Tased horsemans excessive force claims clear bar – Virginia Lawyers Weekly

A man on horseback sufficiently alleged excessive force claims against a Lynchburg police officer who tased him when he fled the attempted service of a permitted warrant, the Western District of Virginia found.

The officer moved to dismiss for failure to state a claim. But U.S. District Judge Norman K. Moon said the mans allegations were plausible and rejected the officers qualified immunity defense for now.

Taking all the allegations as true Plaintiff sufficiently alleges a violation of a clearly established constitutional right, the judge held. However, Defendant [] may raise qualified immunity again at a later stage in the proceedings.

The opinion is Rucker v. Miller (VLW 023-3-455).

In March 2021, the Lynchburg Police Department, or LPD, notified all units that a permitted warrant for an alleged protective order violation was outstanding for Steve Rucker Jr. A warrant is permitted if an officer is required to serve an individual and release them with a summons.

The notice to officers said Rucker was entering the city on horseback. Upon finding Rucker, an LPD officer activated his unmarked cruisers lights and siren. Rucker refused the officers request to stop. A chase ensued through downtown Lynchburg.

The chase lasted about seven minutes and Rucker turned down about a dozen streets. A pursuing officer told Rucker that they just had paperwork for him. Another officer tried to tase Rucker. He missed and caused the horse to speed up to about 25 mph.

A few minutes later, LPD officer Zachary Miller tased Rucker. The horse again sped up and Rucker fell off after two blocks. While Rucker lay in the street, LPD officer Michael Johnson Jr. jumped out of a nearby cruiser but it began drifting toward a retaining wall.

Johnson hopped back into his cruiser, turned it hard right and stepped on the accelerator. The cruiser rolled over Rucker, causing him multiple injuries that required hospitalization.

Rucker sued Miller and Johnson in the Western District of Virginia for excessive force under 42 U.S.C. 1983, as well as state law claims for gross negligence, willful and wanton misconduct and battery.

Arguing that Rucker failed to state a claim and that qualified immunity shielded him from liability, Miller moved to dismiss.

All claims that law enforcement officials have used excessive force deadly or not in the course of an arrest, investigatory stop, or other seizure of a free citizen are properly analyzed under the Fourth Amendments objective reasonableness standard, Moon explained.

The court must consider the severity of the crime at issue, whether the suspect poses a threat to the safety of the officers or others and whether the suspect is resisting arrest or attempting to flee arrest.

A court must also consider that officers must make split second judgements in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation, the judge added.

Moon said the first factor weighed heavily in Ruckers favor because he wasnt wanted for any crime when the pursuit began.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

U.S. District Judge Norman K. Moon

The circumstances of the alleged protective order violation werent detailed; nothing established that Rucker committed or was suspected of committing any violent or other serious crime.

The second factor also favored Rucker. Moon noted that the allegations didnt indicate Rucker was armed, violent or a threat to officers or the public, nor was there a suggestion that Rucker was riding in a violent or reckless manner.

The officer claimed that riding a horse at night through traffic posed a danger. Moon wasnt swayed but acknowledged that further facts may support a different conclusion.

The third factor also tipped in Ruckers favor, Moon said.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons, the judge noted. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

Moon then pointed out that, according to the 4th U.S. Circuit Court of Appeals, using a taser is a serious use of force that should only be deployed in dangerous situations.

The Fourth Circuit further held that [t]asers may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser, the judge wrote.

Based on its analysis, Moon found that Rucker didnt pose a safety risk to the officer or the public to warrant use of a taser.

Rucker claimed he sufficiently alleged a violation of a clearly established constitutional right. As such, Miller wasnt entitled to qualified immunity. Rucker also contended that the court should wait to decide on qualified immunity until the record was more developed.

Moon acknowledged that excessive force by police is a clearly established violation of the Fourth Amendment and that use of a taser except in exceptional circumstances is excessive force.

Thus, as Plaintiff has sufficiently alleged an excessive force violation and Defendant is not entitled to qualified immunity at this stage in litigation, Defendant Millers motion to dismiss will be denied as to the excessive force claim, Moon wrote, adding that the officer may raise qualified immunity at a later stage in the proceedings.

Richmond litigator Mark Dix, who represents Rucker, said his client was hospitalized for almost a month and incurred more than $288,000 in medical bills from his injuries.

We are very confident that qualified immunity would not provide any kind of obstacle to us getting to the jury, he told Virginia Lawyers Weekly. The Fourth Circuit has been clear as day since 2016 in Armstrong v. Village of Pinehurst that you do not use a taser to enforce compliance.

He pointed out that his brief cites scholarship about qualified immunity being based on factual fiction.

It turns out that this doctrine of qualified immunity was based upon somebody altering the United States Code in the late 1800s or early 1900s, but the Fourth Circuit found it was bound to apply stare decisis, Dix explained. At some point, courts are going to have to grapple with the sordid history of how 1983 was altered.

He noted that there are cases about the validity of qualified immunity making their way to the U.S. Supreme Court.

Dix said he hasnt received an offer of settlement from the city. The case now proceeds to discovery.

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Tased horsemans excessive force claims clear bar - Virginia Lawyers Weekly