Court's limits on Taser use could affect police use of less-than-lethal device

December 30, 2009
By Kirk Mitchell, The Denver Post

A federal appeals court ruling restricting the lawful use of Tasers may also persuade local police to limit their deployment of the devices, attorneys and police say.

The 9th U.S. Circuit Court of Appeals issued a ruling Monday limiting police use of Tasers against people who are posing no immediate threat and may be mentally ill.

The ruling will have a limited advisory effect on Colorado, which is within the jurisdiction of the 10th U.S. Circuit Court of Appeals. But, when combined with a previous warning from the maker of Tasers about the potential for the devices to cause what the company called "adverse cardiac events," some police departments are now rethinking their widespread use.

"How effective are Tasers going to be if they are so restricted in their use?" Boulder Police Chief Mark Beckner said Tuesday. "That's what we're grappling with around the country."

The court, which handles appeals in nine Western states and Guam, ruled in the case of a man named Carl Bryan, who was hit with a Taser by Coronado, Calif., police Officer Brian McPherson while Bryan was having what the court called "a tantrum" after a traffic stop. But, the court noted, Bryan did not threaten the officer or advance toward him, making use of the Taser excessive force under the U.S. Constitution's Fourth Amendment.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," the court wrote. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Civil-liberties advocates seized on the ruling as a milestone in the debate over "less-than-lethal" police tactics such as batons, pepper spray and Tasers.

"I think police departments should take a significant note," said Mark Silverstein, legal director of the American Civil Liberties Union in Denver. "The decision takes into account the serious potential threat of injury (of using Tasers)."

Boulder ACLU chairman Judd Golden agreed.

"It's getting national attention," Golden said. "We hope this will be another signal for police to re-evaluate their policies."

In a statement released by Taser International, which manufactures the Taser, spokesman Steve Tuttle said the California ruling applies only to that case.

"The court's holding does not establish any new law for use of a TASER device," Tuttle said in an e-mail message.

Tasers deliver an electric charge in order to subdue a person as an alternative to gunfire. They have been controversial, connected to at least six deaths in Colorado and hundreds of deaths across the country.

The ACLU took Boulder police to task in the summer after an officer allegedly fired a Taser in the back of the arm and the face of a mentally disabled man, who had walked away from a caretaker.

Like the California case, the officer could have called for backup to subdue the nonthreatening man, Golden said.

"This was a person who was clearly mentally impaired," he said.

But the officer had several warnings that the man was a physical threat to her and the community and he had to be subdued immediately, Beckner said. "Would you rather the person be struck by a metal baton?" he asked.

A factor that had a more immediate impact on Boulder policy than the out-of-state court decision was an Oct. 15 training bulletin by Taser International, Beckner said. The company advised police agencies not to shoot its stun guns at a suspect's chest in order to manage risk. Now, Boulder officers aim elsewhere on the body.

"The problem is, it's not always easy to hit people where you want when they are moving," he said.

Police in Denver and Aurora did not return calls for comment.