The Volokh Conspiracy

Taser Case Going to the Supreme Court?

Orin Kerr • December 30, 2009 3:32 pm

When a Ninth Circuit panel of Judges Reinhardt, Pregerson, and Wardlaw rules against the police, Supreme Court review is always a possibility.

Categories: Fourth Amendment

71 Comments

DJR says:

Prediction: Not clearly established because nobody has ever said a taser can be used excessively.

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December 30, 2009, 3:37 pm
BMe says:

Sure, always a possibility. As in virtually any case. But let’s hear your odds, Orin. I’ll take the “no review” side at any reasonable percentage.

[OK Chimes in: I don’t have odds, as I didn’t even read the opinion. The fun part is that I don’t have to actually read the opinion to know that cert is a possibility: Any opinion by that panel with that ruling arrives at 1 First Street with a big sign that says “GRANT ME!!!! GRANT ME!!!!”].

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December 30, 2009, 3:47 pm
TRO says:

There will be an en banc call in this case; it will likely fail; Judge Tallman, Callahan, or O’Scannlain will author a dissent from denial of rehearing en banc (joined by other conservatives on the court); the Supreme Court will grant cert (as it has on numerous occasions based on conversative en banc dissents from the 9th Cir.); and reverse 6–3, with Sotomayor in the majority.

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December 30, 2009, 3:52 pm
gwinje says:

I dunno, they upheld a trial court ruling that cops should know not to taser people for acting weird. Doesn’t seem like much of a stretch to me, but that doesn’t mean TRO won’t be right.

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December 30, 2009, 3:56 pm
Dave N. says:

I think TRO is correct in his prediction. I also believe that there is a 20% chance that cert. will be granted so that the Ninth Circuit can be reversed — particularly with THAT particular panel.

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December 30, 2009, 4:04 pm
ruuffles says:

I think TRO is correct in his prediction. I think that there is a 20% chance that cert. will be granted so that the Ninth Circuit can be reversed — particularly with THAT particular panel.

We saw that happen with the strip search case. I think Wardlaw was the author of that opinion as well. Too bad there was a very sympathetic plaintiff and that made for an interesting opinion.

EDIT: SCOTUS opinion, not Wardlaw’s.

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December 30, 2009, 4:06 pm
don't taze me bro says:

Because police officers in the 9th circuit can do no wrong?

What is so controversial about this case? Seems quite ordinary. The cops should have a really good reason to electrocute people. this guy lost 4 teeth and needed surgery to extract the taser darts. That’s a great deal of force and it requires some higher level of justification than S&G for the cops.

Is there a circuit split or even a half-serious question of whether the court got it wrong?

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December 30, 2009, 4:10 pm
Orin Kerr says:

don’t taze me bro,

I can think of four reasons the Court could take this case:

1) Reinhardt
2) Pregerson
3) Reinhardt and Pregerson together, two names that when joined are akin to waving a red cape in front of a bull to any justice or law clerk to the right of John Paul Stevens.
4) Wardlaw, who is certainly no Reinhardt or Pregerson but is still not unknown at 1 First Street.

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December 30, 2009, 4:18 pm
don't taze me bro says:

This cannot possibly be the only combination of Reinhardt-Pregerson or Reinhardt-Pregerson-Wardlaw.

It’s fair to guess that most decisions by such panels are ordinary, run of the mill, boring decisions, just like most cases decided in the courts of appeal. What percentage of such decisions have been reversed by the Supreme Court?

So what is so special about this one? Do you have any problem with the standard for taser usage they announced? How does it compare with taser decisions from other circuits? I don’t really know, but I also don’t see what is so controversial about this case that cert can be confidently predicted let alone reversal.

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December 30, 2009, 4:25 pm
Bob from Ohio says:

What about the liklihood that the cert petition will be granted and reversal on the merits made simultaneously without further proceedings?

Reinhardt and Pregerson together

Can the S/C just enter a standing order of reversal in such a situation? Judicial economy and all that.

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December 30, 2009, 4:29 pm
Guest14 says:

The court seriously held that police couldn’t use a taser on unarmed persons not posing a threat? That’s outrageous.

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December 30, 2009, 4:35 pm
Phatty says:

The opinion seems air-tight to me. The police officer was appealing a denial of his motion for summary judgment, and at that stage, the plaintiff will get the benefit of the doubt on all facts. My guess is that the SC will ignore this case until (unless) it comes up again after a trial.

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December 30, 2009, 4:35 pm
Orin Kerr says:

Don’t taze me bro,

I am not making a comment about the substance of the decision, nor of whether review is merited. I am merely making a comment about the hard-earned reputation of the judges on the panel, especially the two more senior members.

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December 30, 2009, 4:39 pm
Jeff J says:

On what basis would the conservative judges on the 9th Circuit want to take this en banc? I don’t see anything particularly controversial about the decision itself. The basic theme seems to be that if the plaintiff can convince the jury that his version of events is true, then the officer acted unreasonably in deploying the taser.

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December 30, 2009, 4:44 pm
don't taze me bro says:

are you open to the idea that if they got this decision right, it helps their reputation?

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December 30, 2009, 4:48 pm
Guest14 says:

Jeff J: On what basis would the conservative judges on the 9th Circuit want to take this en banc?

There’s nothing in the Constitution about a right not to be tasered. It’s an imaginary “right” made up by crypto-communist leftist activist judges to undermine the defense of American values at home and abroad.

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December 30, 2009, 4:50 pm
ruuffles says:

are you open to the idea that if they got this decision right, it helps their reputation?

Don’t waste your breath. Nobody bothered to mention that Pregerson authored Raich, before it was overturned with Scalia’s vote.

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December 30, 2009, 4:53 pm
ShelbyC says:

Orin Kerr: Don’t taze me bro, I am not making a comment about the substance of the decision, nor of whether review is merited. I am merely making a comment about the hard-earned reputation of the judges on the panel, especially the two more senior members.

I agree with you on the judges, some of the time. But the opinion doesn’t seem terribly farfetched.

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December 30, 2009, 4:55 pm
Orin Kerr says:

Don’t Taze Me Bro asks:

are you open to the idea that if they got this decision right, it helps their reputation?

Not only am I open to it, I would insist on it. And that is true whether the decision is a judicial decision by Judge Reinhardt or an OLC memo by John Yoo.

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December 30, 2009, 4:56 pm
Chris Travers says:

It could also be reversed by the 9th Circuit sitting super en banc.....

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December 30, 2009, 5:05 pm
JohnF says:

First, there is no chance the Supreme Court will be interested in reviewing a denial of summary judgment like this.

Second, the decision was obviously correct; at the very least there were hotly contested material issues of fact.

Third, the opinion was extremely offensive in prejudging the factual issues and actually stating a conclusion that the plaintiff’s rights were violated (“Having concluded that Officer McPherson’s actions
violated Bryan’s Fourth Amendment rights...”, slip op. at 16753). This was a gross overreach, bad judging and very unfair to the defendant.

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December 30, 2009, 5:13 pm
anonymous says:

It’s a very strange opinion, which leaves more than necessary unclear (bad if you want reasonably — even if not completely — clear guidelines about what police officers can and can’t do without violating the Constitution).

I don’t understand the discussion about the reason why the plaintiff was pulled over, i.e., for a seatbelt violation. I also don’t understand the discussion about why, if the plaintiff was mentally ill, the purpose of police intervention should have been to help him rather than to arrest him.

I don’t see why any of this was necessary. Why couldn’t the panel simply have said: (1) Tasers, while non-lethal, are very painful and have the potential to cause permanent damage; (2) Police officers are entitled to use reasonable force to effectuate arrests or simply to protect themselves or third parties from individuals who they reasonably believe are dangerous — whether they are dealing with a murder suspect or whether they were simply dealing with a traffic violator who, now that he has been pulled over, seems potentially violent and dangerous; (3) Significant deference is due to police officers’ contemporaneous assessments of whether someone may be dangerous (i.e., courts should be slow to play Monday morning quarterback; officers need not bet their lives or safety on whether someone is dangerous before using significant non-lethal force); but (4), even keeping point (3) fully in mind, construing the record in the light most favorable to the plaintiff, a rational jury could conclude that the officer was not and did not reasonably believe himself to be in imminent danger but rather simply tased the plaintiff i from behind; and (5) a reasonably well-trained police offer would know that you can’t use significant non-lethal force, i.e., tasing someone or giving someone a serious blow from a baton, when the officer isn’t and doesn’t reasonably believe it necessary to protect himself.

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December 30, 2009, 5:16 pm
SuperSkeptic says:

Strict, pure, complete, total, and immediate obedience. Anything less calls for a taser — or worse. That it was necessary to write an “air-tight” opinion denying that this is so betrays our sad state of affairs.

Professor Kerr, when (if) you actually do read the opinion, please do let us know your thoughts on the merits.

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December 30, 2009, 5:27 pm
don't taze me bro says:

tasers are not “non lethal.”

there are incidents where they have been lethal. This case could have been one, the guy was knocked down and broke 4 teeth. he could have been an “egg shell plaintiff” and cracked his skull. what if he had a pacemaker?

also tasering requires stabbing someone with darts. it’s closer to knifing someone than pepper spraying them.

the discussion of the seat belt violation is important because the severity of the suspected crime is a factor in the amount of force that can be used. a suspected chainsaw massacre-er can be treated with more force than a suspected seat belt resistor. cops can’t stab people with darts for the purpose of electrocuting them and knock out four of their teeth based on the harm of not wearing a seat belt.

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December 30, 2009, 5:29 pm
ArthurKirkland says:

When a Ninth Circuit panel of Judges Reinhardt, Pregerson, and Wardlaw rules against the police, Supreme Court review is always a possibility.

But less likely, perhaps, after President Obama picks a bunch of justices who don’t reflexively endorse police officers’ conduct (you know, some libertarians).

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December 30, 2009, 5:33 pm
Chris Travers says:

Prof Kerr:

Why would the Supreme Court overturn a summary judgement proceeding holding that there are material questions of fact that should be developed at trial in a case like this? If they are just picking on the judges, that doesn’t add any fairness to the process, right?

I predict cert. will be denied and maybe review would be granted after a record of evidence has been developed.

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December 30, 2009, 5:38 pm
ShelbyC says:

Chris Travers: If they are just picking on the judges, that doesn’t add any fairness to the process, right?

Well, IIRC didn’t Pregerson say at his confirmation that he would decline to follow SCOTUS and circuit precedent if he strongly disagreed with it? Which is a position I agree with, but it’s rather unusual and would invite increased scrutiny wrt review.

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December 30, 2009, 5:45 pm
anonymous says:

@ don’t tase me bro:

(1) Your observation about “egg-shell plaintiffs” proves too much. Under your analysis, there is little or nothing that could potentially qualify as “non lethal” force because any — or almost any — force could potentially have unusual consequences. Surely a distinction should be drawn based on what is reasonably likely under the circumstances. A suspect subjected to relatively slight force being handcuffed and put in a police cruiser during an arrest could be an “egg-shell plaintiff” and have a heart attack that ultimately proves fatal. Surely that’s different than being shot, even if you can find anecdotal examples of people who have had heart attack or other unusually severe reactions to being handcuffed and arrested.

(2) Still don’t understand why the discussion of the seat belt violation is relevant. Suppose I’m a police officer and I pull someone over for suspected drunk driving, as opposed to being a suspected chainsaw massacre-er. Now suppose that, once I have this guy out of the car doing a field sobriety test, the guy starta acting extremely erratically and in a way that makes me reasonably think I’m potentially in danger from this guy. (I.e., “I wasn’t expecting this when I pulled this guy over, but now I have this guy out of the car, it looks like I have a potentially dangerous nut on my hands who really might be legitimately dangerous to me. He keeps ignoring my instructions not to get too close to me and to keep his hands where I can see them; I think there is a reasonable likelihood that if I don’t get this guy on the ground, I am going to have this guy charging me and attempting to punch me in the face or, worse, reach for my weapon.”)

Why should the Ninth Circuit care that the traffic stop was “only” for a drunk driving violation if, once an otherwise legitimate stop for the drunk driving is under way, the motorist behaves in a way that (reasonably) puts the police officer in fear for his safety (beyond the concern for one’s safety that is presumably inherent in any traffic-stop situation)? Am I supposed to figure, “well, it was just a drunk driving stop; so I need to wait until he actually charges me and tries to hit me or grab my gun before I can use a taser?

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December 30, 2009, 5:48 pm
Jon says:

They affirmed a denial of summary judgment. I think there is almost zero possibility of SC intervention at this juncture.

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December 30, 2009, 5:53 pm
Buddy Hinton says:

I will not be coy here. I have never sat down and spoken with Justice Sotomayor about whether there should be Constitutionally imposed limits on taser usage by poposquad. In fact, I have never sat down and spoke with her about any police related issues at all, or even what she thinks of those out of control liberals on 9C who need slapped down at every available juncture. Ya know, I have never had a sit down with her at all. If you asked her who Buddy Hinton was, she would probably say it was just Peter’s bully. Come to think of it, I have never been hunting with Dick Cheney neither. You can tell just by looking at my face.

As far as reading the opinion — why bother? There are aspects of this taser case that go well beyond the facts and the law.

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December 30, 2009, 5:55 pm
John U. says:

Why do people keep suggesting SCOTUS would never take this case becasue it is merely a denial of SJ? SCOTUS frequently grants cert in such cases when qualified immunity is at stake. The entire point of the immunity is lost if the officer is forced to go to trial: QI is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

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December 30, 2009, 5:59 pm
Dave N. says:

Reinhardt and Pregerson together

As I have mentioned in the past, I actually framed the denial of a Certificate of Appealability when Reinhardt and Pregerson comprised the two-judge panel.*

*In federal habeas corpus litigation, a prisoner must receive permission from either the District Court or a two-judge Court of Appeals panel for the prisoner to appeal an adverse District Court judgment. The document granting this permission is rather ungrammatically called a “Certificate of Appealability.”

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December 30, 2009, 6:09 pm
ShelbyC says:

Somebody help me with something. For SJ, the court is required to construe the facts in the light most favorable to the non-moving party. But for QI analysis, isn’t the court required to make an independentant review of the facts? So when the court talks about the plantiff not facing the cops, that is its own finding of facts, correct? [Edit: but reading the conclusion, they don’t. So how is QI different for purposes of summary judgement?]

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December 30, 2009, 6:10 pm
Orin Kerr says:

To add on what John U says, the Court takes most of its many qualified immunity cases from denials of summary judgment. Indeed, here’s what I wrote about that procedural posture in the petition for certiorari that was granted in Pearson v. Callahan:

An improper denial of qualified immunity pro–
vides an independent basis for certiorari because
a misapplication of qualified immunity standards
creates the functional equivalent of a circuit split. An
improper denial of qualified immunity in the Fourth
Amendment context overdeters the police from going
close to the line of legality; the threat of liability
forces the police to change their practices much like a
decision altering substantive Fourth Amendment law.
The Court has recognized this principle by repeatedly
granting certiorari to review denials of qualified
immunity absent any claim of disagreement among
the circuits. See, e.g., Scott v. Harris, 127 S.Ct. 468,
166 L.Ed.2d 333 (2006) (granting certiorari to review
denial of qualified immunity in a Fourth Amendment
case); Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct.
596, 160 L.Ed.2d 583 (2004) (granting certiorari and
summarily reversing Fourth Amendment decision that
had denied qualified immunity); Groh v. Ramirez, 537
U.S. 1231, 123 S.Ct. 1354, 155 L.Ed.2d 195 (2003)
(granting certiorari in Fourth Amendment qualified
immunity decision to review Ninth Circuit decision
denying qualified immunity).

The Tenth Circuit’s denial of qualified immunity
calls out for this Court’s review exactly as did the
circuit court decisions in Scott, Brosseau, and Groh.

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December 30, 2009, 6:14 pm
Chris Travers says:

John U:

There are some questions that get very much to the heart of this. For example, it seems that the plaintiff may have been facing away from the officer but not attempting to flee when he was tasered. It seems to me that the allegation that he was shot in the back while not attempting to flee goes well beyond qualified immunity in this case. Or do you disagree?

Or are individuals facing away from officers 19–20 feet away subject to any force short of lethal force at the mere say-so of the officer?

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December 30, 2009, 6:18 pm
Buddy Hinton says:

An improper denial of qualified immunity pro–
vides an independent basis for certiorari because
a misapplication of qualified immunity standards
creates the functional equivalent of a circuit split. An
improper denial of qualified immunity in the Fourth
Amendment context overdeters the police from going
close to the line of legality; the threat of liability
forces the police to change their practices much like a
decision altering substantive Fourth Amendment law.

Now there would be something to that if the Court heard the qualified immunity case and clarified, for once and for all, the Constitutionality of the police behavior at issue in a given case. On the other hand, if the Court merely overturns a denial of qualified immunity based on the lack of clearly established, and necessarily specific, Constitutional law, then the Court is merely supplanting the functional equivalent of a circuit split with the functional equivalent of a blank slate, which is, of course, a jurisprudential step backwards and not forwards.

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December 30, 2009, 6:29 pm
Lib says:

don’t taze me bro: the discussion of the seat belt violation is important because the severity of the suspected crime is a factor in the amount of force that can be used.

Perhaps true, but arguably in exactly the opposite way some may think.

A seat belt violation is a very minor offense that one would not expect a significant amount of anger about it — esp. since in this case it’s not controversial or a “judgment call”. There seems to be no question that Bryan wasn’t wearing his seat belt nor that he was contesting this fact.

One might expect a suspect in such a situation to be angry with himself, perhaps pleading with the officer “Damn, I’m an idiot. Can you give me a break — I just forgot to fasten it, I normally wear it?”. Perhaps the suspect would even be pleading the “justice” of the law “Officer, come on, it’s my business if I wear a seat belt, it’s my life, not yours. Give me a break.”

However, one would not expect that a suspect would be non-responsive to orders and possibly incoherent due to the stress of being pulled over for this minor offense. A couple of possible reasons that the suspect’s behavior would be such come to mind.

First, being under the influence of drugs seems likely (wearing only boxer shorts and perhaps shoes while driving on public roads may reinforce this suspicion). In this case, the suspect is possibly much more dangerous than an “ordinary” suspect and the risk of ending up in hand-to-hand combat with such a suspect is likely higher (he’s not following or, apparently, even acknowledging orders) and if hand-to-hand combat became necessary certain drugs can decrease the perception of pain that might normally dissuade the suspect from continuing combat.

Second, the suspect could be guilty of a much more serious crime (perhaps one for which a warrant is outstanding or perhaps one that he knows he committed and thinks, incorrectly, that the officer is aware of). In this case, the motivation of the suspect to take extreme measures may be higher and his odd behavior could easily be trying to distract the officer while the suspect sizes up the situation and decides to fight or flee.

However, I think the decision sounds right. If the suspect was standing with both hands visible and his back to the officer and hadn’t advanced on the officer, the use of the taser so quickly sounds wrong. On the other hand, if the suspect was facing the officer and had taken a step towards him, the use of the taser could well be justified. The first situation seems to be the lens through which the request for summary judgment must be made.

For those who question that in the second set of facts that use of a taser may be appropriate, 19 feet isn’t far away and officers don’t have an obligation to engage in “fair fights”. I’m not trained in either side of the situation, but I suspect that if I’m 19 feet away from you and you’re holding a taser, there’s a pretty good chance that I can get my hands on you before you successfully tase me (remember, you gotta hit me and I may be moving laterally so you’re first shot might miss — and I think the X26 is a single shot device). If you fail to get the probes effectively embedded, you need to toss the X26, get your sidearm out, aim/point, and shoot me before I get to you — all after you realize the taser didn’t work. That’s a lot to do in less than two seconds after you react to me having taken the first step.

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December 30, 2009, 6:35 pm
Chris Travers says:

Lib: For those who question that in the second set of facts that use of a taser may be appropriate, 19 feet isn’t far away and officers don’t have an obligation to engage in “fair fights”.

I agree, btw. I assume that one can probably go from stationary to clearing that space in a second and a half. If trying to evade possible taser darts, make that two and a half seconds, three on the outside. My guess is it may take two seconds to reload a taser, so there really isn’t a lot of time to gauge things and be wrong.

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December 30, 2009, 6:46 pm
Dilan Esper says:

Professor Kerr, I find your analysis shocking.

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December 30, 2009, 6:50 pm
Orin Kerr says:

Dilan,

Why?

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December 30, 2009, 7:05 pm
Mike says:

DJR: Prediction:Not clearly established because nobody has ever said a taser can be used excessively.

That would be the argument, although Hope v. Pelzer, 536 U.S. 730 (2002) proves that the argument does not work 100% of the time.

In Bryan v. McPherson (CA9), the motorist posted no threat to police officers. He was simply tased for the sake of being tased.

There are a lot of interesting issues surrounding the use of Tasers and the Fourth Amendment. Tasers were first sold to the public as an alternative to deadly force. The idea, we were told, was that police would use Tasers rather than shoot people. Thus, under the rationale Tasers were sold to the public, police should use Tasers only when they face an immediate threat of harm.

Instead, Tasers are being used as general compliance and officer frustration devices. “Do as I say, now, or get tased.” For an example of that, see the Eighth Circuit Court of Appeal’s split opinion in Cook v. City of Bella.

Legally, would a reasonable officer know that you shouldn’t taser someone merely because the officer is frustrated? TO me, the answer is, clearly, Yes. To Scalia and Thomas, the answer would be: “You’re lucky we’re not putting thumb screws on you.” Alito isn’t a Thomas-Scalia style Inquisitor, but will still no doubt side with the officers on the QI issue.

Roberts is a sensible man, and not nearly as cruel as Thomas and Scalia. See, e.g., Hedgepeth v. Washington Metropolitan Area Transit Authority (DC Cir.). He’s a bit pro-law enforcement...So he might decide that the law regarding the use of Tasers was not clearly established.

For the Court’s liberals, this should be an easy case. In fact, it’s a great test case from my perspective. There was no threat to the police officer who tased the young man. So why tase him?

Personally, I hope it gets reviewed. Those of us who are tired of police using Tasers Eric Cartman style couldn’t ask for a much better set of facts.

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December 30, 2009, 7:08 pm
Guest14 says:

Lib: I’m not trained in either side of the situation, but I suspect that if I’m 19 feet away from you and you’re holding a taser, there’s a pretty good chance that I can get my hands on you before you successfully tase me (remember, you gotta hit me and I may be moving laterally so you’re first shot might miss — and I think the X26 is a single shot device).

Nevertheless, police officers may not taser anyone who wanders within 19 feet of them. Hazard of the profession, I guess.

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December 30, 2009, 7:08 pm
ChrisTS says:

John U.: Why do people keep suggesting SCOTUS would never take this case becasue it is merely a denial of SJ? SCOTUS frequently grants cert in such cases when qualified immunity is at stake. The entire point of the immunity is lost if the officer is forced to go to trial: QI is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

I don’t understand this. If there can be no suit, at all, how does QI differ from AI? (Your immunity is qualified, but no one can sue you to determine when it is?)

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December 30, 2009, 7:13 pm
ChrisTS says:

Orin Kerr: Dilan, Why?

I think I know: because you are [playfully] suggesting that the SC would take a case only because the majority dislike the lower court judges who decided it. I think that is what is confusing ‘don’t taze me, bro.’

While I am not shocked by the post, I am hoping this is merely a joke — and that you do not really believe the Supremes would choose to hear a case simply out of hostility to the lower court.

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December 30, 2009, 7:19 pm
ChrisTS says:

ArthurKirkland: But less likely, perhaps, after President Obama picks a bunch of justices who don’t reflexively endorse police officers’ conduct (you know, some libertarians).

From your lips to the gods’ ears.

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December 30, 2009, 7:21 pm
Orin Kerr says:

ChrisTS, You can sue, but you have to at least allege facts such that a reasonable officer would know he couldn’t do that which he was alleged to have done.

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December 30, 2009, 7:21 pm
Mike says:

ChrisTS: I don’t understand this. If there can be no suit, at all, how does QI differ from AI? (Your immunity is qualified, but no one can sue you to determine when it is?)

Procedurally, AI and QI work the same way. I can sue, e.g., a judge. The case will be dismissed on AI after the court says, “Was the judge acting in a judicial function?” If yes, the case is kicked out on AI grounds.

With QI, the court will ask, “Was there a constitutional rights violation; and if so, was the constitutional right that was violated clearly established at the time of the violation?” If no to either question, the case is out on QI.

Analytically, the differ because in an AI analysis, the court doesn’t even ask if your rights were violated. Whether your rights were violated is irrelevant. Instead, the court simply looks at whether privileged conduct (re: judicial or prosecutorial) was performed. With AI, a prosecutor who violates your rights in a prosecutorial capacity can’t be sued. So the court doesn’t even get to the issue of whether your rights were violated.

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December 30, 2009, 7:21 pm
tvk says:

Orin, you are employing a generalization and a short-cut. Yes, this particular panel ruling against a police officer does automatically get a second look at 1 First Street. But that is because the rulings are usually outrageous (in the eyes of the Justices). Looking at the opinion, this does not seem outrageous.

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December 30, 2009, 7:22 pm
Dilan Esper says:

You didn’t get the (admittedly bad) joke.

Orin Kerr: Dilan,
Why?

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December 30, 2009, 7:28 pm
Chris Travers says:

Orin Kerr: ChrisTS, You can sue, but you have to at least allege facts such that a reasonable officer would know he couldn’t do that which he was alleged to have done.

Like shooting you in the back with a taser when you aren’t even trying to run away?

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December 30, 2009, 7:36 pm
ChrisTS says:

OK: Ok [so to speak], but Bryan did allege such facts, yes? Does John U’s comment turn on a reading of the officer’s being ‘forced’?

Mike: That helps. So, AI is like a kind of reverse strict liability? (We can’t hear you.)

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December 30, 2009, 7:37 pm
ChrisTS says:

Chris Travers: Like shooting you in the back with a taser when you aren’t even trying to run away?

Oh. I guess I didn’t, either. :-)

Edit: Oh, sh*t. Shocked.

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December 30, 2009, 7:38 pm
Buddy Hinton says:

ChrisTS, You can sue, but you have to at least allege facts such that a reasonable officer would know he couldn’t do that which he was alleged to have done.

The Less You Know.

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December 30, 2009, 7:49 pm
Buddy Hinton says:

Personally, I hope it gets reviewed. Those of us who are tired of police using Tasers Eric Cartman style couldn’t ask for a much better set of facts.

This one is better:

http://www.youtube.com/watch?v=VQtCC-ggZic

Cuz it gotz the videos, yo!

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December 30, 2009, 8:12 pm
Tatil says:

Chris Travers:
I agree, btw.I assume that one can probably go from stationary to clearing that space in a second and a half.If trying to evade possible taser darts, make that two and a half seconds, three on the outside.My guess is it may take two seconds to reload a taser, so there really isn’t a lot of time to gauge things and be wrong.

In other words, an officer is the only judge of any situation at work and there is no way he can be proven to be acting unreasonably. How is that different than any other run of the mill police state?

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December 30, 2009, 8:16 pm
ChrisTS says:

I’m with Tatil.

I found the opinion’s ‘he had a bad day’ narrative pretty odd, but I can only think the decision was correct. 15 to 20 feet and a young man with no shirt hitting himself on the thighs and cursing himself? And, all this occasioned by a stop for not wearing a seatbelt?

I do not want to live in a country in which being tasered in those circumstances — by a man with a gun and a radio — is regarded as ‘reasonable.’

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December 30, 2009, 9:06 pm
Jay says:

To answer ShelbyC’s question above, a denial of QI based only on factual disputes is not appealable in the first place. It’s only when the QI decision is based on legal grounds (whether a right was violated assuming Plaintiff’s facts are true, and whether that right was clearly established), that the interlocutory appeals are permitted to preserve immunity.
So, the standard of review for facts is the same as in any other case at the SJ stage; if the only dispute is whether an officer shot someone for absolutely no reason, say, there’s a genuine issue of material fact and the case is going to trial. It’s just that a Defendant gets the benefit of (1) the heightened legal standard, “clearly established,” and (2) interlocutory appeal if the basis for a denial of SJ was the purely legal issue of whether the alleged conduct violated a right, and whether that violation was clearly established.

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December 30, 2009, 9:10 pm
DanSeattle says:

So I cannot speak at all to the facts of the case, the opinion, or the love that the supreme court may or may not have for the 9th circuit. All I can say is that I am eager to see lots of taser cases. Lots and lots of them. I want some clear rules out there on what is a reasonable use of tasers.

My girlfriend has a heart condition. While we haven’t tested this, it’s very likely that a taser hit of any sort will kill her on the spot. She would far prefer to be hit with a baton–heck, she’d rather be shot. You can patch her up after shooting her. She’d really like to have clear guidelines of what is taserable behavior, so that she can avoid getting tased.

(Please don’t tell me to just avoid doing anything wrong. We live in a city. There are police around. People encounter police sometimes.)

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December 30, 2009, 9:21 pm
ShelbyC says:

Dilan Esper: Dilan,
Why?

He is SHOCKED!!! Get It?!?! SHOCKED!!!

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December 30, 2009, 9:24 pm
Chris Travers says:

Tatil: In other words, an officer is the only judge of any situation at work and there is no way he can be proven to be acting unreasonably. How is that different than any other run of the mill police state?

Ok, let’s step back and look at this case. The allegations are that the policeman shot the individual in the back with a taser while he was standing there rather upset at getting a ticket. This goes IMO well beyond qualified immunity.

On the other hand if the policeman had real reason to fear for his safety, I would say he should be immune. However on summary judgement the facts have to be seen in the most favorable light for the nonmoving party. So we assume that the plaintiff is right on all factual allegations.

At trial, the standard is preponderance of evidence, which is not a very high standard. So no the police can’t get away with too much.

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December 30, 2009, 9:43 pm
Mike says:

ChrisTS: Mike: That helps. So, AI is like a kind of reverse strict liability? (We can’t hear you.)

AI means never having to say you’re sorry, even when you were wrong.

QI means you only have to say you’re sorry when you were obviously wrong.

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December 30, 2009, 9:56 pm
Mike says:

Chris Travers: Ok, let’s step back and look at this case. The allegations are that the policeman shot the individual in the back with a taser while he was standing there rather upset at getting a ticket. This goes IMO well beyond qualified immunity.
On the other hand if the policeman had real reason to fear for his safety, I would say he should be immune.

Right. Look, man, I am pro-cop when they are in danger. If someone runs at a cop, you deserve a nicer tasering. Even a gratuitous kick in the stomach is fine by me.

The problem with Tasers is that they are dangerous. In training in the police academy when police get tased, there are EMTs on site. The floors are padded. Other officers are there to “spot” the officers, since a tasering will send a person violently to the crowd. Police know darned well that Tasers are dangerous. Here’s a video of training.

Out on the streets, cops are tasering people with no EMTS present. The citizen doesn’t get a spotter. In the case being discussed the kid broke his teeth. That kind of stuff can happen.

Thus, when should police user Tasers? To me, the answer is obvious. There is abundant caselaw on police batons, kicking suspects, hitting them, etc. The law is not complicated.

An officer can’t use force on a suspect who poses no harm to the officer. Thta’s easy, brainless standard. Here, the kid posed no harm to the officer. Thus, qualified immunity shouldn’t apply.

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December 30, 2009, 10:01 pm
Lib says:

Guest14: Nevertheless, police officers may not taser anyone who wanders within 19 feet of them.

I agree. But I think you’re missing the point. In general, a suspect who is not following lawful orders, is acting irrationally, and is approaching an officer isn’t just “anyone”. There is no reason to suspect that such a suspect will not continue to walk/run/lunge towards the officer even as he closes within 10 feet or 3 feet or 1 foot. Somewhere there is a range such a suspect is not a significant danger to the officer, but I suspect it’s somewhat beyond 19 feet.

I suspect tasers get used a bit more than some would like because they probably are now drawn in cases where a more effective, and much more lethal, traditional sidearm would have been drawn before tasers were deployed (regardless of if this was quite consistent with policy — in a particular case, it’s a judgment call). The tasers have limited number of rounds (in this case one I believe) immediately available (i.e., via a simple trigger pull). In addition, if an officer has a taser drawn and then decides it’s necessary to escalate to lethal force, they are several steps (translating into use of the scarcest resource in such situations — time) away from where they would have been if they had initially drawn their sidearm. In such a case, the officer must get rid of the taser, draw her sidearm, and aim/point the sidearm. It seems that a taser should be used while there is still time to make the escalation decision — else the officer is much worse off than if she had never pulled the taser out. If there are multiple officers present, perhaps some could have tasers and some traditional sidearms drawn (I don’t know if this is consistent with protocol or not), but the brief in this case didn’t indicate that there was another officer present to provide such backup.

The suspect in this case, even as alleged by the officer (as summarized in the decision at least), sound likely not to be sufficiently aggressive to warrant the taser use. But the fact the suspect was 19 feet away and appeared unarmed is not sufficient to say that a taser shouldn’t have been used.

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December 30, 2009, 10:22 pm
Lib says:

Mike: An officer can’t use force on a suspect who poses no harm to the officer.

Did you really mean “force” here or did you forget a qualifier? Force is used in many arrests where there is no realistic chance of harm to the officer — some suspects just don’t comply voluntarily and have to be forcibly restrained.

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December 30, 2009, 11:36 pm
SayUncle » Taser Case to Supreme Court says:

[...] Mentioned before that the 9th ruled that police had to think someone was a danger before tasering them. Speculation it could go to the Supreme Court. [...]

December 31, 2009, 9:51 am
Dennis N says:

Lib:

I suspect that if I’m 19 feet away from you and you’re holding a taser, there’s a pretty good chance that I can get my hands on you before you successfully tase me (remember, you gotta hit me and I may be moving laterally so you’re first shot might miss — and I think the X26 is a single shot device). If you fail to get the probes effectively embedded, you need to toss the X26, get your sidearm out, aim/point, and shoot me before I get to you — all after you realize the taser didn’t work. That’s a lot to do in less than two seconds after you react to me having taken the first step.

Count on it. The general rule of thumb is that inside 20 feet, and opposed by a man with a gun, prepared for the attack and with his finger on the trigger, a man with a knife can get the blade in. A taser may actually be a little more effective than a firearm in this situation, depending on where the attacker is hit, but the odds of an actual attack being repelled without getting harmed are not encouraging. It is fortunate that it doesn’t happen more often.

In a tactical situation, you have about one second to make up your mind. The critics have the rest of time to second guess you. If it goes really bad, you will be your own worst critic.

I’m on record as being no fan of the cops, but in a tactical situation, I’m usually on their side unless it is convincingly proven they were in the wrong.

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December 31, 2009, 10:53 am
DJR says:

Only on this blog would there be a “general rule of thumb” regarding a knife versus gun attack at 20 feet. What’s the general rule of thumb on an unarmed, nearly naked guy at 20 feet versus person prepared for the attack with finger on the trigger of a taser?

What, no rule of thumb for that? Well let’s compare the two:

Unlike the knife, the person will need to do more than simply close the distance and deliver one blow in order to do any damage. Unlike the gun, a taser is immediately debilitating if there is a hit. Unlike someone clothed, a taser attack against a person clad in only underwear is more likely to be successful because the danger of the darts failing to penetrate or being deflected by clothing is not present. And the officer presumably has other weapons and training sufficient to counter the disturbed naked guy’s fists.

Police don’t get to assume that everyone they pull over for a seatbelt violation is actually a cop-hating ninja asassin on PCP.

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December 31, 2009, 12:19 pm
Dennis N says:

Don’t overblow what I was saying. I was pointing out that the 20 foot separation is not a guarantor of safety, particularly against an individual who is acting in an irrational manner. Particularly if alone, you do NOT want to grapple with a lunatic with God knows what blood borne diseases. One or both of you is going to get physically hurt, and the situation escalated to felony assault on a cop. It’s in the subject’s better interests as well as the cop’s to prevent that.

Distance vs. reaction time is one element that goes into the mental meat grinder in that one second you have to get it right.

Another item that gos into the mental meatgrinder is that the subject may have been facing away from the cop. He was apparently shot in the back. How you assault someone backwards has not been adequately explained.

Was the subject fleeing? If he were fleeing, that is justification in many jurisdictions to zap.

I’d really like to see a detailed blow by blow of the incident, something that will probably never exist, before rendering judgment. The fact that the subject was acting like a lunatic leans me in favor of the cop. The fact that the lunatic was shot in the back leans me away. The possibility he was fleeing leans me toward. My head is spinning and I may fall down.

Police don’t get to assume that everyone they pull over for a seatbelt violation is actually a cop-hating ninja asassin on PCP.

This is actually one of my standard complaints against cops. But in this case, the seatbelt violation is not the issue, it is the subject’s bizarre and out-of-control behavior after the stop. You don’t have to be a ninja assassin on PCP to cause grave harm, or to be gravely harmed. In the instant case, both of those possibilities were averted. Good luck? Bad luck? Skillful design? Beats hell outta me.

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December 31, 2009, 2:34 pm
Mikee says:

The example given above, of an attack from 20 feet away, is a variant of the “Tueller Rule” used often in self defense cases where a defendant shoots someone attacking them, before contact by the attacker. Essentially, it is very easy to be attacked before one can pull and fire a pistol, if the attacker starts from about 7 yards away.
http://www.policeone.com/training/videos/1698001-Dennis-Tueller-21-Foot-Rule/

Police often are trained in the “Tueller Drill,” drawing and shooting before an attacker gets to them, starting with a holstered weapon and the attacker 7 yards away.
http://en.wikipedia.org/wiki/Tueller_Drill

I was told by my father, back when I was 16 and starting to drive, not to argue with police, because they can and will hit you if you argue with them. He pointed out that it is much easier to argue successfully with a prosecutor, judge and jury if need be, after safely out of the reach of the policeman with the billy club, mace, cuffs, guns, squad car, and multiple friends within easy radio call. And that was in the 1970’s, in a southern state, not California. True then, true now.

Why people choose to argue with or attack the one person most able to defend against an attack, in the entire justice system, boggles my mind.

On the other hand, I never expected to be tasered, maced, clubbed, or shot for no reason at all by the police.

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December 31, 2009, 5:43 pm
loent says:

I figure the probability is pretty high

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January 3, 2010, 12:01 am
Charlyb says:

This is coming from a cop first off. I have been pepper sprayed and tased both in my training. I have to have both done every year per my departments policy. I would rather be tased any day before being sprayed. When the 5 second “lightening ride” is over I am fully functional again, no pain besides the darts. After being sprayed I feel it for days. Every time I sweat, shower, or rubb my eyes I am reminded of the liquid hell that hit me in the face. It’s not the temporary pain cause by the taser that gains compliance, it’s the tightening of the muscles that stops you in your tracks. A taser, when shot, is not a pain compliance device as may believe, as pepper spray, batons, or my hands when I hit you or place you in a joint lock are. All uses of force are for te purpose of gaining compliance from a non-compliant subject and that means everything from me stepping out of my car and the subject being intimidated by my mere prescence to me putting rounds in your chest to make you comply with my orders to drop the gun. Now to say that a taser is anymore leathal and should be restricted than say pepper spray is rediculous. I’ve seen more suspects injured after being sprayed than tased. If they are not following an officers directives and are acting irradic then the taser is still the best option for both sides.

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February 1, 2010, 6:17 am

Taser Case Going to the Supreme Court?

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