Repeated TASER Device Applications Didn’t Rise to Excessive Force

by | October 29, 2018

Zubrod v. Hoch, 2018 (8th Cir. 2018)

Neighbors alerted an officer to screams coming from Rhonda Schukei’s home. The officer heard screaming upon arrival at the front door, so he entered and traced the sounds to an upstairs bedroom. The bedroom door was locked, so the officer kicked it open. He saw Larry Zubrod standing above Schukei, striking her bloody face with a hammer, screaming, “Die bitch, you’re gonna die!”

The officer called for emergency assistance, aimed his gun at Zubrod and ordered him to drop the hammer. Zubrod complied, but as soon as the officer holstered his gun and drew a TASER device, Zubrod mentioned something about finding a gun and reached under the bed. Though Zubrod didn’t come up with a gun, he did have a pair of scissors, which he then used to stab Schukei in the neck. The officer fired the TASER device, but one barb lodged in Zubrod’s belt, so the device did not cause neuromuscular incapacitation. Zubrod then grabbed a pair of needle-nose pliers and charged at the officer.

After a significant struggle moving from room to room, the officer was able to get one handcuff on Zubrod’s left wrist. The officer wrestled with Zubrod, one handcuff swinging freely, for approximately eight minutes, until a backup officer arrived. Zubrod broke free and the second officer fired his TASER device, but it, too, was ineffective. The fight continued as a third officer arrived and saw Zubrod “kicking out and flailing one arm with a handcuff attached to it.” Zubrod grabbed a curtain rod and swung it at the officers. The third officer struck Zubrod with his TASER device, activating it 10 times for a total of 53 seconds over a period of 3 minutes and 15 seconds, but neuromuscular incapacitation never resulted.

When the officers ultimately gained control and got the other handcuff on Zubrod, they saw he was not breathing. Medics were already on scene attending to Schukei; they pronounced Zubrod dead a short time later. His parents sued, alleging the officers used excessive force. The trial court granted summary judgment to the officers and Zubrod’s parents appealed.

As is nearly always the case, the plaintiffs’ claims substantially diverged from the facts reported by the officers. Zubrod’s parents claimed he was “restrained with handcuffs and otherwise posed no reasonable risk of harm or safety to any officer or other individuals” during the TASER device deployments. They asserted he was calling out for a doctor during the struggle and the officers should have recognized he was in medical distress. They also claimed Zubrod was “physically and mentally drained, confused and under control” at the time of the TASER device activations.The appellate court began its analysis with the restatement of two legal principles generally applicable to suits against law enforcement officers. First, the officers were entitled to qualified immunity, meaning the federal civil rights lawsuit against them would end if their conduct fit a two-part test. To weigh an order of summary judgment, the court considers whether the evidence, viewed in the light most favorable to the plaintiff, establishes a violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged violation (Pearson v. Callahan, 555 U.S. 223 (2009)).

The second principle discussed by the court is the long-established bright-line test for assessing the objective reasonableness of an officer’s use of force. The court considers “the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”The court then weighs “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting” (Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015)).

One of the plaintiff’s arguments merits a prize for creative fiction. Zubrod outweighed the first officer—who fought alone to contain Zubrod for eight long minutes—by over 40 pounds. Yet the fact that the officer didn’t get pummeled into the ground was somehow proof that he was equally matched to the bloody, screaming, drug-crazed man with a hammer and thus, should not have used a TASER device. The plaintiffs said this was “proof that his size did not disadvantage him.” Thus, in the plaintiffs’ view of rock/paper/scissors or hammer/pliers/scissors, using a TASER device was unfair. Moreover, the fact that a backup officer decided to draw a TASER device “left him with only one fighting hand.”

The plaintiffs focused their excessive force claims on the number, duration and time between the TASER device activations. The first, second, third, fifth and sixth activations were separated by three seconds or less. Over one minute separated the fourth and fifth activations, and 10 seconds passed between the penultimate and final activations. The plaintiffs also argued the officers should have recognized the only reasonable explanation for Zubrod beating a woman’s face with a hammer, plunging scissors deep into her neck, attacking the officers with pliers, and resisting efforts to control him was a combination of mental illness and chemical intoxication. Citing training materials acknowledging the potential ineffectiveness of an electronic control device in such circumstances, they claimed the use of the TASER device was excessive force. The court rejected these arguments.

Under most circumstances, the TASER device log will show the time between and duration of the activations. When possible, use the practice of “cuffing under power,” provide warnings where appropriate and carefully report the subject’s assaultive, resistive and noncompliant actions that prompt repeated TASER device activations.

Two critical police practice reminders are evident in this court decision. First, officers must be aware of the caution from the electronic control device manufacturer that repeated applications may increase the risk of serious injury or death. Second, best practice policy and training advises allowing sufficient time for a subject to comply with officer commands. Compliance, such as placing hands in a position for handcuffing, may be difficult or impossible during neuromuscular incapacitation. Even so, the court recognized this was a case where officers acted reasonably.

The court held there was no “bright line during this intense struggle, while a woman lay severely wounded in another room, where any reasonable officer should have concluded that the nature of Zubrod’s resistance had changed in such a material respect that the use of a TASER device to obtain compliance was suddenly constitutionally prohibited.” The court concluded there was no constitutional violation, thus, summary judgment in favor of the officers was appropriate.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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