©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.


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.



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

[ii] Id. at 22-23

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


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.