Monday, October 17, 2011


9th Circuit issues verdict in Taser cases, but is this good?

by Larry Geller

The ACLU reported today on the successful outcome of two excessive force Taser cases:

The Ninth Circuit Court of Appeals ruled today that Maui Police Department officers used excessive force in “Tasing” a woman who had called MPD for help with a domestic dispute.  The Court similarly ruled that Seattle police used unconstitutionally excessive force by using a Taser on a pregnant woman whose crime was refusing to sign a speeding ticket.  The Court ruled that Tasers constitute “intermediate” force and that Taser use was improper (under the plaintiffs’ version of events) because the two women posed no threat to any of the police officers.

[Hawaii ACLU, 9th Circuit Court of Appeals Agrees With ACLU: Taser Use Constitutes “Excessive Force”, 10/17/2011]


The Court ultimately ruled that neither the Maui woman (represented by local defense attorney Eric Seitz) nor the Seattle woman could recover damages for the police officers’ unlawful actions, because the law was not clear at the time that Taser use was improper under the circumstances.


While we disagree with this result, this ruling sets clear guidelines that prevent the police from using Tasers unless someone’s safety is in danger; this is an important legal clarification limiting the use of Tasers by law enforcement, and a timely ruling in advance of next month’s APEC Conference.

Courthouse News Service provided additional details in Taser Case Fails to Stun Full Panel of 9th Circuit (Courthouse News Service, 10/17/2011).

Reading the reporter’s description, I find several things to be disturbed about that might have implications in other cases involving the police. One is in a dissent, but nevertheless…

The Chief Justice held that in both cases there is a “covenant of cooperation” that requires compliance with police orders.

Chief Judge Kozinski argued against the majority's conclusion that the cops had used excessive force and should stand trial for Brooks' state-law claims.

     "By asking police to serve and protect us, we citizens agree to comply with their instructions and cooperate with their investigations," he wrote. "Unfortunately, not all of us hold up our end of the bargain. As a result, officers face an ever-present risk that routine police work will suddenly become dangerous."

     Kozinski added that "Brooks and Mattos [the two defendants] breached the covenant of cooperation by refusing to comply with police orders."

So if a cop says you can’t take pictures, or worse, grabs and smashes the camera, has the citizen-photographer violated this “covenant of cooperation?”

Just askin’.

APECWith APEC coming up, a little more understanding of the extent that citizens are supposed to comply with possibly illegal orders would be useful. Regardless, anyone who disobeys may be thrown to the ground or otherwise mistreated, as we have seen amply demonstrated in cities around the country as the Occupy Wall Street protests spread and grow. Or complying may result in an arrest just for complying:

Earlier in the day, about two dozen people were arrested at a Citibank in Manhattan while they attempted to move their money out of the bank. The protesters were reportedly locked into the bank and then detained. Bank officials accused the protesters of being disruptive. Video shot outside the bank shows an undercover police officer dragging one woman into the bank and then arresting her.

[Democracy Now, U.S. Police Departments Arrest Hundreds in Demonstrations Inspired by Occupy Wall Street, 10/17/2011]

There’s more in the Taser article, related to Fourth Amendment rights and the alleged safety of the Taser as used by police. I’m certainly not qualified to evaluate the wisdom of the decision.

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good point, great point, many cops don't even understand the basic constitutional freedoms, even if they cared on whether they were enforcing general law properly or not.

We do not ask Police to serve and protect us, they are provided and we have no choice in the matter.

"With APEC coming up, a little more understanding of the extent that citizens are supposed to comply with possibly illegal orders would be useful."
On the street, as the courts have held time and again, is not the place to dispute whether an officer is right in what he is doing.

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