Litigation

Some Good Taser News: Federal Appeals Court Restricts Its Use

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Matt Welch had some of the usual bad Taser news earlier today (with loads of other Taserriffic links); the L.A. Times reports on some rare good Taser news that could keep the bad Taser news on the run in the future:

A federal appeals court this week ruled that a California police officer can be held liable for injuries suffered by an unarmed man he Tasered during a traffic stop. The decision, if allowed to stand, would set a rigorous legal precedent for when police are permitted to use the weapons and would force some law enforcement agencies throughout the state—and presumably the nation—to tighten their policies governing Taser use, experts said.

"This decision talks about the need for an immediate threat. . . . Some departments allow Tasers in cases of passive resistance, such as protesters who won't move," [the L.A. County Sheriffs Department's Michael Gennaco] said. Tasering for "passive resistance is out the door now with this decision. Even resistance by tensing or bracing may not qualify."….

The unanimous ruling, issued Monday by a three-judge panel, stemmed from a 2005 encounter in which a former Coronado, Calif., police officer, Brian McPherson, stopped a man for failing to wear a seat belt while driving. The driver, Carl Bryan, who testified that he did not hear McPherson order him to remain in the car, exited the vehicle and stood about 20 feet away from the officer. Bryan grew visibly agitated and angry with himself, but did not make any verbal threats against McPherson, according to court documents. McPherson has said he fired his Taser when Bryan took a step toward him—a claim Bryan has denied.

Bryan's face slammed against the pavement when he collapsed, causing bruises and smashing four front teeth.

The appellate court did not rule on whether McPherson acted appropriately, but simply cleared the way for Bryan to pursue a civil case against the officer and the city of Coronado in a lower court. Based on Bryan's version of events, though, the judges found that McPherson used excessive force in firing the Taser, since Bryan did not appear to pose any immediate threat.

In spelling out their decision, the judges established legally binding standards about where Tasers fall on the spectrum of force available to police officers, and laid out clear guidelines for when an officer should be allowed to use the weapon. The judges, for example, said Tasers should be considered a more serious use of force than pepper spray—a distinction that runs counter to policies used by most law enforcement agencies in California and elsewhere….

The Ninth Circuit Court of Appeals' full ruling.

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  1. This will almost certainly be reversed when/if the Wise Latina and Mr New Professionalism get a hold of it. Pretty much the only way Sotomayor replacing Souter affects the court’s makeup is that it becomes more hostile to restrictions on police.

  2. The 9th should issue its rulings pre-overturned.

  3. “We can’t taser people for “disorderly conduct” any more? We can still shoot them, though, right?”

  4. Rush Limbaugh hospialized in Hawaii for chest pains

    Dr Walter E Williams, the libertarian economist,is scheduled to do the show tomorrow. If you’ve never heard him do the show I highly reccommend it no matter what your opinion of Limbaugh.

    1. Ugh, that’s like watching Thomas Sowell on the Daily Show.

      1. No,Thomas Sowell never hosted The Daily Show. Sowell was a call-in guest on a Dr.Williams-hosted Limbaugh program during Black History Month. That was comedy gold.

    2. Agreed.

    3. I’ve heard him speak. He is one sharp mind.

    1. The fucking spam filter can blow me.

      Limbaugh Hospitalized

  5. Don’t taze me, Justices!

  6. Sadly, Brian, that great libertarian legal theorist Orin Kerr at Volokh.com explains the 9th got this wrong, and the SC will likely overturn, as a free society simply couldn’t get along without interpreting the qualified immunity of police officers with great deference….

  7. The ninth can produce some awesome decisions. And then it goes all whack job communist/Stalinist on simple minor things.

  8. I hate the idea of police tazing people for no good reason. I hope this traffic cop gets held liable, since the guy didn’t do anything wrong. Then again, if a bunch of “peaceful” protesters are on my property, I’d like it if the cops can do more than politely ask them to leave.

  9. When tasers were first described to me about thirty years ago — by an army Ranger who worked in hostage situations — it was presented as humanitarian weapon because it was non-lethal. In other words, the idea, at the time, was that it would be used in situations where lethal force would have been justified, but without loss of life. Since then, the cops have decided that these things are restraining devices. It’s about time some common sense were brought into the situation.

    1. Pigs. Is there any concept they can’t fuck up?

  10. … cops & common sense… in the same sentence

  11. “He’s coming right for us!”

  12. Orin Kerr’s commentary is a little disturbing to me.

    Basically, what it boils down to is he thinks that, from a police officer’s perspective, it’s OK to tase anyone who is a “threat”, and that anyone who takes a step in any direction is potentially “threatening”. One step. Even if you’re 15 feet away.

    So basically Orin Kerr, the great libertarian legal theorist that he is, basically holds the position that anyone who is anywhere within 20 feet of a police officer and moves their feet or changes how they are standing is a threat who is subject to tazing.

    Unbelievable.

    1. Well if you’ve ever studied defensive use of a firearm, you’d be familiar with the 21-foot rule. A person within 21 feet of you can go from standing there 21 feet away, to being on top of you and attacking you, in about 1 second. I.e., faster than you would be able to get your weapon out to defend yourself from the attack.

      I don’t think how far away the guy was standing is as much of an issue as is the larger question, based on “the totality of the circumstances” – was there a reasonable belief that this guy presented an immediate threat of imminent serious physical injury, which would justify using force in self-defense.

      1. That’s about 14 mph, which seems a little fast from a standing start (though not impossible, of course). Not to mention, just standing close to a cop isn’t a threat; otherwise, they could tase people all around them all of the time.

        1. It’s also a 6.0s 40 yard dash, which isn’t terribly fast.

      2. Agree with the point about the other circumstance mattering.

      3. Yes, but you need only raise the weapon and aim when the possible attacker takes a step towards you — you don’t fire until it’s clear he’s coming at you. So at most the officer should have raised the Taser and pointed it at the motorist.

        1. Makes sense. If someone rushes you, then you can defend yourself. Even little people have that right.

  13. Just off the top of my head, I think taser use should be restricted to situations where shooting or beating someone is justified. Not otherwise.

    1. beating?

      agree about the shooting part. It should push deadly force further away. Not make force easier to come by

      1. I mean if there’s a situation where a cop would be justified in whacking you with a nightstick, then I suppose a taser could be used instead.

        1. From what I’ve read, a taser is probably safer than beating someone with a nightstick or getting into a fistfight. So I don’t have a problem with their use when the latter two are justified. But this idea of tasing someone for “noncompliance” just has got to stop.

          1. I got into an minor argument with a traffic cop the other day (not a ticket situation). Would he have been justified in tasing me due to our disagreement? Somehow, I think not.

  14. ROTFL, liek the stupid cops care what the courts say! LOL

    Jess
    http://www.invisibility-tools.pl.tc

  15. Where’s the fun in this??? Being a cop is going to be a whole lot less fun if they can’t taser people at whim.

  16. When I was kid, growing up watching the old Star Trek, I used to think how cool it would be to have my own phaser. I wasn’t a psychopathic child like, say, Episiarch, so I wasn’t really interested in the nastier settings. Stun, however, sounded like great fun. If I had a phaser, I could knock out anyone who was bothering me or just for fun, and it would be great for Cowboys and Indians (or other gun-wielding games), because the other kids couldn’t say I missed. ‘Cause they’d be unconscious.

    1. And it sure would have improved your dating life!

      1. I wasn’t that kind of geek.

      2. I would have stunned Lieutenant Uhuru.

  17. Anyone know of a case in which a civilian tried to tase a cop?

    Might put a nice twist on perceived threat levels.

    1. It’s moments like that they make you wonder if Takei came out strictly to be cool in Hollywood’s eyes. I bet he and his “spouse” have a bevy of women living in their home. Women that have to dress in the old Enterprise uniforms.

  18. “They” should be “that.”

    1. I know that I like sporting my female Enterprise uniform, so you could be on to something there.

  19. Oh, c’mon. Couldn’t you have saved it for Balko to finally have a positive story?

  20. If a cop Gives you a reasonable lawfull order and you refuse to listen then you get what’s coming to you. You libs can’t have the best of both worlds. You want the police to risk thier lives and thier familys happiness to protect you and yours but you also want to tell them how to do the job. I don’t see anyone telling the fire depts how to fight fires.

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