Facts
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Jim Cambre served in the military and, at one point, was a military policeman. His experience in the military, particularly in Iraq, left a significant impact on him, and upon returning home, he began struggling with depression and PTSD. These issues became more evident as time went on, and on January 21, 2018, Cambre posted a concerning message on Facebook: “F**k, I’m struggling over here!!” This message caught the attention of several of Cambre’s friends, who attempted to contact him in an effort to check on his well-being. Cambre did not respond to their phone calls. Given his past struggles and the tone of the post, his friends became more concerned and decided to contact the Pearl River Police Department (PRPD). In response, the department dispatched Officer Jessica Picasso to Cambre’s residence.
At approximately 11:00 p.m., Officer Picasso, along with paramedics Pam Little and Joshua Landry from the Pearl River Fire Department (PRFD), arrived at Cambre’s home. Little, who had worked alongside Cambre in the past, knocked on the door, and Cambre appeared at the entrance. Little had been involved with Cambre approximately 3 weeks before when Cambre had appeared at the police station after drinking heavily and expressing suicidal thoughts (During the New Year’s Eve incident, Cambre said to Little, I can just act like I have a gun and the police will shoot me and it will all be over. On that night, Little had managed to talk Cambre down and convince him to go to the hospital, where he was admitted for treatment and remained for eleven days).
On the night of January 21, Cambre had recently been discharged from the hospital. Despite the support from his friends and the professionals at his door, Cambre was resistant to returning to the hospital for further evaluation. He was adamant that he did not want to go. As Cambre refused to cooperate, Little reached out to Deputy Fire Chief Matt Parish for assistance. Parish, who was also familiar with Cambre from his work at the fire department, agreed to help.
Upon his arrival, Parish called the PRPD for backup. He informed the dispatcher that Cambre had military training and had previously mentioned “suicide by cop.” Due to staffing limitations, the dispatcher informed Parish that additional backup would need to be contacted from the St. Tammany Parish Sheriff’s Office (STPSO).
Under Louisiana law, individuals could be taken into protective custody and transported to a treatment facility for an involuntary medical evaluation if they posed a danger to themselves or others. Medical Control gave the order to transport Cambre to the hospital for evaluation. However, Cambre refused to comply, even after hearing that he had been ordered to go. Little continued her efforts to persuade Cambre to go to the hospital, but he remained firm in his refusal.
The message sent to STPSO included an alert that Cambre had previously stated he intended to provoke a “suicide by cop” scenario. In response to this message, five STPSO officers, including Deputies Gottardi and Wilson, arrived at the scene, armed with rifles. As they approached Cambre, they asked if he had any weapons on him. Little confirmed that Cambre was unarmed, explaining that she knew he was not carrying weapons because she had hugged him earlier. Cambre, seemingly in an effort to assure the officers, lifted his shirt and turned around in a 360-degree circle. The officers then secured their rifles in Picasso’s patrol vehicle. Some officers later testified that, despite Cambre’s gestures, they still thought he might be carrying a weapon in his pockets.
At this time, one of the deputies asked Picasso what was going on, and she explained that it was simply a welfare check. Picasso informed the officers that Cambre was being asked to go to the hospital but was refusing, and that he had military training. After securing their rifles, the deputies continued their discussion about the need for further actions. Around this time, Deputy Fire Chief Parish moved Cambre aside and worked with Little to get a stretcher from the medic unit.
As the situation unfolded, various officers on the scene observed Cambre’s behavior and made their assessments. Deputy Chad Melendez spoke to internal investigators after the incident and explained how Cambre had kept putting his right hand into his pocket, which made the officers uneasy. Melendez described Cambre as being “very uneasy,” and stated that it seemed like Cambre was trying to provoke a confrontation, possibly to get the officers to use force against him. Melendez’s account was supported by other officers at the scene, who testified that Cambre had assumed a fighting stance, raising his fists, and was resisting verbal commands.
At this point, Deputy Gottardi made the decision to deploy a taser in an attempt to subdue Cambre. According to the officers on the scene, multiple commands were issued, demanding that Cambre get on the ground. However, Cambre failed to comply. The taser was deployed, and Cambre was brought to the ground. He was handcuffed, and the officers attempted to gain control over him.
Officer Wilson testified that after Cambre was on the ground, and at least two officers were attempting to
restrain him, Cambre was still physically resisting them, and Wilson saw Cambre’s upper body tensing and moving. Wilson said he could not see Cambre’s right arm, and it appeared that he was intentionally keeping his
arm tucked up under his body, so that we could not get control of it. Wilson was concerned that there might be a weapon underneath Cambre or that he had access to a weapon on his person, and Wilson therefore drew his baton.
Wilson was concerned for the safety of the other officers and himself, testifying that he did not want to be placed in a dangerous situation where my life is at stake. The most reasonable course of action to me at that point was to utilize another pain compliance tool. Wilson then began administering a series of reverse strikes to Mr. Cambre’s left thigh region while also giving him at least one loud verbal command to give up his hand. Wilson testified that he did not hit Cambre anywhere other than on his left thigh.
A report filed by Deputy Fire Chief Parish confirmed that Cambre had been instructed to get on the ground multiple times, but had refused to comply, leading to the deployment of the taser. Other officers on the scene, including Fire Department personnel, also provided testimony about the events that followed the taser deployment. Firefighter Landry recalled hearing the officers command Cambre to get on the ground, and when he failed to comply, they tased him. Cambre was then physically restrained, and the officers attempted to handcuff him.
Witness statements and testimony from both law enforcement and fire department personnel were consistent in describing the escalation of the situation. However, Cambre himself provided a different perspective. He testified that he did not see any officers with batons and did not recall being struck by one. Cambre did, however, report feeling pain from what he believed were baton strikes based on bruises he observed on his body after the incident. He described feeling the effects of the taser and hearing officers shouting at him to stop resisting.
After the incident, Cambre was taken to the hospital for examination. Medical records from the hospital noted a taser puncture wound on Cambre’s right flank, as well as an abrasion to his left cheek. His blood alcohol content was recorded at 227 mg/dL, more than two times the legal limit for operating a vehicle. Cambre was discharged from the hospital the following morning. He sued the officers for excessive force. The district court denied summary judgement to the officers. The 5th reversed.
Analysis
A. Taser
We do not resolve whether either Gottardi or Wilson violated Cambre’s constitutional rights, though it is highly
questionable that either did so.We conclude that, viewing the facts in the light most favorable to Cambre, the law was not clearly established on the night in question that the Fourth Amendment prohibited the Defendants’ conduct in the particular situation they confronted.
Without much discussion, the district court concluded that clearly established law demonstrates that an officer violates the Fourth Amendment if he abruptly resorts to overwhelming physical force rather than continuing
verbal negotiations with an individual who poses no immediate threat or flight risk, who engages in, at most, passive resistance. In reaching this conclusion, the district court failed to identify any cases where an officer
acting under similar circumstances was held to have violated the Fourth Amendment. Instead, the district court relied on a patchwork of generalized statements of law from factually dissimilar cases to conclude that
the constitutional question in this case is beyond debate.
The majority of the cases the district court cited in its order denying summary judgment—and that Cambre now cites on appeal—involved minor traffic violations. Nor can this case be compared to any of the non-traffic-violation cases cited by the district court, such as Darden (clearly established that gratuitously harming a restrained suspect constitutes excessive force).
Here, the officers entered a situation where the suspect had previously threatened to commit suicide by cop. The suspect was “trained military” with “unknown means.” The officers were told that the suspect needed
to go to the hospital, and that he did not want to go. The suspect was also highly intoxicated. Darden involved none of those factors. The witness testimony in this case also paints a much different picture than the witness
testimony in Darden. Unlike Darden, the witness testimony in this case does not establish that the officers gratuitously harmed a suspect who had surrendered himself and was complying with all the officers’ commands.
Four different witnesses testified that the officers did not employ force until after issuing the command for Cambre to get on the ground. Unlike in Darden, Cambre was refusing to comply with officer commands when the officers chose to deploy a taser.
Admittedly, failure to comply with officer commands does not always warrant the use of force, and we have distinguished between “active” and “passive” resistance. When someone has not committed a crime, attempted flight, or disobeyed any commands,” the use of a taser is almost certainly excessive.
Here, however, Cambre ignored officer commands, and (according to some witnesses) either balled his fists or continued to slide his hands into his pockets. In a different context, Cambre’s actions seem passive, and the
district court cited caselaw to that effect. But Cambre has not identified a case that accounts for the unique circumstances present here: the officers were called and told that the man now failing to comply with their
instructions had expressed a desire to commit suicide by cop. Cases involving traffic stops are unavailing in this context, as clearly established law must be particularized to the facts of the case. A traffic stop, unlike
an attempt to restrain or transport a suicidal individual, does not carry with it the same inherent danger or risk to human life. For these reasons, we cannot say that clearly established law shows the officers violated the Fourth Amendment by resorting to physical, non-lethal force when a suicidal individual failed to comply with repeated officer commands.
B. Baton
It is true that the same incident can include both lawful and unlawful uses of force. Accordingly, we examine whether the baton strikes to Cambre post-taser deployment violated clearly established law. We conclude
that they did not.
It is clear in this circuit that the use of certain force after an arrestee has been restrained and handcuffed is excessive and unreasonable. In other qualified immunity cases, we have held that it is clearly established—
and possibly even obvious—that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene. However, we have held that an officer’s continued use of force after a taser is deployed is not clearly unreasonable.
It may instinctively seem unfair to hit Cambre with a baton for failing to permit officers access to his right arm if he had been completely immobilized by the taser. However, it may not be clear to an apprehending officer whether a person has been completely immobilized by tasing and if so, for how long. Officers attempting to subdue Cambre saw movement in his upper body and were unable to place a handcuff on his right arm while it
remained underneath him. There is no clearly established law as to whether or how an officer may be able to ascertain why a tased individual has failed to allow access to his arm for handcuffing—whether he is unable to move his arm due to the tasing or is instead resisting. Accordingly, we cannot say that the law is clearly established with respect to the officers’ actions.
Importantly, our caselaw notes that the use of certain force after an arrestee has been restrained and handcuffed is excessive and unreasonable; however, Cambre had not been fully restrained when he was struck by the baton. While a reasonable officer wouldn’t need a specific case to know that he cannot shoot a compliant suspect and that he cannot fire again at someone who is objectively downed or incapacitated, caselaw
concerning force post-tasing is less clear. Cambre has not identified a case that speaks to the continued use of force after a taser is deployed but before the individual is handcuffed; there is no clearly established law showing that Cambre, in this context, would be considered downed or incapacitated when officers were unable to place him in handcuffs. Additionally, none of the witnesses on the scene the night of the incident testified to seeing Cambre being struck in the head with a baton. Indeed, one witness affirmatively testified that Cambre was not struck on the head. Moreover, both Picasso and Cambre himself testified to having heard officers command Cambre to “stop resisting” during the struggle on the ground.
C. Final Thought
Our conclusions here are strictly limited to the facts and related caselaw before us. We are not holding that the use of physical force after the deployment of a taser is presumptively reasonable. Nor are we saying that an
individual must be handcuffed before an officer’s use of force becomes unreasonable. All we are saying is that existing precedent did not place the conclusion that Gottardi and Wilson acted unreasonably in these
circumstances beyond debate. Not only did the officers encounter a noncompliant individual with suicidal ideation and military training, but they warned him repeatedly before deploying the taser, and employed baton
strikes only when they could not access his other arm for purposes of handcuffing him. We conclude that, under the particular circumstances of this case, existing precedent did not place the lawfulness of the Defendants’ actions beyond debate. For these reasons, the Defendants are entitled to qualified immunity. The district court erred in holding otherwise.
https://www.ca5.uscourts.gov/opinions/unpub/19/19-30715.0.pdf