When Can the Use of a Taser Be Considered Excessive Force?

In November of 2011, a California appellate court ruled that the use of a taser stun gun could, in cases involving personal injury, qualify as excessive force in violation of the US Constitution. However, other court decisions have varied, suggesting that the law on the use of the taser is still evolving. Given that police departments, counties, and officers have been found liable in lawsuits brought by those who have suffered trauma from the devices, they should use them with caution.

The use of tasers by law enforcement officials is controversial and has given rise to many personal injury lawsuits in California and elsewhere, explains an attorney in the state. It is standard practice for law enforcement agents to carry tasers because using a taser to incapacitate a subject who could potentially be dangerous is, of course, preferable to shooting or killing a dangerous suspect. However, the use of a taser in inappropriate circumstances can cause significant pain and discomfort to an innocent party.

Taser cases have become a hot button issue as courts try to determine whether the use of a taser constitutes excessive force and when the use of tasers is and is not appropriate. Earlier this year, for example, MSNBC reported that the San Bernardino, California County Sheriff's department, the county, and three deputies, were being sued for assault, battery, and negligence after a 43-year-old man died allegedly after being tasered.

This was just one in a line of many taser incidents, including a 2006 claim of campus police brutality made by a 23-year-old UCLA student who was repeatedly tasered by the police in front of a crowd of other students. The UCLA student filed a civil rights claim and the Los Angeles Times reports that the case settled for $220,000, which was paid by the University since the police were campus police.

While some cases, such as the UCLA claim, led to settlement, the law on taser use and the rules for when people can sue has long been a source of confusion. In 2005, for example, a case of taser abuse came before the Ninth Circuit in California. The San Diego Union-Tribune reported that the case arose from a Coronado police officer's use of a taser on an unarmed motorist who was not resisting. The motorist, 21-year-old Carl Bryan, was initially given permission by a 9th Circuit judicial opinion to go forward with a civil lawsuit against the officer who had tased him, allegedly "without any warning" as he was facing away. As the electricity ran through his body, Bryan fell forward, shattering four teeth when he hit the pavement.

The 9th Circuit held that the police officer's use of the taser was unconstitutionally excessive force and thus violated Bryan's constitutional rights. The judge made clear that police officers need to have a reason to believe suspects are dangerous before tasering them. While the judge granted permission only to pursue a claim against the police officer, not the Department, the decision prompted many law enforcement agencies to review their use of the taser. For instance, the police chief in Coronado where the incident occurred indicated that the department's taser policy had evolved and they currently treated tasers as more serious compared with other methods of non-lethal force.

Although the San Francisco Chronicle reports that the court in the Coronado case reversed its decision in 2010 and dismissed the lawsuit against the officer because the laws were unclear at the time and because the officer might not have known he was violating the suspect's rights, the court did not change its opinion on the appropriate standards for taser use.

In 2011, a California appellate court again took up the question of taser use. On October 17, the 9th Circuit court addressed two separate cases where tasers had been used on women. The Sacramento Bee reports that they determined the taser use was both an example of excessive force and a violation of the women's 4th amendment constitutional rights.

However, while the use of the tasers was a violation of the Fourth Amendment prohibition against excessive force, the Court concluded that not every reasonable officer would have known that. Because the law is confusing on the issue and because it is not clear based on Graham v Connor that excessive force was used, the officers were entitled to immunity because they couldn't have known what their obligations for taser use were.

The decision drew ire from many sources, including attorneys in California who have filed previous police brutality suits on behalf of clients who suffered serious personal injury when tased by officers. They questioned why taser abuse was different from other types of excessive force. Other judges on the panel also dissented from the majority, arguing that the majority's rule could result in the use of more dangerous methods and/or asserting no constitutional violation had occurred in at least one of the two cases before the court.

Police should be cautious as to use of the taser as the law continues to evolve in this controversial area, remembering that taser use is a serious action that could potentially be considered a case of excessive force in the wrong circumstances.

For over 35 years, attorney James Ballidis and the staff at Allen, Flatt, Ballidis, and Leslie have been helping the victims of accidents. During this time, he has written extensively on the personal injury claims process.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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