Rakestrau v. Neustrom et al

Filing 80

MEMORANDUM RULING granting in part and denying in part 33 Sealed Motion for Summary Judgment based on Qualified Immunity. Signed by Magistrate Judge Patrick J Hanna on 4/8/2013. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DEBORAH RAKESTRAU

CIVIL ACTION NO. 11-CV-1762

VERSUS
MICHAELW. NEUSTROM, ET AL

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment based on Qualified Immunity
filed by Defendant Chris Guidry. [Doc. 33] After considering the filings of the parties and
the arguments presented by each, and for the reasons set out herein, the motion is GRANTED
IN PART and DENIED IN PART.
Background
This action arises out of an October 4, 2010 incident in which Lafayette Parish
Sheriff’s Deputy Chris Guidry tasered Javon Rakestrau who subsequently died. The
claims are brought by Rakestrau’s mother against Guidry individually and in his official
capacity under 42 U.S.C. §1983 and state law. Municipal liability has been asserted
against Sheriff Neustrom in his official capacity. The plaintiff contends that the use of
the taser by Guidry was excessive under the circumstances and violated her son’s
constitutional rights to be free from unreasonable seizure/arrest and the excessive use of
force as guaranteed by the Fourth and Fourteenth Amendments to the Constitution of the
United States. Guidry argues that his actions were objectively reasonable under the

circumstances presented entitling him to qualified immunity.
At the time of the incident, Guidry was a member of a narcotics task force
operating in a neighborhood which law enforcement officials, including Guidry, believed
to be a violent, high-crime, high drug use area. Guidry was in uniform in a marked patrol
unit. He was alerted by an undercover agent of an individual matching the description of
Rakestrau having engaged in what was suspected to be a hand to hand narcotics deal.
Guidry activated his dashboard video camera and drove to the street where Rakestrau was
walking. The majority of Guidry’s interaction with Rakestrau, which lasts less than a
minute, is captured on video complete with audio. The video was entered into the record,
and the following facts are taken solely from that evidence.
Guidry observed the suspect, Rakestrau, walking on the sidewalk and brought the
unit to a stop just in front of him. Guidry exited his vehicle and called in Rakestrau’s
description over the radio. Guidry told Rakestrau “come here, man, how’s it going?”
Rakestrau stopped but did not completely comply. Guidry asked for identification.
Rakestrau said it was at his house and attempted to walk away. Guidry said “No, no, no,
no, come here” then grabbed Rakestrau’s jacket arm, pulled him to the front of the unit
and said “put your hands on the f___ing hood” while Rakestrau continued to protest that
his identification was at his house. Rakestrau initially complied with the command to put
his hands on the hood but immediately removed his hands, turned with his cell phone in
his right hand to Guidry, who was standing behind him and to his right, and said

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repeatedly in an increasingly louder voice ”I’m calling the law myself, my dog” as he
tried to dial the phone. Guidry requested another police unit from his shoulder mounted
radio. As Rakestrau tried to use his cell phone with his right hand, he can be seen taking
something from his left jacket pocket with his left hand out of the sight of Guidry who
was trying to wrest the cell phone away. Guidry took the cell phone from Rakestrau and
dropped it to the ground. Guidry then stood behind Rakestrau and forced him to put his
hands on the hood of the car. At that point Rakestrau began loudly yelling “hey, hey.”
He tensed up and pushed his right side toward Guidry continuing to yell loudly.
In response to Rakestrau’s resistance, Guidry used an arm-bar takedown to take
Rakestrau to the ground where both men are partially out of the video camera view. It can
be seen that Guidry got Rakestrau down to the ground and there was a struggle on the
ground, with Rakestrau yelling “Mama” among other things. Rakestrau escaped from
Guidry’s hold, got to his feet and pulled away from Guidry. When Guidry tried to grab
him by his jacket, Rakestrau came out of his jacket and took a couple of steps away from
Guidry in what appears to be an effort to flee. Guidry pursued him and Rakestrau turned
toward Guidry with both of his hands visible in a position Guidry interpreted as a
fighting stance. Guidry drew his taser and aimed it at Rakestrau who commented “Now
you f—ing tasing me.” Guidry told Rakestrau that he was tasing him as he applied the
taser.
Rakestrau “locked up” and fell to the ground out of view of the camera. There is

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no dispute that after the first taser application, Rakestrau fell immediately to the ground,
face-down. The taser can be heard to cycle for seven seconds and during the cycle Guidry
commands Rakestrau to put his hands behind his back but there was no compliance,
possibly because Rakestrau was incapacitated at the time of the command. There is a
pause in the taser cycle and Guidry again commands Rakestrau to put his hands behind
his back at the same time Rakestrau asks “why are you f____ing tasing me.” Immediately,
Guidry discharges the taser a second time for nine seconds. Rakestrau can be heard
gurgling, but from that point on he does not speak nor is there any sign of movement
visible on the camera. A second unit arrives shortly thereafter at which point Rakestrau is
essentially unresponsive. Efforts to revive him were unsuccessful.
There was a four second pause between the two taser discharges. Taser records
indicate that the first discharge lasted seven seconds and the second lasted nine seconds.
The device issued by LPSO is the X26 Advanced Taser. In order for the current from the
taser not to stop after it completes its five second cycle, the trigger must be continually
depressed. Guidry’s explanation for his decision to discharge his taser a second time is
that he saw Rakestrau roll onto his side and move his hand toward his middle. Guidry
testified he was concerned that the movement may break the taser wires and eliminate the
taser as a means of control or that Rakestrau may be “going for a weapon.”
LPSO has a detailed written policy/procedure for the use and handling of
electronic control devices, which are viewed as intermediate weapons on the LPSO Use

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of Force Continuum. Per the policy, the device:
may be used to control dangerous or violent subjects when deadly physical
force does not appear to be justified and/or necessary; or attempts to subdue
the subject by other conventional tactics have been, or will likely be,
ineffective in the situation; or there is reasonable expectation that it will be
unsafe for an officer to approach within contact range of the subject.

D.(4) Once the Electronic Control Device is discharged and contacts the
target, the Electronic Control Device should be allowed to complete its
initial five-second discharge.
a. Verbal commands shall be given to the suspect while attempting to
gain compliance.
b. Additional discharges may be used to gain compliance.
While Rakestrau was on the ground after the first tasing, he was out of view of the
camera. The plaintiff offered testimony of two bystander witnesses, Scotty Thomas and
Corey Francis. Thomas confirmed that when he first saw Rakestrau and Guidry, they
“was tussling” on the ground. After the first taser application, he saw Rakestrau fall to
the ground. Thomas saw no further movement and heard nothing from Rakestrau.
Francis saw Rakestrau fall “super hard,” like “dead weight” and never move again. His
hands were under him. Both witnesses heard the officer direct Rakestrau to put his hands
behind his back.

Applicable Law and Analysis
Section 1983 provides a remedy against “every person,” who under color of state
law, deprives another of any rights secured by the Constitution and laws of the United
States. 42 U.S.C. § 1983; Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct.

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2018 (1978). Section 1983 is not itself a source of substantive rights; it merely provides a
method for vindicating federal rights conferred elsewhere. Olabisiomotosho v. City of
Houston, 185 F.3d 521, 525 (5th Cir.1999). To pursue a claim under § 1983, a plaintiff
must: (1) allege a violation of rights secured by the Constitution or laws of the United
States, and (2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law. Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d
257, 260 (5th Cir.2008); see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250,
2254–55 (1988). There is no dispute that Guidry acted under color of law.
Whenever an officer restrains the freedom of a person to walk away, he has seized
that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578
(1975). To determine the constitutionality of a seizure the court “must balance the nature
and quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.” United States v.
Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642 (1983); Tennessee v. Garner, 471 U.S. 1,
8, 105 S.Ct. 1694, 1699 (1985). A “seizure” triggering the Fourth Amendment occurs
whenever government actors have, “by means of physical force or show of authority, ... in
some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868,
1879 n. 16. (1968).
It is well-settled that police officers may stop and briefly detain an individual for
investigative purposes if they have reasonable suspicion that criminal activity is afoot.

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Terry v. Ohio, 392 U.S. 30, 88 S.Ct. 1884. “Reasonable suspicion must be supported by
particular and articulable facts, which, taken together with rational inferences from those
facts, reasonably warrant an intrusion.” United States v. Michelletti, 13 F.3d 838, 840 (5th
Cir. 1994). The “presence or absence of reasonable suspicion must be determined in light
of the totality of the circumstances confronting a police officer, including all information
available to the officer at the time of the decision to stop a person.” United States v. Silva,
957 F.2d 157, 160 (5th Cir. 1992).
The record demonstrates that an undercover agent had observed Rakestrau engage
in a “hand to hand” exchange with a person believed to be a drug dealer. The agent
directed Guidry to Rakestrau’s location by radio and provided a physical description to
Guidry. These facts support a reasonable suspicion to justify a stop for investigative
purposes. The plaintiff does not challenge the reasonableness of the stop. Rather the
focus of the plaintiff’s claim is that the use of the taser after the stop was excessive.
Claims of “excessive force implicate the Fourth Amendment's proscription against
unreasonable seizures.” Peterson v. City of Fort Worth, 588 F.3d 838, 845 (5th Cir.2009)
(citing Terry v. Ohio, 392 U.S. 16, n. 16). “ [A]ll claims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.”
Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989). “Because the Fourth

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Amendment provides an explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these
claims.” Id.
To prevail on a Fourth Amendment excessive force claim, a plaintiff must
establish “(1) injury (2) which resulted directly and only from the use of force that was
clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Freeman
v. Gore, 483 F.3d 404, 416 (5th Cir. 2007) quoting Tarver v. City of Edna, 410 F.3d 745,
751 (5th Cir. 2005) and Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.
2000). A plaintiff must show that the use of force was “clearly excessive to the need and
was objectively unreasonable,” Hill v. Carroll County, 587 F.3d 230, 234 (5th Cir.2009).
A determination of whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of the amount of force used
against the need for force. Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008). As
stated by the Supreme Court:
Our Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it. Because
the test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, however, its proper application
requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.

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The ‘reasonableness' of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.... With respect to a claim of excessive force, the same
standard of reasonableness at the moment applies: Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's chambers,
violates the Fourth Amendment. The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make
split-second judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is necessary in a particular
situation.
Graham v. Connor, 490 U.S. 396–397, 109 S.Ct. 1871-1872. (emphasis added; internal
quotations and citations omitted).
“Excessive force claims are necessarily fact-intensive; whether force used is
‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular
case. ‘”Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) quoting Graham v.
Connor, 490 U.S. 396. Where, as here, the dispositive issue is one on which the
nonmoving party will bear the burden of proof at trial, the moving party may satisfy its
burden by pointing out that there is insufficient proof concerning an essential element of
the nonmoving party's claim. Norwegian Bulk Transport A/S v. International Marine
Terminals Partnership, 520 F.3d 409, 412 (5th Cir. 2008). “The burden then shifts to the
nonmoving party, who must, by submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.” Id. As the Fifth Circuit has stated:
[The parties’] burden is not satisfied with ‘some metaphysical doubt as to
the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated
assertions,’ or by only a ‘scintilla’ of evidence. We resolve factual
controversies in favor of the nonmoving party, but only when there is an
actual controversy, that is, when both parties have submitted evidence of
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contradictory facts. We do not, however, in the absence of any proof,
assume that the nonmoving party could or would prove the necessary facts.
...[S]ummary judgment is appropriate in any case where critical evidence is
so weak or tenuous on an essential fact that it could not support a judgment
in favor of the nonmovant.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations and
emphasis omitted).
In evaluating evidence to determine whether a factual dispute exists, credibility
determinations or weighing evidence is not part of the analysis. Roberts v. Cardinal
Services, Inc., 266 F.3d 368, 373 (5th Cir. 2001). To the contrary, in reviewing all the
evidence, the court must disregard all evidence favorable to the moving party that the jury
is not required to believe, and should give credence to the evidence favoring the
nonmoving party, as well as that evidence supporting the moving party that is
uncontroverted and unimpeached. Id.
However, the determination of the facts at issue in this case can largely be derived
from the video recording. The facts taken from the video recordings taken at the scene
are to be given greater weight even at the summary judgment stage. Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011); Poole v. City of Shreveport, 691 F.3d 624,
627 (5th Cir. 2012). When the plaintiff’s description of the facts is discredited by that
record, the court properly considers “the facts in the light depicted by the videotape.” Id.,
quoting Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769 (2007). Nonetheless, the
video must be viewed by the court from the perspective of a reasonable officer. Foster v.

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Carroll County, 2012 WL 5398190, *2 (5th Cir. 11/6/12). Thus, this court’s analysis will
focus to the extent possible on the factual scenario depicted on the recording from
Guidry’s dashboard camera since that record depicts the only interaction between Guidry
and Rakestrau.
At this stage, the defendant does not contest that Rakestrau suffered injury during
his interaction with Guidry from the use of the taser. However, this Court finds that the
decisions and actions of Guidry up to and including the first discharge of his taser were
not excessive to the need or objectively unreasonable under the circumstances presented
to him. The video establishes that when their paths crossed, Rakestrau and Guidry were
alone in an area that was the focus of criminal task force operations. Guidry was directed
to Rakestrau by an undercover agent who had seen Rakestrau engage in a suspected drug
buy. The video clearly demonstrates the rapid escalation of force. Within seconds,
Guidry’s verbal directives to Rakestrau were ineffective, and the effort to guide Rakestrau
to the front of his vehicle for pat-down were verbally and physically resisted by
Rakestrau. The video demonstrates Rakestrau’s near-constant evasive movements, verbal
protestations, his breakaway from Guidry’s takedown maneuver, and the attempt at flight
thereafter. None of the actions on the lower level of the LPSO-authorized force
continuum1 were effective in gaining compliance or control. Guidry had been unable to
1

LPSO policy documents described the Continuum of Force to move from officer
presence to verbal commands, to empty hand control (soft, hard), to intermediate weapons, to
deadly force. LPSO policy#301, at p. LPSO502

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search Rakestrau for a weapon. Guidry could not rule out that the uncooperative and
actively resistant Rakestrau may have been armed or under the influence of drugs.
During the fast-developing situation facing Guidry (less than 30 seconds), described in
detail from his perspective in his affidavit and depicted in real time on the video
recording from the dashboard camera, Guidry decided to use his taser in the effort to stop
and search Rakestrau without drawing his firearm. Rakestrau was taller and had a reach
advantage over Guidry which made use of a baton or hands less desirable alternatives,
particularly given the inability to successfully take Rakestrau down and restrain him from
an advantageous position. The use of the taser from a distance could allow Guidry to
gain control over Rakestrau and avoid the risks associated with a closer hand-to-hand
confrontation.
Despite Plaintiff’s arguments in brief to the contrary, the use of tasers is not
comparable to the discharge of a firearm, and tasers are not considered deadly force in the
Fifth Circuit, even in cases where the subject died following a tasing incident. Batiste v.
Theriot, 458 Fed. Appx. 351, 354 (5th Cir. 2012). Arguments that Guidry may have been
under the influence of steroids at the time of the incident or may have forged his training
records fail in the context of the ‘objectively reasonable’ analysis. If an action is
“objectively reasonable” it is so “whatever the subjective intent” was of the official.
Ashcroft v. al-Kidd, 563 U.S. ----, 131 S.Ct. 2074, 2080, (2011) quoting Whren v. United
States, 517 U.S. 806, 814 (1996) (emphasis in original). Such factors will not convert an

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objectively reasonable use of force into a Fourth Amendment violation. Poole v. City of
Shreveport, 691 F.3d at 628.
In considering the fast-developing events and the directives set out in Graham that
the court must avoid substituting personal notions of proper police procedure for the
instantaneous decision of the officer at the scene, this Court finds that the actions up to
and including the first taser application do not constitute force that was excessive to the
need or objectively unreasonable. Therefore, there is no constitutional violation and the
Motion for Summary Judgment is granted on that basis as to the events leading up to and
including the first taser application.
The second taser application by Guidry warrants further analysis since the actions
of Rakestrau are not depicted on the video, and since Guidry’s description of Rakestrau’s
actions are disputed and contradicted by the testimony of other witnesses on the scene at
the time of the second tasing. While arguments by a nonmovant which amount to
conjecture do not raise genuine issues of material fact in an excessive force case,
discrepancies between an officer’s version of events and the accounts of disinterested
eyewitnesses may be sufficient to justify a denial of summary judgment. Bazan v. Hidalgo
County, 246 F.3d 481, 491-492 (5th Cir. 2001).
As to the second taser discharge, the policy of the LPSO is that repeat taser
discharges may be utilized to “gain compliance.” Two eyewitnesses testified Rakestrau
did not move after the first taser discharge. It is undisputed Rakestrau was face down on

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the ground, even though his hands were under him. Prior to the first taser discharge,
Rakestrau’s hands are clearly visible and there is no weapon in either one of them. His
jacket had been removed and he was wearing only a t-shirt which could not conceal a
weapon. His pants were sagging such that there was no visible evidence of a weapon in
the front, and presumably, given the position of his pants, there was no visible weapon in
the back although the possibility of him having a weapon in his pants or pants pockets
cannot be completely ruled out. Before the second taser discharge, Guidry gave two
commands for Rakestrau to put his hands behind his back. One was while the first taser
cycle was still ongoing. Presumably, it is not possible to move one’s hands until after the
discharge stops. There is a pause and the second command is given at the same time
Rakestrau asks why he is being tased. Immediately after the command is given, the
second discharge is applied. One cannot tell from the video if Rakestrau is fully subdued
before the taser is applied or if he was given ample opportunity to comply with the
commands of Guidry. Further, the cycle lasts five seconds unless the trigger is continually
depressed. The cycle in the video lasted nine seconds which would indicate the trigger
was continually depressed beyond the normal five second cycle.
As set forth more fully below, it is possible for an excessive force constitutional
violation to arise in certain circumstances when a taser is used. This Court finds there
exists a material issue of fact in dispute regarding the reasonableness of Guidry’s conduct
as to the second taser discharge which precludes summary judgment on the issue of

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whether excessive force was used, and therefore, whether there was a constitutional
violation. However, that does not preclude consideration of the qualified immunity
defense as this defense is distinct from the merits of an excessive force claim. Saucier v.
Katz, 533 U.S. 194, 204, 121 S.Ct. 2151, 2158 (2001).
A qualified immunity defense alters the usual summary judgment burden of proof.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) citing Michalik v. Hermann, 422
F,3d 252, 262 (5th Cir. 2005). “When a defendant invokes qualified immunity, the burden
shifts to the plaintiff to demonstrate the inapplicability of the defense.” Club Retro, LLC
v. Hilton, 568 F.3d 181, 194 (5th Cir.2009) citing McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir.2002) (en banc). In order to overcome the defense of qualified
immunity at the summary judgment stage, the plaintiff cannot rest on conclusory
allegations or assertions but must demonstrate genuine issues of material fact regarding
the reasonableness of the defendant’s conduct. Michalik v. Hermann, 422 F.3d at 262. To
discharge this burden, a plaintiff must satisfy a two-prong test. He must allege (or show)
to the satisfaction of the court that the defendant has violated a constitutional right. If so,
he must also show that the defendants' actions were objectively unreasonable in light of
the law that was clearly established at the time of the actions that are the subject of the
complaint. Atteberry v. Nocona Gen'l Hosp., 430 F.3d 245, 253 (5th Cir.2005) (emphasis
added); see also Stokes v. Gann, 498 F.3d 483, 484 (5th Cir.2007).
In Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009), the Supreme Court

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revised the rule of Saucier v. Katz and held that in resolving a qualified immunity claim,
while it may be beneficial to do so in some cases, courts need not first determine whether
facts alleged or shown by the plaintiff make out a violation of a constitutional right. The
sequence of the two-prong analysis is not mandatory, and courts may exercise discretion
in deciding which of the two prongs should be addressed first. Id. 555 U.S. 226, 129 S.Ct.
818. Since this Court cannot conclude as a matter of law whether a constitutional right
was violated, the analysis must turn to whether Guidry’s actions were objectively
unreasonable in light of the law that was clearly established at the time of his actions.
The Supreme Court provided the analytical distinction in Saucier v. Katz:
The concern of the immunity inquiry is to acknowledge that reasonable
mistakes can be made as to the legal constraints on particular police
conduct. It is sometimes difficult for an officer to determine how the
relevant legal doctrine, here excessive force, will apply to the factual
situation the officer confronts. An officer might correctly perceive all of the
relevant facts but have a mistaken understanding as to whether a particular
amount of force is legal in those circumstances. If the officer's mistake as to
what the law requires is reasonable, however, the officer is entitled to the
immunity defense.
Graham does not always give a clear answer as to whether a particular
application of force will be deemed excessive by the courts. This is the
nature of a test which must accommodate limitless factual circumstances.
This reality serves to refute respondent's claimed distinction between
excessive force and other Fourth Amendment contexts; in both spheres the
law must be elaborated from case to case. Qualified immunity operates in
this case, then, just as it does in others, to protect officers from the
sometimes “hazy border between excessive and acceptable force,” Priester
v. Riviera Beach, 208 F.3d 919, 926-927 (C.A.11 2000), and to ensure that
before they are subjected to suit, officers are on notice their conduct is
unlawful.

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Graham and Anderson refute the excessive force/probable cause distinction
on which much of respondent's position seems to depend. The deference
owed officers facing suits for alleged excessive force is not different in
some qualitative respect from the probable-cause inquiry in Anderson.
Officers can have reasonable, but mistaken, beliefs as to the facts
establishing the existence of probable cause or exigent circumstances, for
example, and in those situations courts will not hold that they have violated
the Constitution. Yet, even if a court were to hold that the officer violated
the Fourth Amendment by conducting an unreasonable, warrantless search,
Anderson still operates to grant officers immunity for reasonable mistakes
as to the legality of their actions. The same analysis is applicable in
excessive force cases, where in addition to the deference officers receive on
the underlying constitutional claim, qualified immunity can apply in the
event the mistaken belief was reasonable . . .Excessive force claims, like
most other Fourth Amendment issues, are evaluated for objective
reasonableness based upon the information the officers had when the
conduct occurred . . . The question [for purposes of qualified immunity] is
what the officer reasonably understood his powers and responsibilities to
be, when he acted, under clearly established standards.
Saucier v. Katz, 533 U.S. 205-208, 121 S.Ct. 2158-2159.
“A government official’s conduct violates clearly established law when, at the time
of the challenged conduct, ‘the contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that right’. . .
We do not require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.----, 131
S.Ct. 2074, 2083 (2011) quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039 (1987) (emphasis added). The fact that it is clear that any unreasonable use of
force is unconstitutional does not mean that it is always clear which uses of force are
unreasonable. The “right allegedly violated must be defined at the appropriate level of

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specificity before a court can determine if it was clearly established.” Wilson v. Layne,
526 U.S. 603, 615, 119 S.Ct. 1692, 1700 (1999). Otherwise, “[p]laintiffs would be able
to convert the rule of qualified immunity ...into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract rights.” Anderson v. Creighton, 483
U.S. 639, 107 S.Ct. 3039. “If the law at the time of a constitutional violation does not
give the officer ‘fair notice’ that his conduct is unlawful, the officer is immune from suit.
This standard thus protects an officer with a mistaken, yet reasonable, understanding of
the law from the ‘hazy border between excessive and acceptable force.’” Manis v.
Lawson, 585 F.3d 839, 846 (5th Cir. 2009) citing Brousseau v. Haugen, 543 U.S.194,
198-201, 125 S.Ct. 566, 599, (2004); Saucier v. Katz, 533 U.S. 194, 206. In the qualified
immunity context, the objective reasonableness of an officer's belief that his conduct was
lawful is a question of law, not fact. Atteberry v. Nocona General Hospital, 430 F.3d at
256.
In Williams v. City of Cleveland, Ms. 2012 WL 3614418 (N.D. Miss. 8/21/2012),
the court collected the case law on a national basis along with some outside sources
pertaining to the use of tasers. The jurisprudence addressing taser use in excessive force
claims generally falls into two categories. The first involves individuals over whom
officers have not obtained control and are tasered while actively resisting arrest by

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physically struggling with, threatening, or disobeying officers.2 In such cases courts
conclude either that no constitutional violation occurred, or that the right not to be tasered
while resisting arrest was not clearly established at the time of the incident thus entitling
the officer to qualified immunity. The cases from the Fifth Circuit follow the same
pattern. Poole v. City of Shreveport, 691 F.3d 629 (summary judgment granted to officers
who responded with “measured and ascending” actions, including taser use, which
corresponded to the plaintiff’s escalating verbal and physical resistance in a “tense,
uncertain, and rapidly evolving” situation); Batiste v. Theriot, 458 Fed. Appx. 355-356,
(reversing denial of summary judgment on finding that it is reasonable for officers to
chase and taser a fleeing suspect with a felony arrest warrant, even if the tasing caused

2

Buchanan v. Gulfport Police Department, 2012 WL 1906523 at *9 (S.D. Miss.
5/25/2012); Cockrell v. City of Cincinnati, 468 Fed. Appx. 491, 496-498 (6th Cir. 2012)
(the right of a misdemeanant, fleeing from the scene of a non-violent misdemeanor, but
offering no other resistance and disobeying no official command not to be tased, even if
excessive, was not clearly established in 2008); Mattos v. Agarano, 661 F.3d 433, 433
(9th Cir.2010); McKenney v. Harrison, 635 F.3d 354 (8th Cir.2011); Bryan v.
MacPherson, 630 F.3d 805, 805 (9th Cir.2009); Isom v. Town of Warren, R.I., 360 F.3d
7,12 (1st Cir. 2004); Baird v. Ehlers, 2011 WL 5838431 (W.D.Wash. Nov. 21, 2011);
McConnell v. McKillip, 573 F.Supp.2d 1090, 1101 (S.D. Ind. 2008); Stanley v. City of
Baytown, 2005 WL 2757370 at *8 (S.D. Tx. 10/25/05); Carter v. City of Carlsbad, 2011
WL 2601027 (S.D. Cal. June 30, 2011); Azevedo v. City of Fresno, 2011 WL 284637
(E.D.Cal. Jan. 25, 2011); Sanders v. City of Dothan, 671 F.Supp.2d 1263
(M.D.Ala.2009); Beaver v. City of Federal Way, 507 F.Supp.2d 1137 (W.D.Wash.2007)
(holding that, of five August 2004 taser deployments against suspect who fled scene of
residential burglary and refused to obey command to stop, first three were not excessive
uses of force, since officer had to make split-second decisions on how to subdue
disobedient, fleeing felon, while last two constituted excessive force because suspect was
no longer immediate threat; qualified immunity still was appropriate, however, because
law was not clearly established).
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death). Many courts, including the Fifth Circuit, have upheld the use of even deadly force
by police officers when suspects refuse to obey commands regarding the placement of
their hands. See e.g. Carnaby v. City of Houston, 636 F.3d 188-189, (upholding use of
deadly force against suspect whose actions could reasonably be interpreted as reaching
for a weapon). This includes the use of taser guns and pepper spray. See, e.g. Brewer v.
Texas, 2011 WL 3047647 (N.D.Tex. Jul. 22, 2011) (use of taser device was not an
unreasonable attempt to subdue plaintiff who repeatedly ignored instructions by police to
show his hands).
The second group involves a law enforcement official tasering an individual who
had done nothing to resist arrest or was already detained and had been subdued.3 In the
second group, courts have almost uniformly held that a §1983 excessive force claim is
available and this circuit is consistent in that regard as well. Autin v. Baytown, 174 Fed.
Appx. 183, 185-186 (5th Cir. 2005) (unpublished) (denial of summary judgment in
multiple tasering case where plaintiff was at most committing the minor crime of criminal
mischief, was not a threat to the officer or others, and was not resisting arrest); Massey v.
Wharton, 477 Fed. Appx. 256, 263 (5th Cir. 2012) (unpublished) (denial of qualified

3

Kijowski v. City of Niles, 372 F. App'x 595, 601 (6th Cir.2010); Brown v. City of
Golden Valley, 574 F.3d 491, 499-500 (8th Cir.2009); Landis v. Baker, 297 F. App'x 453,
462 (6th Cir.2008); Casey v. City of Federal Heights, 509 F.3d 1278, 1283-1285 (10th Cir.
2007); Shekleton v. Eichenberger, 2011 WL 1578421 at *10 (N.D.Iowa Apr.26, 2011);
Borton v. City of Dothan, 734 F.Supp.2d 1237, 1252 (M.D.Ala.2010); Orsak v. Metro.
Airports Comm. Airport Police Dep't, 675 F.Supp.2d 944, 955-956 (D.Minn.2009).
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immunity to officer who used his taser twice and his pepper spray once to subdue plaintiff
who was not a threat to the officers, not attempting to flee and was driving away at the
officer’s command).
It is clear that the use of tasers in general is not objectively unreasonable, even
where multiple discharges occur. It is not as clear when the use of tasers is objectively
unreasonable in a specific context although one could possibly draw some conclusions
from the jurisprudence cited. The Fifth Circuit has held that “pre-existing law must
dictate, that is truly compel, (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent that what defendant is
doing violates federal law in the circumstances.” Pierce v. Smith, 117 F.3d 866, 882 (5th
Cir. 1997) quoting Lassiter v. Alabama A&M University 28 F.3d 1146, 1150 (11th Cir.
1994) (en banc); Pasco v. Knoblauch 566 F.3d 572, 578-579 (5th Cir. 2009). (emphasis in
original) In this circuit, as set forth in Autin, applying the factors of Graham v. Connor
found at 490 U.S. 396, the use of a taser may be objectively unreasonable depending on
the severity of the crime, whether the actor poses an immediate threat to the safety of the
officer or others, whether he is actively resisting arrest or attempting to evade arrest by
flight. Autin v. City of Baytown, 174 Fed. Appx. 183, 185 (5th Cir. 2005). “A reasonable
officer is charged with knowing that, as clearly established law, these are the factors that
tend to indicate whether the use of force is appropriate.” Id., at 186. However, in the
Sixth Circuit, a misdemeanant (jaywalking violation) did not have a clearly established

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right not to be tasered in 2008 because he fled. Cockrell v. City of Cincinnati, 468 Fed.
Appx. 496-498, therefore, the severity of the crime may not be a factor in some parts of
the country yet it might be in others.
The severity of the crime at the time was unknown to Guidry beyond the
reasonable suspicion of a drug transaction. Depending upon the drug involved, and the
amount involved, the crime could have been a felony or a misdemeanor. Rakestrau could
have been in possession of a deadly weapon. In hindsight only, it was learned Rakestrau
was in possession of a small amount of marijuana. It was Rakestrau’s conduct which
escalated events from a request for identification, to Guidry’s use of soft hands to gain
compliance, and when that failed, to Guidry’s use of hard hands. When that failed, and
Rakestrau appeared to be in a state to either fight or flee, Guidry deployed the taser.
Four seconds after the cycle stopped, (1) after having been involved in an
altercation with an individual larger than he, (2) who resisted being questioned or
searched, (3) who still had not been searched for a weapon (4) whose hands were not
visible and (5) with no backup present, Guidry decided to deploy the taser a second time.
Guidry testified that Rakestrau moved and his hands were still under him (a fact that is
somewhat contradicted by the eyewitnesses). It would not be plain to every reasonable
officer that the use of the taser again was unlawful under these circumstances unless it
was clear that Rakestrau was completely subdued, and therefore, not a flight risk, a threat
to the safety of Guidry or capable of resisting arrest. This is particularly so given the

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language of the LPSO policy that “additional discharges may be used to gain
compliance.” Based on the information available from the video which this Court has
viewed numerous times, this Court cannot conclude that none of the Graham factors was
plainly present. Autin v. City of Baytown, 174 Fed. Appx. 186.
While the nine second cycle is troubling to this Court, given the conditions at the
moment, when a five second cycle would have been the minimum, this Court cannot say
that the additional four seconds, while perhaps constituting excessive force, violated
clearly established law such that “every reasonable official would have understood”
Guidry’s nine second discharge violated Rakestrau’s right to be free from excessive force.
Therefore, Guidry is entitled to qualified immunity and the claims against him in his
individual capacity under 42 U.S.C. § 1983 must be dismissed.
Louisiana State Law Claims
The plaintiff has also asserted the Louisiana state law claim of assault and battery
against Guidry under La. C.C. art. 2315. Under this theory, the officer can be liable and
the sheriff can be vicariously liable in his official capacity. Jenkins v. Jefferson Parish
Sheriff’s Office, 402 So.2d 669, 669 (1981); Riley v. Evangeline Parish Sheriff’s Office,
637 So.2d 395, 395 (1994). Louisiana’s tort of excessive force is essentially the same as
its federal counterpart, however, it is analyzed under general negligence law, which employs a
duty-risk analysis. Stroik v. Ponseti, 96–2897 (La.9/9/97), 699 So.2d 1072, 1077. As such,
plaintiffs must prove: (1) defendant owed a duty of care to plaintiffs; (2) the requisite duty was

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breached by defendant; (3) the conduct in question was a cause-in-fact of the resulting harm; and
(4) the risk of harm was within the scope of the protection afforded by the duty breached. Id.

Unlike the federal excessive force claim which does not depend on the constitutionality of
an underlying arrest, under Louisiana law:
A person shall submit peaceably to a lawful arrest. The person making a
lawful arrest may use reasonable force to effect the arrest and detention, and
also to overcome any resistance or threatened resistance of the person being
arrested or detained. La.C.Cr.P.Art. 220.
Thus, absent a valid arrest, any force used to effectuate arrest is excessive and
constitutes a battery. Deville v. Marcantel, 567 F.3d 156, 172-173 n.9 (5th Cir. 2009). An
unlawful arrest is one lacking probable cause. Id. The defendant argues, and this Court
agrees, there was enough reasonable suspicion of criminal activity to justify a Terry stop.
Whether that rises to the level of probable cause has not been briefed. However, it is not
necessary to decide whether probable cause exists as the standards set forth in Kyle v.
City of New Orleans, 353 So.2d 969, 972-973 (1977) to determine the duty owed by
police officers in effectuating an arrest have been held to apply prior to arrest when an
officer approaches a person he has reason to question. Mathieu v. Imperial Toy Corp.,
646 So.2d 318, 322-323 (La. 1994); Stroik v. Ponseti, 699 So.2d 1078.
The duty is one of reasonableness under the totality of the circumstances, and to
determine if the duty was breached, i.e. the actions were not reasonable under the
circumstances, the court must consider: (1) the known character of the arrestee; (2) the
risks and dangers faced by the officers; (3) the nature of the offense involved; (4) the
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chance of the arrestee's escape if the particular means are not employed; (5) the existence
of alternative methods of arrest; (6) the physical size, strength, and weaponry of the
officers as compared to the arrestee; and (7) the exigencies of the moment. Id., Kyle v.
City of New Orleans, 353 So.2d 973. The Fifth Circuit has indicated these
considerations are sufficiently similar to the Graham factors to warrant the same result as
would obtain on the § 1983 claim. Deville v. Marcantel, 567 F.3d 173, Deshotels v.
Marshall, 454 Fed. Appx. 262, 269 (5th Cir. 2011).
Based upon the analysis and discussion set out above in this Court’s consideration
of the §1983 claims, the motion for summary judgment on plaintiff’s state law claims
against Guidry for his actions up to and including the first tasing is granted. However,
this Court finds there is a genuine issue of material fact whether the second tasing
constituted excessive force if Rakestrau was subdued at the time of the second tasing and
not given opportunity to comply. Therefore, this aspect of the motion is denied.
Conclusion
As to the plaintiff’s claims under 42 U.S.C. § 1983, the events leading up to and
including the first taser discharge do not constitute excessive force. As to the second
tasing, there is a genuine issue of material fact whether the force used was excessive.
However, the plaintiff has failed to show that the actions of Deputy Guidry violated rights
that were clearly established at the time of the incident, and therefore, Deputy Guidry is
entitled to qualified immunity and the § 1983 claims against him in his individual

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capacity must be dismissed.
As to the plaintiff’s state law claims, for the same reasons applicable to the §1983
claims, the motion is granted as to the events up to and including the first tasing, however
the Court finds there are genuine issues of material fact pertaining to the second tasing
and the motion is denied as to that claim.
Signed at Lafayette, Louisiana this 8th day of April, 2013.

______________________________________
Patrick J. Hanna
United States Magistrate Judge

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