More Thoughts on the Utah Tasering Video:
Friday's post on the Utah tasering video drew a flood of responses, including over 2,000 votes and about 400 reader comments. I wanted to add a few thoughts of my own. In particular, I want to argue that the video can plausibly be viewed two different ways depending on what parts of the video you focus on when you're watching.
One way to watch the video is to focus on the 2:00 to 2:30 window and see how little the officer communicates to the driver about what is going on. The driver seems to believe that he can settle the issuance of the ticket and that signing the ticket is an admission of liability. The officer doesn't explain to him that this is wrong: He doesn't tell the driver that the place to settle the ticket is in court or by mail, and he doesn't tell the driver that Utah law allows him to arrest the driver and bring him to a magistrate if he refuses to sign. Even more oddly, after he tells the driver to exit the car the officer doesn't tell the driver that he is detaining him for that reason. As a result, the driver is totally clueless about what is happening. When the driver gets out of the car, he seems to believe that he was ordered out so they could settle the location of the relevant speed sign.
When you watch the video with these facts in mind, the officer's use of force seems plainly unreasonable. The driver exits the car and expects to discuss the location of the speed sign. He's standing there pointing to the sign when the officer suddenly pulls out the taser; the driver is understandably shocked and instinctively backs away. Seconds later, the officer zaps the driver with the taser. In this narrative, the officer is totally out of control. That seemed to be how most readers interpreted the video: 70% saw the officer's use of force as unreasonable.
I don't think that's the only way to interpret the video, though. Watch the video again, and this time focus closely on the 2:30 to 2:40 window. The officer has just ordered the driver out of the car so he can arrest him for failing to sign the ticket promising to pay or appear. The driver sees that the officer has the weapon out and is ordering him to submit to the officer's authority. But the driver makes perfectly clear he is not going to submit. Here's the dialogue:
In this case, the driver does everything wrong with his hands. At the 2:30 mark, he puts his right hand in his right pocket; his right arm is opposite the officer, so the officer can't see what he's doing. Even though the officer has the taser drawn and is pointing it directly at the driver, the driver turns to face the officer and then starts walking away, yelling "what the heck is wrong with you?" and keeping his hand near his pocket. At 2:36, the driver seems to be fishing for something in his pocket while still walking away from the officer to get more distance between himself and the taser. Two seconds later, the officer fires the taser.
If you focus heavily on this specific time window, the officer's use of force is highly regrettable ex post but not unreasonable ex ante. A reasonable officer is going to feel threatened by a hostile driver who won't follow his orders and instead backs away and fishes for something in his pocket. Of course, we happen to know that the driver wasn't armed, and that the driver was just nervously fidgeting. On the other hand, that seems to be the kind of conduct that reasonable officers are going to be looking for to trigger whether they need to use force.
In sum, what makes the video so interesting is that the driver and the officer seem to be inhabiting totally different worlds. The driver is in the first world and the officer is in the second. I think we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto. But I tend to think that reasonable people could disagree on whether the use of force itself was unreasonable.
One way to watch the video is to focus on the 2:00 to 2:30 window and see how little the officer communicates to the driver about what is going on. The driver seems to believe that he can settle the issuance of the ticket and that signing the ticket is an admission of liability. The officer doesn't explain to him that this is wrong: He doesn't tell the driver that the place to settle the ticket is in court or by mail, and he doesn't tell the driver that Utah law allows him to arrest the driver and bring him to a magistrate if he refuses to sign. Even more oddly, after he tells the driver to exit the car the officer doesn't tell the driver that he is detaining him for that reason. As a result, the driver is totally clueless about what is happening. When the driver gets out of the car, he seems to believe that he was ordered out so they could settle the location of the relevant speed sign.
When you watch the video with these facts in mind, the officer's use of force seems plainly unreasonable. The driver exits the car and expects to discuss the location of the speed sign. He's standing there pointing to the sign when the officer suddenly pulls out the taser; the driver is understandably shocked and instinctively backs away. Seconds later, the officer zaps the driver with the taser. In this narrative, the officer is totally out of control. That seemed to be how most readers interpreted the video: 70% saw the officer's use of force as unreasonable.
I don't think that's the only way to interpret the video, though. Watch the video again, and this time focus closely on the 2:30 to 2:40 window. The officer has just ordered the driver out of the car so he can arrest him for failing to sign the ticket promising to pay or appear. The driver sees that the officer has the weapon out and is ordering him to submit to the officer's authority. But the driver makes perfectly clear he is not going to submit. Here's the dialogue:
Officer: Turn around and put your hands behind your back! (pause) Turn around and put your hands behind your back! Now!Watch the driver's hands during this dialogue. Police officers are all about the hands during traffic stops; they want to see them, and they want them out in the open where they can't be grabbing a weapon. When an officer is pointing a weapon at a suspect, his greatest fear will be that the suspect has a weapon on him that he'll try to use; getting control of the situation is essential. So he's going to be paying close attention to the driver's hands.
Driver: What the heck is wrong with you?
Officer: Turn around! Turn around!
Driver: What the heck is wrong with you?
In this case, the driver does everything wrong with his hands. At the 2:30 mark, he puts his right hand in his right pocket; his right arm is opposite the officer, so the officer can't see what he's doing. Even though the officer has the taser drawn and is pointing it directly at the driver, the driver turns to face the officer and then starts walking away, yelling "what the heck is wrong with you?" and keeping his hand near his pocket. At 2:36, the driver seems to be fishing for something in his pocket while still walking away from the officer to get more distance between himself and the taser. Two seconds later, the officer fires the taser.
If you focus heavily on this specific time window, the officer's use of force is highly regrettable ex post but not unreasonable ex ante. A reasonable officer is going to feel threatened by a hostile driver who won't follow his orders and instead backs away and fishes for something in his pocket. Of course, we happen to know that the driver wasn't armed, and that the driver was just nervously fidgeting. On the other hand, that seems to be the kind of conduct that reasonable officers are going to be looking for to trigger whether they need to use force.
In sum, what makes the video so interesting is that the driver and the officer seem to be inhabiting totally different worlds. The driver is in the first world and the officer is in the second. I think we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto. But I tend to think that reasonable people could disagree on whether the use of force itself was unreasonable.
Related Posts (on one page):
- More on the Taser Video -- A Response to Scott Greenfield:
- More Thoughts on the Utah Tasering Video:
- Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?:
He said nothing about being or feeling threatened. Hence that entire section of your post should be struck or at least amended to include this info.
His remarks only make sense in the context of 'pain compliance'.
I missed that class in drivers ed, I guess.
Tasers are not less than lethal weapons, they are less leathal weapons. Anytime a cop pulls one out, it should be for conditions that could also justify a fatal shot: In fact, Tasers can cause fatalities.
I saw your repeated notes, but I didn't understand why you think the point has such force. If the issue is the objective reasonableness of the officer's use of force, why is the officer's explanation for the subjective motivation behind his conduct relevant (assuming it was accurate)? Do you think objective reasonableness should account for subjective intent, such that the reasonableness of an officer's behavior should be based on the subjective question of what he actually was thinking? I don't believe that's the law of excessive force claims, which is why I wasn't factoring in such matters.
When there is such a disconnect between the actors' understanding of the event, I would say that the burden should fall on the authority to correctly assess what is happening.
The cop was wrong to escalate. He had already drawn the taser before he asked the driver to put his hands behind his back. The driver was not given a chance to comply before the officer had already decided to use his taser.
Out of control cop. No doubt about it. The only real question is when did he decide to taser the driver, at the first delay in providing the driver's license, or when he ordered him out of the car. On reflection, it seems clear that it was no later than the latter.
The officer had the ability to shape the event and he purposefully coaxed the driver into a bewildered state that freed the officer to use the taser as he had already planned it.
At least, that's how I would explain it to a jury. I think I'd win.
Seems reasonable that, by using the taser, he would not be threatened. IOW, he avoided being threatened by forcing compliance before a weapon was--could have been--available.
The compliance, however involuntary, avoided the threat. Thus, it is not required that the officer say he felt threatened to have the issue refer to the possibility of a weapon.
Now, I know that lawyers on this board will say, "so you can taser anybody just because he might be a threat". So save your breath.
In this case, the driver was acting in a way that could have been a threat--see post--and not just walking down the street.
I guess I got misinformed on the last thread on this subject. Wasn't it accepted that no signature was necessary and no action was allowed if the driver refused to sign? Now, we have several options, one being arrest.
Placing the thing in the vehicle in a professional manner. Means your arm has to get close to the guy, or he pushes the arm. Then what? What if the driver pitched the thing back out? He didn't seem to have a week's supplies of clues about him. Might have figured that if he avoided ticket cooties, he'd be okay.
Um, no one died. The dude was up and back where he was before about 3 or 4 minutes later.
I don't believe that's the law of excessive force claims, which is why I wasn't factoring in such matters.
I don't know much about the law of excessive force, never took CrimPro, but why isn't the test objective/subjective, similar to the reasonable reliance test that pops up everywhere else? If the test is objective only, doesn't that just give the green light to cops looking to get their jollies off and searching for the first excuse to fire a weapon? Of course it makes sense to presume that an officer in this situation is worried about the driver's gun if there wasn't other evidence, but here there's video evidence that the officer wasn't worried about the guy having a gun.
Nothing about the incident should have suggested to the officer that he was in any danger. There was nothing to indicate a weapon. Every indication was that he was dealing with a motorist upset with a speeding ticket. Yet he pulled a tazer. The cop unreasonably escalated the incident, then when the shocked motorist didn't immediately submit, the cop tazed him.
I don't know what the law says about such a situation, so maybe there's a QI argument, but I'd be shocked if a judge didn't find this to be unreasonable force.
Your whole condemnation of the officer rests on what he didn't say, but you give no weight at all to the video right in front of you. The Officer was already cleared by the USP, and though the Utah AG is going to review it, you better not expect much.
Do you actually think that the officer, after subduing and cuffing the perp, who turns out to be harmless, is going to tell his fellow officer "I was scared shitless, so I tased him"?
Unless the perp weares a badge.
If I'm a prosecutor in the case, I'm going to move to strike you for cause: You're obviously biased! On the other hand, if I'm the defense attorney in the case, I have one helluva witness to call.
I don't think I understand your response. Are you making an argument about the legal standard? Or are you looking more broadly at whether the officer acted reasonably, quite apart from the legal standard?
first- i agree with you completly that focus on part 1 gives you unreasonablness
and i also agree us on part 2 MAY give you reasonableness.
however...regarding part 2 then...your analysis tells us that the hands of the driver and what he does with them..and where they are could possibly create a reasonableness for use of force based on the perceived threat to the officer:
the driver reaching for a weapon.
but if this is true and the reasonableness is based on THREAT and not on noncompliance..then you MUST also say that had the officer used a GUN it would ALSO be reasonable. this is becuase it is ALWAYS OK FOR COP TO USE DEADLY FORCE WHEN IN A DEADLY THREATING SITUATION.
so my question to orin is..had the officer pulled out a gun and shot him and then said the driver's hands justified the shooting..would you still say its possible that there it is reasonable force? or would you then let the first part of the video take over?
if the latter..than you have an inconsistency to explain away.
Another thing that is not quite accurate in Orin's post. The cop told the guy to turn around and he did turn around. The cop then told him to turn around again. Of course, what the cop meant was: "Turn and face away from me with your hands behind your back." But those weren't his "instructions." The guy followed at least half of the cops instructions after getting out of the car.
Finally, if the speed trap were fraudulent from the outset -- if there were no 40 mph sign a half a mile down the road, and if the cop knew there was not and that the stop was wrong from the start -- would that change the analysis of whether the use of force was reasonable? Can a cop stop someone deliberately on a pretext, and then escalate the situation so that he can reasonably use force against the person? I don't know the answer to this, and that's one of the reasons I said I was not sure. (BTW, with my experience in Utah, I tend to think that the stop was bad from the outset.)
No to the first and Yes to the second. If the stop was illegetimate, that merely makes the situation more odious.
It's clear that the motorist was no threat - with his girlfriend (wife?) in the car - but merely insistent, the cop simply got fed up and was intending to arrest him at the time he ordered him out of the car.
The cop could probably have avoided this by explaining that Utah law entitled him to arrest if the driver failed to sign the ticket, but at that point, the cop already had decided to show the driver who was boss, and that lip was enough "lack of control" to justify an arrest and, hopefully, a tasing before that - if, as expected, the driver was stupid enough to be confused and unhappy that he was about to be arrested. One can expect the driver to be instinctively reluctant to turn his back on someone with a taser, and that is EXACTLY what the cop was hoping for.
Your defense of the cop is disgusting.
He probably didn't mean the officer fired a second round of electrodes - he meant that the officer sent electric current through the original electrodes a second time.
First, even though the ultimate question may be objective, subjective intention is relevant to that objective question. That is, in determining whether or not *a reasonable* police officer would have felt threatened, we can examine whether *this particular* police officer did actually feel threatened.
Second, if the officer's subjective intention was to cause (extreme) pain purely in order to elicit compliance, this might show a violation of the Fifth and/or Fourteenth Amendments -- specifically, a substantive due process violation under the shocks-the-conscience standard. I haven't done research on this test recently, but it seems to me that this sort of fact situation at least raises the question.
People with certain types of disabilities move slowly, appear to be *strange,* fidgety, eyes shifty, etc., so did this cop receive the required Title II ADA disability sensitivity and awareness and ADA compliance training to be able to differentiate between a mere stopped motorist with a disability or one who is a true threat to the cop's safety?
It seems this cop was extremely quick on the draw, so it is HIGHLY unlikely his conduct would have been permissible had this been a stopped motorist with some sort of disability the cop was not trained to recognize and handle.
I know a lot of people HATE the ADA, but being way too quick to taser a stopped motorist who might have a disability that could result in a taser death is something such cops should be thinking about.
Law enforcement officer whit and I ended up agreeing on the other thread that the driver was such a belligerent fool that nothing the officer said could have affected the outcome as to the driver. OTOH, had the officer said what he should have, the wife would at least have been alerted to what was about to happen and so been in less danger herself, as well as suffering less shock when the officer dropped her husband. She'd have known in advance that the officer would use the taser.
Despite that I guess that many of us have little clue about the danger of solo highway cops. Maybe a few videos of roadside police fatalities would provide perspective on how quickly the seemingly innocent driver can pull a gun.
And I don't buy the contention that the officer here intended to use the Taser from the beginning. Most people would have complied with authoritative commands from guys holding badges weapons. And maybe filed a proper complaint later.
The officers' intent will be relevant when they ask for punitives though.
http://le.utah.gov/~code/TITLE53/htm/53_03092.htm
http://le.utah.gov/~code/TITLE53/htm/53_03089.htm
Clear to whom? Having his pregnant wife with him did not temper his belligerance. On these facts they could have been Bonnie and Clyde.
The evidence is not conclusive because it it possible that the officer did know facts sufficient to cause a reasonable officer to perceive a threat, yet unreasonably did not perceive one. So, the subjective and objective inquiries are distinct. But I don't think it's right that they have nothing to do with one another.
1) tasers are less lethal force. so is a baton strike, so is a tackle. people have died from being tackled, and people have died from a baton strike.
i have said this several times (iirc). tasers are at (in most use of force continuums) at roughly the same level as pepper spray. WAY below firearms. heck,. they are below baton strikes (to even a tertiary target (such as the thigh)..
hbowmanMD is 100% wrong about tasers only being justified in circ's that could justify a 'fatal shot'.
people have died after being struck by a baton, they have died after being tackled, and they have died after being tasered. it does not follow that you need some sort of fatal threshold for a taser to be justified.
fwiw, i have volunteered to be tasered. i would not volunteer for a baton strike.
2) the objective reasonable test is something people should be research. it is based on what an officer, with similar training and experience would reasonably be expected to do in similar circ's. the fact that an officer might enjoy the tasing (which certainly isn't in evidence here, but assume it) certainly might make him LOOK bad, but it's not the issue as to objective reasonableness.
3) one does not need to suspect a guy has a weapon to draw a taser. tasers are (correctly) mostly used when no weapon is suspected or seen. one does not (necessarily -depends on the use of force continuum of the agency) need to feel threatened to use a taser.
4) it is clear the cop told the guy MULTIPLE times to put his hands behind his back and the guy didn't. that is KEY.
5) tasers can be used (again, depending on the agencys use of force policy to arrest subjects who are non-compliant. the non-compliance does not necessarily have to rise to the level of threatening behavior. when the guy repeatedly refused to comply with hands behind his back, that IS an arrestable offense in every jurisdiction i am aware of. whether or not the cop was justified in telling him to do that, is a different question. but clearly the taser was fired after the person REPEATEDLY refused to comply with those directions.
the question comes (basically down to this). *if* the officer was justified in tackling the guy or pepper spraying the guy after he refused to submit to handcuffing, then (depending on the specific use of force policy) a tasering was ALSO justified (they vary slightly, but generally speaking, if either of those other force options are justified, it's roughly the same level of force as a taser).
there is an argument that using a taser is better in the situation here. you REALLY don't want to be doing too much wrestling out in the roadway (dangerous for both of you), and what people don't acknowledge is the taser worked PERFECTLY in accomplishing the goal - placing him into custody with (apparent) injury.
as i said, the VAST majority of the time (almost every time i have pointed a taser at somebody. one time, i had a person who ignored it, BUT we had multiple officers and ended up wrestling him to ground. he ended up scraped up, we got scraped up, and one officer got a sprained joint. iow, multiple injuries. wrestling matches on pavement... not so good. and again, we had 4 officers and 1 suspect), when a person is confronted with a drawn taser, they comply. in almost all cases where i have drawn a firearm on somebody, they have also complied.
the difference is that the former (taser) is a MUCH MUCH lower level of force and 99% of people understand that if i am pointing it at you, i WILL use it. you get voluntary compliance. that is good for BOTH the officer AND the suspect. no injuries.
i'm 215 lbs, and competitive weightlifter. i've got a fair amount of martial arts training too. it is still dangerous to wrestle with people (even middle class SUV DRIVERS! lol like that makes a difference) and you NEVER know the skill level of the person you are dealing with. my wife is not all buffed up and certainly not large, but she is a pretty good kickboxer and martial artist. visual perception can be deceiving.
there are a # of factors here that are also relevant. this person did NOT take a bladed stance, he did not take a boxing stance, he did not make any threatening statements, etc. those are also relevant.
but again, one cannot make a rational assessment of whether the force (specifically the tasering aspect) was justified if, as most people who keep commenting on taser do, you don't understand where tasers fit on the use of force continuum.
they are not firearms alternatives (as one erroneous poster claimed in another thread). if you can justify pepper spray, or tackling somebody, generally speaking, a taser is justified.
\nice begging the question. that it was a "needless escalation" is certainly not evident. also, in use of force inquiries, the # of officers present IS relevant to the level of force used. so is the size of the officer, etc. you may not like it, but ceteris paribus LEGALLY SPEAKING, a solo officer can more easily justify (in some circ's) higher level of force based on the fact that he is alone. that's how use of force analysis works.
Then the officer had about a hundred other things he could have done to accomplish that task. Ordering the guy out of the car and then pulling a tazer on him, and shooting him almost immediately was not a reasonable way to arrest him.
"if we know his subjective state of mind, we can infer from that state of mind something about the facts he knew at the time"
Its rare that you know someone's state of mind but don't know what facts are facing the officer. Maybe in some unique fact scenario, but I don't see how this argument would apply here. What objective circumstances facing the officer are not clear from the tape?
Pain compliance techniques are legal in UT per Forrester v. San Diego (CA9, cert denied (25 F.3d 804). Once a police officer has given a warning he is entitled to use increasing amount of physical pain to effect the lawful arrest.
pain compliance maneuvers to GAIN compliance (wristy-twisty) holds is legal.
The cop did a lousy job, and should be reprimanded in some fashion, but, despite common 60s wisdom, in the breakfast of life the cop is the chicken and the driver is the bacon-supplying pig.
What is this based on? I don't think I've ever heard of anybody dying from pepper spray or a tackle. I think you could pretty easily establish that use of a taser constitutes a greater use of force (because of the greater risk of fatality) than those other options.
Whit, I generally agree that an officer may generally use reasonable force to force compliance with a legal order. Noncompliance does not justify any kind of nonlethal force though, and not all nonlethal force is equal.
Likely we can agree the officer appears to have done a poor job of communicating (not explaining the purpose of signing the ticket nor the consequences of not doing so and maybe by not announcing that the suspect was going to be placed under arrest).
However, having decided to arrest or detain the suspect, the officer seems to have had ample reason to unholster his taser when he did. The suspect had been non-cooperative, the officer was alone (it appears), there was at least one other person in the car, and passing traffic adds a risk to all parties if the suspect attempts to take a chance and flee on foot or initiate a hand-to-hand fight. It seems to me that there was a reasonable chance that the use of the taser would be appropriate given how the situation was unfolding so having it readily available was a reasonable precaution given that the act of unholstering it did not harm the suspect in any way. For example, if the suspect had actually pulled a firearm from his pocket, the delay of unholstering his taser (or sidearm) could have cost the officer his life (and, if the suspect was either skilled or [un]lucky, likely would have).
Note I'm not making an argument that the eventual discharge of the taser was appropriate given the facts of the situation.
Isn't the onus on the police to effectively train their officers in communications skills and deescalation of stressful situations? From this as well as many other such occurences it appears to me that the average citizen is now expected, even required, to act completely calm and rational as understood by the officer in order not to get hurt. That is an unreasonable and impossible expectation bound to fail. It is high time the pressure were put on police departments to live up to Justice Scalia's view of professionalism. Otherwise we will all live in fear of the police making a mistake.
In the legalistic sense, yes, once the motorist refused to obey a lawful order to comply the officer was probably allowed (citing Forrester that I quoted above) allowed to use a taser to effect the arrest. Note that, in Forrester, the CA9 accepted the flimsiest pretense regarding 'officer safety' (possible back injuries from dragging/carrying) and said nothing about any sort of real physical threat or danger to the officers.
In this sense, Orin's analysis of whether there was or was not a gun
In a more relevant sense, however, such a use of force reflects poorly on the officer's communication skills and critical judgment. Being an effective LEO is more than just using force - the best cops are the ones that don't let the situation devolve to the level of using force (of course, sometimes it's necessary). One of the most effective LEOs I've ever met working in NE Portland, he was on the force for 50+ years and can count on his fingers the instances where he actually used force*. The kind of respect that he got from both criminals and law-abiding-citizens alike was awe-inspiring.
Bottom line, I would not want to hire this guy to be an officer in my town, nor would I promote him if he was. I might nominate him for SWAT or other primarily tactical duties that keep him as far away from the citizenry as humanly possible.
*Funny story he told me: he observed a rather large gentleman selling drugs from his squad car and so got out and told the man he was under arrest which caused the suspect to start running (not too fast though). He followed the man and radioed for backup until, about a block later, the man was out of breath and stopped. He again told him he was under arrest and drew his baton - the man dared him to attempt the arrest (the cop was 55+ years old and outweighed by quite a bit) to which he basically declined, saying he'd rather wait a while and chat.
Eventually, backup arrives and one of the lesser-ranked officers motions to start arresting the fellow but he tells him to sit tight. Meanwhile, the suspect is getting more and more belligerent and telling the cops that he's going to kill the first one that comes at him. Eventually, however, there are about 20 cops and the Sargent tells him that he might kill the first few but he's not going to win against all of them. You can imagine what happens next. According to the Captain, even diverting all those officers was cheaper (in man-hours) than filling out the paperwork associated with the use of force.
Poor word choice.
IMO the video shows enough evidence for the driver as plaintiff to get to trial on battery and 42 USC 1983 claims. It also shows enough evidence to justify a jury verdict for either side.
I personally believe the officer:
(a) should be civilly liable (but not his agency, which makes a difference for 42 USC 1988 attorney fees),
(b) violated his agency's regulations (that is what he lied about),
(c) should have been disciplined in some fashion for violating the regulations,
(d) should be fired for lying about it (it's usually the coverup which nails you, but rarely the underlying offense),
(e) intentionally and unnecessarily escalated the incident, and, finally,
(f) it didn't make a hill of beans difference what the officer said or did because the driver wanted to escalate it too - whit convinced me of that.
Sure, the officer should have explained the situation to the driver and informed him of the consequences of not obeying the officer's commands, but if the officer lets the next driver walk away and reach for his pockets, the officer may well be dead.
Uh, what?
It's the SWAT guys who are running around killing and wounding citizens in no knock raids on the wrong houses all over the country. Trigger happy officers who shoot at the first sign that a groggy person waking up from sleep and having no idea what's going on are not the sort of people we want on SWAT teams.
Of course, killing innocent citizens left and right, and summarily executing their tiny yapping dogs for kicks is SOP. But if you go to Hooters off the clock, WELL THEN YOUR CAREER IS OVER!!!
The officer can't very well claim, "Well, I didn't feel threatened, although it occurred to me that a reasonable person would, so I tased the guy on that basis." (You certainly can't claim self-defense, provocation, duress, etc. on that basis: the subjective perception has to be there for us to get to the objective analysis at all. Otherwise, you get to commit the perfect crime.)
With the threat off the table, we are dealing with forced compliance.
Howard Wasserman: Don't worry, the SCOTUS film club can meet and tell us what really happened.
Part of the 'problem' with tasers (and CIs) is the relative severity of the pain they inflict as compared with the lack of long term damage (except for the very small minority that up and die). The infliction of a comparable amount of pain with a baton or fist would leave marks for weeks. In this way, tasers fools us into thinking they are not as severe as they real are but I can testify first hand that tasers are really f***ing painful - it's like being punched in the gut by a 300 pound man hundreds of times per second.
"Obi-Wan: These aren't the droids you're looking for.
Stormtrooper: These aren't the droids we're looking for.
Obi-Wan: He can go about his business.
Stormtrooper: You can go about your business.
Obi-Wan: Move along.
Stormtrooper: Move along... move along."
One of my clients DIED from a tackle, at a gas station. He went down backwards and hit the back of his head on the concrete lip around a pump. It was a random assault and the perp was never caught. I was waiting at a deposition for him to show up.
Skyler, from the news interviews, the guy is a Utah resident.
As a general question, if a police officer stopped you, shoved a piece of paper in your face and ordered you to sign it, would you sign it without question? Doesn't anyone remember the old adage that you shouldn't sign anything without reading it first. Even the officer's reassurance shouldn't be enough. Does anyone doubt that this officer would lie in court about what he told the driver, if he could and not contradict the video?
The guy was a suspect of a moving violation. Sober traffic violators who do not have outstanding warrants who travel with their wives/girlfriends/sisters do not typically flee or initiate combat.
This thug did not tell the driver that he was under arrest, let alone why. The driver clearly had no idea what was going on, why this person was giving him strange orders and had pulled a weapon on him. He is not a mind reader and is not supposed to know that the policeman has decided to arrest him. If you do not tell someone that you are arresting him, and why, then he has no reason to obey you, and is entitled to do whatever he damn well wants, including defend himself against what appears to be an unprovoked attack.
Many commenters have said the guy should have just signed the ticket in the first place. Again, why on earth should he? Even if there's a law requiring him to, how is he to know that, if the policeman didn't tell him. Until this thread came up, I had never in my life heard of signing a ticket; if I'd been that guy I would certainly not have signed without an explanation of what it was I was signing. I don't sign things just because people tell me to, and certainly not when armed people shout at me to sign, with the implied threat that if I don't it won't go well for me. I would assume that the cop is trying to set me up for something, because that's what cops do. If the cop wanted him to sign he had the duty to explain to him what it was, what his signature would achieve, and what the options were if he didn't want to sign.
I also remind readers not to take Whit's word for anything. An honest cop is even rarer than an honest politician, and my default assumption is to regard the uncorroborated word of a policeman the same way I would the uncorroborated word of an admitted accomplice to a crime. Policemen as a class simply cannot be trusted, and if someone will lie on the stand why wouldn't he lie on a blog?
Well, a linebacker tackle in the middle of the road would probably be as dangerous as tazer. I believe cops are trained in technique. A takedown by grabbing the guy's arm and twisting and pulling him down is a much safer tackle.
That confuses me. The fact that they cause more pain and less injury sounds like a point in favor of a taser over other choices to achieve the same end. Barring actual torture (as in "tell me where you've hidden the cheese mr. bond and the zaps will stop") I don't know that I have a problem with law enforcement using non-injurious pain tactics to keep the actual level of safety high.
No, I've never been tasered. But I have had a stun gun demonstrated on me. I've been punched a number of times by 200+ pound men. I've been kicked across the quadriceps twenty or so times in a single sparring match. If a taser hurts less than that (re. whit's comment about being willing to be tasered but not willing to be struck across the thigh with a baton) and injures less than that then I'll prefer a taser to being clubbed thanks.
I agree, but the thing is, the use of the taser here was not used in a situation involving anybody's safety. Determining whether force is reasonable involves balancing the government's interest with the intrusion on the victim's rights. Maybe its just me, but ensuring compliance from obstinate speeders isn't a government purpose that reasonably requires the infliction of the amount of pain caused by a taser.
Exactly!
The cop hands out tickets all the time, and is familiar with his state's requirement for a signature. The driver may never have got a ticket in that state before, and not have known what he was being asked to sign. I have received tickets in three states (NY, CT, and PA) and don't recall ever having to sign anything. If I'd been that guy I would not have understood why I was being asked to sign this (as far as I knew unjustified) ticket, and would have refused unless it was explained to me.
Has the guy who got tasered now lawyered up or is he still saying that he doesn't think the cop should be punished just maybe better trained?
Says the "Dog"
I'd ask him to wait while I read it. After reading, I might ask for clarification to make sure I understood what the ticket said and what signing meant. I suspect the cop would be happy to to answer. That's what happened the one time I was ticketed for speeding.
That cop should certainly have communicated certain information to the driver. That said, the constant interruptions by the driver really didn't help matters.
After watching the video, do you really think this cop would be happy to answer, or even to wait for you to read it? I don't. I think he would have decided that you were "failing to comply with his instructions" and have issued you the same telepathic arrest notice that he did to the actual driver. And then told the judge whatever seemed most convenient.
The relatively high pain/injury ratio makes tasers a great idea but it also introduces a brand-new risk into play: that officers will overuse it and there will be little outrage because human beings are hardwired to correlate harm with injury. There are numerous instances of uses of the taser that are not really warranted except as an expedient. We take the good (and there are tons on liveleak) with the bad (also tons on ll) all told because the good uses outweigh the bad.
Furthermore, you last statement is correct but totally irrelevant to the instant case: tasering this man did nothing for officer safety nor for public safety. The safest thing to do would be to order the man back into his car and call backup. First of all, the backup might include someone with a modicum of training at using the english language to communicate ideas but more relevantly, human beings react differently to authority manifest in a group. There's no way the man would have said peep if there were even 3-4 patrolmen ordering him to comply (all told, they would also save man hours!).
I find that, in tense police encounters, it's very useful to ask an officer what is being asked of me versus what is being ordered of me. The way I see it, nothing that an officer /orders/ me to do in clear terms can really be held against me. I've had officers get very very mad at me when they realize I'm effectively trapping them in the word games they play. By forcing a police officer to issue a clear and unambiguous order (and then complying completely and without hesitation) everybody wins (except the officer that was trying to manufacture a consent search, but hey, nuts to him. . .)
SSHH, you're ruining the police's ability to justify treating everyone based on the lowest level of scum that they encounter!
Reg: "What is this based on? I don't think I've ever heard of anybody dying from pepper spray or a tackle. I think you could pretty easily establish that use of a taser constitutes a greater use of force (because of the greater risk of fatality) than those other options. "
already went over this. people have died from being tackled, died from wrestling with police, etc. look up "excited delirum".
you can't pretty easily establish what you claim. read up on the science of taser, the safety, and the fact that in custody deaths have always, and will always happen - when polydrug using, bad-heart having, cocaine using, etc. etc. people get into knock down dragout fights, sometimes they flatline. it happens. ALL uses of force have SOME risk of death.
"Whit, I generally agree that an officer may generally use reasonable force to force compliance with a legal order. Noncompliance does not justify any kind of nonlethal force though, and not all nonlethal force is equal."
i never said that. but if you don't understand the safety of the taser and its LOW position on the use of force continuum, you can't properly assess its justification.
I think the officer acted unreasonably, but this is a close call.
true. and irrelevant. if the guy is not complying with directions to submit to handcuffing, you don't give him the OPPORTUNITY to do so.
that is how you PREVENT more serious injury, long drawn out foot pursuits, etc.
An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force
</blockquote>
At the very least, the officer's statement about why he took an action could be used as evidence of how a reasonable officer would read the situation. And the proponent of this point of view has a strong case to make - the officer, unlike anyone looking at the video, was actually there. Are you saying, the attorney will ask, that the officer was unreasonable in his reasons?
utterly false. tasering him got him into custody with no injuries to either him or the officer, prevented the possibility of the guy running away, running back to the car and driving off, etc. all of which are MUCH worse outcomes than the guy suffering discomfort for a few seconds (and yes, i have experienced tasering firsthand)
" The safest thing to do would be to order the man back into his car and call backup."
no, that's possibly the most unrealistic assessment i could imagine. clearly, you have no concept of proper officer safety tactics or street reality.
" First of all, the backup might include someone with a modicum of training at using the english language to communicate ideas but more relevantly, human beings react differently to authority manifest in a group. There's no way the man would have said peep if there were even 3-4 patrolmen ordering him to comply (all told, they would also save man hours"
bull. a guy who willingly doesn't comply when he doesn't have a taser pointed at him would "no way" fail to comply with 4 officers present?
this is even worse than 20/20 hindsight. it's blind speculation, with no factual basis.
cops know how unpredictable people are. we base our actions and decisions based on the (limited data ) we have.
this guy, by his actions certainly does not create clear conclusion that he certainly would have complied with 4 officers.
this also ignores the danger of having the guy drive off (with the 'pregnant wife') etc. and ignores the fact that you have no idea how long backup can take to arrive. depending on location, backup could be up to 1/2 hr off or farther. you do NOT want to let the guy stew for 1/2 hour, nor do you want to pull an officer that far off his beat for a misdemeanor arrest.
again, i'm not trying to sound snarky, but you clearly have no understanding of how actual force encounters develop in the real world, nor how best to handle them, nor the realities of patrol work for a state trooper.
Google a bit on group psychology. It's well established that people react much more deferentially when confronted with a group of people than an individual.
So because some people get high on meth and stab people we should treat everyone like shit?
If he drives off, you pick him up a few miles down the road. You've got his driver's license and plates. Unless he's some sort of master spy with safehouses in every state he won't get very far (and he'll do serious time for fleeing and eluding).
Yeah, because after stewing for 1/2 hour he's going to come charging out of the car karate-chopping at 4 officers. He's not a freaking crackhead - you don't have to treat him like one. Furthermore, when you weigh the time it would have taken to pull an officer from his beat to the time this cop has to fill paperwork on use-of-force, go to court, the balance changes.
I worked as an intern doing IT for a local police department. You'd be surprised how much you can learn reading through the files. For instance, in the cases where an officer got a positive ID and a license plate but chose not to chase a fleeing suspect, >75% were brought in within a month and virtually 100% were brought in within a year. Another fun fact, the "top" 10% of officers generate about 50% of the use-of-force incidents. Either they have incredibly bad luck (always arresting the crackheads) or somehow, the other officers manage to do their jobs without resorting to physical violence.
Police have way too much power. Obey them like the slave masters they are and give the minimum assistance allowed by the law.
Cops are brutish and unaccountable.
"whit, he wasn't looking for the opportunity to bolt "
you don't know this. you have no way of knowing this. and again, it's irrelevant. an officer doesn't want to give him the OPPORTUNITY to do so. he has already CLEARLY demonstrated criminal behavior and a desire not to comply.
"(seriously, where the hell would he go in the middle of an interstate?). All the objective indica point to the fact that this guy was not a flight risk."
rubbish. and again, you don't want him running back to the car, then you've got a several thousand pound deadly weapon in the hands of somebody who has ALREADY DEMONSTRATED he won't submit to arrest.
" If the officer had told him to get back into his car, he would not have driven away (and even if he did, you've got his license and plates, he'd make it, MAYBE, 20 miles)."
again, that's dumb. you don't LET people do this. if you were a recruit, you'd get bad grades. you've already evidenced your intent to arrest him. the WORST thing you can do, based on him now knowing this, AND based on his behavior is to "king's X" and tell him return to your car. you've isolated him FROM The car, from his wife, and that is the safest place to arrest him.
im not going to give a course on patrol tactics, but i can tell you unequivocally you are 100% wrong. i 100% agree that this officer had poor command presence, and i'm not impressed with him. otoh, your conclusions are simply absurd, completely dismissive of the complexities of human behavior, and how to use smart patrol tactics to minimize opportunity for injuries to bystanders(on the freeway), his wife, himself, and the officer.
it shows no basic understanding of psychology. the majority of officer assaults occur AFTER the suspect has been advised that he is under arrest and prior to the handcuffs being cinched closed (about 80%) iirc. that's because once the "perp' knows he is being arrested, you are much more likely to get an extreme flight or fight response, adrenaline dump, aggressive behavior, etc.
you would NEVER tell the person to put his hands behind his back (several times) with a taser pointed at him, then when he refused to comply you say "ok, go back to your car" and wait for backup. seriously. that would be probably the worst example of patrol tactics i have ever heard in my life (and i've seen some doozies). command presence (confidence w.o arrogance) is a great way to protect yourself. what you are suggesting is the opposite. it appears to the suspect as both cowardice and weakness, and criminals PREY on that. even middle class guys in SUV. you are asking to make the situation MUCH MUCH worse.
really.
Do you NOT think that how the officer at the scene characterized the hand is relevant to how a reasonable officer would characterize it? Are you saying the officer is not reasonable?
oren,you still don't have a clue. i didn't say you had tghat indicia. i said GOOD POLICE WORK is that when you have a resistant, noncompliant subject - you don't give him the OPPORTUNITY.
i've been in many foot pursuits. by learning how not to give people the opportunity, you cut down on them - and the resultant injuries, escapes, etc.
" or by car (pick him back up in a jiff)."
seriously. if you (in my dept.) went to arrest a guy, then he didn't comply and you told him to go back to his car, and he ended up taking off in the car, you would (and should hopefully) at a minimum get mandatory retraining, if not discipline. that is just colossally stupid, as i explained in my post on psychology.
" Maybe spending a lot of time as a cop has jaded you but there's really no reason to treat everyone like the worst kind of scum that I'm sure you've encountered. He was better than that and therefore deserved better"
this has nothing to do with treating him as scum. you treat him respectfully. you do NOT tell him to comply with handcuffing, with taser drawn, THEN when he refuses, allow him to just get back in the car. it's simply horrendous patrol tactics. ask ANYbody familiar with patrol procedure. it's insane.
"Google a bit on group psychology. It's well established that people react much more deferentially when confronted with a group of people than an individual"
i went to grad school (never completed it) for psychology. i don't need to google it. i am well aware of group psychology. i already explained th eproblems with this approach - availability of backup, etc. but the #1 issue is that you do not go through the prehandcuffing procedures, THEN "king's x" and let him return to the car and wait for backup. you are rewarding (in his mind) his defiance and increasing the possibility you will be assaulted, he will rabbit, etc. it's insanely bad tactics
"If he drives off, you pick him up a few miles down the road. You've got his driver's license and plates. Unless he's some sort of master spy with safehouses in every state he won't get very far (and he'll do serious time for fleeing and eluding"
you keep missing the point. that's terrible patrol tactics. you created the risk by evidencing your intent to arrest, THEN let him get back in the car. if your going to let him get back in the car, your better off just driving off and mailing him the criminal cite instead of arresting. seriously. of course by letting him get back in the car, you are REINFORCING IN HIS MIND that he gets rewarded for defying lawful orders. that is bad idea.
also, this has nothing to do with treating him like shit. you are arresting him. he is noncompliant. it has nothing to do with treating him like that. you are respectful, but not subservient to his desires NOT to comply
"Yeah, because after stewing for 1/2 hour he's going to come charging out of the car karate-chopping at 4 officers."
or he refuses to get out of the car, and the wife takes his side,. do you pepper spray into the car? seen that happen. works great till they drive off, and strike a tree after being pepper sprayed. it's just TERRIBLE patrol tactics. i am ok with waiting for backup, but not AFTER you evidence intent to arrest and he is noncompliant. it's grossly ignorant of psychology and tactics to suggest this.
" He's not a freaking crackhead - you don't have to treat him like one."
you are treating him like a noncompliant person you are trying to arrest. i don't treat crackheads worse than middle class SUV drivers. everybody (and i mean it) gets respect. but if i am arresting somebody, i don't give free passes to middle class SUV drivers who are noncompliant. i judge people by their actions, not their class or choice of drug.
fwiw, crackheads, etc. have generally been VERY respectful and compliant. if you treat people with respect, GENERALLY SPEAKING, you get respect in return. THAT is what works.
" Furthermore, when you weigh the time it would have taken to pull an officer from his beat to the time this cop has to fill paperwork on use-of-force, go to court, the balance changes. "
no, it doesn't. and its irrelevant to the issue that he had already evidenced intent to arrest. ThAT's why you don't then quit and tell him to get back in the car.
"I worked as an intern doing IT for a local police department. You'd be surprised how much you can learn reading through the files."
or being a cop for 20 years, and reading thousands of police reports, both as followup detective and initiating officer, and actually SEEING events unfold firsthand. but i'll defer to your IT intern experience (rolls eyes)
" For instance, in the cases where an officer got a positive ID and a license plate but chose not to chase a fleeing suspect, >75% were brought in within a month and virtually 100% were brought in within a year. "
of course. if the guy took off after this incident there is no WAY i'd chase him, ESPECIALLY with his wife (innocent third party in the car) . that would be stupid.
it does not follow that GIVEN your intent and actions towards arrest, since he is not willing to submit to arrest, you let him get back into the car.
see, the street is a little different. i've interviewed hundreds of arrestees, prison inmates, etc. i've arrested for murder and on down the line. i've used pretty much every kind of force imaginable (except firing my taser, fwiw). i know what works. criminals (and those who intentionally disobey orders to submit to handcuffing are criminals) FEED off of weak officers. an angry tone of voice is bad. shows fear. so does letting a person you are trying to arrest just walk back to the car. it's bad idea. it makes assault MORE likely.
"Another fun fact, the "top" 10% of officers generate about 50% of the use-of-force incidents. Either they have incredibly bad luck (always arresting the crackheads) or somehow, the other officers manage to do their jobs without resorting to physical violence."
of course this is true. and fwiw, crackheads rarely require much force. i've seen more uses of force in regards to drunk DUI women (ask any DUI car) than crackheads. seriously. alcohol in general, but i digress.
i've never had ONE use of force complaint in 20 years, and i've used them (pretty much all), and that's because if you treat people with respect, EVEN IF YOU HAVE to taser, strike, wrestle, or even shoot at them, you usually get respect and understanding.
and certainly, just like in every career, a small %age of officers are the majority of the problem in regards to excessive force and/or poor tactics (which often leads to more force in general).
but, and im really serious here. your suggestions for tactics are (or would be if any cop followed them) dangerous, nonsensical, and less likely to result in success than good patrol procedure
"
except that's just your absurd way to avoid the issue. nobody is advising treating him like a crackhead. just do me a favor and if you ever actually try to do police work, learn some real patrol tactics first. respect EVERYBODY and do what's right. clearly you are unaware of how to do patrol work.
According to the article cited by the OP, the officer did NOT have to arrest the driver. He could have simply "placed the ticket in the car in a professional manner."
The police officer CHOSE to ignore the driver's questions, CHOSE not inform the driver of the signing rules, and CHOSE to escalate the situation to arrest.
Of course the law makes the driver responsible for the bad choices of the officer. Typical cop logic.
no. this cop has mediocre command presence and is lacking communications skills. if he had better communications skills and command presence, he might not have had to resort to taser.
i haven't had to resort to actually firing my taser. good command presence lessen the likelihood as does good communications skills. it is entreily possible this guy might STILL have had to be tased. we will never know
Aren't the police trained to always look at the hands in traffic stops? Why would an officer focus on the driver's head?
In any event, I believe the legal issue is whether it was visible to the officer, not whether you think that particular officer fully appreciated it or really focused on it.
rubbish. ime most people, including crackheads RESPECT the good cops, and that's most of em.
i've had people come up to me years after i arrested them and THANK them. all people get treated with respect.
i am surprised there is all this enmity towards crackheads, like they should get treated worse than the guy speeding. i treat everybody with respect - crack users , prostitutes, speeders, robbery suspects, etc.
"According to the article cited by the OP, the officer did NOT have to arrest the driver. He could have simply "placed the ticket in the car in a professional manner."
MOST arrests are not mandatory. in my jurisdiction, only felony warrants and Domestic violence crimes (even with minimal probable cause - blame VAWA) are MANDATORY.
there is nothing MANDATING i arrest people for murder if i have PC.
"The police officer CHOSE to ignore the driver's questions, CHOSE not inform the driver of the signing rules, and CHOSE to escalate the situation to arrest. "
correct. he has mediocre communication skills. nobody could argue with that.
"Of course the law makes the driver responsible for the bad choices of the officer. Typical cop logic."
nope. it makes him responsbile for refusing to comply with the law. he can be a jerk all he wants. as can the cop (but the cop shouldn't be).
Yes. I agree the guy has poor communications skills and that he could have avoided using a taser. Let's be honest: "command presence" is "do what I say now or I'll kick your ass." Command presence is most useful when communication time is over.
BTW, I completely agree with you about handling the guy once he's out of the car and the officer decides to arrest. I just don't think there was ANY reason to arrest the guy in the first place.
I lived in the UK for four years, and the police there are far, far superior to US police. They are courteous and approachable, even helpful. They inspire a desire to assist.
US police inspire a desire to resist. Funny how that "do what I say or I'll kick your ass" "presence" can cause that.
And the law makes him responsible for the failures of the officer. Like I said.
whit's 1:40 am, and 2:04 am, posts are entirely correct. I was plaintiff's counsel for all thouand+ hours of excessive force litigation. I have since reviewed dozens of excessive force civil cases for a trial court. This sort of thing has been my day job for thirty years.
While I believe the officer erred, the only seriously wrong thing he did was lie about it afterwards. His use of the taser, at the moment he did it, was reasonable. He should have tried harder to avoid the necessity of doing so, but the driver had lost control of himself, and made the taser use pretty much inevitable, before the officer told him to exit his car.
A small proportion of officers certainly do generate most use of force instances, and I suspect this guy is one of them. He rather clearly, to my experienced eye, decided to tase Mr. Moron when the idiot refused to sign the ticket. I.e., he had malicious intent at that point. IMO he welcomed the opporunity to use force.
But it is quite possible that the officer also recognized that Mr. Moron would at least give him the opportunity to use the taser, and might make taser use necessary, regardless of what the officer said or did.
Mr. Moron was out of control at that point. He was not going to do what the officer said until the officer got his attention with the taser. Mr. Moron absolutely had to be shocked out of his defiant frame of mind.
I'd award him only a dollar in nominal damages. And I was plaintiff's counsel.
As far as ordering him back into the car, you are right that it is a bad tactic. After watching the video again, I realize that it is clearly too late to try to de-escalate the situation (which was my intent). At the point where he refuses to submit to arrest, the officer has no choice but to arrest him by force.
The question then becomes, how could a competent officer let a simple traffic citation spiral out of control into a situation where he had no options?
Also, please use blockquote when quoting.
Funny, I came to that conclusion on reflection myself.
I still assert that a calmer and better trained officer could have convinced him to sign the ticket without the use of force. This is, of course, speculation.
No he didn't. He had questions, and the officer wanted the ticket signed instantly. The law allows the officer to arrest for that, but let's get real. A cop used a taser because HE failed to communicate. It's the cops fault, even if the law IS on his side. Cops always get away with crap like this.
An let's get real again. A guy was shocked into insensibility over a $75-150 violation. The officer didn't have to arrest the guy. He tasered him for $150.
yes on the former. the latter is only a maybe, GIVEN his itent to arrest. we don't know if the guy would have complied GIVEN a more competent officer
" Let's be honest: "command presence" is "do what I say now or I'll kick your ass." Command presence is most useful when communication time is over. "
nope. command presence is what makes the "do what i say