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Thursday, November 03, 2011

Court of Appeals rules stun guns are deadly weapons

November 02, 2011
Beaufort Observer

Is a stun gun a dangerous weapon capable of inflicting deadly force? That is a question we have raised here on several occasions and suggested that they should be treated as deadly weapons.

Yesterday (11-1-11) the N.C. Court of Appeals, in a unanimous decision, agreed with our reasoning.

In the case of the State v. Riveria the court ruled that a stun gun (an X26 Taser) "is a dangerous weapon that endangered or threatened Scott's (victim) life." You can read the actual decision by clicking here.

Briefly, the case resulted at a robbery at a Raleigh Wal-mart. Victim Scott was robbed by two men who tried to grab a cash box as Scott replenished an ATM machine in the store. When she resisted one man's attempt to siege the cash box. While she struggled a second man shocked her with a stun gun. She fell to the floor, and evidence showed she suffered serious injury (requiring surgery for a dislocated shoulder and other injuries).

The two robbers were apprehended and charged with robbery with a dangerous weapon. At the end of state's evidence the defendants moved for dismissal of the charge, contending that a stun gun is not a dangerous weapon. The trial court rejected the motion. The COA upheld that ruling.

The COA said:
The elements of robbery with a dangerous weapon are: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened. N.C. authority cited in support of his argument, pertains to denial of defendant's motion to dismiss the charged offense. Gen. Stat. § 14-87 (2009); State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991). "The element of danger or threat to the life of the victim is the essence of the offense." State v. Gibbons, 303 N.C. 484, 489, 279 S.E.2d 574, 578 (1981). The dispositive issue in this case is whether there was sufficient evidence presented at trial to establish that the stun gun was a dangerous weapon that endangered or threatened Scott's life.
The facts in the case indicated that Scott suffered serious injury, but the defendants argued that it did not threaten her life so the third element of the offense was not proven by the evidence. The COA disagreed, saying
[t]he use of a dangerous weapon need not result in death, but the instrument itself must merely be capable of taking life in the manner that it was used. . . . [A]ny instrument capable of causing serious bodily injury could also cause death depending on its use. In our view, serious bodily injury is synonymous with endangering or threatening life.

We hold that due to the actual effect of the stun gun in this case — serious injury — a permissive inference existed sufficient to support a jury determination that the stun gun was a dangerous weapon.

An irony in this case is that it defines the characterization of stun guns as a dangerous weapon, capable of inflicting deadly force (depending on its actual use) in relation to a criminal using the stun gun. But the same principles of law apply to a law enforcement officer's use of a stun gun in affecting an arrest.

Officers are permitted to use reasonable force to subdue a subject. But a long series of cases has held that officers may not use deadly force unless it is necessary to remove an imminent danger. In other words, officers may use force in making an arrest, as long as the arrest itself is legal, but they may not use more force (excessive) than is necessary to accomplish a legitimate purpose.

Some officers have not considered stun guns to be dangerous weapons. In fact, an expert witness testified to that effect at trial in this case. The COA disagreed with that conclusion, holding that stun guns fall at the same end of the continuum of force that firearms do.

We think this is a common sense decision by the court. Now, if law enforcement agencies apply the same common sense to their policies and procedures we think the outcome will be a good one for the public interest.

Clearly stun guns are dangerous weapons, whether used by a criminal or an law enforcement officer. They should be treated as such. And whether they actually cause death is not the issue. They are capable of such, as has been shown by numerous cases over the last few years. There is a link in this article to examples of this fact.

We believe stun guns are essential and entirely appropriate tools for law enforcement to use. But as this case shows, they should be treated essentially the same as a firearm in determining their actual use in a particular instance.

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