9th Circuit Affirms taser ruling -- The end of "don't taze me bro".

[terraformer]

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.

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.

 

[Jose]

If facing an immediate threat, it might be best just to shoot a real gun.

 

[terraformer]

If facing an immediate threat, it might be best just to shoot a real gun.

In a situation that arises quickly from little or nothing, that I agree. But so many police encounters develop over time and escalate. They may escalate quickly at points but there is nothing that precludes weak hand cover with a taser from early on in the encounter. Cops have wide latitude on displays of force (whereas the mere mention of a firearm by a civilian can be construed as assault) and can cover with little fear of liability. With the proper tactics and judicious use, tasers can be effective tools preventing bad days for cops. Who wants to kill a psych patient or other less culpable malcontent when they have an alternative. That was the supposed promise of tasers and other less lethal arms.

 

[GSG]

Good find, although all the "non-lethal" talk is irritating. I'll look into it deeper later, but on the surface it appears to be a good ruling.

If facing an immediate threat, it might be best just to shoot a real gun.

Not all immediate threats are lethal.

 

[lupis42]

Looks like a reasonable ruling.

 

[sig2009]

Well it looks like the cop that shot the taser at the FLEEING suspect jumping a fence is screwed. Seems the guy jumped the fence and after being tased fell to the ground on his head and suffered brain damage. I heard that story on the news yesterday.

 

[terraformer]

Well it looks like the cop that shot the taser at the FLEEING suspect jumping a fence is screwed. Seems the guy jumped the fence and after being tased fell to the ground on his head and suffered brain damage. I heard that story on the news yesterday.

I don't know where that is but if you read the opinion, there is some wiggle room for situations where a suspect is dangerous and fleeing. So I would not say this cop is screwed. Frankly, since this is new case law, he will likely maintain his/her immunity. Depending on who the suspect was and why the stop was being made, there may be no liability. But that story is an excellent example of why tasers are not human remote controls.

 

[terraformer]

Well it looks like the cop that shot the taser at the FLEEING suspect jumping a fence is screwed. Seems the guy jumped the fence and after being tased fell to the ground on his head and suffered brain damage. I heard that story on the news yesterday.

http://video.foxnews.com/v/4443507/fleeing-suspect-tasered-brain-damaged/

This the one?

 

[terraformer]

Well it looks like the cop that shot the taser at the FLEEING suspect jumping a fence is screwed. Seems the guy jumped the fence and after being tased fell to the ground on his head and suffered brain damage. I heard that story on the news yesterday.

Having just seen the video and heard the facts, this will not turn on the case in the 9th circuit. This will turn on the question "would a reasonable person believe that the force imparted by the taser be more deadly if used in a situation where the person was elevated". Based on my read of the 9th circuit ruling this person was dangerous enough and fleeing to warrant a taser. It just appears the cop here used it at an inappropriate time.

 

[sig2009]

Having just seen the video and heard the facts, this will not turn on the case in the 9th circuit. This will turn on the question "would a reasonable person believe that the force imparted by the taser be more deadly if used in a situation where the person was elevated". Based on my read of the 9th circuit ruling this person was dangerous enough and fleeing to warrant a taser. It just appears the cop here used it at an inappropriate time.

Sorry but running away from a cop to me is not dangerous for the cop. If running towards the cops with a weapon. Then yes. This is no different than the cop shooting a fleeing suspect with his gun that poses no threat to the cop.

 

[terraformer]

Sorry but running away from a cop to me is not dangerous for the cop. If running towards the cops with a weapon. Then yes. This is no different than the cop shooting a fleeing suspect with his gun that poses no threat to the cop.

The standard is not just the safety of the police officer but the safety of the public.

 

[TimMcG74]

What a bunch of pansies. A good tazing once in a while is good for you. It builds character.

 

[SLIM SHOT]

It is a non lethal use of force and if used properly within the guidlines of proper training it is an excellent tool to be utilized to stop a subject from causing harm to himself,the public and or the officer.

Pepper spray is an excellent tool but it is not 100% reliable in stopping the same.

People can and have overcome the pepper spray and heve either fought through it or have escaped.

With proper training any weapon in law enforcement that is less than leathal is a good alternative than a lethal weapon for obvious reasons.

Personally I have absolutely no experience with the taser but it seems like a very affective tool to neutralize a threat whith little to no lasting affects of injuries.

 

[SLIM SHOT]

What a bunch of pansies. A good tazing once in a while is good for you. It builds character.

Abso effing loutley...................................Over