Archive for December, 2009

Important Taser Case is Must-Read for Taser Opponents

Thursday, December 31st, 2009
It's new Year's Eve and now New Years, but I can't do anything but stay home, blog, read, and wait for my stitches and muscles to heal from the accident I had three days ago.

Fortunately, I have a great "Taser" legal case to read, addressed in the San Diego Bee, and published December 29, 2009, by the 9°th Circuit Court of Appeals, with direct legal effect in California, Alaska, Washington, Montana, Oregon, Idaho, Arizona, Hawaii and Guam, and influential in other parts of the country. The case is a legal roadmap for plaintiffs' excessive force cases involving Taser use. Below are some excepts of crucial and educational points made by the 9th Circuit in its decision against the offending police officer.

Plaintiff Bryan was stopped police twice in one day, and on the second stop he was shocked twice with a Taser device, falling face down in the roadway and "fracturing" four teeth in addition to facial injuries. The shocking officer said that even though Bryan was twenty feet away and there were no other cars or persons on the road, the officer testified that he was afraid of a man who was dressed only in boxer shorts and tennis shoes while yelling at himself between the car door and the car, twenty or twenty-one feet away. Bryan, the plaintiff had been stopped by the officer only to enforce a seat belt law.

The 9°th Circuit Court of Appeals Court found that:
. . . in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
( . . . )

Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action.

( . . . )

Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
16738 BRYAN v. MCPHERSON
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).

( . . . )

Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt.

( . . . )

We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be justified
by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force.


( . . . )

We similarly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a nonintrusive
level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.[5]

The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not.

( . . . )

In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
16742 BRYAN v. MCPHERSON
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).

( . . . )

The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public.

( . . . )

The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”).
Opponents of taser use should read the entire case, since it is chock full of the arguments we've made over the last two years. It also addresses the continuum of force question, without using that specific term, and it makes application of appropriate and measured use of force a matter of law, rather than a mere matter of whether police followed their own lax guidelines or not.

Important Taser Case is Must-Read for Taser Opponents

Thursday, December 31st, 2009
It's new Year's Eve and now New Years, but I can't do anything but stay home, blog, read, and wait for my stitches and muscles to heal from the accident I had three days ago.

Fortunately, I have a great "Taser" legal case to read, addressed in the San Diego Bee, and published December 29, 2009, by the 9°th Circuit Court of Appeals, with direct legal effect in California, Alaska, Washington, Montana, Oregon, Idaho, Arizona, Hawaii and Guam, and influential in other parts of the country. The case is a legal roadmap for plaintiffs' excessive force cases involving Taser use. Below are some excepts of crucial and educational points made by the 9th Circuit in its decision against the offending police officer.

Plaintiff Bryan was stopped police twice in one day, and on the second stop he was shocked twice with a Taser device, falling face down in the roadway and "fracturing" four teeth in addition to facial injuries. The shocking officer said that even though Bryan was twenty feet away and there were no other cars or persons on the road, the officer testified that he was afraid of a man who was dressed only in boxer shorts and tennis shoes while yelling at himself between the car door and the car, twenty or twenty-one feet away. Bryan, the plaintiff had been stopped by the officer only to enforce a seat belt law.

The 9°th Circuit Court of Appeals Court found that:
. . . in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
( . . . )

Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action.

( . . . )

Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
16738 BRYAN v. MCPHERSON
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).

( . . . )

Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt.

( . . . )

We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be justified
by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force.


( . . . )

We similarly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a nonintrusive
level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.[5]

The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not.

( . . . )

In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
16742 BRYAN v. MCPHERSON
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).

( . . . )

The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public.

( . . . )

The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”).
Opponents of taser use should read the entire case, since it is chock full of the arguments we've made over the last two years. It also addresses the continuum of force question, without using that specific term, and it makes application of appropriate and measured use of force a matter of law, rather than a mere matter of whether police followed their own lax guidelines or not.

Important Taser Case is Must-Read for Taser Opponents

Thursday, December 31st, 2009
It's new Year's Eve and now New Years, but I can't do anything but stay home, blog, read, and wait for my stitches and muscles to heal from the accident I had three days ago.

Fortunately, I have a great "Taser" legal case to read, addressed in the San Diego Bee, and published by the Court, was announced on December 29, 2009, by the 9°th Circuit Court of Appeals, with direct legal effect in California, Alaska, Washington, Montana, Oregon, Idaho, Arizona, Hawaii and Guam, and influential in other parts of the country.

Plaintiff Bryan was stopped police twice in one day, and on the second stop he was shocked twice with a Taser device, falling face down in the roadway and "fracturing" four teeth in addition to facial injuries. The shocking officer said that even though Bryan was twenty feet away and there were no other cars or persons on the road, the officer testified that he was afraid of a man who was dressed only in boxer shorts and tennis shoes while yelling at himself between the car door and the car, twenty or twenty-one feet away. Bryan, the plaintiff had been stopped by the officer only to enforce a seat belt law.

The 9°th Circuit Court of Appeals Court found that:
. . . in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.
( . . . )

Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action.

( . . . )

Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
16738 BRYAN v. MCPHERSON
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).

( . . . )

Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt.

( . . . )

We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be justified
by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force.


( . . . )

We similarly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a nonintrusive
level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.[5]

The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not.

( . . . )

In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
16742 BRYAN v. MCPHERSON
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).

( . . . )

The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public.

( . . . )

The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”).
Opponents of taser use should read the entire case, since it is chock full of the arguments we've made over the last two years. It also addresses the continuum of force question, without using that specific term, and it makes application of appropriate and measured use of force a matter of law, rather than a mere matter of whether police followed their own lax guidelines or not.

Federal appeals court sets limits on police use of Tasers

Thursday, December 31st, 2009

Why did police Taser wheelchair-bound Merced, Calif., resident Greg Williams?

Zimbel, a regular reader of my Francis L. Holland Blog, points to an important case from the 9th Circuit Federal Appeals Court, reported in the Sacramento Bee, which case limits the situations under which police officers can use hand-held electrocution devices, in particular saying that using shock devices against mentally ill people who pose no threat to officers violates the victims rights:

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

There have been at least nine Taser-related fatalities in the Sacramento region, including the death earlier this month of Paul Martinez Jr., an inmate shot with a stun gun while allegedly resisting officers at the Roseville jail.

As lawsuits have proliferated against police and Taser International, which manufactures the weaons, the nation's appellate courts have been trying to define what constitutes appropriate Taser use.

The San Diego County case is the latest ruling to address the issue.

The court recounted the facts of the case:

In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer's order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he'd slept in because a woman had taken his keys, the court said without further explanation.

During his second traffic stop in Coronado, he got out of the car. He was "agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes" but did not threaten the officer verbally or physically, the judges wrote.

That's when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan's "bizarre tantrum," fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado, alleging excessive force in violation of his Fourth Amendment rights.

The officer moved to have the claim dismissed, but a federal trial judge ruled in Bryan's favor.

A three-judge panel of the 9th Circuit affirmed the trial judge's ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use.

He said after Monday's decision that courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

"In an era where everybody understands 'don't tase me, bro,' courts are going to look more closely at the use of Tasers, and they're going to try to deter the promiscuous oversue of that tool," he said.

That's especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented the family of a troubled Woodland man who died under police restraint after being struck multiple times with Tasers.

In May 2008, Ricardo Abrahams walked away from a voluntary care facility and disobeyed the orders of officers called to check on his well-being. They shot him repeatedly with stun guns.

The case against the city of Woodland and its officers was settled in June for $300,000.

"I think it confirms what I and other lawyers in this area have been saying: You can't treat a person with mental illness the same as someone without mental illness," Griffin said.

Law enforcement authorities in Sacramento said they don't expect Monday's ruling to prompt much change.

Sacramento Police Department and Sacramento County Sheriff's Department policies permit the use of force to gain control of a suspect or prevent harm to others.

"Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough," said Sheriff John McGinness.

Sgt. Norm Leong, spokesman for the Police Department, said his agency's policy on the use of stun guns mainly covers safety considerations. It doesn't list behaviors or situations that warrant using the devices, he said.

"Ideally, in every circumstance, we try to gain compliance verbally, and force is the last option we ever want to use," he said.

Federal appeals court sets limits on police use of Tasers

Thursday, December 31st, 2009

Why did police Taser wheelchair-bound Merced, Calif., resident Greg Williams?

Zimbel, a regular reader of my Francis L. Holland Blog, points to an important case from the 9th Circuit Federal Appeals Court, reported in the Sacramento Bee, which case limits the situations under which police officers can use hand-held electrocution devices, in particular saying that using shock devices against mentally ill people who pose no threat to officers violates the victims rights:

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

There have been at least nine Taser-related fatalities in the Sacramento region, including the death earlier this month of Paul Martinez Jr., an inmate shot with a stun gun while allegedly resisting officers at the Roseville jail.

As lawsuits have proliferated against police and Taser International, which manufactures the weaons, the nation's appellate courts have been trying to define what constitutes appropriate Taser use.

The San Diego County case is the latest ruling to address the issue.

The court recounted the facts of the case:

In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer's order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he'd slept in because a woman had taken his keys, the court said without further explanation.

During his second traffic stop in Coronado, he got out of the car. He was "agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes" but did not threaten the officer verbally or physically, the judges wrote.

That's when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan's "bizarre tantrum," fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado, alleging excessive force in violation of his Fourth Amendment rights.

The officer moved to have the claim dismissed, but a federal trial judge ruled in Bryan's favor.

A three-judge panel of the 9th Circuit affirmed the trial judge's ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use.

He said after Monday's decision that courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

"In an era where everybody understands 'don't tase me, bro,' courts are going to look more closely at the use of Tasers, and they're going to try to deter the promiscuous oversue of that tool," he said.

That's especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented the family of a troubled Woodland man who died under police restraint after being struck multiple times with Tasers.

In May 2008, Ricardo Abrahams walked away from a voluntary care facility and disobeyed the orders of officers called to check on his well-being. They shot him repeatedly with stun guns.

The case against the city of Woodland and its officers was settled in June for $300,000.

"I think it confirms what I and other lawyers in this area have been saying: You can't treat a person with mental illness the same as someone without mental illness," Griffin said.

Law enforcement authorities in Sacramento said they don't expect Monday's ruling to prompt much change.

Sacramento Police Department and Sacramento County Sheriff's Department policies permit the use of force to gain control of a suspect or prevent harm to others.

"Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough," said Sheriff John McGinness.

Sgt. Norm Leong, spokesman for the Police Department, said his agency's policy on the use of stun guns mainly covers safety considerations. It doesn't list behaviors or situations that warrant using the devices, he said.

"Ideally, in every circumstance, we try to gain compliance verbally, and force is the last option we ever want to use," he said.

9th Circuit Federal Appeals Court Sets Limits on Police Use of "Tasers"

Thursday, December 31st, 2009

Why did police Taser wheelchair-bound Merced, Calif., resident Greg Williams?

Zimbel, a regular reader of my Francis L. Holland Blog, points to an important case from the 9th Circuit Federal Appeals Court, reported in the Sacramento Bee, which case limits the situations under which police officers can use hand-held electrocution devices, in particular saying that using shock devices against mentally ill people who pose no threat to officers violates the victims rights:

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

There have been at least nine Taser-related fatalities in the Sacramento region, including the death earlier this month of Paul Martinez Jr., an inmate shot with a stun gun while allegedly resisting officers at the Roseville jail.

As lawsuits have proliferated against police and Taser International, which manufactures the weaons, the nation's appellate courts have been trying to define what constitutes appropriate Taser use.

The San Diego County case is the latest ruling to address the issue.

The court recounted the facts of the case:

In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer's order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he'd slept in because a woman had taken his keys, the court said without further explanation.

During his second traffic stop in Coronado, he got out of the car. He was "agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes" but did not threaten the officer verbally or physically, the judges wrote.

That's when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan's "bizarre tantrum," fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado, alleging excessive force in violation of his Fourth Amendment rights.

The officer moved to have the claim dismissed, but a federal trial judge ruled in Bryan's favor.

A three-judge panel of the 9th Circuit affirmed the trial judge's ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use.

He said after Monday's decision that courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

"In an era where everybody understands 'don't tase me, bro,' courts are going to look more closely at the use of Tasers, and they're going to try to deter the promiscuous oversue of that tool," he said.

That's especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented the family of a troubled Woodland man who died under police restraint after being struck multiple times with Tasers.

In May 2008, Ricardo Abrahams walked away from a voluntary care facility and disobeyed the orders of officers called to check on his well-being. They shot him repeatedly with stun guns.

The case against the city of Woodland and its officers was settled in June for $300,000.

"I think it confirms what I and other lawyers in this area have been saying: You can't treat a person with mental illness the same as someone without mental illness," Griffin said.

Law enforcement authorities in Sacramento said they don't expect Monday's ruling to prompt much change.

Sacramento Police Department and Sacramento County Sheriff's Department policies permit the use of force to gain control of a suspect or prevent harm to others.

"Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough," said Sheriff John McGinness.

Sgt. Norm Leong, spokesman for the Police Department, said his agency's policy on the use of stun guns mainly covers safety considerations. It doesn't list behaviors or situations that warrant using the devices, he said.

"Ideally, in every circumstance, we try to gain compliance verbally, and force is the last option we ever want to use," he said.

Prisoner assaulted by staff in Ely State Prison

Wednesday, December 30th, 2009
1st of December 2009

I would like to open this letter with my utmost respects. I was told to write you & tell you about my story in hopes of a little help! Here´s the truthful story about an assault that two C.O.´s put on me.

My name is Jeremiah Van Clinton. On 11-16-09 I was told by two C.O.´s (Herring & Jones) in Unit 2B-25 at Ely State Prison Max. to cuff up & they were doing a cell search of my cell so I did cuff up in hand & leg cuffs. I was brought to a gated locked shower, while those C.O.´s conducted a search on my cell.

I was in the shower 10 to 15 minutes when the C.O.´s Herring & Jones finally came to get me to go back to my room. I asked the two C.O.´s what they took out of my room & C.O. Herring told me “Not to fucking worry about it!” I said: "Don´t bite my head off, I was just asking a question." The C.O.´s got my shower open and C.O. Herring grabbed one of my arms & Jones the other. C.O. Herring yanked me out of the showers, almost making me fall, since I was in hand & leg cuffs. He told me: “So you think you´re tough! I´ll fuck you up, you´re not shit!”
I said: “I´m not trying to be tough, I just asked a question that´s it.”

C.O. Herring said: “Turn around or I´ll plant your face on the floor.” He said: “Walk faster” too. I turned my head and told´em: “I can´t walk no faster, in leg cuffs, stop yanking me so hard. I didn´t even get to turn my head back before C.O. Herring stepped on my leg chain & shoved me to the ground; he got into my ear and said: “I´ll kill you, you ain´t shit!” J. had my feet and was saying: “Stop resisting, faggot.” I said I am not resisting, I didn´t do shit!”

C.O. Herring then put me in a choke hold and was choking me until I couldn´t breathe. Then he got in my ear again & said: “Fuck you, you ain´t shit, why don´t you give me a real reason to fuck you up?”

He finally stopped choking me and I said: “You just choked me for no reason.” Then that is when I felt the first (k)nee to the back of my head causing my forehead to hit the guard rail real hard, making a bump right away, then the second (k)nee hit me causing my right eye to hit the floor, then the third nee hit me, causing my left eye to hit the rail so hard it almost knocked me out & it slipped my whole eye open so bad, I had to be rushed to the hospital for inside and outside stitches. There is a camera footage of my face & pictures. I now got a two inch scar, headache that never goes away & numbness, and my eyebrow twitches uncontrollably. I got witnesses who saw it and made affidavits, stating what they have seen.

They moved me out of my unit and would not let me talk to no one. I was not given nothing for the pain, even after I asked. Instead of the C.O.´s getting into trouble for clearly using unnecessary force and violating my 8th Amendment, they wrote me up, falsifying legal documents, keeping me from witnesses, and now they are moving me to a whole other prison & did not give me no pain meds.

They say I was resisting and trying to head-butt the C.O.´s, but that is not what the witnesses saw, even though they don´t count, ´cause they are criminals, and cops are always right.

If you could please help in some way I would be so very grateful for it. I don´t know anything about the law.

Thanks and Please,

Jeremiah

Jeremiah Clinton
#95836
NSP
P.O. Box 607
Carson City, Nevada 89702

Don’t Tase Me When I’m Having a Diabetic Seizure, Bro

Wednesday, December 30th, 2009

From the Courthouse News Service:

Prospero Lassi says he suffered a diabetes-induced seizure at home on April 9. His roommate called 911, and police from LaGrange Park and Brookfield responded, with EMTs from LaGrange Park.

Lassi says his roommate explained to police that he was having a diabetic seizure. Lassi "was not alert and could not move his body."

When the EMTs asked the cops to help them move Lassi from where he was lying on the floor, Lassi says, one of his "arms flailed during his diabetes-induced seizure, striking one of the LaGrange and Brookfield defendants. At no time did Mr. Lassi intentionally strike or offensively touch any of the LaGrange or Brookfield defendants."

Lassi says LaGrange Park Officer Darren Pedota responded by Tasering him 11 times, for nearly a minute, as he lay helpless.

He was hospitalized for 5 days, and was unable to work for 3 months because of the attack, "and his quality of life has suffered substantially," Lassi says.

Well, at least he wasn't deaf and mentally disabled!

Reason on tasering here. Radley Balko wrote about Chicago's troubled (and troubling) police department two weeks ago. Link via Dennis Robbins' Twitter feed.

LaGrange Park IL Pig Darren Pedota tasers man 11 times for having a seisure

Tuesday, December 29th, 2009
(CN) – A suburban Chicago police officer Tasered a man 11 times while he was having a diabetic

Morning Links

Monday, December 28th, 2009
  • David Boaz points to two surprisingly strong editorials in the Washington Post with libertarian themes, one on problems with the criminal justice system, and one on the Obama administration’s troublingly expansive view of human rights (and its rather casual treatment of actual human rights).
  • Bruce Schneier: “Only one carry on? No electronics for the first hour of flight? I wish that, just once, some terrorist would try something that you can only foil by upgrading the passengers to first class and giving them free drinks.”
  • The top ten Top 10 lists of 2009.
  • This is a positive development.
  • Gay rights, leftist groups in D.C. fight other gay rights, leftist groups in D.C. over right of anti-gay rights groups to take out ads on the city’s Metro trains. Good on the pro-speech folks.
  • Zero tolerance strikes again.
  • Federal judge won’t toss the obscenity charges against John Stagliano. I think his attorney is right. This is a good chance to bring Miller v. California into the Internet age. “Community standards” means something quite a bit different now than it did then.
  • This smug op-ed by the guy wrongly arrested in the Snowball Fight Heard ‘Round the World is almost enough to make me support the gun-waving cop.
  • I can’t believe people still make these kinds of arguments. What a vapid waste of electrons.