Taser use and the 4th Amendment considered

By Scott Forsyth

The Daily Record Newswire

Quick question. Taser was an acronym and stood for? Tick, tock. Tick, tock. Buzzer. Thomas A. Swift Electric Rifle.

The inventor of the Taser gun was a big fan of Tom Swift. A book in the series chronicles Tom killing big game animals in Africa with an electric rifle of his creation.

Today, 100 years after the publication of the book, we have 16,000 police departments across the nation outfitted with Tasers. About 350 are located in New York.

Police promote Tasers as an alternative to deadly force. Yet, jolts of up to 50,000 volts, if applied inappropriately, can kill. A dozen New Yorkers alone have died in recent years.

Ask Malaika Brooks of Seattle about the inappropriate use of a Taser. In late 2004 she was seven months pregnant and taking her son to school. A policeman clocked her driving over the speed limit in the school zone and pulled her over. He wrote her a ticket and asked her to sign it, acknowledging its receipt. She refused.

Under the Seattle Municipal Code a refusal to sign a traffic citation is a misdemeanor. A sergeant on the scene told the ticketing officer to "book her." The officer instructed her to exit the car. She refused again.

The officer pulled out his Taser and showed it to Brooks. She informed him she was pregnant and needed to go to the bathroom.

The ticketing officer and the sergeant conferred again. At the end of the conversation the two opened the car door, put a hammerlock on Brooks, yanked the car keys, pressed the Taser against her body, and pulled the trigger three times in a span of 42 seconds. The Taser was in drive-stun mode, not dart mode.

The tasings made Brooks limp. The police pulled her out of the car and took her to the jail.

Two months later Brooks gave birth to a healthy daughter.

Brooks sued the City of Seattle and the officers, claiming that the officers used excessive force, violating her Fourth Amendment rights. The trial court agreed with Brooks and two weeks ago that decision was affirmed, Brooks v. City of Seattle, No. 08-35526 (Ninth Cir. 2011).

In an excessive force case a court must balance "the nature and quality of the intrusion" on the individual "against the countervailing governmental interests at stake," Graham v. Connor, 490 U.S. 386, 396 (1989). Those interests include the severity of the crime at issue, the resistance of suspect to arrest, and, most important, the threat to the safety of the police and others posed by the suspect. Ultimately, a court must assess the reasonableness of the application of the force, examining the totality of the circumstances, Scott v. Harris, 550 U.S. 372, 383 (2007).

The appellate court noted several times Brooks' extreme pain. The police did not give her time to reconsider her refusals between the tasings. The offenses were minor. She did not threaten the safety of the police or others. While she did resist arrest, she did not flee. She was pregnant. Under these circumstances the use of the force was unreasonable and unconstitutional.

Nevertheless, the appellate court dropped the officers from the lawsuit. It determined that the officers did not violate clearly established law as of 2004 on the use of Tasers. Three circuit courts had heard claims of excessive force involving Tasers and had held that under the circumstances the tasing was reasonable. The officers here made a "reasonable mistake of law" and they should be shielded from personal liability. No mention was made of common sense.

The Rochester Police Department in New York must have seen the decision coming. In 2009 it issued a new policy on the use of Taser Electronic Control Devices. In the last section the policy prohibits the use of devices on "a subject who is known to be pregnant" or "a subject who is operating and is in control of a motor vehicle."

The chief should not get too heady over his policy. The NYCLU compared it to a model policy recommended by national law enforcement experts and found it deficient in several ways. The NYCLU has provided the chief with a copy of its report. Hopefully he will implement the report's recommendations, to reduce the chances that a citizen will end up like Brooks, the victim of excessive force by tasing.

Scott Forsyth is a partner in Forsyth and Forsyth and serves as counsel to the local chapter of the ACLU.

Published: Mon, Nov 14, 2011

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