What should law enforcement officers do if faced with a  “non-criminal” mentally ill man being seized for his own protection, [who is] seated on the ground… hugging a post to ensure his immobility… surrounded by three police officers and two Hospital security guards, [who has] failed to submit to a lawful seizure for only 30 seconds”?

What should they do if faced with a 260-pound, strong, unrestrained, mentally ill man who refuses to comply with their attempts to arrest him and is trying to kick them who moments earlier had been walking erratically near a busy road and “is a danger to himself having been off his medication for several days and [is] engaging in self-destructive behaviors…” and a possible danger to others and the officers do not know if he is armed and have tried to use lesser force in the form of verbal commands and soft hands techniques without success?

And what would you expect them to do if these two scenarios described the same individual? 

These are the types of perplexing questions that law enforcement officers are called upon to answer every day and that the Fourth Circuit recently grappled with in  Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892 (4th Cir. 2016).

In Armstrong, the police were called to assist with a subject suffering from bipolar disorder and paranoid schizophrenia who had gone off his medication.  His sister had convinced him to go to the hospital after watching him engage in erratic and self-injurious behaviors. While they were in the process of obtaining involuntary commitment papers, Armstrong ran away.   The police were called.  When Armstrong learned about the commitment papers, he wrapped himself around a sign and refused to leave.

In trying to carry out the commitment, officers utilized their Taser/electronic control devices (“ECD”) five times in drive stun mode,[1] but this did not stop Armstrong from resisting.  Ultimately, the officers and two hospital security guards physically removed him from the post, laid him face down on the ground and cuffed both his arms and his legs.  Soon after, the officers saw that Armstrong was unresponsive. He was pronounced dead shortly after arrival at the nearby hospital.

The family sued the Village of Pinehurst and TASER International in the Middle District of North Carolina alleging violations of the decedent’s Fourth and Fourteenth Amendment rights by using excessive force.  The United States District Court for the Middle District of North Carolina granted summary judgment for the officers based on qualified immunity.

On appeal, the United States Court of Appeals for the Fourth Circuit upheld the granting of summary judgment, finding that the ECD usage was excessive force but the officers were nonetheless entitled to immunity because it was not clearly established at the time of this incident that Mr. Armstrong had the right “not to be tased while offering stationary and non-violent resistance to a lawful seizure.”

Ironically, however, it isn’t the Court’s ruling per se that has garnered national attention, but rather the Court’s use of the opinion to put officers “on notice” of the limited situations in which they may lawfully use ECDs in the future.

In particular, the Fourth Circuit characterized the use of ECDs- in either probe mode or drive stun mode- as “[p]ainful, injurious [and] serious”  and advised that the level of resistance required to justify use of an ECD must rise to the level of a “risk of immediate danger.”

The obvious question thus becomes what is a “risk of immediate danger”?  Rather than providing examples of what would satisfy this standard, the Court offered guidance as to what would not be sufficient:

  • The fact that a subject is unrestrained.
  • The fact that a subject is actively resisting.
  • The fact that a subject is non-compliant.
  • The fact that a subject is unrestrained, actively resisting AND non-compliant.

We can also extrapolate some guidance from the Court’s application of the Graham v. Connor factors in analyzing the reasonableness of the force at issue:


  • The subject is believed to have committed a serious/violent crime.
  • The subject is advancing towards the officers (or someone else).
  • The subject is/could be armed.
  • The subject is violently resisting.
  • The subject is a danger to others.
  • The danger the subject poses could be mitigated by ECD usage.
  • Lesser uses of force have been unsuccessful.


  • The subject is mentally ill.
  • The subject is stationary or being restrained.
  • The subject is non-violent.
  • More officers are on the scene than subjects.
  • The subject is only a danger to himself.
  • The proposed use would be contrary to manufacturer’s instructions.
  • The officers have only been working to restrain the subject for a brief period of time.

Justice Wilkinson wrote a concurring opinion for the case joining in the decision of the majority but not their analysis.  “The majority… left it all up in the air” according to Wilkinson.

What is clear is that while ECDs have been marketed as an alternative to deadly force since their inception, the Fourth Circuit has significantly narrowed the gap between when an officer can lawfully use an ECD versus when an officer can use deadly force and more or less abolished any legal difference between the use of  ECDs in drive stun mode versus probe mode.

And the fight isn’t over yet.  The defendants have recently petitioned the United State Supreme Court to review the case and TASER International, the National Fraternal Order of Police and the Southern States Benevolent Association have submitted amicus briefs joining in the request.  Stay tuned….

To read the opinion, click here:  http://www.ca4.uscourts.gov/opinions/published/151191.p.pdf

[1] When used in dart mode, the ECD overrides the central nervous system resulting in incapacitation.  When used in drive stun mode, the ECD is being used as a pain-compliance technique and does not affect the nervous system.

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