Earlier today I mentioned Bryan v. McPherson, the Ninth Circuit’s new case on police use of tasers. My earlier post was a partially tongue-in-cheek point about the possibility of Supreme Court review based on the panel and result alone, before I had even read the case. But now that I’ve read the case, I can take my tongue entirely out of my cheek and offer some thoughts on the case. Here’s what stood out to me in reading the case.
1) I was surprised that the opinion recounts the events from the perspective of the driver who was tased rather than the officer who did the tasing. Supreme Court precedent requires the lawfulness of a use of force to be judged from the officer’s perspective: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” Graham v. Connor, 490 U. S. 386, 388 (1989). Instead of telling us what the officer perceived, the opinion takes us through the plaintiff’s morning and offers us a highly sympathetic perspective on why he was acting so strangely. (“Carl Bryan’s California Sunday was off to a bad start,” the opinion begins.) From a literary perspective, I find this rather engaging. It flows nicely, keeping the reader’s attention. But it leaves the reader rather in the dark on the only legally relevant perspective of how the facts looked to the officer “on the scene” who did the tasing.
2) The second odd part of the opinion is that it hands down a general legal rule about the use of tasers based only on a limited summary judgment record. The Court notes that Officer McPherson tasered Bryan with an X26 taser that has a 1200 volt charge; that Bryan testified (presumably in his deposition) about the temporary “paralysis and intense pain throughout his body when he was tasered.”; and that because Bryan was standing on hard pavement when he was tased, his fall “shattered four of his front teeth and caused facial abrasions and swelling.” At that point, the court’s analysis sounds really fact-specific.
But then the court uses those specific facts as the basis to announce a general Fourth Amendment rule that going forward regulates the use of tasers:
The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted. . . . We hold . . that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by “ ‘a strong government interest [that] compels the employment of such force.’ . . . Although the taser used by Officer McPherson was the X26 model, our holding applies to the use of all controlled electric devices that cause similar physiological effects.”
I’m a crim guy, not a civil procedure maven. But it seems a little odd to announce a general legal rule about the constitutional regulation of a new technology — specifically, “the X26 model. . . [and] all controlled electric devices that cause similar physiological effects” — based only on a summary judgment record about what happened in one case according to the deposition testimony of one plaintiff.
3) The third part about the case that stood out to me was how the court deals with whether Bryan was posing a threat to the officer. We have to go through the opinion and assemble how it must have appeared to officer McPherson, as the opinion presents the facts from the perspective of the tased young man instead. But here’s what I was able to reconstruct about what the officer observed:
Officer McPherson is watching an intersection for seatbelt violations at 7:30 on a Sunday morning when a shirtless young man who is “crying and moping” comes up to the intersection not wearing a seatbelt. McPherson signals to the young man not to continue and asks the man if he knows why he has been stopped, but the man simply stares ahead, not acknowledging the officer. The officer tells the man to pull over to the side of the road. The man starts hitting his steering wheel and yelling expletives as he complies. After the young man has pulled over, Officer McPherson then orders the man to stay in the car. The man does not comply, however: He instead gets out of the car and begins to engage in what the court describes as a “bizarre tantrum.” The man is wearing only underwear and shoes, and he begins “yelling gibberish,” cursing, and “hitting his thighs.” At this time, the young man is about 15-20 feet away from the officer (that is, about the length of one car) McPherson then testified that the man took a step toward him, and that at that point he tased the young man. The young man was later charged with resisting an officer, but the jury could not reach a verdict.
The Ninth Circuit reconstructs these facts by explaining why the young man was so agitated (according to him, he had just gotten a ticket earlier on the same drive); why he didn’t respond when the officer asked him if he knew why he was pulled over (according to him, he was so mad at himself for committing yet another traffic violation that he was unable to say anything); as well as why he didn’t comply with the officers order to stay in the car (according to him, he didn’t hear the officer’s command). Maybe that’s accurate, but I don’t know how the officer “on the scene” is supposed to know that — and it’s his perspective, not the young man’s, that the Supreme Court says is the legally relevant one.
The Ninth Circuit then discounts the officer’s testimony that the young man took a step towards him before the tasering on the theory that this is just a dispute of a material fact that cannot be considered at the summary judgment stage. The court notes that during the young man’s deposition testimony, he was asked if he “took a step out of the car” or a “step out away from the car,” and that he testified that he did not. But I’m not sure this creates a genuine issue of material fact: Maybe I’m just missing something, but I can’t quite tell exactly where the officer was located relative to the car, and thus whether a step “out of the car” or “away from the car” is the same or different as a step “towards the officer.”
4) The fourth part that’s odd is the focus on the minor nature of the offense that led to the traffic stop. Yes, that’s relevant in a case of escape, see Garner, where the use of force has to weigh the government’s interest in making sure the suspect is arrested. But I read Scott v. Harris to say it’s not relevant if the use of force is responding to a potential danger to the officer that became apparent after the stop. See fn 9 of Scott. So I would think under Scott that the issue is danger to the officer regardless of the seriousness (or lack of seriousness) of the offense that led to the stop.
5) Finally,the qualified immunity analysis was fairly sparse. The basic idea was that given the facts and the basic legal standard, a reasonable officer in 2005 should have know that a taser was excessive force in the circumstances even though there were no particular Ninth Circuit opinions on the books saying so or that were particularly similar to the facts of this case. The qualified immunity analysis is always hard to gauge given the difficulty of mastering the circuit court precedents and the judgment required to pick the right level of generality. So I won’t venture a guess as to whether the court was right or wrong on that point — especially in light of the difficulty of understanding the facts, which are usually the key to these cases. Still, it stood out that this was an unusually general analysis.
Mike says:
Orin: Your “5)” point is very weak. Read the literature of how Tasers were marketed. Everyone knows these things are dangerous. Everyone knows that using Taser involves using force. Under the law, officers are required to engage in at least some analogical thinking. Your point “5)” was line of argument was rejected in Hope v. Pelzer.
There is substantial excessive force case law involving the use of guns, police batons, kicks, and punches. Are Tasers so unlike every other means of enforcing pain that police just can’t comprehend that, gee, tasering someone who is not attacking him might be unreasonable?
Police aren’t morons. They all know Tasers can cause a person to pass out. Inded, when police taser each other at the Academy or in training, they have spotters. Here’s an actual video.
Just because something is new does not mean that there are no analogues. Police are smart enough to realize that tasering a kid can cause him to fall down, chipping his teeth.
That there isn’t an exactly case saying, “Don’t use a Taser on someone who isn’t threatening you” doesn’t mean the law wasn’t clearly established. Unless, of course, you believe that police are incapable of even Jr. High level of analogical reasoning.
December 30, 2009, 10:53 pmPio says:
“The man is wearing only underwear and shoes, and he begins “yelling gibberish,” cursing, and “hitting his thighs.” At this time, the young man is about 15–20 feet away from the officer (that is, about the length of one car) McPherson then testified that the man took a step toward him, and that at that point he tased the young man. ”
So the police officer, faced with a man wearing “only underwear and shoes” (and thus, obviously without any weapons within reach) who was a dozen feet away from him (thus, several steps away from even being in arm’s reach), felt that he was endangered? and not only did this abject coward with a badge feel that his poor self was endangered, he felt that the only way to deal with this danger was to taser the dude (rather than, say, take a few steps back himself)? Anyone with an ounce of sense “should have known that a taser was excessive force in the circumstances”, given that the “circumstances” consist of a crazy dude in his underwear several paces out of arm’s reach. And i would certainly expect more willingness to risk one’s arse out of our men and women in blue, or at least more willingness to step back from the supposed threat before using force.
Tasers are very dangerous weapons, and quite a few people have died and been severely injured by them; guns are quite dangerous too for that matter. Its situations like these, where cops seem willing to use dangerous weapons against others at the slightest imaginary risk to themselves, that make those of us not in the legal profession wonder how “qualified immunity” became “the rules for you don’t apply to us”. Why “ignorance of the law is no excuse” doesnt apply to those paid to uphold (and thus to know) it is beyond me.
December 30, 2009, 10:58 pmOrin Kerr says:
Mike,
I know you have passionate feelings about this kind of case, but you appear to misunderstand what I wrote. In my point #5, I point out that the analysis was very general, without saying that the analysis was right or wrong. You respond that everyone knows tasers are dangerous and that the Supreme Court has said that there doesn’t need to be a directly relevant case for QI to apply. You are obviously right on the second point. But even so, and even assuming you are right on the first point, why are these points inconsistent with anything I said?
December 30, 2009, 10:59 pmMike says:
Orin: Your argument was (or at least seemed) sotto voce: “The basic idea was that given the facts and the basic legal standard, a reasonable officer in 2005 should have know that a taser was excessive force in the circumstances even though there were no particular Ninth Circuit opinions on the books saying so or that were particularly similar to the facts of this case.”
The emboldened text seems like an argumentative way of framing the case. Incidentally, that line of argument will be raised by the advocates. And at least Justices Thomas and Scalia will raise it. If you were not making that suggestion, then my apologies for allowing my passion to overcome my reading comprehension.
December 30, 2009, 11:03 pmAmadorLuLu says:
This case has a grant of cert written all over it for the reasons Orin cites–9th Circuit used the wrong standard and adopted a seemingly circuit-wide rule. Plus look who’s on the opinion, altho authorship attributed to the somewhat moderate Clinton appointee, Kim Wardlaw, lurking in the woods are Pregerson and Reinhardt. Nuff said.
December 30, 2009, 11:04 pmformer student says:
Your comments about how certain sections/aspects of the opinion are “odd” only make sense when you put aside the identities of the authoring judge and the rest of the panel. [Of course, you've spelled that out in your earlier post and comments.]
This case apparently became a means by which to draw a line in the sand about the use of tasers.
December 30, 2009, 11:05 pmJeff J says:
Did the district court deny the officer’s summary judgment motion on the ground that there were material factual disputes concerning the events? If so, my understanding is that the Court of Appeals would not have jurisdiction over the appeal at this point. Appellate jurisdiction would lie only to the extent that the court based its denial on a question of law — in this setting, such a legal question usually involves whether the right in question is clearly established.
December 30, 2009, 11:07 pmOrin Kerr says:
Mike,
I wasn’t trying to suggest that there needs to be a case directly on point; as you say, that is plainly not the case.
December 30, 2009, 11:13 pmChris Travers says:
Prof. Kerr:
I too think the point 5 is somewhat weak. The court notes that the physical evidence suggests that the guy was shot in the back, and that it was undisputed that the plaintiff was not attempting to flee.
I think any reasonable officer would know that shooting at taser at someone’s BACK when the individual is not trying to move nor making direct threats at the officer is well beyond reasonable force, and that any reasonable officer would know this. Do you disagree?
I do agree about the point of asking for a developed evidentiary record to determine taser rules. However, if the allegation is that the guy was shot in the back while not making any directly threatening moves, that does seem to my mind outside of the realm of qualified immunity.
Are you now predicting that the Supreme Court will review and affirm but with a slightly different reasoing?
December 30, 2009, 11:14 pmTatil says:
Are you saying police officers should be able to use new methods or technologies in any way they wish until there is a circuit court decision about it? Your statement here sounds quite permissive in general. Police departments should use common sense before the years of time it takes for an appeal court decision to be handed down. For example, even if it is non-lethal, police departments policies should take into account that tasering is a fairly extreme use of force. Whether it was appropriate in this instance is another matter, of course…
December 30, 2009, 11:19 pmOrin Kerr says:
Chris,
I found the part about the suspect behind tasered from behind particularly odd. As best I can tell, that is the court’s own theory or what happened based on where he landed, rather than an argument of the parties or anything clearly in the record. Or am I reading the opinion incorrectly?
December 30, 2009, 11:20 pmOrin Kerr says:
Tatil,
No, I am not saying that. That would be stupid.
December 30, 2009, 11:23 pmTatil says:
I guess, I meant for Qualified Immunity purposes, how should the lack of a circuit court decision come into play? A factor among many or a very significant one?
December 30, 2009, 11:32 pmOrin Kerr says:
Tatil,
Sorry if I was over the top there; my apologies. There are lots of Supreme Court cases on this topic — it’s one of the most litigated issues in the Supreme Court’s QI cases.
December 30, 2009, 11:44 pmD Ct judge says:
As an aside, regarding the identity of the panel. It should be noted that the district court judge who denied qualified immunity in this case is a very conservative republican. He’s a former federal prosecutor who is very sympathetic to the police.
December 30, 2009, 11:52 pmFlash Gordon says:
At least the court did say that the facts did not disclose any threat to the officer’s safety and that it appeared the taser was being used solely to get compliance with the officer’s command to the man to get back into his car. The officer gave no verbal warning to the man that he would be tased if he didn’t comply. The man did not appear to have a weapon, and given the skimpy way he was dressed there was no danger he had a weapon concealed. It sure looks to me like the officer over reacted and used excessive force under the circumstances.
The taser is a good thing when it enables an officer to stop a threat to his safety without resorting to deadly force. It’s not a good thing if it is used merely to gain compliance with an officers instructions. In my view, using a taser to get compliance is per se excessive force. At least where there is no immediate fear that non-compliance will likely escalate into a danger to the officer’s safety. I’d like to know the agencies use of force policy and whether the officer was in compliane
December 31, 2009, 12:05 amreadery says:
It may well have been overly broad to make a general across-the-board rule, and the style might not have been the best, but the ruling on the facts of he specific case doesn’t seem unreasonable. The evidence does tend to suggest the person was unarmed, some distance away, not attempting to attack, and tasered in the back.
December 31, 2009, 12:07 amFlash Gordon says:
I’d like to see the use-of-force policy of the officer’s agency to see if in this incident he was in compliance. I’d venture that he wasn’t. If he was that policy should be changed. The taser may have been used in this incident not to gain compliance but to administer punishment for ignoring the officer’s verbal commands. If so, this officer’s fitness should be questioned.
December 31, 2009, 12:12 amGuy says:
I think the court based that on the fact that both sides say he fell forward (and since he chipped his teeth, it’s safe to say he did fall forward), and that the direction of blood spatter was away from the officer, suggesting he was shot while facing away from the officer.
December 31, 2009, 12:41 amSoronel Haetir says:
I would think it would be easy to determine where the guy was hit, especially since the barbs evidently had to be removed by a doctor. I would think that sort of thing would be noted in whatever records were taken about the event.
December 31, 2009, 12:41 amDavid Nieporent says:
Well, I agreed with your position in Scott v. Harris, and I agree with your interpretation of it here. But I’m not sure I agree with your application of it. Of course if it’s clear that he’s dangerous, the police can use whatever force is necessary regardless of the nature of the original offense.
But in Scott v. Harris, the fugitive’s conduct was inherently dangerous, regardless of his subjective intent, so that wasn’t much of an issue. (Except to Justice Stevens, that is.) In this case, though, and in cases like this, the tasee’s conduct is not inherently dangerous; the reasonableness of the officer’s actions has to be based on a prediction about whether the tasee will suddenly attack him. In that case, the nature of the underlying offense should be a factor in that prediction. Presumably, seatbelt offenders are, as a class, less violent than, e.g., terrorists.
(Or, to look at it from the other perspective; if the tasee were a suspected serial killer, then it would be very very reasonable for the officer to fear him. So if the tasee is merely a seatbelt offender, then it ought to be far less reasonable for the officer to fear him.)
December 31, 2009, 1:03 amLarryA says:
I haven’t read enough of the record to judge either party. However, I would note that it’s fairly simple to conceal a knife even in underwear, and it’s well-known in self-defense literature that a man with a knife 21 feet away can rush you and have it in you before you can draw and fire.
December 31, 2009, 1:43 amLarryA says:
I think if I met a person I didn’t suspect of any offence driving around in his underwear, cursing, failing to comply with reasonable directions, and acting irrationally, I’d be concerned. If he made a forceful move in my direction, he’d at least see my handgun.
December 31, 2009, 1:59 amGuy says:
Conceal a knife in briefs or boxer-briefs? Sure. But boxers?
December 31, 2009, 2:40 amNoah David Simon says:
“qualified immunity”: Poor fashion does qualify as immunity from the police.
December 31, 2009, 6:59 amDavid W. says:
This is a good example of why seatbelt violations should not be made a primary offense.
December 31, 2009, 8:01 amWill Baude says:
For comparison, it may be worth looking at the Eighth, Tenth and Eleventh Circuit’s decisions in Brown v. Golden Valley, Casey v. Federal Heights (McConnell, J.) and Buckley v. Haddock (Edmondson, J.), as well. All these cases have unique factual wrinkles, as any excessive-force case would, but the core fact pattern is the same: Casey and Brown both find excessive uses of force (and no qualified immunity) when an officer overreacted to a minor infraction with a Taser. Buckley finds the opposite (although two out of three judges on the panel would have agreed that there was one minor constitutional violation). Buckley is nominally unpublished, but includes an 18-page dissent by the newest nominee to the Eleventh Circuit, and got quite a bit of attention when it was decided.
December 31, 2009, 8:11 amBill says:
Let me ask. Have you ever been in a fight? I have black belts in Tae Kwon Do and Karate and can tell you that I am just as dangerous wearing only my underwear and shoes as I am fully clothed. Hands, arms, legs and feet can also be weapons.
I’ll strip down to my underwear and stand 20 feet away from you. I will all but guarantee you will be the one hurt if I decide to attack you. In this case the police officer has no idea as to the physical abilities of the suspect or if he is on Meth, PCP or any other drug that makes people impervious to pain. Officer safety is of far more importance than some ass hat.
You are obviously a cop hater and nothing will change your mind, but understand this one small point. The average adult can cover the 20 ft distance that separates the officer and the suspect far faster than the officer can draw his firearm. IF the guy had a knife or even a club and the officer was within 20 feet he could have been perfectly justified in shooting him. The taser has actually saved far more lives (officer and criminal) than it has taken.
Also note that this decision comes from the 9th Circuit (Circus)…..the most liberal, overturned court in the country. If the police would have tickled the guy into submission they would have been pissed.
December 31, 2009, 8:52 amBill says:
I think that there should be no law requiring the use of seatbelts, motorcycle helmets or child seats. If you are too dumb to use them you will remove yourself from the gene pool…… They are nothing more than revenue collecting tools.
December 31, 2009, 8:54 amRHSwan says:
I’m surprised no one has mentioned that one can conceal in one’s underwear enough explosive to possibly take down an airplane. Wasn’t it last Friday that someone tried to do that. Of course, I doubt the officer thought of that.
December 31, 2009, 9:22 amlgm says:
As a probably naive non lawyer, I’m struck that this is not the kind of thing the Supreme Court should be deciding. (Not that’s a good idea to say so to the Supreme Court?)
It’s a question of fact finding and degree judgments, not basic principles. The Supreme Court should defer to the lower courts if they are at all plausible. Given the discussion, it is plausible that no reasonable officer would feel he was threatened to the extent he needed to use the taser. What about the tens of thousands of other difficult judgments made by lower courts, which environments are hostile, which assaults are aggravated, etc.?
December 31, 2009, 9:24 amSeaDrive says:
This morning’s headline in the Stamford (CT) Advocate:
Did the Bryan v. McPherson incident justify lethal force?
I don’t follow these things too closely, but I think that police have adopted a line of thinking that a Taser is “lesser” than a gun, and it’s acceptable to use a Taser in situations where a gun would be unacceptable. That’s really an escalation of force from the original idea that a Taser could be used instead of a gun in situations where lethal force is justified. We have seen a similar escalation in the use of pepper spray.
I’m not sure of the relevance, but I also think that police (in Stamford, anyway) are poorly trained in recognizing mental illness or anguish, and tend to interpret a failure to follow instructions as defiance when it’s actually incapacity. Finally, they force situations to a bad conclusion, rather than wait for tensions to subside.
December 31, 2009, 9:35 amJK says:
Putting aside the issue of where the man was keeping a club, I don’t think many people would fault the officer for drawing a tazer under the circumstances, it was actually firing it that was the problem. I would gladly take your “20′ away and I get a taser” challenge if I start holding the taser.
December 31, 2009, 9:38 amGino says:
The opinion limits the government’s ability to use an extremely painful, sometimes physically harmful and sometimes lethal, means of force on civilians. I see no problem here.
December 31, 2009, 9:38 amJK says:
Yeah, random guy driving around in his underwear on a Sunday morning has a C-4 butt plug in. That’s a reasonable concern.
December 31, 2009, 9:48 amliamascorcaigh says:
I agree that under the circumstances the policeman’s action was utterly unreasonable in tasering the, er, taseree.
I have one question. If the policeman was in fact a policewoman would people who think the tasering unreasonable change their mind?
December 31, 2009, 10:27 amBuddy Hinton says:
TRANSLATION: Don’t make broad rules about police conduct because then poposquad can’t argue later that there was no rule on point.
RESPONSE:
QI law is in a sad state. It encourages police officers not to know the law. It encourages police officers to put on a savage front, and act strategically when they decide what is “reasonable” (eg, tasering for pain compliance purposes). It encourages judges (at least pro-police judges, and that is most of them) to constantly say that the law is undecided, rather than deciding the law. It is a joke that, at this late date in history, we don’t know if the thing Officer MacPherson did is Constitutional or not. Tasers aren’t that new and they are hugely common, after all.
One way to counter the ridiculousness of QI jurisprudence, and to minimize the harm it causes, is for judges to make broad rules and to make them as fast as they can (eg, at Summary judgement or preliminary injunction phase). That way other police officers can’t go on claiming ignorance of the Constitution as a form of immunity. Note, the police officer can still claim that a given use of the Taser was reasonable. If the next driver is actually charging the policeman the policeman can still claim that QI applies. He just can’t use the golly-gee-I-didn’t-see-no-cases-on-this form of immunity precisely because a purposely broad rule has wisely been put into place by the forces of good. Frankly, if the d00d charges he will probably get shot by the gun and not the taser anyway, and that is probably as it should be.
SIDE POINT:
Traffic stop victims who shoot police don’t act like d00dski did in this case anyway. They don’t cry. They aren’t in their underwear. They don’t pound on their thighs. Rather, they act like Bart Wayne Johnson did earlier this month, or Lovell Mixon did earlier this year. Police are most at risk from drivers acting normally during a stop. If police officers were genuinely concerned about safety, those are the drivers they would taser and prone out. People like you and me. This case with Weepy McTantrum isn’t really about safety at all. It is about the power to punish.
December 31, 2009, 10:37 amCommenter says:
From D. of Vermont, on appeal now to 2d Cir., a (surprisingly) very different result:
Crowell v. Kirkpatrick, 2009 WL 3571362 (D. Vt. 2009)
December 31, 2009, 10:43 amyankee says:
Very few, I’m guessing. The fact that the victim wasn’t threatening enough to justify shooting him has nothing to do with the relative physical strength of the officer and the victim. The problem is that (a) being weird is not threatening and (b) the victim was far enough away that the officer could have fired if the victim had actually lunged at the officer or drawn the imaginary knife in his boxers.
Agreed. I’m disappointed by the number of people who are eager to defend the government’s right to blast innocent people with electrical current.
December 31, 2009, 10:43 amJoe Blow says:
Sure internet tough guy, but I get to have the Taser drawn, just like the officer. I’m willing to bet my life that you can’t cover 20 feet faster than my finger can cover the 2mm to deploy the barbs. And I don’t hate officers. I have a B.S. in professional law enforcement and a good number of my best friends are officers.
I think Flash Gordon nailed it:
I think many officers believe that they can use tasers to obtain compliance, even if there is no threat to the officer’s safety.
December 31, 2009, 10:43 amWallace says:
No they are not. Have you been Tased? I have. More than once. I am here typing this, and I was not injured at all. OC is FAR worse.
Since when do suspects get to control a situation? Handing that much control to a suspect is dangerous.
If you play stupid games, you win stupid prizes.
December 31, 2009, 10:56 amWallace says:
The problem is reaction time. Have you ever done 21 Foot drills? Nope.
December 31, 2009, 10:57 amgeorge weiss says:
as to point 1
a) doesn’t the fact that the case is on summary judgment-moved for by the defendant officer-require the court to look at the case in the light most favorable to P?
b) yes the law requires, as a substantive matter, that the use of force analysis be made from the officer’s perspective (for good reason). but isn’t this a rule for a trail record not a SJ record?
maybe its possible to “look at it from the perspective of the officer” wile also in the “light most favorable to the driver” but isn’t that splitting hairs?
December 31, 2009, 11:11 amBuddy Hinton says:
Wallace is showing us the hilarious part of QI law. Police officers setting up little rigged pseudo-experiments to show how “harmless” tasers are or how poor police reaction time is.
I mean, sure, I will take a taser strike if I get to put my buddy in charge of the taser and stand on pillows. But that kind of thing means nothing. What I don’t want to do is get tasered by surprise, on a hard surface by some guy who hates my guts. I doubt any policemen are up for that either. However, that would be the realistic empirical evidence.
And the 21 foot drills? Reminds me of when I was four or five and my sister and I would have “slow races” to see who could go slower. It turns out that you can go real slow if their is a prize for doing that.
Give me a break!
December 31, 2009, 11:15 amJMA says:
Someone tried to explain to me why tasers were a good idea once. They asked, “Would you rather be shot with a .40 S&W or with a taser?” The answer was obvious, of course, and I agree.
What bugs me is when tasers are used as a replacement for “harsh language” (a la Aliens :P ) rather than for, say, .45 caliber hardball.
December 31, 2009, 11:24 amJoe Blow says:
Another internet commando? The Tueller Drill is performed with a holstered weapon. The drill demonstrated one thing, and one thing only: it takes the average human adult male 1.5 seconds to cross a distance of 21 feet and make contact with the officer. This 1.5 seconds is a generally accepted time that it takes an officer, with handgun holstered and who is aware of the threatening suspect, to observe the charge, orient to the threat, decide to shoot, and then fire two rounds before the suspect touches him. A properly trained officer with a weapon drawn will have no problem dropping an attacker who is 21 feet away and attacking on foot.
December 31, 2009, 11:25 amAnon Y. Mous says:
Is it possible that in reaction to the officer firing the Taser at him, the suspect turned his back to take the barbs there instead of in his front, as kind of a defensive measure? That would not be possible with a bullet, since the bullet travels faster than a person’s reaction time, but is that the case with Taser barbs, dragging those wires behind them?
December 31, 2009, 11:55 amMichael Masinter says:
Buckley v. Haddock doesn’t establish circuit conflict because, as noted, it is unpublished and non-precedential, and in any event has not been followed since. The most recent published Eleventh Circuit opinion respecting tasers is Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) and it is very much in line with decisions from other circuits; it also does a nice job of limiting the reach of the problematic language in the earlier published decision in Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) that produced Buckley v. Haddock (full disclosure — I represented Buckley in his unsuccessful cert. petition but not below).
As for Orin’s first point in his initial post in the thread, I think the reason the panel presents the facts in the light most favorable to the plaintiff is simply that the historical facts were in significant respects contested, including the facts concerning whether the plaintiff turned and stepped toward the officer. The fourth amendment requires assessing reasonableness from the perspective of the officer only when the officer is truthfully describing that perspective. To the extent that the officer recounts a version of events contradicted by other evidence, normal summary judgment practice requires on the merits 1) resolving the contested facts in the light most favorable to the non-moving plaintiff and 2) asking whether under those facts a reasonable officer would have been justified in using the quantum of force in issue, and on qualified immunity, 2) asking whether a reasonable officer should have known that the use of that quantum of force violated clearly established law. If a jury reasonably could conclude on the basis of the plaintiff’s testimony, the direction of his fall and his associated injuries that the officer lied when he claimed that he only discharged his taser after the plaintiff began to approach him, and that in fact he discharged his taser when the plaintiff was neither approaching him nor otherwise threatening him, then isn’t the panel correct? And isn’t the summary judgment record sufficient to permit a jury to make that finding?
December 31, 2009, 12:03 pmChris Travers says:
I have no idea, since the court doesn’t say. I suspect whatever it is that caused them to think this is somewhere in the evidentiary record. I do agree they could have done a better job of citing it. It certainly doesn’t seem to be a matter of a claim by the injured party. I suspect further review would focus on that.
BTW, I do think there are plenty of things not to like about this ruling. The judges seem to articulate very strong stances on tasers here. And it is certainly the case that if facts were as the officer alleges, he would be reasonably concerned about his safety enough to consider it at least an honest mistake. I am not sure the court here articulates that and so there might be a reason for further review (en banc, SCOTUS, etc).
December 31, 2009, 12:31 pmGuest14 says:
Why is there so much focus on the distance? Police come in contact every day with people who, if they were to try to to attack the office, would succeed. That alone doesn’t justify tasering everyone.
December 31, 2009, 12:44 pmeddardStark says:
Not related to issues of law, exactly, but my local paper in Eugene, OR this morning published this article related to the case. There’s been quite a bit of debate in Eugene about the force’s use of tasers, and I found it interesting that the local ACLU leapt on a case not three days old.
December 31, 2009, 12:50 pmSteve P. says:
With people like Bill around, I think officers should just walk around with their guns out at all times. You never know when the unassuming guy in front of you is really more bad-ass than Rambo (like Bill) and delusional (see above).
December 31, 2009, 12:50 pmSuperSkeptic says:
Thank you for addressing the merits. Anything I would say has already been said. Gino and Buddy Hinton get it, in particular.
December 31, 2009, 12:55 pmChris Travers says:
Also, we don’t know what other defendants may have filed in terms of evidence as well. I wonder if the “evidence suggests he was shot in the back” may have come from some sort of routine filing by the police department or city (for whom summary judgement was granted). Either way, without seeing all the court filings, it is hard to say.
December 31, 2009, 1:02 pmOrin Kerr says:
Michael Masinter:
You misunderstand My point 1. My point was not that the court presents the facts in the light most favorable to to the plaintiff, but that the court presents the facts in the light most favorable to the plaintiff from the perspective of the plaintiff.
That’s just a way of providing the kind of 20/20 hindsight bias that the Supreme Court forbade in Graham v. Connor. That is, by telling us how things allegedly looked to the plaintiff, we have the omniscience that Graham says we are not supposed to have.
December 31, 2009, 1:05 pmBuddy Hinton says:
It goes to the demeanor that the plaintiff likely presented to the police officer. People who are sad from having a bad day tend to look like they are sad from having a bad day. It tends to show up in their facial expressions and the way they cry (there are different ways of crying) and even the way they move. It is evidence that plaintiff presented an anguished countenance to the police officer and not a threatening countenance.
Not only is it probative, but it is evidence with a rather high probative value. I BELIEVE that plaintiff did present an anguished contenance and not a threatening one. I believe that the police officer saw an anguished countenance and not a threatening countenance. If plaintiff had just come from a knife fight and was on his way to his anger management class, then I would not believe that he presented an anguished countenance and would believe that he presented a threatening one.
Now that there will be a trial, the policeman can flow his tears on the stand all he wants. Maybe he can could convince me that the plaintiff was swearing and head slapping in a way that looked like he was preparing to attack. But I doubt it, and I doubt it precisely because of the plaintiff’s backstory.
It would be good for the policeman, of course, if circumstantial evidence could not be used to counter the policeman’s representations about what looked threatening to him. That is the coded message that I perceive in what Professor Kerr is saying here. I say that if police want to avoid people drawing the inference that the policeman is acting the elephant terrified by a mouse, like they are so wont to do, then the burden should be on them to get cameras on those cars and on those guns and on those hats. Let’s put that seatbelt ticket money to good use for once. Now that YouTube has ads it could even be a revenue stream.
December 31, 2009, 1:38 pmBill says:
You are forgetting that the vast majority of the people a police officer comes into contact with on a typical shift are not showing aggressive/abnormal behavior (i.e. beating their thighs while wearing only underwear and shoes)
Distance alone does not justify use of a taser, but aggressive behavior and refusal to comply with lawful commands does……
December 31, 2009, 1:44 pmBuddy Hinton says:
Nice job conflating aggressive and abnormal there. It was so subtle I almost didn’t catch it.
“Plaintiff delivered several blows to the head of one witness with a blunt object. After he got out of the car he then flailed his arms while simultaneously reaching for the vicinity of his waistband. In his underwear I saw a bulge that was, in my training and experience, consistent with a weapon regularly used by rapists. He was standing with both feet on the ground just like copkillers do when they shoot cops. Also, he was breathing a mixture of nitrogen and oxygen via his mouth and/or nose, which is something that we now know the Nazis did when they executed the Holocaust. Plaintiff also failed to respect my authority and command presence. I was as scared as that girl at the end of The Blair Witch Project, but, unlike her, I parked my patrol car sideways, so you will just have to take my word for it.”
Like the policemans say, ya just gotta know how to articulate.
December 31, 2009, 1:57 pmMichael Masinter says:
If I misunderstood your point, I regret doing so. But leave omnisicience aside. Don’t you think that on the narrow question of whether summary judgment was proper, the plaintiff’s evidence creates a genuine issue of fact sufficient to deny summary judgment? Isn’t there a genuine factual question that goes to whether the officer truthfully recounted what he perceived? The recounted testimony, the location of the taser wound, and the broken teeth are all direct or circumstantial evidence that contradicts the officer’s testimony that he saw the plaintiff take a step toward him. I think we agree that hindsight bias has no place in qualified immunity law (or in judging generally), but I would hope we also agree that neither does what one eleventh circuit judge has, albeit in very different circumstances, labeled “perception prevarication.”
[OK Comments: You raise an interesting civil procedure question: Can a court conclude there a genuine issue of material fact because the judge suspects that the movant is lying under oath? And relatedly, I assume, can the judge conclude that there isn't a genuine issue of fact because he suspects the non-movant is lying? If so, what is the proper threshold of a judge's suspicion as to whether the parties are telling the truth in order to reach these decisions? And what is the appellate standard of review of such questions? I don't know the answer. Although as you're a civil procedure professor, perhaps you do -- perhaps you could give us some citations for the issue that we can take a look at? That would be really helpful.]
December 31, 2009, 2:06 pmGuest14 says:
No it doesn’t. Not when “aggressive” just means agitated, and not exhibiting some kind of intention of harming someone.
December 31, 2009, 2:14 pmJK says:
So the test for using a taser is “doing something I don’t usually see”? And here’s me thinking the citizen has to present some actual danger for the officer to use that type of force.
December 31, 2009, 3:01 pmRyan Waxx says:
I’m certain that you could justify all kinds of things if you assume that each and every person you pull over is a drug-crazed ninja with explosive underwear bristling with weapons. I’m less certain that treating all citizens like that allows the constitutional protections those citizens supposedly enjoy to survive.
December 31, 2009, 4:02 pmChris Travers says:
The possibility that the individual was shot in the back though with the taser does change this dramatically.
December 31, 2009, 4:44 pmLib says:
I think you’re missing the point. I think the officer’s immediate risk is high if the unarmed, irrational, non-compliant suspect who is appearing to begin an advance on the officer is 19 feet or six feet away. However, if the same suspect is ninety feet away, distance does protect the officer (for a while of course) and gives the officer time to safely try to gain compliance through additional orders and verbal interaction.
Also, the officer in this case didn’t just assume the suspect was irrational, the suspect acted so – and even then, no one said the suspect was a “drug-crazed ninja with explosive underwear bristling with weapons”. If the officer thought the suspect had a gun, I’ll bet that the officer would have had his sidearm rather than his taser out.
The risk is the suspect’s demonstrated behavior, not the distance. If he’s ninety feet away, the immediate risk is mitigated or nearly eliminated by the extra seventy feet of buffer.
Would you agree that if an irrational, non-compliant suspect begins to advance on an officer from four feet away that the officer should make use of a taser to prevent hand-to-hand combat?
I think it’s likely in this case the officer overreacted (and wouldn’t be shocked if the officer is being completely honest about events). But, I think the court, and some posters here, think that 19 feet is more substantially different as a zone of protection than is six feet – this sounds wrong to me.
(Whatever happened to Whit? He could probably actually speak to this rather than speculate as most of us are. I miss his reasoned comments on topics like this.)
December 31, 2009, 4:54 pmBuddy Hinton says:
I would. I think he is lying his head off. I would be shocked if his pants are somehow not on fire. I think that is supposed to be legally irrelevant somehow, in cases involving police officer testimony, but I have never quite figured out how.
December 31, 2009, 5:07 pmLib says:
Oops… I agree with you. I didn’t proof my comment well – I meant it to say “is not being completely honest”. (I trust LEO testimony about as much as I trust defendent testimony.)
December 31, 2009, 5:26 pmLaura Victoria says:
I have been convinced by Buddy and others who point out the backstory of the day from the POV of the victim/plaintiff, serves as direct and circumstantial evidence of the truthfulness of the perspective of the LEO. It is not substituting viewpoints, it is simply evaluating the basic credibility of viewpoints for summary judgment purposes. Then, the panel looked at the facts in the light most favorable to the non-moving party. They did that from what they gleaned to be the plausible point of view of the LEO. They were not required to accept mindlessly what that POV was based on whatever bogus testimony he spewed out to the DC.
BTW: Based on SS’s appellate record, she seems very pro cop on QI and other issues. Joe Biden was finally speaking the truth when he told the LEO unions “she’s got your back.” I’d worry about her at least as much as Nino and Thomas.
December 31, 2009, 5:44 pmJagermeister says:
I’ll echo what Bill said here. I’ve had to confront mentally ill people in their underwear and their strength and imperviousness to pain is terrifying. People on PCP have been fatally shot and gone on to injure hostages and officers. I know people who have debilitating permanent damage from just a fist fight.
The idea that an apparently deranged person close by can be self evidently “not a threat” is the cloistered opinion of someone who hasn’t been there. They can be, and often are, a lethal threat.
For the rest, I’m inclined to Prof. Kerr’s analysis, although I too an interested to know if there is forensic evidence that the suspect was tased while his back was turned. Absent that, I can surely see the officer has having a reasonable fear for his safety.
December 31, 2009, 5:57 pmChrisTS says:
When I read the link last night, I got the clear impression that the court deduced Bryan’s having his back to the officer from the reports that he fell forward onto his face and the entry-point of the barbs.
December 31, 2009, 6:40 pmJK says:
So, mentally ill = threat = permissible use of arbitrary deadly force? While in law school I interned at Vermont Protection and Advocacy (not to mention personal experience with a relative with schizophrenia) and I was around plenty of “deranged” people, and “deranged” does not mean a per se threat. A reasonable person can tell the difference between just crazy and crazy and dangerous.
If “acting deranged” means “shoot to kill” we really need to keep police officers away from maternity wards or we’re going to end up with a lot of dead pregnant women.
December 31, 2009, 7:55 pmJagermeister says:
I’m not positing either of those equivalences. It appears to me that you are taking my positions to the extreme for the purposes of setting up a “straw-man” argument that is self evidently absurd.
I’m merely pointing out:
(a) that the threat of violence cannot be excluded simply because the suspect is unarmed and unclothed.
(b) that it is incorrect to assume that an officer is in complete control (and thus has perfect choice of action) simply because of the weapons carried. (i.e., possession of a gun doesn’t make one invulnerable).
(c) that many people seriously underestimate the permanent damage that can be, and often is, inflicted in unarmed attacks.
(d) that therefore, a “reasonable” officer may have cause to fear for their safety when confronted by a person who shows every evidence of being under the control of violent emotions and resistant to attempts to defuse the situation.
I am certainly aware that “irrational” does not equate with “non-compliant”, and that neither automatically equates to “threat”. But certain types of irrational behavior, coupled with certain types of non-compliance (both of which, in my opinion, appear to be present in the scenario described by Prof. Kerr) certainly can be perceived as “deadly threat”.
To reiterate, “acting deranged” may certainly be a component of “lethal threat”, but I nowhere suggested it was a sufficient cause, in and of, itself. However, it is certainly an indicator that when taken in account with certain other actions (like violently striking objects and oneself, and moving towards the officer) could very well add up to the perception of “lethal threat”.
It appears that some wish to suggest a standard equivalent to an officer having a “duty to retreat” unless their life is in imminent danger. That would certainly solve many of the problems arising from some of the encounters between LEOs and the mentally ill / fanatically angry / drugged / etc, and in all honesty, might be a better solution than current rules of engagement.
But that isn’t the way that things are constructed now, and I feel it unfair to judge officers by the standards that we wish may apply. If the “reasonable person” standard is to apply, then it appears to me that a “reasonable person” could certainly have felt threatened by the behavior displayed by the suspect.
December 31, 2009, 8:44 pmSurrogate says:
I’m not positing either of those equivalences. It appears to me that you are taking my positions to the extreme for the purposes of setting up a “straw-man” argument that is self evidently absurd.
I’m merely pointing out:
(a) that the threat of violence cannot be excluded simply because the suspect is unarmed and unclothed.
(b) that it is incorrect to assume that an officer is in complete control (and thus has perfect choice of action) simply because of the weapons carried. (i.e., possession of a gun doesn’t make one invulnerable).
(c) that many people seriously underestimate the permanent damage that can be, and often is, inflicted in unarmed attacks.
(d) that therefore, a “reasonable” officer may have cause to fear for their safety when confronted by a person who shows every evidence of being under the control of violent emotions and resistant to attempts to defuse the situation.
I am certainly aware that “irrational” does not equate with “non-compliant”, and that neither automatically equates to “threat”. But certain types of irrational behavior, coupled with certain types of non-compliance (both of which, in my opinion, appear to be present in the scenario described by Prof. Kerr) certainly can be perceived as “deadly threat”.
To reiterate, “acting deranged” may certainly be a component of “lethal threat”, but I nowhere suggested it was a sufficient cause, in and of, itself. However, it is certainly an indicator that when taken in account with certain other actions (like violently striking objects and oneself, and moving towards the officer) could very well add up to the perception of “lethal threat”.
It appears that some wish to suggest a standard equivalent to an officer having a “duty to retreat” unless their life is in imminent danger. That would certainly solve many of the problems arising from some of the encounters between LEOs and the mentally ill / fanatically angry / drugged / etc, and in all honesty, might be a better solution than current rules of engagement.
But that isn’t the way that things are constructed now, and I feel it unfair to judge officers by the standards that we wish may apply. If the “reasonable person” standard is to apply, then it appears to me that a “reasonable person” could certainly have felt threatened by the behavior displayed by the suspect.
December 31, 2009, 8:47 pmRyan Waxx says:
Except there is no “reasonable person” standard. It’s a “reasonable officer” standard… i.e. someone who’s trained to deal with violent situations with appropriate force, not blast someone out of their shoes because someone told him that 21 feet is equal to 6 feet and the guy MIGHT be able to cover 21 feet before his trigger finger can cover 0.21 inches in certain regions of Alice’s Wonderland. The same part where you have to run faster just to stay still comes to mind.
December 31, 2009, 9:09 pmBuddy Hinton says:
Those who worked on the Sotomayor campaign are in the best position to predict what she would do about this case. If they want cert, then I think that would be a good predictor of whether Justice Sotomayor would side with the Ninth Circuit or the “virtual” circuit with whom the Ninth has now split on this putative police misconduct issue.
December 31, 2009, 9:16 pmRyan Waxx says:
We can not… CAN NOT!… have perfect officer safety AND civil rights at the same time. I’m sorry if that’s a rude surprise for many here. Consider a police officer knocking on your door. You open it, and you’re right inside cold-cocking range. Does this mean all officers should only approach people’s doors with tazers drawn?
Some people here would apparently say yes… or they’d say no and pretend not to notice the deep disconnect between their descriptions of what COULD happen and an arrest procedure that is actually capable of protecting an officer under the circumstances they postulate.
Again, just because someone who’s punching an inanimate object 21 feet away could concievably rush you doesn’t mean you treat him like he was 6 feet away with fists raised.
December 31, 2009, 10:04 pmLarryA says:
Or under a T-shirt.
Actually, a Taser is neither. Tasers aren’t nearly as reliable as handguns in actually stopping people in the field, and handguns aren’t the magic manstopper seen in Hollywood. Only about half of the law enforcement agencies use Tasers in the field, and many of them require an armed officer as backup before they will be deployed.
And BTW, I’m usually skeptical of police use of force. But it is and should be self-defense law that any use of force should be judged from the users’ point of view, based on what they knew at the moment they squeezed the trigger. As Orin pointed out, 9th Circuit stood this on its head. That’s a key element in the anti-self-defense philosophy leading to the idea that criminals are misunderstood victims of society, therefore self-defense is illegitimate.
December 31, 2009, 10:22 pmraoul says:
Tasers are definitionally deadly weapons.
January 1, 2010, 2:39 amJohn Herbison says:
I have read only the headnotes to the decision, but the reason, I surmise, that the decision recites the facts from the perspective of the plaintiff is that this is a review of a summary judgment determination as to whether the governmental actor is entitled to qualified
impunityimmunity. The question is whether the plaintiff should be afforded the opportunity to present his case to a jury. In the procedural posture of qualifiedimpunityimmunity analysis at the summary judgment stage, the plaintiff is entitled, both at the trial court stage and on appellate review, to the most favorable view of the facts, including the most favorable inferences which may reasonably be drawn from the facts. If the law, as applied to the factual situation most favorable to the plaintiff, was not clearly established that the defendant’s conduct violated the plaintiff’s federal constitutional or statutory rights, then the defendant is immune from suit.If the qualified
January 1, 2010, 3:16 amimpunityimmunity analysis cannot be determined without the resolution of disputed facts, then the appellate court has no jurisdiction over an interlocutory appeal. That is, if application of the law, on the view of the facts favorable to the defendant, is “clearly established”, but if the facts are resolved in favor of the plaintiff, the law is “clearly established”, then the case must proceed to trial, and the defendant’s (or plaintiff’s) recourse is a post-trial appeal rather than an interlocutory appeal (which pretrial appeal is not available where a qualifiedimpunityimmunity defense has been upheld as to some, but not all, defendants).Robert B says:
Larry: He wasn’t wearing a shirt.
Interlocutory appeals: IANAL, but I’d love if someone can chime in with clarification on whether or not the non-moving party gets deference in qualified immunity cases as is usual for other interlocutory appeals, or if this is an exception to the rule. If the non moving party does get questions of fact assumed in their favor, then this is a good ruling, if not, it’s absolutely terrible. As has been mentioned before, this seems more like an appeal that needs to be made after final judgment.
Policy: Having been hit with both a cattle prod (don’t visit cousins on a farm and ask what that funny looking stick is) and a stun gun (same issue, in college), I can say from personal experience that they subject the victim to an undefensible force, not unlike being hit with a truck. This being the case, the use of a taser should be limited to when a similar level of force would also be authorized. Essentially, the officer should have to make a choice about whether to draw his firearm or his taser, and be judged on the use of either under the same standard.
Here is a video interview with a police representative after a 16 year odl was tasered as he lay on the ground with a broken back: http://www.eclipptv.com/viewVideo.php?video_id=6873&title=Cops_Tazer_Child_19_Times_Leaving_Him_in_a_Coma
And this one is a man who was tasered off the top of a building in New York: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/3084928/Naked-man-falls-to-death-after-police-hit-with-Taser-gun.html
January 1, 2010, 1:46 pmLarryA says:
So the cop has the choice of a one-shot Taser that is less likely to stop people, or a seven-to-fifteen shot handgun that is more likely to stop them. Using the “same standard” only a fool would even carry a Taser.
Yes, when they work correctly Tasers hurt people and make them fall down. But they don’t put holes through them. There really is a difference in lethality, and banning Tasers will result in more severe injury and death.
January 1, 2010, 3:41 pmJohn Herbison says:
Excuse me. My comment above should have read, “That is, if application of the law, on the view of the facts favorable to the defendant, is not “clearly established”, but if the facts are resolved in favor of the plaintiff, the law is “clearly established”, then the case must proceed to trial, . . .”
On an interlocutory appeal of a ruling where the trial court has denied the Defendant’s assertion that he is entitled to qualified immunity, the plaintiff is entitled to the view of the facts most favorable to him. A ruling in the defendant’s favor on qualified immunity is not appealable as of right prior to trial–as in the case where some defendants, but not all, are determined to be entitled to qualified immunity, or where the plaintiff seeks equitable relief in addition to damages. If all defendants are determined to be immune, (and if money damages is the only remedy sought,) then a final order will issue and the appeal would not be from an interlocutory order, but from a final order which is appealable as of right.
January 1, 2010, 4:46 pmDan L says:
This may have been said in earlier comments, but as to your points #1 & 3 (especially point 3), the procedural posture is a motion for SUMMARY JUDGMENT. What better way to look at the facts in the light most favorable to the non-moving party (the moving party being the city trying to have the suit dismissed) than to recount the story from the eyes of the non-movant himself?
January 1, 2010, 5:20 pmLawClerk1 says:
There are two common mistakes made by the lefties on the 9th Circuit when looking at either excessive force or reasonable suspicion inquiries:
First, as Orin points out, they view things from the perspective of the alleged victim instead of the officer. You’re in big trouble right there, because you start “understanding” why the guy was doing all the weird things he was doing. But the problem is you (the judge) are looking at this with complete information 3 years after the fact in a building with US Marshalls out front, and the cop is reacting on the scene with only what he observes, and he’s all by himself.
Second (but related to the first), these panels tend to “divide and conquer” the facts: that is, explain each one away in isolation. Hey, the guy’s not wearing a shirt. Nothing odd there. Hey, the guy is having a tantrum: strange, but not threatening. And so on and so forth. But the whole is greater than the sum of the parts on these things, so viewing the factors in isolation is not the right thing to do.
Finally, I would just note that the Court says there was conflicting testimony in the record about whether the guy stepped towards the cops, so they correctly (given the procedural posture) assumed that he did not step towards the cop.
January 1, 2010, 5:43 pmLawClerk1 says:
John,
The reason you don’t view the facts from the alleged victim’s perspective has nothing to do with the standard for summary judgment or the procedural posture or anything else. It’s simply because that is the relevant test for qualified immunity: did the officer act reasonable, given the officer’s perspective.
January 1, 2010, 5:46 pmTim says:
If you or I did that as private citizens, it could be a felony in some states.
Why should the rule for cops be any different? If you are not reasonably justified in using lethal force, you shouldn’t be allowed to threaten it.
January 1, 2010, 8:39 pmJdog says:
It seems to me that the standard for making a threat should be lower than the boundary for actually killing somebody. If, say, a guy is standing fifty feet away from you, displaying a knife, and saying, “I want all of your money right now, and if it’s not enough, I’m going to stab you,” I don’t see how you’d be justified in using lethal force — in killing him — but you appear to be arguing that you wouldn’t be justified in threatening to do so if he came at you.
January 2, 2010, 1:35 pmLarryA says:
Which is one reason I live in Texas. Under our law, threatening someone with a firearm is a use of force, not deadly force, as long as the threat is intended to avoid the necessity of use of deadly force. That’s a good thing.
In a situation where I am justified in using force, and which is escalating to the point where I would be justified in using deadly force, I have some incentive to respond with “Stop or I’ll shoot” or the equivalent, and possibly reverse the escalation.
January 2, 2010, 6:53 pmmanda says:
as a private citizen, I think it’s a felony.
January 2, 2010, 11:57 pmreadery says:
Three additional issues
1. Shot in the back
Completely agree. The circumstantial evidence seems very strong here. I simply don’t understand how Professor Kerr got an impression it was weak.
2. Agitation
I am very uncomfortable with the perspective that an agitated person is inherently a threat. First, this seems something of a prejudice – as previously noted, actual cop-killers are likely to be cool and calm, and most agitated people manage to deal with their emotions without harming others, despite having anguished faces. And most people become agitated at some point in their lives, yet manage to deal with it. Agitation is a normal human state; without some evidence of harmful intent or action it doesn’t justify inflicting intense pain on people. “Irrational” is not the same as threatening. None of us are robots and we’re all irrational much of the time and very irrational some of the time, yet this doesn’t make us threats.
Secondly, if we rely completely on the officer’s subjective belief in these matters, then Driving While Black starts justifying tasering. After all, black people occassionally take a step forward when being stopped by the police. And if all it takes is to be a member of a group a police officer regards as inherently dangerous and to take a step forward, then frankly most of us are targets.
3. Knife in underwear
The difficulty with the statements that the plaintiff could have had a knife in his underwear is that anyone could have a knife in his underwear. These statements simply don’t distinguish the plaintiff from anyone else. Force has to be justified by evidence, not by prejudices, and not by wildly speculative hypotheticals about what might possibly be.
January 3, 2010, 12:42 amAnonemoose says:
I just love all these back room, arm chair police officers on here. First there is a phenomenon called exited delirium. The symptoms of excited delirium include bizarre and/or aggressive behavior, shouting, paranoia, panic, violence towards other people, unexpected physical strength, and hyperthermia. It is caused by high levels of cocaine in the system. Now how many of these signs did the 9th CIRCUS point out. In case you missed the big one, hyperthermia is characterized by the subject removing his clothes. If I was in the same situation as this Officer, ED would have been my first thought.But then I’m a trained professional and not a liberal cop hating dweeb who posts about things that in real life they haven’t a clue. The purpose of the TASER is to control a subject who is offering resistance, and to avoid injuries to the officer and suspect while trying to subdue resisting suspects. And while we are at it, TASER shots to the back to stop a fleeing suspect are acceptable. I did one a month ago after breaking a bone in my right wrist, and straining both wrists trying to take down a runner who was 6-04 / 250.
The rule in the Fourth Circuit is that anything out of the 9th Circus is ignored (or considered in reverse)until it is, and a majority of the time it is, overturned by SCOTUS.
Can you really believe after the examination and reasoning in Scott v Harris that they would do anything other than reverse and rebuke?
The 9th Circus is always great for comedy material on this end.
January 9, 2010, 2:11 amJim C. says:
Sorry, but there is no such medical condition as “excited delirium.” That’s something that was invented by Taser supporters to justify their use in some situations. It’s a blanket term that is used to cover everything that (some) officers prefer to handle with a Taser instead of other compliance methods.
January 9, 2010, 11:40 pmMichael M says:
Re 63. Chris Travers,
I don’t know where you obtained the information
“The possibility that the individual was shot in the back though with the taser does change this dramatically.” as stated in at least a couple of your posts. I see where the officer stated that the subject took a step back, but no where do I see that the defendant was in fact shot in the back. If I missed it, I apologize, if you read something wrong, you are basing your stance on incorrect information.
Regardless, the court should be looking at this from the officer’s point of view, not the point of view of the defendant. Would police ever be able to use force if this was the case? Very few defendants, after being shot or tased, would say “Hell yea, I hoped the officer would perceive what I was doing as a threat!”
January 14, 2010, 8:39 amTim T says:
Spoken like a true idiot!!! he didn’t pass out moron, he lost control of his muscles, poor little baby. If you ask me it’s weak. Thanks Justices, the tax payers have to foot the bill for another waste of oxygen (meaning Carl Bryan, just look what Rodney King did with the money) The 9th court of appeals, are all a bunch of pot smoking hippies. I feel sorry for the victims of violent crimes….thanks again “9th district”…..now we’re releasing more violent felons back into the street.
February 2, 2010, 6:23 pm