9th Circuit hears 2 big ECD cases

January 29, 2011
policeone.com

Less Lethal Issues in Law Enforcement
- Sponsored by TASER International
(that says it all)

with Capt. Greg Meyer (ret.)

On December 14, 2010, the 9th Circuit Court of Appeals heard appellate arguments on two recent, important TASER cases (Brooks v. Seattle; and Mattos v. Agarano). Both of these cases had been decided favorably for law enforcement earlier in 2010 by different three-judge panels of the 9th Circuit. Plaintiffs appealed those decisions, and were considered by an en banc hearing of the 9th — meaning there were 11 judges on the panel instead of the usual three). Some months from now, the court will publish its rulings on these cases.

The Brooks case involved a pregnant woman who was drive-stunned by an officer three times (arm, shoulder, side of neck), with a patrol supervisor present and with warnings and verbal persuasion attempts before and between each drive-stun; then she got out of the car. The Mattos case involved a wife who was TASERed with darts when she put herself between her husband and the officers who were trying to arrest the husband at a domestic-violence incident.

I attended the appellate hearing and made a few notes. It was very obvious that the judges on the panel did not know or understand much about TASERs and how they work. But some of their points were quite interesting.

One judge said, “I know there's no risk of death from pepper spray...” Then he wondered rhetorically whether the TASER can result in a heart attack.

Another judge — who is a former Los Angeles police commissioner, thus he had at least some familiarity with TASERs — said, “Maybe every judge on the panel should be tased so they know what it feels like.”

No argument from me!

One judge quickly corrected one of the plaintiff's attorneys who asserted that police must use “minimal force” under the involved agency’s policy. The judge not-too-gently reminded the attorney that “reasonable force” (not “minimal force”) is the national legal standard for reviewing use of force, and that she didn't care what the department's policy was. [Does your agency policy reflect the legal standard?]

The head judge on the panel considered other options besides TASER use on Brooks (who had braced herself in the driver seat by gripping the steering wheel and actively resisting efforts to remove her from her car when she had been arrested). The judge said that if you pull her out of the car, you could dislocate her shoulder, or cause a variety of other significant injuries.

The Brooks plaintiff's attorney asserted that Brooks could not get out of the car on her own after she received a drive-stun on the arm, the shoulder, and the base of the neck. [Since the judges collectively didn't seem to know much about TASERs, no one knew what to say to that plainly wrong assertion.]

The Brooks plaintiff's attorney talked about the TASER warnings that the officers used with Brooks, recounting that they verbally warned her that it would hurt, and they demonstrated the spark. But he characterized the warning process as “taunting her with the TASER.” [The judges didn't seem to buy that, or much of what he was trying to sell.]

In the Mattos case, the plaintiff is the wife of a domestic violence suspect. The wife put herself between the husband and the officers who were arresting the husband. The wife pushed an officer and got tased with darts from close range, and later testified that she “may have” extended her arm toward the officer. The plaintiff's attorney asserted that the officer could/should have shoved the wife to push her back, not use a TASER.

The head judge stated [quite accurately] that there are divergent views on what level of force TASER represents. He asked rhetorically, how do we determine what the effects of the TASER are? [I don't think today's hearing did much to clarify the issue. There are obviously multiple ways to use the TASER, and apply the current for varying periods of time. The court seems mostly in the dark about such details, and the questions asked the various judges reflected a general lack of knowledge about typical TASER effects.]

The Mattos plaintiff's attorney plainly stated that he was comfortable with the TASER at the same level as pepper spray, as he sees them both as intermediate force options! [I’ll give the plaintiff’s attorney a point for that one. The 9th Circuit has previously characterized the TASER as an “intermediate” level of force, which dovetails nicely with my belief over three decades.]

One judge said that some people argue that TASER effects are equivalent to the shock one gets from walking across a carpet and touching a doorknob. [This is a total misinterpretation of a traditional TASER training reference that is meant merely to point out that high voltage in and of itself is not dangerous. The concept does not speak to TASER effects.]

The defense attorney [that’s our side, folks] in the Brooks matter got in the last word when he pointed out to the judges that when determining reasonableness, it is important to consider the potential effects of alternative force options. [This was in the context of much research that has shown that TASER use results in fewer and less severe injuries to officers and suspects compared to several other police tools and tactics.]

I was honored to coordinate a nationwide effort on short notice to get the support of law enforcement organizations for an amicus brief (which most of us call a “friend of the court brief”) to counter the briefs submitted by the ACLU and the National Police Accountability Project (an arm of the National Lawyers Guild). Our brief was late, thus not technically accepted by the court. But it was obvious to me, as I listened to the judges’ questions, that they had read it. Thank you to all who stepped up to the plate and put in lots of hours (at no charge) on behalf of law enforcement.

Special thanks to Steve Ijames, Sid Heal, Jeff Chudwin, and Don Kester for helping round up support of some great organizations to support the amicus brief, including: National Tactical Officers Association, California Association of Tactical Officers, Illinois Tactical Officers Association, Kansas City Metro Tactical Officers Association, Mountain States Tactical Officers Association, Ohio Tactical Officers Association, Pennsylvania Tactical Officers Association, Rocky Mountain Tactical Team Association, the Los Angeles Police Protective League, the Association for Los Angeles Deputy Sheriffs and District Attorney Investigators, the Los Angeles County Police Chiefs Association, and the City of Burbank. And VERY special thanks to attorneys Steve Renick (who wrote the brief), Gene Ramirez and Missy O’Linn (all of Manning & Kass, Ellrod, Ramirez, Trester LLP of Los Angeles) who jumped in and worked miracles to get our brief done!

Some months from now (perhaps many months!) we'll see what the 9th Circuit does with the Brooks and Mattos cases.

That's it for now! Please stay safe... especially important after a terrible January for police across the country.