TENTH CIRCUIT DENIES QUALIFIED IMMUNITY IN TASER CASE Hennix v. Pickett

©2013 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On May 16, 2013, the Tenth Circuit Court of Appeals decided Hennix v. Prickett et al. [i] which serves as a reminder about when the use of a TASER is considered reasonable under the Fourth Amendment. At the outset, it must be noted that some facts of this case are in dispute and the court was required to view the facts in a light most favorable to the plaintiff in this case, as the defendant officers were making a motion to dismiss the suit based on qualified immunity.

The incident began when an officer stopped Hennix for speeding. Upon observing signs of driving under the influence, the officer had Ms. Hennix exit her car and perform the horizontal gaze nystagmus test, which indicated that she may be impaired. The officer then asked her to perform additional tests, and she advised that should was physically unable to do so because of a back injury. At this point, the officer arrested Ms. Hennix for DUI and had her sit in the back of the police car. Hennix, who claimed to be claustrophobic, then began yelling and banging her head on the window. She claimed she did so because she was claustrophobic and was trying to get the officers’ attention. At this point, the officers decided that they needed to secure Hennix with a hobble and Officer Prickett opened the back door. It is at this point where the officers’ and Hennix’s recollection of the facts differ. Hennix asserts that the officers told her to put her legs out of the car and she told them she was physically incapable of doing so. She asserts that the officers never attempted to pull or lift her legs out of the car but rather Tased her in drive-stun mode for failing to comply with their verbal commands. The officers allege that Hennix never told them that she was physically incapable of putting her legs out of the car and that they did, in fact, attempt to pull her legs out but she had wedged her feet under the front seat to frustrate their efforts. At this point, one of the officers Tased Hennix’s leg in drive-stun mode.

The district court denied the officer’s motion for qualified immunity based upon the fact that under the plaintiff’s version of events, a jury could conclude that the officers used excessive force. The officers appealed to the Tenth Circuit Court of Appeals.

Upon a review of the all the facts and evidence in the case, the Tenth Circuit found that there was evidence to support the Hennix’s version of events. The court stated:

[T]he record reveals sufficient evidence for a jury to conclude Roosevelt-Hennix informed the officers she was physically unable to comply with their request to move her feet outside the patrol vehicle. It likewise contains sufficient evidence for a jury to conclude the officers never attempted to aid Roosevelt-Hennix in moving her feet before applying the taser. [ii]

Consequently, the court held, if a jury believed her version of events, then they could conclude that it was excessive force to use a Taser in drive-stun mode for merely refusing to put her legs out of the car (passive resistance) when ordered to do so where the officers made no attempt to physically remove her legs from the car after having knowledge of a medical condition that made it impossible for her to comply.

What we can learn from this case

1. Officers should consider a person’s ability to comply with commands prior to utilizing a Taser. This ability to comply may be the result of a medical condition, injury sustained while engaged with officers, or as the result of numerous Taser cycles.

2. In circumstances of mere passive resistance where there is no threat to the officers, a Taser is not an appropriate force option.

3. As always, in use of force case, officers should consider the three factors from

Graham v. Connor. The three factors are: (1) the seriousness of the crime at issue, (2) whether the suspect poses a threat to the officer or others, and (3) whether the suspect is actively resisting or attempting to evade arrest by flight.

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Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i] No. 12-1307, 2013 U.S. App. LEXIS 9809 (10th Cir. Decided May 16, 2013)

[ii] Id. at 22-23

Thought for the day.

The investigator should have a robust faith – and yet not believe. ~Claude Bernard~

Attorney’s, Paralegals, and Investigators Oh My!

The decision to focus my attention on Criminal Defense Investigations has been one of the best decisions I have made as an investigator. My education, background, and experience have prepared me for this specific specialty area of investigations.

Private Investigators come in all kinds of different flavors. Any firm or investigator that tells you they are a “One stop shop” or “Full service investigations company,” should make you very wary. I realized fairly early in my career that surveillance was not my thing. Sitting in a vehicle for hours watching someone’s residence is just not my forte. I’m not good with cameras and camera equipment, I can operate it, I can get done what needs to be done, but it’s not what I am good at. As difficult for me as it is to admit, I am not an expert at everything! As it is, with any multi discipline profession, we simply can’t know, and be good, at it all.

I am best at uncovering the truth. I am best at knowing what the rule, regulation, instruction, and or legal requirements are that are most applicable to a situation and ensuring that everyone has followed those requirements in the performance of their jobs. My strength is in the planning, organizing, and collection of, accurate, reliable, legal, information and providing that information to my client in a timely manner.

A few months ago a couple of my local attorney clients, asked me to put on a little 20 minute lunch presentation on the relationship between the defense attorney, the defense investigator and the defense paralegal.

Being fortunate enough to be married to a seasoned defense paralegal, and having two others on my staff, I think I can offer a unique perspective from an investigators standpoint, that will help the three co-exist and meld into a prepared, focused, team of professionals armed with the most accurate information that can be obtained to assist the client.

Most of the Attorney’s whom I have come into contact with, and a large number of paralegals right off the bat, ask exactly what it is that we do, believe that or not! I spend the majority of my first consults with attorney clients explaining what I do, and listening to them say

“I didn’t know you could do that!”

With that said I have decided to discuss the subject in a part-series blog entry on our blog page located here

https://monroeassociates.wordpress.com/

I plan on making it a 5 part series that will cover areas that will give attorneys, paralegals, and investigators a blue print for successful litigation.

Thought for today

“A lawyer’s performance in the courtroom is responsible for about 25 percent of the outcome; the remaining 75 percent depends on the facts.” Melvin Belli (7/29/1907 – 7/9/1996)

Criminal Defense Investigations- W.A. Monroe & Associates Investigations

One of the most important elements of successful criminal defense work is having an experienced legal investigator on your defense team as soon as possible. Not all criminal cases require the services of a professional defense investigator. However, in the cases that do, the defense investigator is a vital member of the defense team. Once your client is suspected/investigated (Pre-File Stage), arrested or charged with a crime, an experienced Criminal Defense Investigator should be developing intelligence and securing potential witnesses and or evidence before too much time has passed.

Even before the discovery documents are received from the prosecution, your defense counsel is trusted with re-investigating the law enforcement investigation to ensure it was done legally, thoroughly and fairly. That task by itself can often be meticulously time consuming and overwhelming. This should not be performed without the assistance of a Criminal Defense Investigator.

In order to effectively defend the accused, the Defense Investigator must have the training and experience empowering him or her to distinguish where any law enforcement oversights, deviations or omissions have occurred to ensure that all established procedures were followed during the law enforcement investigation. The Defense Investigator must talk to all witnesses; analyze all the evidence (including physical, video/audio/photographic, etc.) that is compiled by the prosecution. The Defense Investigator must have the knowledge and expertise to effectively perform these interviews. This can only occur if the Defense Investigator is familiar with the explicit details of the case, is calculated when utilizing their interviewing techniques & methodologies and is Astute in recognizing body language/Kinetics during the interview process.  W.A.Monroe & Associates Investigations brings you state of the art investigative techniques that will increase the amount of cases you win.

Call today for a consult!

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W.A. Monroe & Assocaites Security Consulting and Investigations- Criminal Defense Investigations

Every competent legal defense is grounded in hard evidence, whether witness testimony, forensics, or expert testimony. For a defendant and the defense counsel, obtaining this evidence is crucial in mounting any reasonable defense in a court of law.

W.A. Monroe & Associates Investigations of California, is one of the nation’s fastest rising criminal defense investigative firms. Our firm specializes in investigating, and assisting counsel in preparing criminal cases through the preliminary-hearing process and/or through jury trails.

We pride ourselves on our continued success in proving the innocence of our clients, and by providing irrefutable evidence to overturn and or significantly reduce convictions in appellate courts. We are experts in providing proof of innocence or uncovering reasonable doubt for defense attorneys and pro-Se clients. This often culminates in full acquittals or reduced sentences for our clients.

We provide critical and essential investigation practices into all aspects of the defense case to include location of witnesses, gathering statements of witnesses, evaluations, evidence collection, review of police records and personnel files, independent analysis, background investigations, crime scene investigations, trial exhibit preparation, document analysis, and regional canvassing.

Additionally, we also assist attorneys by reviewing police reports, photographing crime or accident scenes, interviewing hostile witnesses, obtaining signed and recorded (court ready, transcribed,) statements, prepare documents for demonstrative, and recommend experts to testify in court.

Our firm will help develop that reasonable doubt that may lesson or win your clients freedom. Our trained team of experienced investigators and paralegals will assist you in preparing and developing your defense. With our combined experience, in performing complex criminal defense investigations, we put that to work when we look at your case. We will bring our firms full leverage of talents to bear on your case, so that we asses, and examine it from all aspects, and provide you with court ready, concise, accurate, thorough, documents to assist in your defense.

As criminal defense investigators, we excel in defending the accused against an adversary that has almost unlimited sources of tax money to pursue the prosecution, whether your client is guilty, innocent, or somewhere in between.

Our Firm prides itself in our investigative personnel. Our private investigators exhibit the highest standards of professional and ethical conduct. In addition to working the guilt phase of a trial we specialize in penalty phase mitigation investigation. We are responsible for the gathering of information and evidence which advance legal theories in order to benefit the client’s case. Our investigators possess a deep knowledge of statutory and case law, local rules of court, civil procedures, forensic sciences, techniques of evidence collection, its preservation, and admissibility. All of our employees undergo an extensive and thorough background investigation that covers not only the basic database searches, but actual in person and telephone contact with previous employers, references, and neighbors to see what type of person our candidate is. This is above and beyond not only what the state requires for its qualification, but it is above and beyond what any of our peers do in selecting their employees. We have paralegals on staff that ensure you always receive court ready documents.

Our clients are diverse and include major regional, state, national and mufti-national corporations, government agencies, financial and insurance institutions. While our company offers several services, we are in business to provide only one product

“PEACE OF MIND!”