You may have arrived here via a direct link to a specific post. To see the most recent posts, click HERE.

Thursday, December 06, 2007

Repeated use of taser held to be "unconstitutional excessive force"

I wonder why this article disappeared, from one of the creepiest websites I know of - policeone.com. Too bad - I liked the headline. I wonder *who* held that repeated use of tasers was "unconstituional excessive force." I guess we'll never know. I know this: Taser International is one of the website's sponsors.

1 comment:

Anonymous said...

Early Xmas.

Repeated application of Taser held to be unconstitutional excessive force

Beaver had been smoking crack cocaine and marijuana and drinking during a 2 day binge. An officer responding to a burglary call saw Beaver running from the scene. The officer recognized Beaver from a prior encounter and called him by name, ordering him to stop. Beaver did not and the officer shot Beaver with a Taser. Beaver went down. The officer ordered him to turn on his stomach and extend his arms. Beaver attempted to get up and the officer tased Beaver a second time. Beaver did not comply with orders to turn onto his stomach and the officer tased him again. A backup officer arrived at that point. She gave Beaver a conflicting order, telling him to get on his back. A citizen testified that he clearly heard Beaver say “I can’t.” The officer tased Beaver a fourth time and Beaver rolled onto his stomach, with his arms held under him. The officer tased Beaver a fifth time and Beaver extended his arms above his head. The officer kicked Beaver’s hands to the his side and Beaver was handcuffed.

Beaver sued, claiming that the officers used excessive force to arrest him and claiming that the backup officer failed to protect him from unnecessary force inflicted by the repeated applications of the Taser. The court ruled that the first three Taser stuns were reasonable. The court applied the use of force factors of Graham v. Connor and noted that: “the officer was alone with a fleeing felony suspect, who was apparently under the influence of controlled substances, who ignored his commands to stop, and who was attempting to rise and perhaps to flee.” However, the court found that the fourth and fifth applications were unreasonable because a backup officer had arrived and would have been able to help secure Beaver without repetition of the Taser stuns.

Arrival of the backup officer diminished the “immediate threat” presented to the first officer by Beaver. Moreover, Beaver’s statement “I can’t” showed involuntary resistance and not a willful resistance to efforts to control him. Courts have previously held that that when no immediate threat is posed and a suspect's failure to comply may be involuntary, officers were not entitled to use force. Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007). The court observed that the backup officer could have attempted to handcuff Beaver while the first officer held the Taser on Beaver, ready to fire again if Beaver resisted handcuffing efforts. In addition to finding that the first officer used excessive force, the court found that the backup officer violated Beaver’s rights by failing to protect him against the excessive force.

The court concluded that the officers were entitled to qualified immunity. At the time of Beaver’s arrest, the law was not clearly established that officers could not use force when, as in Beaver’s case, a suspect is not a threat, even if the suspect is not fully complying with the officer's commands. A recent case decided by the Ninth Circuit Court of Appeals held just that. Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir. 2007) (ruling that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the ground, but who was trying to roll over and stand up contrary to the officer’s orders). In future cases, at least in the Ninth Circuit, officers in similar situations may not be protected by the qualified immunity doctrine. This case is part of the developing case law concerning electro-muscular disruption devices. The ruling suggests great caution in using such a device to gain compliance from a suspect who is not an imminent threat to the officer’s safety (one must readily admit that there is a genuine debate over whether the court properly concluded that Beaver was not such a threat even into the fourth and fifth application of the Taser). Beaver v. City of Federal Way, --- F.Supp.2d ----, 2007 WL 2482094 (W.D. Wash. 2007).