The Disturbing Trends Series- Part 1: Tasers and the Police

Periodically, I intend to bring to light some disturbing cases from around the United States that may see the light of day before the Supreme Court. For example, in the past I wrote extensively on a recent Supreme Court case involving prison strip searches. Some of the comments to that article were interesting, to say the least. For example, there was the “I wouldn’t do anything to get arrested in the first place.” They were usually the same folks who said they were tired about hearing of “prisoner rights.” Leaving aside the fact that the case did not involve “prisoner rights,” the Court’s decision in that case was, in my humble opinion, kind of scary. They ruled that blanket strip searches of prisoners in any correctional facility were constitutional in the interest of prison safety. The decision was somewhat nuanced, but the message was that these searches, despite the reason for the arrest, were warranted. Just looking at the statistical evidence alone, one study found that of over 300,000 people processed in one county jail over a 6 year period found but one instance of contraband concealed in a body cavity. Interestingly, that contraband was discovered without resorting to a strip search. The majority opinion in the case noted a single instance from a neighboring county in the Florence case from several years prior. Being no fan of Justice Stephen Breyer, he cited at least four cases of egregious (in my opinion again) strip searches. Looking into them further, I discovered that one involved a menstruating woman and another involved a Catholic nun arrested at a protest. I find it odd and strange that the people who usually argue for these broad police powers are also the most offended at blanket TSA airport pat downs. I would be remiss of me to mention that in the strip search case, the “criminal” was the victim of a clerical error in the New Jersey court system.

There are three other cases coming out of the Ninth Circuit Court of Appeals that may see the light of day in the upcoming Supreme Court term. All of them involve police use of tasers on subjects. They all question the use of tasers by police under the Fourth Amendment and excessive force doctrine and policy. First, I would like to summarily dismiss two of these cases given the facts of them. In one, the police were called to a home regarding a possible domestic dispute. Although they stated there was an argument, there was no violence and no one wished to press charges. The police nevertheless decided to further investigate whereupon one of the individuals became agitated and made aggressive moves towards the responding officers. They then used their taser to incapacitate the individual.

As any police officer will tell you, calls for domestic violence are rife with potential dangers. They never know what they are walking into in the first place. Also, many times there will be a response, the situation will be deemed “taken care of,” only to result in another call sometimes with unfortunate outcomes. In these two cases, there was a threatening move towards the police officers and they reasonably could have considered themselves to be in jeopardy and they rightfully used tasers to incapacitate the individuals. In these cases, I firmly believe that deference should be given to the officers based on the facts of the cases.

The third and disturbing case comes from Seattle, Washington. A woman was pulled over by police for going 32 in a 20 MPH school zone as she was dropping her child off. Apparently, one has to sign the citation acknowledging receipt as she was given a speeding ticket. However, not knowing the law nor having it explained to her, the officer insisted she sign the complaint, she still refused. He then called his supervisor who explained that if she did not sign the citation, she could be arrested. She still refused. At that point- and this fact is not disputed- the two officers discussed and decided to ready their tasers if she refused to cooperate which now involved her getting out of her vehicle. The major point of their discussion was that the woman was seven months pregnant at the time. After a final request to exit the vehicle, she grasped the wheel. One officer entered the car and removed the keys from the ignition and then applied the taser. In fact, the taser was applied three times in less than one minute. She was charged with resisting arrest. She then sued the arresting officers.

This case revolves around the doctrine of qualified immunity which frees officials from civil lawsuits for actions they take in the performance of their jobs. It is qualified in the sense that serious deviations from “the norm,” especially those that impinge upon constitutional rights, do not go “unpunished.” The lower courts found in the woman’s favor on the facts. They determined that within the total context of the “arrest,” the seriousness of the offense (failing to sign the citation) was weak, that the woman posed no risk to herself, the police or others, nor was she a flight risk, and that the force used was excessive (three jolts in less than a minute). The final test is whether the officers violated clearly established law when they used the taser. It is here where we enter a legal Catch-22.

They relied on three cases outside the 9th Circuit. In one case from the Sixth Circuit, the police were called to assist in returning a family member to a psychiatric hospital. In fact, the mentally ill person brandished knives at the police. In the second case from the Tenth Circuit, the police were going to charge a person with disturbing the peace. However, he became agitated and pushed one of the responding officers. Thus, there was some physical aggression directed at the police. In the third case from the 11th Circuit, the driver of a tractor trailer was pulled over for having improperly illuminated tail lights. The driver acted agitated and on five occasions refused to hand over his driving documentation. This is probably the most analogous case to the Seattle woman. The problem is that in all three cases, the Circuit Courts decided, based on the facts of those individual cases, the use of “excessive force” was necessary. Their bad luck becomes the bad luck of the Seattle woman since they are the “precedents” for the use of tasers by police and, thus, the state of the law at the time. Therefore, the Ninth Circuit ruled that the Seattle police officers could not be sued since they behaved reasonably legal given the state of the law at the time of the incident. Hence, the Circuit acknowledges that the woman was perhaps wronged, but that she has no legal recourse.

The only way to rectify the “state of the law” is for the Supreme Court to intervene and establish some guidance so that police have clear-cut rules down the line, or for a similar case in another Circuit to come to a different conclusion creating a split among Circuits that would force the hand of the Supreme Court. Unfortunately, I do not believe the Court will take this case as they have ruled previously on the use of excessive force by police and have given general deference to law enforcement.

I am fully cognizant of the dangers the police face every day. A simple traffic stop could potentially be their last action on earth. Likewise, a seven-month pregnant woman could potentially pose a risk to the officers just as a crack head pulled over in a traffic stop can cause a risk. However, one would hope, given the circumstances of the situation, that police officers would practice commonsense also. Physically getting the woman out of the car without the use of the taser probably would have been a better course of action. In fact, knowing she was pregnant, the officers discussed their course of action, where to apply the taser and at what setting for more than five minutes before they carried through on their actions. To take the opposite tack- to grant blanket deference to law enforcement- leads to such actions as granny undergoing a pat down at the airport before she walks through the gate. If one adheres to the blanket deference belief, then one cannot complain about the TSA’s actions or any other action lacking in commonsense. I am no squishy liberal when it comes to law enforcement. Violent criminals should be sent away for a long time and non-violent offenders should be used for labor if feasible. I am also an ardent supporter of the death penalty and believe that sexual predators be kept off the streets at all costs. But likewise, I am an ardent opponent of the belief that police should always receive deference simply by virtue of putting on the uniform. Most importantly, I am a believer in the use of commonsense.

[Note: The woman in question delivered a healthy child two months later. Although suffering from a partially paralyzed right arm for less than 24 hours and burn marks where the taser was applied, she is in perfect health today. She sued the police officers in question and the City of Seattle not for medical reasons, but for violation of her constitutional rights.]

[NOTE:As I finished writing this, I discovered that the woman’s appeal to the United States Supreme Court was denied.]