Taser training.

Photographer: Robin Utrecht/AFP/Getty Images

Judges Are Thinking More About Excessive Force

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Black Lives Matter movement may be starting to affect the thinking of federal judges, if a Texas case is any indication.

Wednesday, a George W. Bush appointee wrote a dissent that started this way: “Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information.”

The opinion was a dissent because the two other judges on the appellate panel thought the officers who killed Pratt during an arrest were entitled to immunity from being sued. So it's not as if the social protest movement has yet won a complete victory. But the Republican appointee’s language was noteworthy and her opinion deserves analysis.

The facts of Pratt’s case, decided by the U.S. Court of Appeals for the Fifth Circuit, are complicated, even according to the lawyers representing his mother. By Erony Pratt’s account, which the court assumed to be true for purposes of a motion to dismiss her case, officers from the Harris County, Texas, sheriff’s department came upon Pratt after a minor traffic accident.

Pratt was running in circles around the car, “imitating a boxer.” His hands were above his head, and he was saying that he was on fire, which he was not. Although the police didn't yet know it for certain, Pratt was acting strangely because he was high on cocaine and had also ingested a significant quantity of ethanol, or corn alcohol.

Restraining Pratt turned out to be difficult. Three attempts to Taser him failed. Another brought him to the ground, but Pratt continued resisting, and he was Tasered two more times before he could be handcuffed. At that point, Pratt said, “Okay, okay, I’ll quit … I’ll stop fighting.”

But Pratt didn't stop fighting. He tried to run again, and was tackled. At that point he was Tasered once more -- the seventh time, by my count -- this time in “drive stun mode", which means the Taser is applied directly to the body. One officer rolled him over onto his stomach, and another put his knee on his back, and he was put in a hobble restraint, essentially, ankle cuffs. Pratt stopped resisting and said, “Ok I quit. I’m done.”   By now he was “hog-tied” according to the court’s opinion.

Shortly thereafter -- within minutes – EMS technicians arrived on the scene. Pratt wasn’t breathing. They managed to bring his pulse back, but he died in the hospital the next morning.

What killed Pratt? Both the doctor for the county and the expert witness hired by Pratt's mother said the death had multiple causes. According to the expert, the cause of death was “due to the combined effects of prone restraint and cocaine and ethanol toxicity,” with Taser use, cardiomyopathy, obesity and chronic drug use as contributing factors.

At the time of the arrest, the Harris County Sheriff's Department had a policy that prohibited the use of hog-tie restraints. On that basis, Pratt’s mother brought a federal suit against the officers and the county alleging violations of his constitutional rights through the use of excessive force.

When law enforcement officers are sued for something they did while performing their duties, they invariably argue that they are entitled to what the law calls “qualified immunity.” The point of qualified immunity is to set a high bar for lawsuits. To be sued successfully, police officers basically must have knowingly violated the law or acted so incompetently that it amounts to the same thing.

The majority of the Fifth Circuit panel held that the facts alleged by Pratt’s mother weren't sufficient to demonstrate the use of excessive force. There was no single opinion for the panel. Judge E. Grady Jolly, a Reagan appointee, wrote that the Tasering wasn't clearly excessive.

A second judge, Gregg Costa, appointed by Barack Obama,  cited two cases in which the Fifth Circuit found no violation of clearly established law when an arrestee was hogtied. His three-paragraph opinion said these cases forced the conclusion that the officers were entitled to qualified immunity.

Judge Catharina Haynes, the Bush appointee, dissented. She argued that it was clearly established that Pratt should not have been hogtied. The hog-tie, she said, amounted to deadly force when combined with drug use. And the officers had reason to think Pratt was high on something given his behavior when they found him.

Haynes went on to explain that when Pratt was hogtied, he wasn't presenting an immediate threat of harm to the officers -- nor indeed did he threaten them at any time. That fact, she said, distinguished Pratt’s case from those cited by the other two judges.

Haynes, based in Dallas, was a partner at the prominent Baker, Botts law-firm and an elected Texas trial judge for eight years before George W. Bush put her on the Fifth Circuit. She’s not known as a leftist of any kind. And whether Pratt was black or white wasn't specified.

But the judge’s opening salvo, referring to the killing of Pratt as the death penalty administered by police, makes sense only in the light of the Black Lives Matter protest movement drawing public attention to the use of excessive force in arrest and detention.

Maybe, as time passes, other judges will get the message too -- and maybe that will save the lives of more arrestees, whether black or white.


  1. Fascinatingly, Costa, after serving as editor-in-chief of the Texas Law Review, clerked for Chief Justice William Rehnquist and was later a federal prosecutor. It’s extremely unusual, though not unheard of, for someone who clerked for an arch-conservative to have been appointed to the federal bench by a Democrat like Obama. There is surely a story to tell here, although I don't know what it is.

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