DC Circuit Holds No Clearly Established Right Not To Be Tasered

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.

Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.

Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights.  The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.

Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'"  In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case."  This "context," the court further acknowledged, depended on whether Lash was "resisting arrest." 

This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."   

Here is one of the videos of the incident:

 

The court further rejected Lash's arguments regarding the video as conclusive:

Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,”  protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.

[citations omitted]

Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.

Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser. 

 As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."