Porro v. Barnes, ___ F.3d ___ , 2010 WL xxxx, No. 10-6002 (10th Cir. 2010) (OK)
Plaintiff, an immigration detainee, was tasered 3 times after being strapped into a restraint chair. District court awarded him $100k against the cop who tasered him, but granted summary judgment for the sheriff and his successor. Court upholds the summary judgment. First, it narrows Plaintiff’s excessive force claim, since he is like a pretrial detainee, as raising a due process violation within the meaning of the 5th and 14th Amendments. Under this standard, there has been no showing of “direct personal responsibility” by the sheriff for the tasering. Under this due process theory, supervisory liability does not apply. Second, the sheriffs, in their official capacities, are not liable for failure to train on proper use of tasers. Plaintiff cannot show the “deliberate indifference” required to the constitutional rights being violated and the need for training. There was policy in place, which the one cop violated. Also, although the federal policy forbids use of tasers on immigration detainees, violation of that policy does not mean there has been a constitutional violation.