a similar threshold
existed in the circuit for inmates seeking to bring Eighth Amendment
claims under § 1983.298 Its recent abandonment299 only serves to strengthen
the rationale for rejecting the doctrine in the Fourth Amendment context.
Although it is not universally applied within the circuit,300 it is likely
pervasive enough to have a deterrent effect. The doctrine has been
haphazardly applied to all manner of abuse claims, but its effect is
amplified with respect to victims of police taser abuse due to the device’s
ability to be used repeatedly without leaving much in the way of evidence.
Indeed, it was partly for this reason that the United Nations concluded in
2009 that unnecessary use of the device by law enforcement constituted a
form of torture in violation of the U.N. Convention Against Torture.301

297. Williams v. Benjamin, 77 F.3d 756, 762 (4th Cir. 1996).
298. See Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc) (“[A]bsent the most
extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force
claim if his injury is de minimis.”).
299. See, e.g., Hill v. O’Brien, 387 F. App’x 396, 398 (4th Cir. 2010) (recognizing Wilkins as
overruling Norman).
300. E.g., Clark v. Balt. Cnty., Civil Action No. BPG-08-2528, 2009 WL 2913453, at *2 n.4
(D. Md. Sept. 1, 2009); Bibum v. Prince George’s Cnty., 85 F. Supp. 2d 557, 562–63 (D. Md.
2000).
301. See Matthew B. Stanbrook, Tasers in Medicine: An Irreverent Call for Proposals, 178
CAN.
MED.
ASS’N
J.
1401,
1401
(2008),
available
at
http://www.cmaj.ca/content/178/11/1401.full.pdf; U.N.: Tasers Are a Form of Torture, CBS
NEWS
(Feb.
11,
2009,
3:49
PM),
http://www.cbsnews.com/stories/2007/11/25/national/main3537803.shtml.

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Two of the Fourth Circuit opinions most often cited by the lower
courts invoking the de minimis doctrine in excessive force cases302 suggest
it is entirely possible there was never any intent to create a rule so at odds
with the other circuits.303 Both opinions, after all, involved allegations of
improperly tight handcuffing.304 Given the ubiquitous role of handcuffs in
nearly every arrest,305 it seems quite possible that the court simply intended
to spare officers the trouble of defending allegations relating to this specific
injury, which in both cases formed the basis of the Fourth Amendment
claim. In the interest of restoring a sense of balance to the circuit’s
excessive force jurisprudence, the court of appeals should clarify this issue
and join the majority of other circuits in recognizing that it is the “need for
force”306 that rests at the heart of such claims—not the extent to which a
plaintiff can or cannot demonstrate a persisting physical injury.307 Until this
occurs, genuine victims of abuse bringing Fourth Amendment excessive
force claims will continue to experience difficulty challenging the sort of
“torment without marks” that so abhorred the Orem court.308 Many of the
taser’s residual effects are psychological, but that should not render them
any less constitutionally cognizable.309
Another way the Fourth Circuit might encourage greater
professionalism and caution with regard to tasers would be to join the ranks
of circuits holding that gratuitous use against an arrestee violates the Fourth
Amendment.310 In Meyers, the federal district court in Maryland appeared
to endorse the view that a “determin[ation] . . . that officers overstepped the
302. Brown v. Gilmore, 278 F.3d 362 (4th Cir. 2002); Carter v. Morris, 164 F.3d 215 (4th
Cir. 1999).
303. See Georgiady, supra note 76, at 137–38 (identifying the Fourth Circuit as adhering to
the minority view of the de minimus doctrine).
304. See Brown, 278 F.3d at 369; Carter, 164 F.3d at 217.
305. Orsak v. Metro. Airports Comm’n Airport Police Dep’t, 675 F. Supp. 2d 944, 957 (D.
Minn. 2009) (“The use of handcuffs, unlike the use of a taser, is a standard practice in nearly
every arrest.”).
306. See Georgiady, supra note 76, at 137 n.100, 138 n.103 (citing Hayes v. N.Y.C. Police
Dep’t, 212 F. App’x 60, 62 (2d Cir. 2007); Blankenhorn v. City of Orange, 485 F.3d 463, 479–80
(9th Cir. 2007); Calvi v. Knox Cnty., 470 F.3d 422, 428 (1st Cir. 2006); Holland ex rel. Overdorff
v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001); Ingram v. City of Columbus, 185 F.3d 579,
597 (6th Cir. 1999); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997); Lanigan v. Vill. of E.
Hazel Crest, 110 F.3d 467, 474 (7th Cir. 1997); Scott v. District of Columbia, 101 F.3d 748, 759–
60 (D.C. Cir. 1996)).
307. In the case of handcuffing, the need to apply them in almost every case is of course quite
high, since an officer will not wish to transport an unsecured arrestee in his vehicle.
308. Orem v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008) (quoting Hickey v. Reeder, 12 F.3d
754, 757 (8th Cir. 1993)).
309. Cf. Willingham v. Crooke, 412 F.3d 553, 562 (4th Cir. 2005) (recognizing non-physical,
emotional harm resulting from firearm being pointed at claimant); Williams v. Benjamin, 77 F.3d
756, 762 (4th Cir. 1996) (noting that pain can be inflicted without physical injury).
310. See cases cited supra note 167.

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amount of force strictly necessary to subdue a suspect . . . is rarely more
than indulge[nce] in unrealistic second-guessing.”311 With the obvious
exception of police officers, this sort of judicial defeatism serves no one—
least of all true victims of abuse who have the most to lose from courts that
take this approach. To the extent police feel they can use unnecessary force
to take suspects into custody without the prospect of answering for their
actions, the courts have abdicated their responsibility. Experience in other
circuits has shown that courts applying the Supreme Court’s Graham
factors have found it entirely possible to distinguish between lawful and
excessive applications of the taser, even in cases presenting rapid and
successive applications.312 The taser in fact lends itself to this type of
analysis, by recording the time, number, and duration of each pull of the
trigger on its internal computer.313 The alternative, and the approach that
currently appears to dominate in the Fourth Circuit, is to ask that the public
“accept the proposition that the police should be permitted to use . . . a
Taser to shield themselves from any possibility of harm and the suspect
must suffer the consequences.”314 The Fourth Circuit should join its sister
circuits in recognizing that “[t]o accept this proposition would effectively
eviscerate the protections of the Fourth Amendment and . . . ignore the
teachings of Graham.”315 The court should make clear that any unnecessary
use of a taser while placing a person under arrest—irrespective of the
physical injury incurred by a suspect—violates the Fourth Amendment.316
311. Meyers v. Balt. Cnty., 814 F. Supp. 2d 552, 561–62 (D. Md. 2011) (alteration in
original) (internal quotation marks omitted) (citing U.S. v. Sharpe, 470 U.S. 675, 686 (1985)).
312. See, e.g., Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1149 (W.D. Wash. 2007).
313. A discrepancy between an officer’s account and the taser’s computer can say a lot about
the reasonableness of an officer’s use of force. See, e.g., Cyrus v. Town of Mukwonago, 624 F.3d
856, 862 (7th Cir. 2010) (holding that where officer “testified that he deployed the Taser five or
six times,” but the “Taser’s internal computer . . . registered 12 trigger pulls[,] . . . . the Taser’s
internal computer record create[d] enough of a factual discrepancy on the degree of force used to
preclude summary judgment”). Not all officers will be aware that each pull of the trigger is
recorded on the device’s internal computer. Where an officer’s account is not congruent with the
taser’s internal record, it may suggest the officer harbored doubts as to the appropriateness of
using the taser as frequently as he did.
314. Beaver, 507 F. Supp. 2d at 1146 (emphasis added).
315. Id.
316. The lack of injury in cases where force was unnecessary might factor into any damages
ultimately awarded. See Wilkins v. Gaddy, 130 S. Ct. 1175, 1180 (2010) (per curiam). But it
should not be dispositive of the defendant’s culpability. Thus far, in the few cases where federal
courts in the circuit have meaningfully employed the Graham analysis to deny a defendant’s
motion for summary judgment, the injuries alleged have been severe or the facts somewhat
anomalous, muddying attempts to discern at what point unnecessary taser use truly becomes
actionable. See, e.g., Cook v. Riley, No. 1:11CV24, 2012 WL 2239743, at *12 (M.D.N.C. June
15, 2012) (“[A] reasonable factfinder could conclude that deploying a TASER against someone in
a tree stand who either posed no threat to anyone . . . or, at most, posed only a limited threat to
himself . . . constitutes excessive force.”). In a very welcome development, the United States
District Court for the Eastern District of North Carolina recently held that “using a taser against a

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Judge Davis appeared ready to adopt this position in his thoughtful
concurring opinion in Henry, noting that the “dissent’s unbridled
confidence that use of a Taser would have been permissible . . . [was]
unwarranted.”317 Ultimately, however, he adopted a position more
resembling that taken by the court in Meyers,318 suggesting there remained
good reasons for rejecting a “determination of the reasonableness vel non
of Taser use by law enforcement officers in the abstract.”319
Although Judge Davis’s opinion in Henry is helpful for raising
consciousness as to the unique dangers of tasers, because the court of
appeals has yet to consider an excessive taser claim under the Fourth
Amendment, many lower courts will continue to award officers with
qualified immunity in every case in which a suspect exhibits any degree of
resistance, even that which may be involuntary. Thus the cautious approach
Judge Davis advocates is not entirely consonant with the result his opinion
suggests lower courts should reach: that the Fourth Amendment places
objective limits on the manner in which a taser can be used against nonviolent, non-threatening arrestees.
The Henry decision is also interesting for the insight it provides into
how other members of the Fourth Circuit might approach a Fourth
Amendment claim alleging excessive use of a taser against a non-violent
but resisting arrestee. Judge Shedd, in a dissenting opinion joined by
Judges Niemeyer and Agee, appears to suggest several times that the
plaintiff’s decision to flee, rather than submit to an arrest stemming from a
failure to pay child support, would have rendered use of a taser
appropriate.320 The opinion is also interesting for its view that the majority
has “change[d] the law in th[e] circuit,” and signaled its willingness “to

citizen who is actively attempting to comply with [an] officer’s directives is a violation of the
citizen’s Fourth Amendment right.” Boswell v. Bullock, No. 5:11-CV-94-F, 2012 WL 2920036,
at *10 (E.D.N.C. July 17, 2012). However, given the fact that tasers often naturally frustrate
suspects’ attempts to comply, this holding may yet have limited practical effect. Notably, in
Boswell, the defendant officer’s on-the-record version of the disputed events was directly
contradicted by a video recording that was made available to the court. Id. at *9.
317. Henry v. Purnell, 652 F.3d 524, 539 (4th Cir. 2011) (en banc), cert. denied, 132 S. Ct.
781 (2011).
318. 814 F. Supp. 2d 552, 561–62 (D. Md. 2011).
319. Henry, 652 F.3d at 540–41 (Davis, J., concurring).
320. See, e.g., id. at 548 n.8 (Shedd, J., dissenting) (“[H]ad Deputy Purnell decided against
using the Taser, his options were either to (1) stop chasing Henry and allow him to get away or
(2) chase Henry and risk having to engage him in a physical encounter (assuming he could even
catch him). . . . [T]he Fourth Amendment did not require Deputy Purnell to pursue either of these
courses of action.”); id. at 551 (“If, as the majority believes, this was not a dangerous situation,
could the deputy have used the Taser at all? Should the deputy have been required to forego use
of the Taser and, instead, to chase Henry . . . ?”).

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second-guess the[] actions [of police] literally on a second-by-second
basis.”321
If this were indeed the case, it would be good news for future taser
plaintiffs—even if, as a practice, it might not be especially workable.
Fortunately for Judge Shedd, however, this prediction has yet to come true,
at least insofar as it concerns the courts’ treatment of the broad discretion
officers currently enjoy in employing tasers—seemingly one of the objects
of his concern.322 The overriding problem for the officer in Henry was that
he shot the plaintiff with a gun, not that he might have tased him had things
gone as planned.323 Whether Officer Purnell’s actions would have been
lawful if things had transpired as he intended is a question the court
explicitly left for another day.324 As a consequence, the lower district courts
of the circuit will continue to struggle, without much in the way of
guidance, to craft an approach that is fair to officers and plaintiffs alike.
IAN A. MANCE**

321. Id. at 553 (Shedd, J., dissenting).
322. Id. at 547 (noting that, if all improper “seizure[s] were to subject police officers to
personal liability under § 1983, . . . officers would come to realize that the safe and cautious
course was always to take no action” (quoting Gooden v. Howard Cnty., 954 F.2d 960, 967 (4th
Cir. 1992) (en banc))).
323. Id. at 532 (majority opinion).
324. Id. at 534; id. at 537, 539 (Davis, J. concurring); id. at 548 n.8 (Shedd, J., dissenting).
** This Comment is dedicated to Deborah Blackmon and Deborah Stout, whose advocacy
on behalf of their family members spurred the formation of the North Carolina Taser Safety
Project. Ms. Blackmon’s uncle, Richard McKinnon, burned to death after being tased in the
presence of flammable materials in Cumberland County in 2006. Ms. Stout’s son, Shannon, died
after being surrounded by eight officers and repeatedly tased in Randolph County in 2006.