TASER Deployment After “Surrender” Garners Qualified Immunity for Deputy

Salazar v. Molina, 2022 WL 2165984 (5th Cir. 2022)

At 0200 hours, Deputy Molina saw Juan Carlos Salazar speeding and tried to pull him over. Salazar hit the gas, leading Deputy Molina on a high-speed chase for approximately five minutes. At one point, Salazar traveled in excess of 70 miles per hour on a narrow residential street. Salazar stopped when two vehicles pulled in front of his car. Salazar quickly got out, looked around in an apparent effort to orient himself, dropped to his knees next to the car and raised his hands. He then lay on the ground with arms above his head and legs crossed. Five seconds after stopping his car, Salazar was lying prone on the ground.

Deputy Molina got out of his patrol car and ran toward Salazar, who uncrossed his legs. Just eight seconds after Salazar stopped, Deputy Molina fired a TASER device at Salazar’s back. The body cam video shows Salazar jerking, as if in response to the TASER, for approximately six seconds. Salazar claimed Deputy Molina depressed the trigger a second time, delivering a second five-second cycle. Deputy Molina asserted he only activated a single cycle.

Deputy Molina quickly handcuffed Salazar, then helped him stand up. This was less than a minute after Salazar stopped and exited his car. Salazar sued, alleging Deputy Molina’s force was excessive because he had allegedly surrendered after stopping the car. The trial court denied qualified immunity, finding there were material factual disputes as to whether a reasonable deputy would have viewed Salazar as an immediate threat, whether Salazar’s apparent surrender was a ploy to evade arrest, and whether the deputy activated the TASER device once or twice.

The appellate court reversed, holding that Deputy Molina was entitled to qualified immunity and that Salazar could not meet his burden of showing both that Deputy Molina violated his constitutional rights, and that the right at issue was “clearly established” at the time of the alleged violation. The court turned to the seminal case on the reasonableness of force by an officer, Graham v. Connor (490 U.S. 386 (1989)).

In the Graham case, the Supreme Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force: First, what was the severity of the crime the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape?

In Graham, the Supreme Court cautioned that analysis of force “requires careful attention to the facts and circumstances of each particular case” and that the use of force should be measured by what the officer knew at the scene, “rather than with the 20/20 vision of hindsight.” Finally, use of force analysis should allow for 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 held the totality of the force deployed “was comparatively modest and not grossly disproportionate to the threat Molina could have reasonably perceived.”

Both the trial and appellate courts easily concluded that Salazar’s crime was “serious” for purposes of the first Graham factor. Salazar committed a felony by fleeing from the deputy in a residential area at high speed, putting the lives of the officers, the general public and himself at risk. Salazar does not dispute the severity of his offense.

Salazar claimed the second factor—whether he posed an immediate threat to the safety of the officers or others—weighed in his favor. He claimed he was not suspected of a violent offense: He was in a non-threatening position of surrender and Deputy Molina could see Salazar had no weapon in his hands after he got out of the car. The appellate court rejected his argument.

First, the court observed that what preceded Salazar’s surrender matters: “When a suspect has put officers and bystanders in harm’s way to try to evade capture, it is reasonable for officers to question whether the now-cornered suspect’s purported surrender is a ploy. That’s especially true when a suspect is unrestrained, in close proximity to the officers, and potentially in possession of a weapon.”

Second, the court’s prior decisions weigh against Salazar’s claims. The court cited prior rulings that “a suspect cannot refuse to surrender and instead lead police on a dangerous hot pursuit—and then turn around, appear to surrender, and receive the same Fourth Amendment protection from intermediate force.” An officer’s reasonable perception of a threat of harm does not always require a suspect to be actively resisting, fleeing or attacking an officer at the precise moment force is used. “Instead,” the court held, “the relevant inquiry is whether the officer used a justifiable level of force in light of the continuing threat of harm that a reasonable officer could perceive.”

Turning to the third Graham factor—whether Salazar was actively resisting arrest or attempting to evade arrest by flight—the court considered Salazar’s actions in the minutes before he assumed a claimed surrender position. Though the facts impacting the second Graham factor often bleed into the third, an officer is entitled to consider past behavior as an indicator of present intent and behavior. The court observed that Salazar “had just spent five minutes attempting to evade arrest by flight in a highly dangerous manner. And after stopping his car, Salazar quickly exited it without a command and looked toward an open area—rather than staying in his vehicle and awaiting a command.” These facts supported Deputy Molina’s belief that Salazar was a threat to his or others’ safety.

The court held the totality of the force deployed, five to possibly 10 seconds of TASER device application, “was comparatively modest and not grossly disproportionate to the threat Molina could have reasonably perceived.”

Notwithstanding, even if the force had been excessive in this particular case, Deputy Molina was entitled to qualified immunity. In recent rulings, the Supreme Court has repeatedly and harshly corrected lower courts’ misapplication of the standard for qualified immunity. The plaintiff must identify “clearly established law” that would instruct an officer that a particular use of force was improper. The Court explained less than a year ago: “We have repeatedly told courts not to define clearly established law at too high a level of generality. It is not enough that a rule be suggested by then-existing precedent; the rule’s contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted” (City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) (per curiam)). In other words, the law must be so clear “that every reasonable official would have understood that what he is doing violates that right” (Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (per curiam)).

In the Salazar case, the court concluded: “Because this is an excessive-force case that required a split-second judgment, Salazar can only win if the law was so clearly established that—in the blink of an eye, in the middle of a high-speed chase—every reasonable officer would know it immediately.” Salazar could not even come close to meeting this standard. Thus, the appellate court ruled, the trial court should have granted qualified immunity to Deputy Molina.

Ken Wallentine

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 four 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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