{"id":6152,"date":"2011-12-19T14:37:41","date_gmt":"2011-10-18T06:09:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-10-18T06:09:34","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6152","title":{"rendered":"CA9: Tasering two women was unreasonable on these facts, but qualified immunity applied"},"content":{"rendered":"

Two women were tased in separate occurrences, one who wouldn\u2019t get out of a car (tased twice) and the other in a domestic dispute who stood between the officer and her husband trying to defuse the situation. Excessive force cases, however, are fact dependent, and the Supreme Court hasn\u2019t spoken, so the officers\u2019 conduct was subject to qualified immunity. Mattos v. Agarano<\/a>, 661 F.3d 433 (9th Cir. 2011) (en banc, 6-4):<\/p>\n

Finally, Graham\u2019s general excessive force standard cannot always, alone, provide fair notice to every reasonable law enforcement officer that his or her conduct is unconstitutional. See Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (explaining that Graham and Tennessee v. Garner, 471 U.S. 1 (1985), \u201care cast at a high level of generality\u201d and cannot, in every case, \u201coffer a basis for decision\u201d). The Supreme Court has stated, however, that \u201cin an obvious case, these standards can \u2018clearly establish\u2019 the answer, even without a body of relevant case law.\u201d Id. at 199 (citing Hope, 536 U.S. at 738). Although this \u201cobvious case\u201d exception remains good law, the Supreme Court recently clarified that the bar for finding such obviousness is quite high. In al-Kidd, the Court emphasized that it has \u201crepeatedly told courts not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.\u201d 131 S. Ct. at 2084 (citations omitted).<\/p><\/blockquote>\n

In tasering cases:<\/p>\n

we proceed to determine whether Jones\u2019s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced. See Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009) (noting that a woman who was tased in drive-stun mode experienced \u201cextreme pain\u201d and \u201cfelt a sharp pain where the Taser met her arm, with the pain radiating from her upper arm and causing her muscles to clench\u201d).<\/p>\n

In evaluating the reasonableness of Jones\u2019s action, we consider the governmental interests at stake and begin with (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Deorle, 272 F.3d at 1279-80.<\/p><\/blockquote>\n

Plaintiffs pled a Fourth Amendment violation, but the court concludes that the officers were entitled to qualified immunity because the law was unsettled.<\/p>\n

Judge Kozinski dissented in part:<\/p>\n

The Fourth Amendment proscribes only unreasonable searches and seizures. Police need not use the least necessary force, see Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010), but the officers here did just that. Nevertheless, the majority finds their actions unconstitutional, and thereby deters officers from employing a safe, effective technique for subduing uncooperative subjects. This will cause police to resort to more dangerous methods in the future. Count me out. <\/p>\n

. . .<\/p>\n

Faced with these utterly positive results, despite Brooks\u2019s stubborn effort to put herself and her unborn daughter in harm\u2019s way, the majority is reduced to counting the seconds between Tasings, finding that the \u201crapid succession provided no time for Brooks to recover … and reconsider her refusal to comply.\u201d Majority op. at 19023. Bull pucky! Although Brooks claims she was \u201cscared\u201d and \u201cin shock\u201d after the initial Tasing, she also admits that she began yelling for help and honking her car\u2019s horn. Stepping into the shoes of a reasonable officer at the scene, as we must, see Graham, 490 U.S. at 396-97; Luchtel, 623 F.3d at 980, Brooks\u2019s actions weren\u2019t those of someone dazed and befuddled, unable to think about what to do next. They bespoke a deliberate decision to continue her defiance. A single drive-stun application having already proved insufficient inducement to Brooks\u2019s compliance, the double dose was an objectively reasonable next step and was therefore entirely constitutional. See Scott v. Harris, 550 U.S. 372, 381-82 & n.8 (2007).<\/p>\n

. . .<\/p>\n

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they\u2019re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public. <\/p>\n

Today\u2019s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.<\/p><\/blockquote>\n

See Orin Kerr on Volokh Conspiracy<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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