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No Immunity for Deathbed-Adjacent Tasing

(CN) - Deputies are not entitled to immunity for tasing a man who became irate at EMTs trying to resuscitate his dead father, a divided Sixth Circuit ruled.

In 2013, Michael Kent traveled out of state to visit his parents, Rick and Pamela Kent, at their family home. Kent's father had suffered from serious health problems for a number of years, and spent the majority of his time bed-ridden and in pain, according to court records.

One morning, Kent found his father unresponsive, still breathing but with a carotid pulse. Kent, who is a doctor, knew his father was dying. He also knew that his father had executed a living will stating that he did not want his life "artificially prolonged by life-sustaining procedures."

At approximately 7 p.m. that evening, his father passed away. Kent's wife called the non-emergency dispatch to report the death.

Firefighter-EMT Anthony Oryszczak arrived at the house, and asked Kent whether he had a do-not-resuscitate order or power of attorney paperwork. Kent explained he was visiting from out of state and did not have any paperwork, but that his father wanted no attempts at resuscitation upon his death.

Kent's mother reportedly told Oryszczak that she had power of attorney, but did not have the paperwork with her.

Oryszczak then radioed his partner to help him "work[ing] [the patient] up."

When Kent asked what he meant by that, Oryszczak said he was required by protocol to do everything he could to revive the patient absent any do-not-resuscitate or power of attorney paperwork.

Kent then allegedly became very angry.

He yelled at the EMTs and deputies on the scene, telling them they "were not going to assault [his] dead father or [he] was going to call the police and have them all thrown in jail."

He repeatedly called Oryszczak an "asshole," and insisted that his mother could tell them what his father's wishes were.

When Deputy Claudio Lopez told Kent to calm down, he refused and said, "It was my home and that they were not going to assault my dead father in my home against his wishes."

Lopez yelled at Kent that he had to leave the room, and Kent told the deputy to "get out of his house."

Lopez then pulled out his taser and threatened to use it if Kent did not calm down and allow the EMTs to attempt to resuscitate his father.

Kent backed up against the wall, put his hands up and said, "Go ahead and tase me, then." Lopez did so, tasing him for five seconds, court records show.

The deputies then handcuffed Kent, although they told him he was not under arrest. He was questioned for 15-20 minutes while EMTs used a defibrillator on his father and pronounced him dead. Kent was then released.

Kent sued Deputies Lopez and Christina Maher, and Oakland County, Mich., for excessive force.

A federal judge found that Lopez's use of force was unreasonable given that Kent posed no safety threat to officers, made no verbal threats against them, and was not physically resistant.

The Sixth Circuit affirmed Wednesday.

"There is no evidence that Kent was violently thrashing about in an effort to avoid handcuffing or to flee police, such that he might have harmed the deputies and EMTs in the bedroom. Nor is there any indication that he attempted to hit officers or make a display of force," U.S. District Judge Gregory Van Tatenhove wrote, sitting by designation from the Eastern District of Kentucky. "At the most, according to Deputy Maher's account, Kent used agitated hand gestures. Kent's actions do not, therefore, amount to the same immediate threat to safety found to justify tasing under our case law."

Importantly, Kent claims that he put his hands in the air before he was tased, which minimized any threat he might have posed to the deputies or EMTs.

"Accepting Kent's version of the facts and based on the law before us, we must conclude that Kent - a man who yelled at officers and refused to comply with commands to calm down, but was never told that he was under arrest, never demonstrated physical violence, and had his arms in the air and his back to the wall when tased - had a right to be free from the use of a taser under these circumstances," Van Tatenhove wrote.

Van Tatenhove, joined by Judge Karen Moore, said this right should have been clear to the deputies.

Judge Richard Suhrheinrich dissented, finding that Kent's aggressive behavior was volatile and placed the EMTs in fear of violence.

"The majority trivializes the perceived emergency here because the officers 'knew they were responding to a natural death investigation,'" Suhrheinrich wrote.

Lopez was required to subdue Kent in order to allow the EMTs to attempt to save the father's life, the dissenting judge wrote.

"In truth, the only person in the room that day who acted objectively unreasonable was Kent. Although understandably distraught over the very recent death of his father, Kent's disrespect and outright aggression towards EMT personnel and police created needless upheaval over what turned out to be mere confirmation that Kent's father was dead," Suhrheinrich said.

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