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You Can't Tase Me, Bro -- I live in the 9th Circuit.
December 30, 2009 3:24 PM   Subscribe

A three judge panel of the 9th Circuit has ruled a police officer can be sued for damages for tasing a motorist. The court held use of tasers must be justified by a strong government interest that "compels" employing such force Practically speaking, police agencies will likely have to revise their policies to limit taser use to situations where a person poses an obvious danger. Field use of tasers currently varies across jurisdictions. The Police Executive Research Forum, however, has advocated for a similarly restrictive policy.

The fact that this is a 9th Circuit decision does not mean it will be overturned.

Here are some of the previous MetaFilter posts about taser use.
posted by bearwife (62 comments total) 7 users marked this as a favorite

 
Alright, everybody. Back to guns!
posted by mpbx at 3:28 PM on December 30, 2009 [6 favorites]


And 'wood shampoos'.
posted by BrotherCaine at 3:29 PM on December 30, 2009


"that"
posted by The World Famous at 3:31 PM on December 30, 2009


police agencies will likely have to revise their policies to limit taser use to situations where a person poses an obvious danger

That's a novel idea.
posted by lullaby at 3:32 PM on December 30, 2009 [17 favorites]


Don't sue me, bro
posted by scody at 3:32 PM on December 30, 2009 [9 favorites]


Error getting pubarticle, Please call the system admin.

Mirror or cached version?
posted by UrineSoakedRube at 3:34 PM on December 30, 2009


Eventually overturned or not, this is just another 9th Circuit decision that makes me want to send them all chocolates and flowers...
posted by rollbiz at 3:34 PM on December 30, 2009 [12 favorites]


Sorry about the first link: I swear it was working when I posted. Does this work?
posted by bearwife at 3:40 PM on December 30, 2009


Fixed the first link for you bearwife.
posted by mathowie at 3:42 PM on December 30, 2009


Thanks Mathowie!
posted by bearwife at 3:44 PM on December 30, 2009


San Diego-based U.S. District Judge Larry Burns granted summary judgment to the city of Coronado and its police department, but held that McPherson was not entitled to qualified immunity. The 9th Circuit agreed.

"Although Bryan had shouted expletives to himself while pulling his car over and had taken to shouting gibberish, and more expletives, outside his car," the court held, "at no point did he level a physical or verbal threat against officer McPherson."


These facts indicate that the use of force was beyond constitutional standards. When a department is freed from liability but the officer is not, it is a near sure indication of excessive force. It usually also means that the officer declares bankruptcy and low damages are a result because the department is the deep pocket in these cases. Overall, this is a loss for Bryan, as it will limit his recovery, should the civil trial go against him.

I think tasers are much better than guns, however.
posted by Ironmouth at 3:44 PM on December 30, 2009


I think tasers are much better than guns, however.

Yeah, but I can't imagine a cop blowing a guy's brains out for shouting gibberish -- nowhere near as casually as he would shock him for it, anyways.
posted by hermitosis at 3:52 PM on December 30, 2009 [1 favorite]


"I think tasers are much better than guns, however."

I think they can be but they are open to abuse too. There is no way Robert Dziekanski would have been shot by police if they didn't have a taser. Tasers should be treated as often lethal weapons and they aren't.
posted by Mitheral at 3:54 PM on December 30, 2009 [3 favorites]


Man tasered eleven times for striking police officer while having a seizure
posted by gngstrMNKY at 4:04 PM on December 30, 2009 [4 favorites]


Fucking finally.
posted by Mrs. Pterodactyl at 4:06 PM on December 30, 2009 [10 favorites]


This , is kind of an interesting little article about Taser use in police departments. According to the study the cases of in-custody sudden deaths spike 6 fold in the year after police departments adopt Tasers for use, but following that year the levels drop back to pre-adoption levels. Furthermore, nearly all of those first year deaths where not from Tasers themselves, but the use of Tasers seem to often escalate situations which result in firearm use. After that first year, departments seem to adopt a much more conservative pattern of usage.
posted by edgeways at 4:07 PM on December 30, 2009 [2 favorites]


I think tasers are much better than guns, however.

Maybe if cops were shooting people all the time for pissing them off.
posted by delmoi at 4:09 PM on December 30, 2009 [3 favorites]


Metafilter: Fucking finally.
posted by ob at 4:15 PM on December 30, 2009 [1 favorite]


This , is kind of an interesting little article about Taser use in police departments. According to the study the cases of in-custody sudden deaths spike 6 fold in the year after police departments adopt Tasers for use, but following that year the levels drop back to pre-adoption levels. Furthermore, nearly all of those first year deaths where not from Tasers themselves, but the use of Tasers seem to often escalate situations which result in firearm use. After that first year, departments seem to adopt a much more conservative pattern of usage.

Well I'm sure all those people that died while in custody will be happy to hear that.

Oh wait.
posted by Talez at 4:27 PM on December 30, 2009 [2 favorites]


My Special Case A trumps your Special Case B.
posted by kiltedtaco at 4:31 PM on December 30, 2009


All things considered, I'd rather cops taser someone 42 times for reaching for their wallet than shoot them, but I still think that cops should not be allowed to taser people for non-compliance, which is essentially just torturing someone to comply.
posted by empath at 4:31 PM on December 30, 2009 [10 favorites]


Alright, everybody. Back to guns!

I've personally seen a taser unholstered once, and another aimed at someone's head. Neither incident was one in which a firearm would have been drawn otherwise. I've read the numbers on taser use in my city and they suggest a similar pattern with full discharges. Officers have even been advised that, for their own safety, they should not use tasers instead of guns.

This has been a stupid experiment with predictable outcomes and we as citizens should have the courage to demand that it come to an end.
posted by regicide is good for you at 4:50 PM on December 30, 2009 [3 favorites]


This has been a stupid experiment with predictable outcomes and we as citizens should have the courage to demand that it come to an end.

BUT ONLY THE BAD GUYS END UP BEING TASERED! WHY DO WE EVEN GIVE THESE PEOPLE DUE PROCESS THE POLICE OBVIOUSLY ARRESTED THEM BECAUSE THEY WERE GUILTY HURF DURF DURF!

We can't even respect due process as citizens little alone "bad people" being brutalized by the police.
posted by Talez at 4:59 PM on December 30, 2009


Good.
posted by Legomancer at 5:14 PM on December 30, 2009


The 9th Circuit Court of Appeals exists to make highly controversial and often slightly insane decisions in an effort to goad the Supreme Court into taking the cases on.
posted by koeselitz at 5:15 PM on December 30, 2009 [1 favorite]


"Overall, this is a loss for Bryan, as it will limit his recovery, should the civil trial go against him."

Consider my mind tazed.
posted by Gamien Boffenburg at 5:18 PM on December 30, 2009


Tasers are not being used only in situations where the old tool is a gun. They are frequently being used where the old tool is a baton, or a sap, or a pile-on by a group of big cops, or no tool at all, when the tasee is just exercising his rights. Allowing cops to force compliance by the infliction of pain is not generally permitted when the instrument is a club. Why is it permitted when the instrument is an electrical device? Why is it different from the Tucker Telephone?
posted by Kirth Gerson at 5:20 PM on December 30, 2009 [5 favorites]


Rehashing the same old opinions about tasering is fine practice for bar room arguments, I guess, but I'd like to hear about this particular case and what it means for the future of tasering. Because, if it stands, it sure sounds like good news for everybody but lazy, sadistic cops.

Apparently, it is not true that a 9th circuit decision means less than another appeals court's decision -- they are not overturned at a higher than average rate. Right? But is it likely that this particular decision will be overturned?
posted by pracowity at 5:21 PM on December 30, 2009 [1 favorite]


"Overall, this is a loss for Bryan, as it will limit his recovery, should the civil trial go against him."

Methinks this might be a slight misspeak, as I think the idea Ironmouth is presenting is that if Bryan wins the trial, he won't be able to recover from (bankrupt) officer and that will lower his overall damages.

But I'm wondering if Bryan won't do better at trial against the department if they didn't have a sufficiently restrictive taser policy per this opinion, or had a decent policy and didn't enforce it as to this officer.
posted by bearwife at 5:26 PM on December 30, 2009


I just tried a case two weeks ago with the following set of facts.

My guy (Al) was stopped by an officer after he had pulled into a friend's driveway. The officer knew Al from previous encounters, and knew that Al had an order for his arrest for missing court on a previous date. The officer approached Al's window and the conversation went like this:

"Get out of the car."
"Why?"
"You are under arrest."
"For what?"
"You have a failure to appear."
"For what?"
"Get out of the car."
"For what?"

It went like that for exactly thirty seconds. It was a sunny Tuesday afternoon. After those thirty seconds, the officer used his baton to smash open Al's window. Then the officers (a second had been right there) reached in and tased him. They pulled him out of the car and threw him on the ground. Once on the ground, they tased him again.

The jury found Al guilty of Resist, Obstruct, or Delay a police officer. The incident was all captured on pretty clear video. In less than a minute, he had his window smashed, got tased twice, and was thrown to the ground.

The officer said he smashed the window because the sun was glaring off the tinted window and he couldn't see in the car. He smashed the window because he was concerned for his safety and was afraid Al was reaching for a gun. The officer said he tased him the first time because Al was scrambling away from the broken window. He thought Al might be going for a gun in the back seat. The officer said he tased him the second time because once on the ground, Al tucked his hand under his stomach. He was concerned Al might be reaching for a weapon, so he tased him.

The officer was not reprimanded in any way. The jury seemed to have very little problem with Al being tased in that manner.

I think very few juries will be finding in favor of the plaintiff against a defendant police officer for tasing.
posted by flarbuse at 5:27 PM on December 30, 2009 [22 favorites]


This also happens to be good news for taser opponents in countries where they are currently debating whether or not to give policemen tasers, so consider this a victory with potentially international effects.
posted by Marisa Stole the Precious Thing at 5:31 PM on December 30, 2009


pracowity: “Apparently, it is not true that a 9th circuit decision means less than another appeals court's decision -- they are not overturned at a higher than average rate. Right? But is it likely that this particular decision will be overturned?”

Someone can correct me if I'm wrong, but I was under the impression that the Supreme Court sees a very large number of 9th Circuit cases, and that in turn the 9th Circuit (the largest circuit) sees more cases than any other.

It's sort of evolved in a certain way, too. There are pissy people who'd rather not read about history who wring their hands over it becoming too liberal, but it's not really liberal at all - only comfortable with controversy. The 9th Circuit was also the court which ruled in '01 that the government could do warrantless searches through thermal imaging, which frankly is the least liberal decision I can think of; the Supreme Court overturned that one, too.
posted by koeselitz at 5:32 PM on December 30, 2009


I'd like to hear about this particular case

Here is the actual decision.
posted by bearwife at 5:33 PM on December 30, 2009


All things considered, I'd rather cops taser someone 42 times for reaching for their wallet than shoot them...

All things considered I'd rather be shot than tased 42 times, but then I'd rather be shot that be waterboarded 42 times. Personally, I can't abide torture and would rather just be killed outright.

And yes, I got what you meant.
posted by cjorgensen at 5:43 PM on December 30, 2009


I'm now officially keeping track of "taser" related mefi posts... data will be available in 10 years. I predict, at this point in time, that every fucking discussion will end up the same. I'll let you all know if I'm right...

'til then, carry on...
posted by HuronBob at 5:53 PM on December 30, 2009


Did anybody else read that as "tasting a motorist" and was all whoa what
posted by kittens for breakfast at 6:06 PM on December 30, 2009 [1 favorite]


I think tasers are much better than guns, however.

What is the purpose of stating this here? Have police officers been shooting people who mouth off at them?
posted by JHarris at 6:08 PM on December 30, 2009


I'm curious about how often cops who kill use the defense that Johannes Mehserle is using for the murder of Oscar Grant: that they were going for their tasers and accidentally grabbed their guns instead.

Also, and this is less quantifiable, I wonder if frequent taser use impacts a cop's choices about firearm use: in other words, does repeated use of a taser eventually make shooting someone feel more available as an option - psychologically?
posted by serazin at 6:21 PM on December 30, 2009


police agencies will likely have to revise their policies to limit taser use to situations where a person poses an obvious danger.

But they can still taser Muslim students without ID and little girls that don't want showers, right? Right?
posted by b1tr0t at 6:27 PM on December 30, 2009


I'm SHOCKED!
posted by HTuttle at 6:49 PM on December 30, 2009


All things considered, I'd rather cops taser someone 42 times for reaching for their wallet than shoot them...

IANAD but both of these things are potentially fatal, with the former being significantly more dangerous in a majority of cases. Being shot once anywhere other than the head or heart has a very good rate of survival assuming medical care, while being tased 42 times (consecutively? per day? once a year?) will probably stop your heart before you get to the 42nd time.

I would rather we just do less of all of the above.
posted by mek at 7:07 PM on December 30, 2009


Remember, tasers don't torture people, cops torture people.

This message brought to you by the National Taser Association.
posted by yeloson at 7:09 PM on December 30, 2009 [2 favorites]


Why does this seem likely to be overturned in the supreme court? It seems to make a lot of sense.
posted by kylej at 7:13 PM on December 30, 2009


This is so dumb. Tasers are supposed to replace the use of guns. They're not supposed to be pulled out for everything. Tasers are not meant to kill or injure, but they can. Hence, we should reduce tasings to when we only, absolutely need them. Otherwise, they're just a load of politically good intentions used to give cops the privilege to brutalize.
posted by mccarty.tim at 8:11 PM on December 30, 2009


Did anybody else read that as "tasting a motorist" and was all whoa what\

Not only that, but no matter how many times I read the FPP, I first see it like that AGAIN!
posted by telstar at 8:15 PM on December 30, 2009


Friend of mine was tased several times by LAPD for their own entertainment. I'm sure the statute of limitations has run out, too bad, he could use the money.
posted by Jimmy Havok at 8:43 PM on December 30, 2009


If anyone has evidence that tasers are supposed to replace guns I'd like to see a cite. My limited understanding was that tasers are more of a replacement for pepper spray, batons, and less lethal projectiles (bean bag rounds and rubber bullets). As long as we are delegating the use of force to officers of the law I expect abuses to continue, no matter what form of less lethal weaponry is involved.
posted by BrotherCaine at 9:22 PM on December 30, 2009


Remember, tasers don't torture people, cops torture people.
This message brought to you by the National Taser Association.


... and by those demanding protection from a van full of Ragin’ Grannies ...
posted by Surfurrus at 10:18 PM on December 30, 2009


As long as we are delegating the use of force to officers of the law I expect abuses to continue

It does seem like this addresses symptoms, rather than root causes, doesn't it.
posted by Blazecock Pileon at 10:27 PM on December 30, 2009 [1 favorite]


It's not the delegation of force that's the problem, it's the lack of oversight. Police generally seem to consider themselves above the law, and the evidence generally shows them to be right.
posted by Jimmy Havok at 11:58 PM on December 30, 2009 [1 favorite]


Hooray!

oh, ninth circuit.
posted by tehloki at 4:17 AM on December 31, 2009


Why does this seem likely to be overturned in the supreme court? It seems to make a lot of sense.

Um...
posted by Jaltcoh at 7:19 AM on December 31, 2009


Um...

Oh, well that makes perfect sense! Thanks!
posted by kylej at 7:30 AM on December 31, 2009


No problem!
posted by Jaltcoh at 7:30 AM on December 31, 2009


HuronBob : I'm now officially keeping track of "taser" related mefi posts... data will be available in 10 years. I predict, at this point in time, that every fucking discussion will end up the same. I'll let you all know if I'm right...


/[]--------------------------------------------------------------------------------------------->* :(

Bad ASCII art in a taser thread. Put that in your data-set and smoke it!

But otherwise yeah, we do tend to follow predicable paths at times, don't we?

posted by quin at 7:31 AM on December 31, 2009


I think that tasers may well be the least of the issues in this case. The 9th Circuit has partially invalidated the sovereign immunity of police officers. Messing with that is dangerous ground, and it may well be that the Supreme Court overturns it on that ground.
posted by valkyryn at 7:56 AM on December 31, 2009


I think that tasers may well be the least of the issues in this case. The 9th Circuit has partially invalidated the sovereign immunity of police officers. Messing with that is dangerous ground, and it may well be that the Supreme Court overturns it on that ground.

Could you elaborate on the sovereign immunity of police officers (or link to it)? I'm not finding anything through google.
posted by kylej at 8:46 AM on December 31, 2009


Could you elaborate on the sovereign immunity of police officers (or link to it)?

I think valkyryn is referring to the qualified immunity from lawsuits that officers traditionally have. This decision does partially invalidate the qualified immunity claimed by the officer iin this case.
posted by bearwife at 9:41 AM on December 31, 2009


bearwife is basically correct. In essence, as nice as requiring police officers to do a constitutional analysis before they do anything may sound, it doesn't actually work very well. Not only are police officers not constitutional lawyers, but they're frequently required to make decisions with very little time to think in situations where their lives and the lives of others are at stake. There has long been a preference for permitting them to make these decisions without punishing them if their decisions turn out to be wrong. We don't generally want them second-guessing themselves in the heat of the moment and getting shot.

What this case gets at is that this discretion can be and is often abused. Particularly when we're talking about a potentially dangerous and very painful device which does not constitute deadly force under most legal analyses. Officers' ability to use non-lethal force is pretty broad, and it has to be if we want them to do their jobs. Tasers confuse this analysis by giving them a far more potent tool for applying said force. There should probably be stricter controls on the way these devices are used, but I'm not convinced that stripping officers of sovereign immunity is the way to go, and I would not be at all surprised if the Supreme Court overruled this case as a result.
posted by valkyryn at 10:37 AM on December 31, 2009


Remember when Tasers were introduced as a non-lethal alternative to firearms in situations where a firearm would normally be used? How did Tasers go from that, to an "easy button" in situations where diplomacy, command voice, physical restraint, or even friggin' common sense would normally be used?

As for invalidation of qualified immunity, I'm not so certain that happened here - a clear violation of constitutional rights occurred, and the court merely confirmed that. Qualified immunity itself is not compromised - only this attempt by the officer to hide behind it.
posted by FormlessOne at 2:26 PM on December 31, 2009


We don't generally want them second-guessing themselves in the heat of the moment and getting shot.

On the other hand, I do want them to second-guess themselves and not shoot (or tase) me. And if they can't manage that, I'd like to be able collect some damages off them that at least approximate the damage they've done to me. I'd prefer that my fellow taxpayers not get stuck with the bill.
posted by Jimmy Havok at 8:20 PM on December 31, 2009 [1 favorite]


HA! The taser as the easy button. I like it.

But that's the problem. What role does the taser play in law enforcement or self defense?

There don't seem to be any hard and fast rules about this. Police officers go through intense training (usually/hopefully) in the flowchart of threat assessment and tactics for self defense.

It doesn't seem like the taser has been properly integrated into that flowchart.

It seems to me that the taser ought to fit into the tactical flowchart in between "knock the guy down and cuff him" and "shoot him or he will kill me". Especially in the situation where the officer doesn't fear for his life, but may well end up in a fight with the assailant. That's where a lot of officers get hurt or killed- officer gets into a tangle and the assailant gets hold of the officer's gun and shoots him. Nobody expected the situation to go deadly, but in the adrenelin of the moment, it does. That's where the taser should be used. To de-escalate a situation that has the potential for violence, only after other avenues of de-escalation have been exhausted. Similar to the gun use question- if the officer fears for his life, he is justified in lethal force. If the officer is in fear for his safety, but not to the threshold for gun use, the taser is justified.

So I do agree with the spirit of this ruling. A police officer should get some immunity when he is acting within policy and within his natural right for self defense. The same immunity any other citizen has in those situations. But no more.

Just like the concept of the corporate shield. Corporations exist to protect investors from financial ruin beyond their investment. NOT to protect people from illegal actions. A corporation cannot act in the physical world. Some person, somewhere, has to do something. Those persons, just like the police officers here, bear personal responsibility for their actions.

(For the sake of this argument, I am speaking only of "good" police officers. The ones who are trying to do a hard job well. The shitheads and assholes and power freaks can suck it.)
posted by gjc at 8:28 AM on January 1, 2010


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