Tasing an unarmed subject who is surrounded by police for misdemeanor and passively resisting is excessive force


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In 2020, Kevin Cobbins was driving to his home in Hammond, Louisiana, following a work shift in New Orleans. Cobbins was approaching an exit on Interstate 55 when a Tangipahoa Parish Sheriff’s Office (“TPSO”) unit activated its lights and siren behind him. Cobbins continued to the exit, stopped at the end of the off-ramp, and turned his car off. The TPSO unit stopped behind him. Two other TPSO units, as well as Christopher Sollie, a Louisiana State Police (“LSP”) Trooper, soon arrived at the scene of the stop.

Cobbins alleges he complied with instructions from officers to throw his car keys out of his window and raise his hands. Sollie’s dash camera footage confirms that Cobbins held his hands up. Sollie’s body camera footage shows the deputies commanded Cobbins to exit his vehicle with his hands up, but Cobbins did not exit his vehicle in response to the commands. Six TPSO officers then approached Cobbins’s vehicle with their weapons drawn. The TPSO officers opened the driver’s and passenger’s side front doors. They started pulling and pushing Cobbins out of the vehicle.

Sollie, located behind four TPSO officers outside of Cobbins’s driver’s side door, then stated, “watch out. Taser. Taser.” Sollie did not tase Cobbins immediately after making those statements. Instead, the TPSO officers dragged Cobbins out of the car and threw him face-down onto the pavement. The TPSO officers swarmed around and on top of Cobbins. One officer straddled Cobbins’s legs, with his weight on Cobbins’s back and rear, while other officers leaned into Cobbins’s body and pushed him to the ground.

The TPSO officers instructed Cobbins several times to put his hands behind his back so he could be handcuffed. Cobbins concedes he did not comply. Instead, Cobbins repeatedly asked what he had done wrong. Cobbins alleges that one of the TPSO officers punched him hard in the lower torso, but neither Sollie’s body camera footage nor his dash camera footage confirms this. Sollie then stated, “Taser. Taser. Watch out. Taser.” Sollie then delivered a single, brief taser stun to Cobbins’s back, resulting in Cobbins finally placing his hands behind his back.

Cobbins alleges no other use of force by Sollie. The parties agree that the only use of force by Sollie, the only LSP Defendant present at the scene, was when Sollie tasered Cobbins.

Hours after Cobbins’s arrest, Sollie filed a Use of Force Report stating the following:
– the “reason for violator contact” was “traffic stop” and the severity of the crime/violation was “misdemeanor;” – Cobbins was not “an immediate threat to the safety of any officer(s)/others;”
– Cobbins did not “actively resist arrest/seizure by force;”
– Cobbins did not “attempt to evade arrest/seizure by flight;” and
– Cobbins was not armed.

Cobbins was ultimately charged with “Improper Lane Usage” under Title 32, Section 79 of the Louisiana Revised Statutes, which is a misdemeanor. Cobbins filed an action under 42 U.S.C. § 1983 for excessive force against Sollie. The district court denied summary judgement. The 5th affirms.


We consider the following factors to assess whether a particular use of force is excessive in violation of the Fourth Amendment: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” See SCOTUS Graham v. Connor, 490 U.S. 386 (1989). Officers may consider a suspect’s refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect’s compliance. However, officers must assess not only the need for force, but also the relationship between the need and the amount of force used. See Deville.

Sollie does not challenge the district court’s finding that genuine fact disputes exist as to the first factor for qualified immunity — did Sollie’s conduct violate Cobbins’s constitutional rights? We therefore focus our analysis only on the second factor — was the alleged right that Cobbins argues was violated clearly established?

The district court determined that it is clearly established that use of a taser against an arrestee who (1) was stopped for a minor traffic violation; (2) was not an immediate threat or flight risk; and (3) displayed only passive resistance, including asking what he had done wrong, is excessive force. We examine the two precedents in which this clarity was found.

In Hanks, an officer stopped a driver for a traffic violation and requested that he produce a driver’s license and proof of insurance. After the driver was unable to locate the insurance card, the officer instructed him to exit the vehicle. After an argument in which the officer repeated his instruction six times, the driver eventually complied and walked to the rear of his vehicle, placed his hands on the trunk, and then put his hands behind his head. The officer then commanded the driver to go to his knees, and in response the driver asked, for what? The officer did not respond and instead repeated his command twice. The driver asked whether he was under arrest, to which the officer responded by repeating his command again. The driver then made a small lateral step with his hands still behind his back. The officer then used a half spear blow against the driver’s upper back/neck, knocking him onto the car and then to the ground.

We held that federal law clearly established that where an individual stopped for a minor traffic offense offers, at most, passive resistance and presents no threat or flight risk, abrupt application of physical force rather than continued verbal negotiating (which may include threats of force) is clearly unreasonable and excessive. Hanks makes clear that mere failure or refusal to obey an officer’s command is passive, not active, resistance.

It is immaterial that the officer in Hanks did not use a taser: the lawfulness of force does not depend on the precise instrument used to apply it. See Timpa. Indeed, a fact-finder quite likely would find that use of a taser is an escalation in force from what occurred in Hanks. A jury could find that Cobbins’s response to the officers’ orders was, at most, passive: a failure to immediately exit the vehicle and a failure to immediately put his hands behind his back while pinned by numerous officers to the ground. As Sollie recognized in his Use of Force Report, Cobbins did not “resist arrest/seizure by force” and did not “attempt to evade arrest/seizure by flight.” And as the district court found from the camera footage, “Plaintiff’s hands are not completely visible while he is pinned to the ground, so it is unclear if he actively resisted or whether he was effectively prevented from complying because he was pinned on the ground.”

In Darden, law enforcement officers conducted a no-knock entry into a house. An officer threw one occupant, Darden, to the floor, tased him twice as he struggled to breathe, choked him, punched and kicked him in the face, pushed him into a face-down position with his face and neck pressed against the floor, and handcuffed him as his body went limp. Darden died from those injuries. The court further stated the officers’ body camera footage demonstrated that Darden raised his hands when the officers entered the residence, and it appears that he rolled over onto his face at one point after the officers instructed him to do so. Additionally, eyewitness testimony revealed “that Darden was thrown to the ground before he could react, that he complied with the officers’ commands, and that he did not resist arrest.”

“We have previously suggested that a constitutional violation occurs when an officer tases, strikes, or violently slams an arrestee who is not actively resisting arrest,” and therefore, if a jury finds that Darden was not actively resisting arrest, then a jury could likewise conclude that Officer Snow used excessive force by throwing Darden to the ground and tasing him twice. The facts the plaintiff has alleged therefore make out a violation of a constitutional right. Importantly, Darden found that qualified immunity was not available to defeat an excessive force claim where the plaintiff did not resist by flight or force, and was thrown to the ground, punched, pushed into a face-down position with his body pressed into the ground, and tased. The facts of the present situation are similar to those of Darden.

Sollie relies on Henderson,  wherein officers discovered Henderson breaking up marijuana into a shoebox. Henderson then fled, and one of the officers, Garduno, caught up to him. The court summarized the facts leading up to the tasing as follows:

Garduno made the split-second decision to deploy his taser after Henderson had led him on a long chase by car and by foot and was still unrestrained. Henderson admits he suddenly stopped running, turned toward Garduno, and moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon. Based on these facts, the court stated, “a suspect cannot refuse to surrender and instead lead police on a dangerous hot pursuit — and then turn around, appear to surrender, and receive the same Fourth Amendment protection from intermediate force he would have received had he promptly surrendered in the first place.”

Cobbins, unlike Henderson, did not lead Sollie on a dangerous hot pursuit during a long chase. Cobbins, unlike Henderson, was not “un-restrained” and did not “move his arms in a manner that suggested” he was reaching for a weapon. The only similarity between Henderson and this case is the use of a taser.

In addition to Darden, we have reversed the grant of qualified immunity to officers in several other cases involving excessive force with tasers. See, e.g., Ramirez, (tasing a restrained, subdued subject in prone position); Newman, (tasing a subdued subject); Anderson (tasing a subject who was no longer resisting); Massey (tasing a subject who was not resisting, was not a threat to the officers or others, and was not attempting to flee); Autin (tasing a subdued subject who was not resisting).

This precedent makes it clear to all reasonable officers that tasing a subject who is suspected of no more than a misdemeanor, is pinned to the ground, is surrounded by law enforcement officers and unable to escape, is unarmed, and is offering no more than passive resistance, amounts to excessive force in violation of the Fourth Amendment. The district court did not err in denying qualified immunity as to the excessive force claim.