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Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?: This is two weeks old, but it's still really interesting. Below you'll find a video of a Utah police officer who pulls over a man for speeding. When the driver refuses to sign the ticket, the officer orders him out of the car. The officer orders the man to put his hands behind his back, and pulls out a taser. The man refuses, says, "What the heck is wrong with you?", and then starts to back and turn away as he puts his hands in his pockets. At that point, the officer (who appears to be alone) tasers the man (at about the 2:35 mark).

  If you're interested, watch the first three minutes of the video and then vote in the poll immediately below. Here's the video:



Was the Officer's decision to use the Taser a reasonable use of force?
Yes, it was a reasonable use of force.
No, it was an unreasonable use of force.
I'm not sure.
  
Free polls from Pollhost.com

More media coverage of the case here. Link via unfogged.

Related Posts (on one page):

  1. More on the Taser Video -- A Response to Scott Greenfield:
  2. More Thoughts on the Utah Tasering Video:
  3. Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?:
396 Comments
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:
Officer: Turn around and put your hands behind your back! (pause) Turn around and put your hands behind your back! Now!
Driver: What the heck is wrong with you?
Officer: Turn around! Turn around!
Driver: What the heck is wrong with you?
  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.

  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.
214 Comments
More on the Taser Video -- A Response to Scott Greenfield: Over at Simple Justice, defense attorney Scott Greenfield has an interesting objection to yesterday's post arguing that there are two legitimate ways to construe the Utah taser video I blogged about last Friday. In response to my claim that an officer could reasonably fear that the driver was fishing for a weapon in his pocket at the 2:36 mark, Greenfield strongly disagrees:
  This is where it becomes clear that the academic's view lacks practical connection with reality. It's not just the hands. It's the bulge. The minutes the driver exited the vehicle, the cop eyeballed the guy for a bulge, the telltale sign of a weapon. Guns are big and heavy. People who have never seen or held a gun don't realize that they are big and heavy. Check the waistband and the pockets for the bulge. Check under the arms. No bulge, it's safe.
  The cop isn't afraid that the driver is going to reach into his pocket and throw loose change at him. The only reason for a cop to be concerned is a weapon. There could be a small pocket knife, but the cop already has the taser out and aimed, so he's not worried that the driver will reach him with a pocket knife. There's no chance of that happening. But most importantly, and regardless of what the driver is doing with his hands, there's no bulge.
  Why does it matter that a known criminal law scholar like Orin makes such rookie mistakes in his analysis? Because there are a lot of lawyers, and some of them will be your judge someday and others may be on your jury, who think they are learning about "real-life" criminal law from him. . . .
  Was the use of force "reasonable" from the officer's perspective? Only if one lives in a fantasy world where one deliberately closes one's eyes to both the reality of police work and the fundamental expectation that police do not go around using force against citizens because they, the cops, are screw-ups. No Orin, I can't agree that it was reasonable. And I can't agree that your efforts to "explain" the cop's perspective demonstrate that you take a fair and reasonable view of police/citizen encounters. You blew this one big time.
  I always appreciate careful criticism of my analysis, so I wanted to post this and then offer a few thoughts in response.

  I think there are two issues here. The first is Greenfield's claim that no reasonable person could possibly think that the driver was armed based on observing him during the stop. On this, I'll happily defer to others with more experience with handguns. The driver is wearing shorts with big baggy pockets, and I would think a smaller-size handgun could fit in those pockets without making a large and obviously visible bulge. (Of course the officer could frisk the driver for weapons, but he didn't get the chance to do that given how the episode unfolded.) However, I am indeed a "rookie" when it comes to the size of bulges different pistols make in different pockets of different pants; I've fired a pistol before, but it was years ago, and I can't say I've put one in my pocket. Would a pistol necessarily be obviously visible? On that issue I'll defer to others.

  At the same time, if we're interested in the legal question of whether the use of force was "excessive" under the Fourth Amendment, I think it's worth pointing out the legal standard is actually quite deferential to the police in these situations. The legal standard is objective reasonableness, "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Graham v. Connor. The officer's subjective intent is irrelevant. Id. As the Supreme Court stressed in Graham, "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Thus from a legal standpoint it would have to be pretty clear (even based on a quick, split-second judgment) that the driver was not armed for Greenfield's analysis to have its full force.

  Was it that clear? Again, I'm happy to defer to others on that issue.

  UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver's pocket without causing a visible bulge. If that's right, I suppose it shows the dangers of characterizing disagreement as a contest between "reality" and an ivory-tower "fantasy world"; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.
114 Comments