‘Taser Joe’ May Be Liable for Living Up to His Name

(CN) - A Texas sheriff's deputy nicknamed "Taser Joe" may have used excessive force when he Tasered a handcuffed man lying face-down on the ground, the 5th Circuit rulied.

In 2009, Jim Wells County Sherriff's Deputy Jose Martinez, nicknamed "Taser Joe," went to Reynaldo Ramirez's landscaping business to arrest Ramirez's sister-in-law, Diana Flores.

When Ramirez asked Martinez what was going on, the two exchanged profanities, according to the judgment.

At the same time as Martinez said, "You shut your mouth or I will take you to jail," Ramirez yelled, "This is my business, ok?"

Martinez told Ramirez to put his hands behind his back, but Ramirez did not comply. Then Martinez grabbed his hand, but Ramirez pulled away.

Martinez then used his Taser on Ramirez's chest, then Tased him again when he was face-down on the ground in handcuffs.

A federal judge denied Martinez qualified immunity on all Ramirez's claims except wrongful prosecution, but the 5th Circuit partly reversed the decision Wednesday.

Since Ramirez resisted arrest in merely pulling his hand away from the officer, his false-arrest claim cannot stand, according to the ruling.

"Ramirez stated in his deposition that he pulled his arm out of Martinez's grasp as Martinez was attempting to arrest him," Judge Emilio Garza wrote for a three-member panel in New Orleans. "He stated, 'First of all, he grabbed my - grabbed my hand, told me to turn around, and I didn't. ... I don't think I pushed him. But I did - I did snug back, you know.' The great weight of Texas authority indicates that pulling out of an officer's grasp is sufficient to constitute resisting arrest."

But, "a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs," Graza added. "Pulling his arm out of Martinez's grasp, without more, is insufficient to find an immediate threat to the safety of the officers."

In addition, Ramirez may pursue state-law claims for assault and battery because "the factual basis for Ramirez's claim for assault and battery is the same as the basis for his § 1983 claim for excessive force," the 21-page opinion states.

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