Saturday, June 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

Man Who Shot Himself |on Xanax Can Sue Police

(CN) - Las Cruces police may have violated the Fourth Amendment by handcuffing an intoxicated man who accidentally shot himself in the stomach and arm while battling an animal he hallucinated, the 10th Circuit ruled.

After consuming vodka and Xanax, Robert Fisher thought he saw a dangerous animal in his backyard and tried to "confront the illusion" with his 9-mm handgun, the ruling states.

He accidentally fired the gun twice, shooting himself in the stomach and arm.

Fisher's wife Mary called 911. Officers ordered him to lay flat on the ground and spread out his arms, but Fisher refused due to the gunshot wound in his stomach and the bullet still lodged in his arm. An officer eventually managed to handcuff Fisher behind his back.

Fisher said he "begged" the officers not to handcuff him in that manner, and that it caused "excruciating pain ... like [his] bicep was tearing."

He sued the Las Cruces Police Department and various officers, claiming they violated his Fourth Amendment protection against excessive force.

The officers moved for summary judgment on the basis of qualified immunity, which the district court granted. The lower court conceded that the officers had used more force than needed, but ruled that Fisher failed to show that he suffered serious injuries as a result.

On appeal, the Denver-based court found that Fisher was clearly not a threat to himself or others by the time officers handcuffed him.

"[A] reasonable juror could conclude he was not resisting arrest, but was only pleading to be handled and handcuffed in a fashion that did not exacerbate his injuries," Judge Timothy Tymkovich wrote.

The three-judge panel reversed and remanded.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.