9th Circuit taser decision: thoughts & concerns

On December 28, 2009 the 9th Circuit Court of Appeals issued its decision in Bryan v. McPherson, No. 08-55622, which some media sources cited as a monumental repudiation of the police use of Tasers. Quite the contrary the 9th Circuit followed previously established law and precedent. What is of note from the decision is the different standard from other federal court circuits the 9th Circuit employs in considering use of force issues. While the standard for the reasonableness of the use of force is considered under the framework established by the U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989) the 9th Circuit has modified the considerations. First let's discuss the Graham standard, which is that use of force claims are to be evaluated under the 4th Amendment's "reasonableness" inquiry. In assessing reasonableness the question to be resolved is whether the officer's actions were "objectively reasonable" in light of the facts and circumstances confronting the officer. Subjective motivations or intent of the officer have no bearing, it is a purely objective test. Relevant factors in this inquiry are the following: 1) severity of the crime being investigated; 2) is the suspect an immediate threat to the safety of the police or others; 3) is the suspect actively resisting arrest or attempting to avoid arrest by fleeing. The 9th Circuit modification also considers the amount of force used and the availability of alternative methods of subduing or capturing the suspect (see eg., Beaver v. City of Federal Way, 507 F. Supp.2d 1137 (WD Wa, 2007)). This is not an analysis of the use of force employed by all federal circuit courts and an issue which becoming ripe for Supreme Court review. Nonetheless, there are aspects of the Bryan decision which concern me. At the outset I want to deal with the opinion itself and the perpetuation of two myths the 9th Circuit has signed onto. On page 16745 of the opinion the court cites the fact of the suspect Mr. Bryan being struck on the side of the arm and back and then falling away from the officer as indicative of the non-immediate nature of the threat. Does this mean that in the moment before the officer fired the taser round the suspect could not have been approaching? That there is no difference in offender position and location prior to expelling a round and after the round is spent? There have been many cases of officer involved shootings with offenders sustaining wounds in the back which activists and defense attorneys attempt to use to contradict officer testimony of the immediacy of a threat. Often the result has been proof at trial that the officer's testimony was truthful and the offender facing the officer only to turn in reaction to or flight from the lawful use of force by the officer. The other exception I take with the 9th Circuit is the 20/20 hindsight the court resorts to on page 16753 when it describes Mr. Bryan as a non-dangerous felon or flight risk. This is not employing the detached calculus called for in Graham with a view of the facts as seen from a reasonable officer at the scene. It is evident from the facts presented in the opinion that Officer McPherson was confronted with an individual on a car stop who exited his vehicle in a distraught state, began talking to himself, cursing to himself while hitting his thighs all the while clad only in sneakers and boxer shorts. What was a reasonable officer at the scene to assume? That Mr. Bryan was just like any other individual out on a drive that Sunday morning? The question I have for Justice Wardlaw, the opinion's author, is whether taking the same set of facts and Mr. Bryan was acting as such but standing in front of Justice Wardlaw's house would he call the police? If so what would be his motivations, or more specifically, what objectively reasonable conclusion would he have made of Mr. Bryan's actions? These above two items are just my criticism of judicial overreaching with the facts of the case. Minor as they may seem they are often the type of second-guessing that can have officers on the defensive, whether as a civil defendant or criminal defendant.

This case is a federal civil rights lawsuit brought under Title 42 US Code section 1983. The appeal to the 9th Circuit resulted from a denial of Officer McPherson's summary judgment motion based on qualified immunity. The concept of qualified immunity is not foreign to most officers. It provides relief from liability if the officer's conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would be aware (see eg., Harlow v. Fitzgerald, 457 U.S. 800 (1982)). The 9th Circuit opinion paved the way for Mr. Bryan's case to proceed to trial wherein a jury will decide whether Officer Mc Pherson used excessive force. The 9th Circuit, viewing the facts in the light most favorable to the plaintiff, ruled that as a matter of law if the facts are as alleged the conduct of the officer would be viewed as excessive. Summary judgment assumes no facts are in dispute and requires a decision based solely on an issue of law. Officer McPherson's actions may still be found justifiable and not civilly liable by a jury. The issue that remains is not the isolated questions remaining to be resolved in this case but the longer term effect of this and other use of force decisions involving ECD's (electronic control devices). Officers are aware their use of force may entail civil liability and that the spectre of criminal liability looms with questionable use of force scenarios. The 9th Circuit opinion and the seemingly increasing negative response to taser use should have training academies and in-service instruction focusing on the legal as much as the technical aspects of taser usage. Labeling a device a less than lethal force alternative may provide a comfort zone for officers that makes taser use commonplace. The courts have been clear that use of a taser is not excessive use of force. They have even held taser application to be a minimal use of force compared to physical confrontation. But the issue remains that as long as a taser is on an officer's duty rig the potential for claims of wrongful use are as live as the current emanating from the device. The claims of excessive use of force are more problematic with ECD's than firearms for the simple fact that they are considered a less than lethal alternative and their use is more frequent.

Fear and Loathing: Internal affairs and due process

Here's an imaginary scenario that isn't so imaginary. A police officer is falsely accused by supervisors of a crime which is a total fabrication. The officer is formally charged administratively, fights the charges, wins and is subsequently vindicated in an external administrative proceeding. The officer sues in federal court for civil rights violations and after being stonewalled in discovery by the attorney general's office (those who represent the officer's employer and supervisors) the officer gets to depose his internal affairs tormentors. Now for the interesting part, one of the IA investigators testifies to destroying files associated with the investigation and the resulting lawsuit. When confronted with the agency's rule and regulations pertaining to reports and retention policy the IA investigator testifies that the rules apply to field officers not internal affairs investigators or supervisors. This is confirmation of what so many cops have been saying for years, IA operates under a different set of standards and rules. Due process rights for police officers have suffered serious infringements in many jurisdictions as a result of the behavior of self-righteous, crusading internal affairs personnel who eschew proper constitutional procedure and engage in "means-end" justifications. It is a case of "nobler-noble cause" corruption which is deserving of closer scrutiny. Just as the concept of prosecutorial misconduct was unheard of three decades ago and is now at the forefront of criminal justice discussions, due process violations by internal affairs investigators are coming more to the open. So too has the unscrupulous acts of some IA officers infected the overall process of internal affairs investigations. While internal affairs is a necessary element of policing and an integral part of the command structure abuses of officers' rights have resulted. As the U.S. Supreme Court stated in Garrity v. New Jersey police officers are not subjected to a "watered down" version of due process.

So, back to my not so fictional officer, what is his recourse? There is the possibility of a civil tort lawsuit based on defamation. If the defamatory comments (libel if written, slander if oral) are communicated to a third party then that may be the basis for a cause of action. Certainly any individual officers or investigators involved in the defamation or its perpetuation can be held accountable. Officers are now resorting to civil rights law suits against their employers and individual actors based on 42 USC section 1983. While these cases have become more commonplace as they are brought by officers against their agencies, supervisors and co-workers, many are dismissed on summary judgment motions. Careful attention must be paid as to whether federal court and a constitutionally based civil rights cause of action is the best choice of forum and complaint.

Within the realm of constitutional violations committed against officers during the course of an internal investigation the 6th Circuit Court of Appeals gave us an interesting case a few years ago. In McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir., 2005) the court found that a second interview of an officer in violation of the ruling in Garrity could be the basis for an actionable constitutional violation since the results of that interview were admitted into evidence against the officer in a criminal trial. Similar results have been followed in other circuits based on McKinley, though applied in a different context (see eg., Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006). But prior to McKinley the U.S. Supreme Court in Chavez v. Martinez, 538 U.S. 760 (2003) held that section 1983 is not an avenue to provide relief from the simple failure to provide a Miranda warning, especially in that case wherein none of the defendant's statements were used in a criminal proceeding against him. The McKinley court, applying the logic to Garrity in place of Miranda, clearly distinguished the fact that the product of the second internal affairs interview of Officer McKinley was used at trial against him, thus raising the potential constitutional injury.

However, in order to recover damages for an alleged unconstitutional conviction or imprisonment a section 1983 plaintiff must prove the conviction or sentence was reversed on direct appeal, expunged or declared invalid, Heck v. Humphrey, 512 U.S. 477 (1994). A similar rationale would appear to apply to disciplinary charges. The bottom line is that officers have due process protections, though somewhat minimized in the disciplinary context, that should be carefully fought for and guarded. Further, when confronted with a disciplinary interview officers must insist on representation whether it be pursuant to state law, contract or collective bargaining agreement. We know from experience there is no bounds to the extent some individuals will go to make a case, especially against an officer.