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Out in the western half of the country, you won't be hearing "Don't taze me bro" any longer. The 9th circuit has affirmed a ruling stating that tasers (the ones with the darts fired at someone from afar) are an intermediate force and require some sort of predicate threat from the individual beyond a mere lack of compliance. Grannies and stoners can rest easy that they won't get tazed from afar because they didn't move fast enough. So it appears the days of using tasers as behavior modification devices is numbered.
From the year old 9th circuit review in Jan.
The ruling in Graham v. Connor which details the Graham balancing test.
The back story as reported:
http://www.thenewspaper.com/news/30/3010.asp
In it's refusal for an en banc review this week,
http://www.thenewspaper.com/news/33/3339.asp
Though personally the officer was granted immunity.
Don't expect that immunity to apply in the future given the rationale for it.
Original Ruling here, Refusal for enbanc Ruling here.
From the year old 9th circuit review in Jan.
Non-lethal, however, is not synonymous with non-excessive; all force—lethal and non-lethal—must be jus- tified 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 force. A blast of pepper spray and blows from a baton are not necessarily constitutionally equivalent levels of force simply because both are classified as non-lethal. Rather than relying on broad characterizations, we must evaluate the nature of the specific force employed in a specific factual situation. See Chew, 27 F.3d at 1441 (stating that the Graham factors “are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure.”).
The ruling in Graham v. Connor which details the Graham balancing test.
the District Court considered the following four factors, which it identified as "[t]he factors to be considered in determining when the excessive use of force gives rise to a cause of action under § 1983": (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) "[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm."
The back story as reported:
http://www.thenewspaper.com/news/30/3010.asp
"An unarmed, stationary individual, facing away from an officer at a distance of fifteen to twenty-five feet is far from an 'immediate threat' to that officer," Judge Kim Wardlaw wrote for the court. "Bryan never addressed, let alone argued with, Officer McPherson once he left his car."
The court held that even though the X26 model taser used is portrayed as a "non-lethal" tool for police, the device has been known to cause death and significant injury. For that reason, its use must be limited to cases where it is absolutely necessary.
"We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force," Wardlaw wrote.
In it's refusal for an en banc review this week,
http://www.thenewspaper.com/news/33/3339.asp
The US Court of Appeals for the Ninth Circuit on Tuesday reaffirmed a decision handed down in January (read decision) limiting the ability of police to taser motorists over minor traffic violations. Coronado, California Police Officer Brian McPherson blasted motorist Carl Bryan, then 21, with a 1200-volt taser during a traffic stop over a minor infraction on the Coronado Bridge near San Diego, five years ago. Bryan lost four of his front teeth and was hit with "resisting arrest" charges. He sued, claiming excessive force had been used.
"We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer," Judge Kim Wardlaw summarized.
The court found that this intermediate, significant level of force delivered by the taser must be justified by a significant threat to the officer.
Though personally the officer was granted immunity.
The court slightly modified its opinion to grant Officer MacPherson qualified immunity because he could have made a "reasonable mistake" given the uncertain state of the law at the time.
Don't expect that immunity to apply in the future given the rationale for it.
Original Ruling here, Refusal for enbanc Ruling here.
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