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.

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.

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.

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.

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.

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.

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.

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.

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.

Dilan Esper: Dilan,
Why?

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

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.)

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.’

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?

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!

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.

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.

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

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?

Orin Kerr: Dilan,
Why?

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.

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.

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.

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?)

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.

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.

Why?

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.