United States Court of Appeals For the Seventh Circuit
Civil Rights — excessive force
It is excessive force to use a taser on a misdemeanant who had already been subdued with a first taser.
“[S]everal post-2007 decisions lend further support to our conclusion that, on the facts viewed in Cindy’s favor, Deputy Sweeney violated clearly established law in applying the second taser jolt. In 2009, we found that it had been clearly established in 2006 that a taser could not be used against a prone, weakened, and docile prisoner who had been told to rise one time, had not been warned that failure to comply would result in use of a taser, and had been zapped before having a chance to comply with the order to rise. Lewis, 581 F.3d at 479. If it was clearly unlawful in 2006 to use a taser on a moving prisoner who had been ordered to rise, then it surely was clearly unlawful a year later to use a taser on a noncompliant, nonmoving misdemeanor arrestee who had already been immobilized by an initial taser jolt. Cf. Bell v. Wolfish, 441 U.S. 520, 544-48 (1979) (discussing limitations on convicted prisoners’ and pretrial detainees’ constitutional rights). And more recently, we held that it was clearly established in 2005 that officers could not repeatedly use an impact weapon to beat into submission a person who was not resisting or was merely passively resisting officers’ orders. Phillips, 678 F.3d at 528-29. Additionally, since 2007, many of our sister circuits have found the use of a taser against nonviolent, nonresisting misdemeanants to violate clearly established law, the absence of taser case law notwithstanding. See Austin, 690 F.3d at 498-99; Shekleton, 677 F.3d at 367; Fils, 647 F.3d at 1292; Oliver, 586 F.3d at 907-08; Brown, 574 F.3d at 499; Casey, 509 F.3d at 1286.”
Affirmed in part, and Reversed in part.
Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Tinder, J.