[Infowarrior] - Federal court restricts Taser use by police

[Richard Forno]

latimes.com/news/local/la-me-taser30-2009dec30,0,3444530.story

latimes.com

Federal court restricts Taser use by police

Ninth Circuit ruling -- allowing an officer to be held liable for  
injuries a man suffered after being Tasered -- sets a precedent that  
may force agencies to revisit their policies.
By Joel Rubin and Richard Winton

December 30, 2009

A federal appeals court this week ruled that a California police  
officer can be held liable for injuries suffered by an unarmed man he  
Tasered during a traffic stop. The decision, if allowed to stand,  
would set a rigorous legal precedent for when police are permitted to  
use the weapons and would force some law enforcement agencies  
throughout the state -- and presumably the nation -- to tighten their  
policies governing Taser use, experts said.

Michael Gennaco, an expert in police conduct issues who has conducted  
internal reviews of Taser use for the Los Angeles County Sheriff's  
Department and other agencies, said the ruling by the U.S. 9th Circuit  
Court of Appeals prohibits officers from deploying Tasers in a host of  
scenarios and largely limits their use to situations in which a person  
poses an obvious danger.

"This decision talks about the need for an immediate threat. . . .  
Some departments allow Tasers in cases of passive resistance, such as  
protesters who won't move," he said. Tasering for "passive resistance  
is out the door now with this decision. Even resistance by tensing or  
bracing may not qualify."

The weapons, which resemble handguns, can be fired from about 20 feet  
away and project two dartlike electrodes. The electrodes send an  
electrical charge coursing through the target -- a shock that  
temporarily paralyzes the person's muscles and causes extreme pain.  
Almost all of the stun guns used by law enforcement agencies in the  
United States are manufactured by Taser International Inc., including  
the one fired in the current case.

Though stun guns have been in use for about three decades, the number  
of police departments issuing them to officers has proliferated in the  
last 10 years. Advocates tout the weapons as a less-than-lethal  
alternative to firearms and say they help resolve dangerous face-to- 
face confrontations with combative suspects. But several controversial  
Taser incidents, some involving fatalities, have led to widespread  
debate over when police should be allowed to deploy the weapons.

Last year, a National Institute of Justice study found that the  
weapons were employed safely in the vast majority of cases, but  
concluded that more research is needed to determine the health effects  
of shocking small children and the elderly, among other groups.

The unanimous ruling, issued Monday by a three-judge panel, stemmed  
from a 2005 encounter in which a former Coronado, Calif., police  
officer, Brian McPherson, stopped a man for failing to wear a seat  
belt while driving. The driver, Carl Bryan, who testified that he did  
not hear McPherson order him to remain in the car, exited the vehicle  
and stood about 20 feet away from the officer. Bryan grew visibly  
agitated and angry with himself, but did not make any verbal threats  
against McPherson, according to court documents. McPherson has said he  
fired his Taser when Bryan took a step toward him -- a claim Bryan has  
denied.

Bryan's face slammed against the pavement when he collapsed, causing  
bruises and smashing four front teeth.

The appellate court did not rule on whether McPherson acted  
appropriately, but simply cleared the way for Bryan to pursue a civil  
case against the officer and the city of Coronado in a lower court.  
Based on Bryan's version of events, though, the judges found that  
McPherson used excessive force in firing the Taser, since Bryan did  
not appear to pose any immediate threat.

In spelling out their decision, the judges established legally binding  
standards about where Tasers fall on the spectrum of force available  
to police officers, and laid out clear guidelines for when an officer  
should be allowed to use the weapon. The judges, for example, said  
Tasers should be considered a more serious use of force than pepper  
spray -- a distinction that runs counter to policies used by most law  
enforcement agencies in California and elsewhere, according to Greg  
Meyer, a retired Los Angeles Police Department captain and consultant  
on use-of-force issues.

The ruling does not appear to affect the LAPD, which has a relatively  
strict policy on Taser use. Gennaco said that the same is more or less  
true of the Sheriff's Department, but that he would discuss with  
Sheriff Lee Baca the possible need for "tweaking" the policy and  
training.

The Orange County Sheriff's Department seems more likely to be  
affected. Spokesman John McDonald said the department's policy allows  
officers to fire Tasers at people who try to flee an encounter with  
police or who refuse, for example, to comply with an officer's order  
to lie down during an arrest. Those scenarios appear to be prohibited  
under the court's ruling.

"It sounds like this court is attempting to raise the bar for  
nonlethal use of force," Meyer said.

joel.rubin at latimes.com

richard.winton at latimes.com


Copyright © 2009, The Los Angeles Times