Thus, as the district court for the District of Nebraska stated, "if the act of drawing and pointing a gun loaded with bullets does not violate the Fourth Amendment, then the act of drawing and pointing a gun charged with electricity can hardly give rise to a claim of excessive force." Policky v. City of Seward, Nebraska, 433 F. Supp. 2d 1013, 1025 (D. Neb. 2006). Likewise, courts in other jurisdictions have found that threatened use of a taser does not support a claim of excessive force.
"[A] person's Fourth Amendment rights are not eviscerated simply because a police officer may be acting in a noninvestigatory capacity for ‘it is surely anomalous to say that the individual ... is fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.’ " United States v. King , 990 F.2d 1552, 1560 (10th Cir. 1993) (quoting Camara v. Municipal Court of City and Cnty. of San Francisco , 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ); see also Policky v. City of Seward, Neb. , 433 F. Supp. 2d 1013 (D. Neb. 2006). Rather, courts should consider medical necessity, and the role that a law enforcement officer plays in addressing that medical necessity, as part of their assessment of the Graham factors.
In Policky v. City of Seward, Neb., the district court concluded that an officer's act of drawing and pointing a taser gun did not constitute use of excessive force. 433 F.Supp.2d 1013, 1025 (D. Neb. 2006). Similarly, in Price v. Busbee, 2006 WL 435670, at *3 (M.D. Ga. Feb. 21, 2006), the district court concluded that it was not an excessive use of force to threaten the use of a taser since the threat was “used in a good faith attempt to restore discipline.”
Westcott v. City of Omaha, 901 F.2d 1486, 1490 (8th Cir. 1990) (in action against city for death of decedent, who was shot by police officer, district court correctly dismissed action when facts alleged—although cast as a negligence claim—amounted to battery under Nebraska law, and NPSTCA allows municipalities to "plead the defense of sovereign immunity to avoid any state -law claims arising out of an assault or battery"); see also Policky v. City of Seward, Neb., 433 F. Supp. 2d 1013, 1027 (D. Neb. 2006) (city was immune from suit under NPSTCA when complaint alleged city was negligent in failing to properly train officer as to "the proper procedures when using a taser gun, restraining Plaintiff with unreasonable force, and . . . how to determine what facts and circumstances merit the use of force" because city's alleged negligent failure to train was directly related to officer's employment as police officer and to his alleged intentional torts of unlawfully arresting and assaulting plaintiff); Johnson v. State, 700 N.W.2d 620 (Neb. 2005) (intentional torts exception in State Tort Claims Act—which was identical to the PSTCA exception in Neb. Rev. Stat. § 13-910(7)—encompassed negligence claim asserted against state for failure to supervise, hire, and discipline because such claim arose out of assault and battery by state correctional employee, and plaintiff simply reframed the claim); Hawkins v. Gage Cty., No. 4:13CV3009, 2013 WL 12073803, at *19 (D. Neb. Sept. 3, 2013), aff'd, 759 F.
when facts alleged—although cast as a negligence claim—amounted to battery under Nebraska law, and NPSTCA allows municipalities to "plead the defense of sovereign immunity to avoid any state-law claims arising out of an assault or battery"); see also Policky v. City of Seward, Neb., 433 F.Supp.2d 1013, 1027 (D. Neb. 2006) (city was immune from suit under NPSTCA when complaint alleged city was negligent in failing to properly train officer as to "the proper procedures when using a taser gun, restraining Plaintiff with unreasonable force, and ... how to determine what facts and circumstances merit the use of force" because city's alleged negligent failure to train was directly related to officer's employment as police officer and to his alleged intentional torts of unlawfully arresting and assaulting plaintiff); Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005) (intentional torts exception in State Tort Claims Act—which was identical to the NPSTCA exception in Neb. Rev. Stat. § 13-910(7)—encompassed negligence claim asserted against state for failure to supervise, hire, and discipline because such claim arose out of assault and battery by state correctional employee, and plaintiff simply reframed the claim); Hawkins v. Gage Cty., No. 4:13CV3009, 2013 WL 12073803, at *19 (D. Neb. Sept. 3, 2013), aff'd
In Policky v. City of Seward, Neb. , the district court concluded that an officer's act of drawing and pointing a taser gun did not constitute use of excessive force. 433 F. Supp. 2d 1013, 1025 (D. Neb. 2006). Similarly, in Price v. Busbee , 2006 WL 435670, at *3 (M.D. Ga. Feb. 21, 2006), the district court concluded that it was not an excessive use of force to threaten the use of a taser since the threat was "used in a good faith attempt to restore discipline."
Although Plaintiff's claims are "grounded in negligence, ... the alleged negligence was inextricably linked to a battery, and ... this suit is thus barred by the Nebraska Political Subdivisions Tort Claims Act." Westcott v. City of Omaha , 901 F.2d 1486, 1490 (8th Cir. 1990) (in action against city for death of decedent, who was shot by police officer, district court correctly dismissed action when facts alleged—although cast as a negligence claim—amounted to battery under Nebraska law, and NPSTCA allows municipalities to "plead the defense of sovereign immunity to avoid any state-law claims arising out of an assault or battery"); see alsoPolicky v. City of Seward, Neb. , 433 F.Supp.2d 1013, 1027 (D. Neb. 2006) (city was immune from suit under NPSTCA when complaint alleged city was negligent in failing to properly train officer as to "the proper procedures when using a taser gun, restraining Plaintiff with unreasonable force, and ... how to determine what facts and circumstances merit the use of force" because city's alleged negligent failure to train was directly related to officer's employment as police officer and to his alleged intentional torts of unlawfully arresting and assaulting plaintiff); Johnson v. State , 270 Neb. 316, 700 N.W.2d 620 (2005) (intentional torts exception in State Tort Claims Act—which was identical to the NPSTCA exception in Neb. Rev. Stat. § 13-910(7) —encompassed negligence claim asserted against state for failure to supervise, hire, and discipline because such claim arose out of assault and battery by state correctional employee, and plaintiff simply reframed the claim); Hawkins v. Gage Cty. , No. 4:13CV3009, 2013 WL 12073803, at *19 (D. Neb. Sept. 3, 2013), af
I shall not consider Plaintiff's sweeping and uncorroborated "beliefs" in his declaration. de Llano v. Berglund, 282 F.3d 1031, 1035 (8th Cir. 2002) (plaintiff's belief that defendants behaved vindictively, without evidence to support such assertion, "ha[s] no effect and do[es] not create a genuine issue of material fact that would preclude summary judgment" (internal quotation and citation omitted)); Policky v. City of Seward, Neb., 433 F. Supp. 2d 1013, 1016 n.2 (D. Neb. 2006) ("[M]ere statement[s] of belief do[] not create a genuine issue of material fact.") Defendants' Motions for Summary Judgment assert that they are entitled to qualified immunity on Plaintiff's excessive-force claim.
A reasonable officer in Trooper Schaefer's position could have believed drawing a taser—and not deploying it—was warranted given the unpredictable nature of the interaction. See Policky v. City of Seward, Neb., 433 F. Supp. 2d 1013, 1022 (D. Neb. 2006) (finding that an officer's "precautionary" drawing of a taser on a suspect whom he believed to be combative and who may have been holding something in his hand was objectively reasonable and amenable to summary judgment); Clark v. Rusk Police Dep't, No. 6:07CV340, 2008 WL 4179322, at *3 (E.D. Tex. Sept. 8, 2008) (finding that dismissal of an excessive force claim was appropriate where an officer draws, but does not discharge, a taser on a suspect who refused to exit his vehicle despite multiple commands to do so). Therefore, the court finds that Trooper Schaefer's drawing of his taser was objectively reasonable.
Nothing in the law prior to April 9, 2012 clearly established that an individual's Fourth Amendment rights were violated by an officer's display of a taser without discharge of the taser during the officer's effort to obtain compliance with the detention of the person. SeeNoe v. West Virginia, 2010 WL 3025561, *7 (N.D. W.Va. July 29, 2010) (noting that "merely pointing a taser cannot support a claim of excessive force" and citing Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988)) Policky v. City of Seward, Neb., 433 F.Supp.2d 1013, 1025 (D. Neb. 2006) (noting that "[i]f the act of drawing and pointing a gun loaded with bullets does not violate the Fourth Amendment, then the act of drawing and pointing a gun charged with electricity can hardly give rise to a claim of excessive force"). Plaintiff further urges that Defendants' use of force was not reasonable because he did not resist detention by his behavior during handcuffing.