Dwain Smith, a Vietnam War veteran, was allegedly Tasered multiple times by Arkansas prison guards because he could not stand due to severe back pain. Smith, who also suffers from post-traumatic stress disorder (PTSD), was arrested for delivering Hyrocodone and was awaiting trial when the incident occurred.
Prison guards, Jacob Zulpo and Jansen Choate, confronted Smith, who could not stand, after the jail refused to provide him with his prescription medications. Smith was writhing in pain and could not get out of his bunk, when Officer Zulpo allegedly Tasered Smith to the floor.
Once Smith fell to the ground, Officer Zulpo allegedly said, “We can’t help you Mr. Smith, you’ve got to [get up by yourself] or else.” As Smith was struggling to sit up, Officer Zulpo allegedly Tasered him again, saying “We can do this all night.”
The officers tried to justify their actions by telling the court that Rick Emerson, the county jail administrator, encouraged correctional officers to use Tasers to ensure compliance with their instructions. A sign that reads, “Failure to immediately comply with orders of jail staff, you will be Tased” hangs in the jail to remind inmates of this policy. Despite Emerson’s “Taser policy,” Smith contends that Zulpo had not even received any Taser training prior to the incident.
On Wednesday, the 8th Circuit held that Officers Zulpo, Choate, and Emerson are not entitled to qualified immunity on Smith’s claims of excessive force and failure to train. Although the correctional officers may have been justified in using the Taser initially, because they claim that Smith may have accidentally kicked Zulpo when trying to get up, a jury could find that an objectively reasonable officer would not use a Taser to make Smith stand up.
In the court’s opinion, Judge Riley wrote , “Viewing the evidence in the light most favorable to Smith, we see a nonviolent pretrial detainee in pain, seeking help, having Taser probes affixed to his abdomen, no longer acting aggressively toward the jailers (if he ever was), and attempting to comply with Zulpo’s orders to get up. No security concern’ or disciplinary necessity is apparent.” Additionally, the court stated that Choate should have known that a reasonable officer could not use a Taser for “day-to-day policing of prisons.”
Although Emerson does not deny that he knew Zulpo used a Taser without training, he believes that he is immune because no constitutional violation occurred. But the court clearly disagrees with Emerson. Judge Riley wrote, “We disagree [with Emerson] and we affirm the district court’s denial of qualified immunity to Emerson.”
If you or someone you know has been the victim excessive force or police brutality, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.
