Officers May Be Liable for Tasering Suspect in Tree

WAYCROSS, Ga. (CN) - Two deputies may have used excessive force when they Tasered a suspect hiding in a tree after ordering him to both show his hands and climb down - something that's "difficult, if not impossible" to do, a federal judge ruled.

On Memorial Day 2008, three Coffee County, Ga. sheriff's deputies responded to a domestic violence call, joined by a Georgia Department of Corrections canine officer.

According to court filings, the 911 dispatcher told the officers that the suspect, Joseph Harper, was drunk and "shootin' off" a gun in the house he shared with his fiancee, their children and other people.

While driving to the scene, the officers met Harper's fiancee, who had left the house with her children. She claimed that Harper was drunk, possibly high on methadone, and had hurt her. At the house, Harper's nephew confirmed that Harper had hit his fiancee, fired his rifle into the ceiling and threatened to kill himself, according to court filings.

The deputies, led by Officer Matt Gourley from the K-9 unit, looked for Harper, who had run out the back door before they got to the scene. Gourley's bloodhound led them to a tree where Harper was hiding with his gun, according to court documents.

In his deposition, Harper claimed that he left his gun in a crook of the tree below him, out of his reach. He claimed that he called out to the officers, who had not seen him, showing them the gun and telling them he surrendered.

But the officers testified that Harper was actually holding the rifle in his hands, though they did not mention it in their post-incident reports.

Harper insisted that he had his hands out and asked for instructions from the officers, as he could not comply with their orders to raise his hands and come down from the tree at the same time.

Despite Harper's efforts to comply, two of the officers shot their Tasers, Harper claimed.

Gourley's Taser malfunctioned, but the second one worked, knocking Harper out of the tree. Harper fell headfirst onto his shoulder, and the impact left him paralyzed, according to the complaint.

A federal judge dismissed some of the claims against the officers, but upheld the excessive force claims.

The officers appealed, but the 11th Circuit affirmed the denial of qualified immunity and remanded.

Ruling on the officers' motion for summary judgment, U.S. District Judge Lisa Godbey Wood said the two officers who Tasered Harper most likely used excessive force against a compliant and nonthreatening suspect.

Wood agreed with the 11th Circuit that using a Taser against an individual "at least four feet off the ground" was a substantial use of force.

"Shoving someone while they are standing on the ground may be minimal force," Wood wrote. "Yet, if that exact same shove is employed against someone on a ladder or standing on the edge of a roof, there is considerably more risk. Likewise, tasing someone in a tree with his feet up to twelve feet off the ground is far more serious than tasing someone on the ground. Plaintiff was in a precarious position as further evidenced by the fact that his fall has left him a paraplegic."

The officers had reason to believe Harper committed serious offenses, but Harper was a minimal threat to them at the time he was Tasered, according to the June 17 order.

Though the position of the gun in the tree is hotly disputed, the officers failed to convince Wood that Harper was holding the rifle.

And because the gun remained in the tree after Harper's fall, it is unlikely that Harper had placed it there while falling, Wood wrote. A jury could find that the officers were aware that the gun was out of Harper's reach, the order states.

Wood also noted that Harper neither resisted arrest nor fled from the officers, but instead called to them to let them know that he was up in the tree.

"Plaintiff and common sense suggest that it is difficult, if not impossible, for someone to both show his hands and climb out of tree branches at the same time," Wood wrote. "If defendants had commanded plaintiff to both show his hands and levitate, plaintiff could not be deemed non-compliant for his failure to do so."

Gourley could still be liable, even though his Taser malfunctioned, because his conduct was unlawful, the order concludes.

But Wood found that the non-Tasering officers had no opportunity to intervene before the Tasers were deployed, and that none of the officers had acted with a deliberate intention to hurt Harper.

Though one of the officers told Harper, "You're lucky I didn't stomp your fucking head in" while Harper was lying on the ground, his lack of involvement in the actual Tasering protects him from a state law battery claim, Wood added.

Wood dismissed the remaining state-law claims against the three Coffee County deputies.

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