The Tenth Circuit Court of Appeals issued its opinion in United States v. Quiver on Tuesday, November 17, 2015.
Delray Quiver and another man were intoxicated and creating a disturbance at their grandmother’s house on an Indian reservation. The grandmother called the police and Officer Friday was dispatched to the scene. The grandmother told Officer Friday that she wanted the men arrested and removed, so he tried to take them outside. However, Quiver was uncooperative, impeding Officer Friday from escorting him by the arm. Quiver tried to walk away from Officer Friday toward the road. Officer Friday tripped Quiver and pushed him face-down in the snow, and removed the prong-mode cartridge from his taser so that it could only be used in drive-stun mode. Quiver punched Officer Friday in the face, breaking his glasses, and wrestled the taser from him. Quiver tased Officer Friday on the thigh, leaving two burn marks from the prongs. The two engaged in a fistfight, which Officer Friday eventually won, and Officer Friday regained control of his taser. After arresting Quiver, Officer Friday sought medical treatment for both himself and Quiver.
Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer Friday while he performed official duties. The probation officer recommended a four-level enhancement for use of a dangerous weapon during the assault, which the court applied. Quiver’s resulting Guidelines range was 92 to 115 months’ imprisonment, but the court varied downward to a 70-month sentence based on its view of the danger of tasers as opposed to firearms. Quiver appealed the sentence enhancement.
The Tenth Circuit evaluated the four definitions of “dangerous weapon” contained in U.S.S.G. §§ 2A2.2(b)(2) and found that the first definition applied. The Tenth Circuit found no question that a taser qualifies as a dangerous weapon, even in drive-stun mode, because it is “capable of . . . inflicting serious bodily injury,” which includes injuries causing extreme pain. The Tenth Circuit pointed out that the two burn marks on Officer Friday’s thigh were evidence of the taser’s capability of causing serious bodily injury. The Tenth Circuit rejected Quiver’s argument that the dangerous weapon must actually cause serious bodily injury, noting that there is an additional enhancement for that situation.
The Tenth Circuit affirmed the district court.