SPECIAL REPORT-‘Breathe, Ronald, Breathe:’ The court case curbing Taser use

(This story is part of a series on Tasers, “Shock Tactics”)

WASHINGTON, Aug 23 (Reuters) - One of the biggest commercial threats to Taser International’s signature weapon could come from a lawsuit the company won.

Across the United States, wrongful death lawsuits involving Tasers have created a body of case law restricting the use of a weapon that reshaped law enforcement.

In the latest key case, the U.S. Court of Appeals for the Fourth Circuit ruled that police could lose protection from civil lawsuits if they use a Taser on non-violent suspects. The decision prompted cities in the five-state region from Maryland to South Carolina to adopt new restrictions. It came in a lawsuit in which Taser was dismissed as a defendant, stemming from an incident on April 23, 2011, in Pinehurst, North Carolina.

There, Jinia Lopez took her 43-year-old brother Ronald Armstrong to a hospital after he tried to poke a hole in his leg with a pencil to “let the air out,” Lopez said in a deposition. Armstrong, who suffered from schizophrenia, had been off his bipolar medication for five days.

At the hospital, he fled to a tuft of grass on a street corner where he ate dandelions and extinguished cigarettes with his tongue. Three officers arrived in squad cars as hospital security staff jogged over.

Lopez and the officers tried to coax Armstrong back to the hospital. Sergeant Tina Sheppard touted its amenities: good food and television. At 7:18 p.m., an involuntary commitment order was radioed.

As officers approached Armstrong, he wrapped himself around the bottom of a stop sign. Officer Arthur Gatling drew his Taser.

Armstrong, 5 feet 11 inches and 262 pounds, wouldn’t budge. “I ain’t got to go,” he said.

Gatling drive-stunned his upper back; Armstrong tightened his grip. A police recording captures the altercation. “You’re going to get it again,” an officer shouts, as Lopez pleads, “Ronald, let it go.” Gatling drive-stunned him four more times, court papers say.

Lieutenant Jerry McDonald testified he placed a knee on Armstrong’s back as others struggled to handcuff him and shackle his legs.

Lying face-down in the grass, Armstrong didn’t move. Turned over, he wasn’t breathing.

“Ronald, c’mon baby, wake up,” Shepherd says.

Lopez screamed. “He’s not breathing. He’s dead.”

“Don’t say that, ma’am,” Shepherd says.

“Breathe, Ronald. Breathe,” Lopez wailed. “Breathe, Ronald. Breathe.”

He was pronounced dead at the hospital.

A lawsuit filed by Armstrong’s estate in April 2013 accused the three officers of using excessive force and alleged Taser manufactured a defective and dangerous product.

The officers testified they restrained Armstrong for his own protection, fearing he would flee into traffic.

The estate’s lawyer, Karonnie Truzy, dismissed Taser from the lawsuit after it documented its product warnings.

The officers won. A federal court in North Carolina granted them “qualified immunity,” which provides legal protection unless police violate “clearly established’’ legal principles.

Truzy appealed. That’s when the case took an unusual turn.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled in January 2016 that the officers used an excessive, unconstitutional level of force. But the panel said they couldn’t have known it because laws on Tasers were murky.

The panel upheld the officers’ immunity but put departments “on notice” that unless someone poses “an immediate safety risk,” Tasers can’t be used. “Erratic behavior and mental illness do not necessarily create a safety risk,” the judges wrote.

The court’s ruling aligns with human rights groups, including Amnesty International, who say Tasers should be used only in situations posing a threat of injury or death. In those situations, police typically reach for their firearm.

“How are officers supposed to go forward based upon this?” asked Michael Newman, a lawyer representing Pinehurst.

Of the 442 Taser-related wrongful death lawsuits examined by Reuters, 34 percent involved allegations the person being shocked, like Armstrong, suffered from mental illness.

Across the five states covered by the ruling – North Carolina, South Carolina, West Virginia, Maryland and Virginia – police are scaling back use. At least eight major cities have adopted more restrictive Taser policies, Reuters found.

In Baltimore, police used Tasers 47 percent fewer times last year than in 2015, according to records reviewed by Reuters. Deployments fell 65 percent in Virginia Beach; 60 percent in Greensboro, North Carolina; 55 percent in Charleston, South Carolina; and 52 percent in Huntington, West Virginia. Norfolk, Virginia, saw deployments plunge 95 percent.

“Initially there was a belief that there was low risk to life,” said Mark Newbold, managing attorney of the Charlotte-Mecklenburg Police Department. “But as time went on, we had seen an increase between the use of the Taser and somebody dying. And so the risk analysis has changed.”

Though Pinehurst was off the hook in Armstrong’s death, the village’s lawyer, Dan Hartzog, said Taser, police departments and law enforcement organizations urged him to appeal the ruling. The case “really sent reverberations through the police community,” he said.

Taser declined to comment on whether it pressed Pinehurst to appeal.

In May last year, Pinehurst filed a request to have the U.S. Supreme Court hear the case. Briefs in support of Pinehurst were filed by Taser, the National Fraternal Order of Police and the Southern States Police Benevolent Association, a union representing 30,000 officers.

In October, the Supreme Court declined to hear the village’s appeal. So while police won the case, the appeals court’s limits on Taser use are now law in the five states.

The company said the Fourth Circuit ruling could increase the fatal shooting rate in the region. “This is of course a tragedy and shows what can happen when judges believe some of the electrocution mythology and media sensationalism surrounding electrical weapons,” spokesman Steve Tuttle said in an email.

Some see a different message in the case.

“Armstrong gives us the opportunity to now stand up and say can we walk away or can we at the very least step back,” said Ken Wallentine, former chief of law enforcement for the Utah Attorney General. “One of the messages to police departments is, ‘Guys, slow down.’ ”

Editing by Ronnie Greene and Michael Williams