Last week, in Kent v Oakland County, the Sixth Circuit Court of Appeals issued a decision finding that police officers could not be shielded from a civil rights lawsuit by a victim of excessive police force involving a taser.

In the case, a local doctor had called non-emergency dispatch to report the natural death of his father in his home. A firefighter-EMT arrived on the scene and informed the family that he would attempt resuscitation. The family informed the EMT that the father had a living will and that the father’s wishes were that he did not want any artificial resuscitation. The EMT ignored these statements by the family and began to prepare to use a defibrillator on the dead father.

The doctor stated that the EMT did not have the right to assault his father’s dead body in his home against his wishes. The EMT called for police backup, and when the doctor refused to leave his home and continued to protest, a police officer tased him with a taser in dart mode.

The court found that the doctor was never arrested and was not told at any time that he was under arrest. He was also unarmed and made no movements to suggest he had a weapon. He was not violently thrashing about in an effort to avoid handcuffing or to flee police, nor is there any indication that he attempted to hit officers or make a display of force. At the most, the doctor used “agitated hand gestures.” Under these circumstances, the court found that his “actions do not, therefore, amount to the same immediate threat to safety found to justify tasing under our case law. “ Moreover, the court noted that the doctor had his hands up and his back against the bedroom wall, and “an individual poses little threat of harm when [his or] her hands are in the air indicating submission.”

The court concluded “the use of a Taser on a non-resistant suspect” constitutes excessive force. More specifically, the court held: “refusing to comply with commands to leave an apartment and saying as much to officers, when the claimant was never told he was under arrest and posed little safety threat to officers—constituted excessive force.”