Hurt Veteran Tasered in Jail May Have a Case

(CN) - A Vietnam veteran who says jail guards Tasered him multiple times after he claimed back pain kept him from sitting up may have a civil rights case, the 8th Circuit ruled.

Hours after his arrest in Conway County, Ark., for delivering hydrocodone, Dwain Smith allegedly received ibuprofen for his lower back pain.

A veteran of the Vietnam War, Smith said he also suffers from post-traumatic stress disorder.

After the jail denied Smith's request for his prescription medications, Smith allegedly lay on his bunk, yelling that he could not get up because of his pain.

There is some discrepancy as to whether Smith intentionally or accidentally kicked at his jailers, Jacob Zulpo and Jansen Choate, while writhing on the bed.

Zulpo then allegedly used the Taser on Smith and, after the detainee fell to the ground, insisted that he get up without assistance.

Zulpo allegedly said, "We can't help you Mr. Smith, you've got to [get up on your own] or else."

Smith said he was struggling to sit up when Zulpo used the Taser on him a second time, saying "We can do this all night."

Choate told the court that the county jail administrator, Rick Emerson, encouraged jailers to use Tasers to ensure compliance with jailer instructions. Emerson had even posted signs inside the jail that read, "Failure to immediately comply with orders of jail staff, you will be Tased."

Smith contended, however, that Zulpo had not yet received any training on the use of a Taser before he used the weapon on him.

The 8th Circuit affirmed on Wednesday that Zulpo, Choate and Emerson are not entitled to qualified immunity on Smith's claims of excessive force and failure to train.

The jailers may have been justified in the first use of the Taser, given that Smith accidentally kicked Zulpo when trying to get up, according to the ruling.

But "as to the second taser strike, a jury could find Smith was nonviolent and an objectively reasonable officer would not use a taser on Smith as corporal inducement," Judge William Riley wrote for a three-judge panel.

"Viewing the evidence in the light most favorable to Smith, we see a nonviolent pretrial detainee in pain, seeking help, having Taser probes affixed to his abdomen, no longer acting aggressively toward the jailers (if he ever was), and attempting to comply with Zulpo's orders to get up," Riley added (emphasis in original). "No 'security concern' or disciplinary necessity is apparent."

Likewise, Choate should have known that a reasonable officer could not use a Taser for "day-to-day policing of prisons," the St. Louis, Mo.-based court said.

Emerson does not deny that he knew Zulpo used a Taser without training, but claims that he is immune from suit because no constitutional violation occurred.

"We take Emerson's 'no proof' argument as an allegation that the evidence viewed in the light most favorable to Smith is insufficient for a reasonable jury to find Zulpo and Choate violated Smith's clearly established, constitutional rights," Riley wrote. "We disagree, as explained above, and we affirm the district court's denial of qualified immunity to Emerson."

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