No qualified immunity for excessive use of Taser

In Oliver v. Fiorino, the Eleventh Circuit (Marcus, Hill, D.J. Vorhees) affirmed the denial of summary judgment on qualified immunity grounds to officers participating in the Taser-related death of Carl Oliver. Oliver, who had been using cocaine, flagged down Officer Fiorino as he stood on a median in the highway. When Fiorino stopped, Oliver tried to get in her squad car; she told him to move away, and he did. From 23 feet away, Fiorino asked Oliver what the problem was, and a "very fidgety" Oliver said that someone was shooting at him. Oliver first started to walk away, and then approached Fiorino, who raised her Taser and said to step back. He did. A back-up officer, Burk, arrived, to find Oliver shouting again in the median. The officers conferred about taking Oliver into custody under Florida's mental health laws, but they did not. Oliver complied with the officers' request for identification, but when Burk tried to force Oliver across the street (and out of traffic), Oliver struggled and pulled away from him; Burk held onto Oliver's shirt. Oliver did not swing at Burk or try to grab him.

Without warning, Fiorino tased Oliver for the first time, a jolt that brought him to the ground. Once Oliver was on the pavement, he never tried to get up, and he never kicked, hit, or threatened the officers. Nonetheless, Fiornio continued to tase Oliver -- somewhere between 8 and 12 times -- and paused to reload her Taser after one of the wires became stuck in Oliver's chest. Oliver began foaming at the mouth, and the paramedics who arrived recorded his temperature as 107 degrees. He died a few weeks later from the Taser-related injuries. Oliver's estate brought Fourtheenth Amendment-based claims for excessive force against various defendants, including the officers.

The Court found that the use of the Taser was not objectively reasonable. A single tase may have been, but the repeated tasering (resulting in Oliver's incapacitation) was not. While no binding precedent had clearly established that repeated use of a Taser constituted excessive force under these circumstances, the Court found that a reasonable officer would have realized that her use of force was excessively disproportional to the circumstances so as to make it unlawful: Again, Oliver was not accused of a crime, did not act aggressively, and complied with the officers' directives.