Federal appellate court says use of taser on Sheldon Haleck was "excessive"
Honolulu, HAWAII — A federal appellate court has ruled that a Honolulu police officer’s use of a taser gun — three times — on an American Samoa man who later died at a hospital, “was excessive” and “violated... established law”.
The decision by the Ninth Circuit Court of Appeals issued July 10th “affirmed” the lower court’s ruling in “denying qualified immunity” for three Honolulu police officers, who are the subject of a civil action suit brought in 2015 by the estate and survivors of the 38-year-old victim, Sheldon Paul Haleck, the son of former American Samoa DPS Commissioner, William Haleck.
As reported by Samoa News in November 2015, the plaintiffs contend, among other things, that the deceased was wrongfully seized, denied his liberty, and fatally assaulted by Honolulu police officers Christopher Chung, Samantha Critchlow, and Stephen Kardash.
The officers — the appellants — had appealed the Honolulu federal court’s decision last year, in which US District Court Helen W. Gillmor denied the defendants' motion for “summary judgment based on qualified immunity” under federal law over Sheldon’s death.
Appellees — the plaintiffs — presented evidence that, on the evening of March 16, 2015, Chung responded to a call from dispatch regarding a man walking down the middle of South King Street in Honolulu. When he arrived at the scene, Chung observed Haleck walking in the middle of the street, according to the appeals court decision.
Critchlow arrived about one minute later and both officers instructed Haleck to move to the sidewalk, but the victim did not comply with their instructions and instead apologized and walked away from the officers.
After Haleck failed to move to the sidewalk, Chung and Critchlow pepper sprayed Haleck multiple times without warning. Based on evidence from the plaintiffs, the appellate court decision notes that Critchlow pepper sprayed Haleck four to five times, while Chung pepper sprayed him two to three times.
Haleck continued to move away from the officers, dodging from side to side in the middle of the street. Kardash then arrived at the scene, boxed Haleck in, and ordered Haleck to move to the sidewalk. Haleck did not comply, and Kardash pepper sprayed Haleck two to three times.
Chung then deployed his taser with the first shot at Haleck's chest. However, Haleck remained standing and turned away from Chung, who then deployed his taser a second time into Haleck's back.
“Without warning, Officer Chung pulled the taser trigger again, releasing a third electric current,” the decision notes, adding that at this time, Haleck fell face-forward on the ground in the direction of Kardash.
Haleck was then arrested for disorderly conduct while additional officers arrived at the scene, cuffed Haleck's hands, shackled his legs, and carried Haleck to the side of the road where he lost consciousness and stopped breathing. Haleck was taken to the hospital where he was pronounced dead the next morning.
To determine whether an officer is entitled to summary judgment based on qualified immunity, the court considered: whether the officer used excessive force in violation of the Fourth Amendment; and if so, whether the officer violated clearly established law.
USE OF TASER
“Here, there was no serious crime at issue,” the appellate court noted, adding that the officers were responding to a dispatch call about a man walking in the middle of the road. “Nor was Haleck an immediate threat to himself or others.”
“Haleck made neither physical nor verbal threats. There also was no threat to traffic during the encounter,” the justices said, noting that the appellees (the plaintiffs) offered evidence that traffic was stopped.
“Finally, Haleck was never told he was under arrest, and he never actively attempted to evade arrest by flight. Officer Chung's use of his taser violated clearly established law,” according to the decision..
The judges recalled that the 9th Circuit Court, sitting en banc (all judges of the 9th Circuit presided), in a 2010 case, held that “one deployment of the Taser X26 in dart-mode against a belligerent individual who was unarmed, non threatening, and apprehended for a minor traffic violation, was excessive”.
In this current case, “Haleck was met with even greater taser force, and was not belligerent,” the judges said, and recalled another case heard by the same appeals court in 2011, which held that “multiple taser deployments on an individual who no longer poses even a potential threat to the officers' or others' safety, much less an ‘immediate threat’, was unconstitutional.”
For the current case, Haleck “was unarmed and never posed even a potential threat to Officer Chung or Officer Critchlow, because Haleck...never had access to even a potential weapon...”
The judges also recalled that the three officers used pepper spray numerous times on Haleck. Additionally, the officers “concede that a warning did not precede each deployment of pepper spray.”
“Pepper spray is regarded as an ‘intermediate force’ that presents a significant intrusion upon an individual's liberty interests,” according to the decision, citing a 2012 case also heard by the 9th Circuit.
“Viewing the facts in the light most favorable to Appellees, considering the number of times Haleck was pepper-sprayed, the availability of alternative means for executing arrest, and Haleck's vulnerable mental state, there is a factual issue for the jury whether Appellants' use of force violated both the Fourth Amendment and clearly established law,” the decision states.
We affirm the [Honolulu Federal] court's denial of qualified immunity and remand for further proceedings consistent with this disposition, says the nine-page decision signed by 9th Circuit Court Judges, Wallace A. Tashima, William A. Fletcher and Andrew D. Hurwitz.