Legal Update: Police Use of TASER Devices

Tom Fudge: TASERS have been embraced by many people in law enforcement as a way to keep suspects under control. Some say that TASERS are an alternative to lethal force. Others argue they are actually an alternative to more humane forms of non-lethal force. Why use a TASER when a suspect can be physically restrained or when police can simply wait for the person to calm down?

Many people in police custody have died after being shocked by a TASER. And lawsuits have provided some guidance as to when using a TASER is going too far.

Guest

• Dan Eaton, San Diego attorney and These Days legal analyst.

What do a grandstanding college student, an autistic child, and a wheelchair-bound schizophrenic have in common? All three have been in the news recently because they were subdued by law enforcement officers with a Taser. Any law enforcement incident involving a weapon is newsworthy because such incidents are rare. How does the law treat a Taser differently from, say, a gun and when is the use of Taser considered excessive force?

What exactly is a Taser?
A Taser, manufactured by Taser International, Inc., fires electronically charged darts carrying up to 50,000 volts that immediately stop any coordinated action by the person who is shot. The electric current flows in the form of twelve electric pulses per second for about five seconds, with additional cycles dischargeable by re-squeezing the trigger if the dart remains lodged in the target. (Background information on the Taser is available at the company’s website at Taser.com.) A recent search of Westlaw, an electronic legal database, uncovered 884 mentions of the word “taser.” The first reported case was a 1977 California Court of Appeal decision out of Los Angeles, which held that an individual carrying a “loaded” Taser could be convicted of carrying a loaded firearm under California law. ( People v. Heffner (1977) 70 Cal.App.3d 643.) Tasers are used by 11,000 law enforcement agencies around the country, including about 500 in California.

At the end of August this year, a federal court in Washington State explained how the Taser works and why Tasers are so popular with law enforcement officers:    “The Taser is not designed to use pain as a principal motivator. Instead, the pulses cause a break in the body’s central nervous system signaling, resulting in involuntary muscle contractions. This will generally result in the target falling, if standing, or in preventing a target on the ground from standing. Although infliction of pain as a motivator is not the primary function of a properly deployed Taser, pain is a necessary byproduct of its use. However, it is also a very useful tool for law enforcement, as it is considered to inflict considerably less pain on a suspect than other forms of force available to a suspect. Moreover, the Taser is a valuable tool for protecting law enforcement officers by providing an enlarged safety zone around the police officer when confronting a suspect.” ( Beaver v. City of Federal Way (W.D.Wash. 2007) __ F.Supp. 2d __.)

Predictably, there have been lawsuits challenging the use of Tasers, brought both against Taser International and against the agencies and officers that use them. In June of this year, Taser International announced that it had won its 52nd straight victory in such lawsuits, with 0 losses. (See Taser.com for related press releases.) 

Police officers have not been as fortunate. In August 2005, a San Diego federal jury awarded an Escondido man $140,000 against an Escondido police officer. The man argued that the officer violated his civil rights by firing two Taser shots at him as he was struggling to get free of paramedics because he was having a claustrophobic attack. In late July of this year, the Court of Appeals upheld that award. The evidence at trial “supported the conclusion that [the officer] denied [the subject’s] initial request to get up and then administered two taser shots against [the man] while [the man] – the victim of a rear-end collision – was unarmed, outnumbered, at least partially restrained, visibly suffering from claustrophobia, and pleading with [the officer] not to shoot him.” ( Wakefield v. City of Escondido (9 ^th Cir. July 26, 2007) 2007 WL 2141457, *1.)         

The story doesn’t end there. The trial judge rejected the man’s claim of punitive damages against the officer when the jury could not decide whether he should get them or not. The Appeals panel reversed that ruling, saying it should be retried because a reasonable jury could “conclude that [the officer’s] use of force demonstrated [the required] ‘reckless or callous indifference’ to the man’s federally-protected rights.”  ( Id . at *2, citation omitted.) There also is at least one case pending here in San Diego involving the use of a Taser by a Coronado police officer. ( Bryn v. McPherson , Civil No. 06CV1487-LAB (CAB).) Still, there are numerous cases where the use of a Taser has not been found to constitute excessive force. According to a white paper released by Taser International in June of this year, and available on the company’s website, “case law has routinely held that [a] Taser [gun] is an appropriate use of force and does not [automatically] constitute excessive use of force.” (D. Klint, “Taser Device Liability and Litigation Risk,” (June 2007), p. 3, citations omitted.) 

So how does a jury decide whether use of a Taser is excessive force? 
In 1989, the U.S. Supreme Court ruled that, to establish a claim for excessive force in violation of civil rights, the person suing must show that the officer’s use of a particular weapon was not “objectively reasonable” under all of the circumstances.   ( Graham v. Connor (1989) 490 U.S. 386, 397.) Reasonableness, however, is not determined in 20/20 hindsight. “[P]olice 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.” ( Ibid .) To determine reasonableness, the Court looks at “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” ( Id . at 396.) Under controlling Ninth Circuit authority, California federal courts further must ask whether there were more reasonable available alternatives to subduing the suspect under all of the circumstances. ( Chew v. Gates (9 ^th Cir. 1994) 27 F.3d 1432, 1441, note 5.)

As law enforcement officers continue to use Tasers as an alternative to less effective or more lethal means of suspect compliance, issues related to the device will continue to be the focus of courts in both civil and criminal cases. And because the use of any weapon by law enforcement is so unusual, the media can be expected to continue to focus on Taser incidents as well.