In the final days of December 2009, the 9th Circuit Court of Appeals announced its decision regarding the use of a TASER by an officer in California (Bryan v. City of Coronado). Not surprisingly, there was an angry outcry among many PoliceOne readers. Most were convinced the 9th Circuit had made a bad call. I believe one reason for the strongly-held convictions in this case is that those readers put themselves in the shoes of that officer and recognized they would have deployed a TASER in the same situation. Therefore, the court’s decision appears to be an indictment of what many officers know to be a tactically-correct decision. For the record, I would feel justified in using a TASER under the circumstances described in court records. But was the court’s ruling really a bad decision?
If you had to summarize the court’s edict into one statement, it would be that a TASER may only be used if there is an immediate threat. Courts throughout the country have consistently ruled that officers should not use pepper spray, batons, and personal weapon strikes against a suspect who doesn’t present a threat to the officer or another individual.
For example, in Headwaters Forest Defense v. County of Humboldt, environmental protesters brought a lawsuit against Humbolt County and others for using pepper spray on nonviolent protesters. The court ruled in favor of the protesters. Similar to the Bryan v. City of Coronado decision, the court determined pepper spray may be used only if the protesters were an immediate threat. In civil suits throughout the country, courts have consistently ruled in favor of plaintiffs in cases in which officers have used a TASER against a passive, non-threatening resistor.
But that is exactly the problem with this incident. It appears as if the plaintiff in this case was an immediate threat, but the court failed to recognize it. Why did this happen? To answer that, let’s first look at the facts of the case:
• The suspect was stopped for a seatbelt violation
• He failed to obey the officer’s command to stay in his car
• He stepped out of the car only wearing tennis shoes and boxer underwear
• He swore, shouted “gibberish,” and beat his thighs with his fists
• There were “no verbal or physical threats”
• The suspect was 15-25 feet from the officer
• The officer stated the suspect took one step forward
• The suspect’s behavior was described as a “bizarre tantrum”
• The officer deployed his TASER without providing a warning
• The suspect suffered four fractured teeth and facial contusions
In a use-of-force incident, the court will typically refer to Graham v. Connor for guidance (as did the 9th Circuit). Graham v. Connor examines three core factors when determining if a specific use of force was “reasonable.” These are:
1. the severity of the crime,
2. if the suspect poses an immediate threat, and
3. if the suspect is actively resisting or attempting to evade arrest by fleeing.
We must recognize that the severity of the crime (seatbelt violation) is minor. However, from a tactical standpoint, we also realize even the most inconsequential traffic stop can turn deadly. Next, let’s look at the third factor of Graham v. Connor. In this situation, both the officer and the suspect testified that the suspect was not attempting to flee. Therefore, the focus of the decision will rest on the second core factor; or if the suspect posed an immediate threat.
Based on the facts of the case, I believe an experienced officer could easily present a strong argument that an immediate threat existed. First, the suspect failed to obey the command to stay in his car. Failure to obey commands is not by itself an indicator of an immediate threat, but it is certainly a precursor or a signal that the situation may become bad quickly. Failure to obey a command while closing the distance with an officer is a very real threat.
Next, the suspect stepped out of the car partially clothed. Most officers would immediately assume the suspect is under the influence of a dangerous narcotic; most likely PCP. Based on training and experience, an officer can articulate why someone under the influence of PCP is a threat and it will typically require a number of officers to successfully control the suspect. The suspect swore, shouted gibberish, and beat his thighs with his fists. I would not describe this as a “bizarre tantrum.” When I hear the word “tantrum” I think of a spoiled child behaving badly. In this case, the suspect is acting in an aggressive, violent manner, further indicating he is under the influence and/or mentally ill.
I don’t know if the “no verbal or physical threats” statement came from the officer’s report or testimony, or if it was an assertion made by the court. Regardless, I would disagree with it. Someone behaving in this manner is physically threatening – both to himself and to others. The court indicated the distance between the officer and the suspect was sufficient to ensure safety. Again, experienced officers would disagree. The average adult could cover that distance in less than 1.5 seconds. A young, athletic person could cover it in even less time. Having one second or less to respond to aggressive, violent behavior isn’t what I would call a comfortable margin of safety.
Finally, as to the statement that the suspect took one step forward, it begs the question, “Then what happened?” Did the officer take a step back? Is then when the officer deployed the TASER? Did the officer perceive this as the beginning of an attack and the TASER stopped the suspect in his tracks preventing further advancement? Courts suggest we provide a warning if we can do so safely, but perhaps this is the situation which prevented the officer from providing such a warning.
So why didn’t the court consider these factors? I don’t want to second guess the officer because I haven’t read his original report. Perhaps he covered these areas and the court chose to ignore them. However, it does emphasize the importance of a detailed report. We must recognize we are not writing a use of force report just for a supervisor at a time like this; we are writing the report for the judge and jury who may eventually determine the outcome. It is our responsibility to educate them as to the dangers of the encounter. The 9th Circuit said as much in their decision.
The court wrote, “A simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.”
If you are involved in a use of force incident, take your time on the report. Make sure it is accurate, thorough, and you have carefully articulated the “objective factors” of the threat. Any time you use force, particularly when there are injuries involved, expect a lawsuit and take the proper precautions now.
We may not like the decision and the 9th Circuit included language in their decision which is troubling. But the basis of the decision is sound and consistent with Graham v. Connor and other preceding court decisions. Per Graham v. Connor, the use of force must be “reasonable.” And one of the principal tests dictated by Graham v. Connor to determine the reasonableness factor is the presence of an immediate threat.
What this 9th Circuit Court decision emphasizes is the need for officers to understand the seriousness of their actions after a use of force incident. It stresses the critical need to write a report that clearly articulates the threat.