Thursday, December 31, 2009

Important Taser Case is Must-Read for Taser Opponents

It's new Year's Eve and now New Years, but I can't do anything but stay home, blog, read, and wait for my stitches and muscles to heal from the accident I had three days ago.

Fortunately, I have a great "Taser" legal case to read, addressed in the San Diego Bee, and published by the Court, was announced on December 29, 2009, by the 9°th Circuit Court of Appeals, with direct legal effect in California, Alaska, Washington, Montana, Oregon, Idaho, Arizona, Hawaii and Guam, and influential in other parts of the country.

Plaintiff Bryan was stopped police twice in one day, and on the second stop he was shocked twice with a Taser device, falling face down in the roadway and "fracturing" four teeth in addition to facial injuries. The shocking officer said that even though Bryan was twenty feet away and there were no other cars or persons on the road, the officer testified that he was afraid of a man who was dressed only in boxer shorts and tennis shoes while yelling at himself between the car door and the car, twenty or twenty-one feet away. Bryan, the plaintiff had been stopped by the officer only to enforce a seat belt law.

The 9°th Circuit Court of Appeals Court found that:
. . . in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
( . . . )

Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action.

( . . . )

Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).

( . . . )

Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt.

( . . . )

We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be justified
by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of

( . . . )

We similarly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a nonintrusive
level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.[5]

The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not.

( . . . )

In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant

( . . . )

The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public.

( . . . )

The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”).
Opponents of taser use should read the entire case, since it is chock full of the arguments we've made over the last two years. It also addresses the continuum of force question, without using that specific term, and it makes application of appropriate and measured use of force a matter of law, rather than a mere matter of whether police followed their own lax guidelines or not.

1 comment:

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