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.

4th Amendment "emergency exception" clarified

On December 7 the U.S. Supreme Court in a per curiam opinion overruled a Michigan Court of Appeals decision which found officers had committed a Fourth Amendment violation after responding to a disturbance call of a man “going crazy.” The officers were dispatched to the Brownstown, Michigan residence and found a damaged pickup truck in the driveway with blood on the hood, damaged fence posts and broken house windows. Upon looking inside the home the officers saw Jeremy Fisher screaming and throwing objects. A knock on the door by the officers yielded no response. Eventually the officers were able to talk to Fisher from outside the house. He had a cut on his hand and they inquired as to if he needed medical attention. Fisher remained out of control, cursed at the officers and told them to get a warrant. One of the officers pushed open the front door, went part way into the house and saw Fisher with a rifle pointed at the officer. Fisher was eventually arrested for assault with a weapon and possession of a weapon. The evidence was suppressed at trial, upheld on appeal and let stand by the Michigan Supreme Court which denied leave to appeal. In overruling the Michigan court the U.S. Supreme Court in Michigan v. Fisher, 09-91, 12/07/09, clarified its prior decision in Brigham City v. Stuart, 547 U.S. 398 (2006) which identified an “emergency aid exception” to the Fourth Amendment warrant requirement. The Supreme Court acknowledged the “presumptive unreasonableness” of any police entry into the home without warrant but pointed out that the Fourth Amendment operates on a standard of reasonableness. The Court in Brigham City recognized the need for law enforcement to assist individuals in emergency situations and to enter a home without a warrant. The Michigan Court of Appeals erred by substituting the judgment made by the officer at the scene with its own determination of the level of emergency. Additionally, Fisher had argued that the failure of police to summon emergency medical help negated their claim of an emergency exception. The U.S. Supreme Court reiterated its prior determinations that an officer’s subjective intent has no basis in Fourth Amendment review, rather the standard being one of objective reasonableness. Hence, based on the information and circumstances confronting the officers at the time of their response to Fisher’s residence the inquiry is whether there was an objective reasonable basis for the officers to believe Fisher may have been in distress and needed assistance.

Attorney representation

In Falk v. Chittenden, 11 N.Y.3d 73, 862 N.Y.S.2d 839 (2008), the NYS Court of Appeals held that disqualification of an attorney representing a police officer in a disciplinary action was warranted when the officer's attorney previously represented the police supervisor bringing charges against the officer. Sounds reasonable enough except there is more to the story; the attorney was previously consulted by the supervisor regarding accusations the police officer made to municipal officials about him. The police supervisor met with the attorney and provided confidential paperwork to the attorney regarding the dispute with the officer. When the supervisor eventually filed charges against the officer the attorney he previously met with was at the disciplinary hearing representing the officer. The Court of Appeals, in referring to the Disciplinary Rules, pointed out that the prior relationship on substantially related matters and the "materially adverse" interests of the two clients created a conflict.

Sarbanes-Oxley and Officer's False Statements

Last May the U.S. Court of Appeals for the 11th Circuit affirmed the conviction and ten month sentence of a police officer who was charged under Title 18 USC section 1519 for making a false entry in a police incident report. The significance of the case rests in the officer's argument on appeal as to the applicability of the statute which was passed as part of the Sarbanes-Oxley Act aimed at corporate fraud and corruption. While the court in U.S. v. Hunt, 526 F.3d 739 (11th Cir, 2008) the usefulness of that section of the Sarbanes-Oxley Act in combatting corporate crime the court held the statute had broad applicability. There is no safe haven for a police officer who lies in the course of their duties, especially when that lie is material to an investigation, and this statute provides another tool in a federal prosecutor's arsenal. Section 1519 provides as follows: Whoever knowingly alters, destroys,mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence, the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States..., or in relation to or contemplation of any such matter or case, shall be [in violation of this statute.]
The U.S. Supreme Court has stated on numerous occasions that false statements are not to be given sanction under the law. In Nix v. Whiteside, 475 U.S.157 (1986) the Court held that the right to testify did not include the right to commit perjury. Further, in 1998 the Court rejected the due process challenge made by an employee who lied during an internal work related investigation and was disciplined, (LaChance v. Erickson, 522 U.S. 262). The Court said the due process right to notice and an opportunity to be heard provided for in Cleveland Board of Education v. Loudermill, 470 U.S.532 (1985) does not include the right to make false statements.

U.S. Supreme Court Limits Vehicle Search Incident to Arrest Rule

On April 21st the U.S. Supreme Court issued its ruling in the case of Arizona v. Gant and in doing so sustained the holding of the Arizona Supreme Court. In this case the defendant after being stopped and arrested for driving with a suspended license was handcuffed and placed in the rear of a police vehicle. The police proceeded to search his vehicle and recovered cocaine in a jacket pocket. The U.S. Supreme Court agreed with the Arizona court that Gant was not within a reachable distance of the vehicle from which he could gain a weapon, thereby limiting the Court's prior holding in New York v. Belton, 453 U.S. 454 (1981). Additionally, the Court indicated that its prior holding in Thornton v. United States, 541 U.S. 615 (2004), that search of an arrestee's vehicle is proper if it is reasonable to believe the vehicle contains evidence of crime for which the driver was arrested, is of no help to the Arizona officers. In the Gant case the Court said it was not reasonable for the officer's to believe any evidence of the driving without a license offense would be retrieved from Gant's vehicle.
While this case limits the application of Belton it does not foreclose other lawful means for officers to search vehicles without a warrant, such as upon consent, an inventory, a Terry frisk, or under exigent circumstances. Certainly the legal justification for the search incident to arrest pursuant to Belton remains if the offender is still within reachable distance of the interior of the vehicle and it is reasonable that access to a weapon may be had. If there is reason to believe evidence of the offense resides in the vehicle then Thornton controls.