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Cop Immunity on Taser Death Affirmed by 8th

ST. LOUIS (CN) - Police officers are entitled to immunity after a 300-pound suspect whom they Tasered died of cardiac arrest, the 8th Circuit ruled.

The altercation occurred in December 2008 when Minneapolis police officers were called to the scene of an alleged domestic dispute involving Quincy Smith - who had just been released from jail - and his ex-girlfriend.

Officer Timothy Devick was the first to arrive on the scene. As he ordered Smith to the ground and approached him, the 5-foot-2, 315-pound man put his hands in front of his face and ignored Devick's order.

Devick then "kicked Smith in the thigh and punched him in the head," according to the ruling published Friday.

"Smith resisted and turned to run," the ruling continues. "Officer Devick grabbed Smith's jacket, but Smith still escaped, tumbling over a wood fence."

Four other officers joined the pursuit of Smith, which eventually ended with the suspect cornered against a chain-link fence.

The officers said Smith continued to resist arrest and that they "used a taser on Smith multiple times, punched him in the head, kneed him in the rib area, struck him in the back with the butt of a shotgun, and lay on top of Smith in their efforts to subdue him," according to the ruling.

Shortly after using three sets of handcuffs to restrain Smith, Devick realized that the suspect was no longer breathing and began chest compressions while waiting for an ambulance.

Smith died on the way to the hospital.

The medical examiner's report, as quoted in the ruling, says Smith "had a cardio respiratory arrest or a very sudden basically arrest death, which was associated with is own exertion coupled with law enforcement subduing him and restraining him."

Smith's mother, Bettie, sued Minneapolis and Officers Devick, Shawn Brandt, Chris Humphrey, Carlos Baires Escobar and Nicholas McCarthy, in both their individual and official capacities, for Fourth Amendment violations and wrongful death.

A federal judge granted the defendants summary judgment, however, after finding that the officers were entitled to qualified and official immunity, and that the force used to arrest Smith was reasonable.

Affirming Friday, the three-judge appellate panel defended Devick's initial use of force following Smith's refusal to get on the ground.

"In the 'particularized' situation here, an officer attempted to effectuate an arrest by ordering the suspect to the ground, that is, a large and potentially armed man who was suspected of domestic abuse and making threats with a gun," Judge William Riley wrote for the court. "The man refused to comply with the officer's orders. To get this suspect to the ground and apply handcuffs in order to control the suspect and protect the police and the public, the officer approached the suspect and attempted to subdue him with a hit and a kick, not deadly force."

As for the second encounter involving all five of the officers in question, Smith's mother focused on the individual actions of each officer.

The ruling quotes her claims that "'Brandt and McCarthy tased [Smith] eight times for 40 seconds or more.' 'Devick applied six knee strikes to Smith's right side. He also attempted to apply a neck restraint to the left side of Smith's neck, laying across the top of his body and forcing his arm under Smith's chin.' 'Defendant Humphrey smashed the butt of his rifle into the center of Smith's back. He also punched Smith on the right side of his face two to three times.' 'In addition to tasing Smith at least three times, apparently with no effect, McCarthy hit [Smith] three times in the right side of his head while he was lying across Smith's body.'"

These arguments nevertheless failed to sway the panel, which cited Smith's lack of case law.

"Ms. Smith's counsel conceded at oral argument that the case law regarding tasers, a relatively new technology, is 'evolving,'" Riley wrote. "We suspect, even without specific case law outlining a definitive number of constitutionally validated taser probes administered, an 'obvious' case of excessive force could still be established under the clearly established prong. ... But this case is not such an obvious case."

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