More on the Taser Video -- A Response to Scott Greenfield:
Over at Simple Justice, defense attorney Scott Greenfield has an interesting objection to yesterday's post arguing that there are two legitimate ways to construe the Utah taser video I blogged about last Friday. In response to my claim that an officer could reasonably fear that the driver was fishing for a weapon in his pocket at the 2:36 mark, Greenfield strongly disagrees:
I think there are two issues here. The first is Greenfield's claim that no reasonable person could possibly think that the driver was armed based on observing him during the stop. On this, I'll happily defer to others with more experience with handguns. The driver is wearing shorts with big baggy pockets, and I would think a smaller-size handgun could fit in those pockets without making a large and obviously visible bulge. (Of course the officer could frisk the driver for weapons, but he didn't get the chance to do that given how the episode unfolded.) However, I am indeed a "rookie" when it comes to the size of bulges different pistols make in different pockets of different pants; I've fired a pistol before, but it was years ago, and I can't say I've put one in my pocket. Would a pistol necessarily be obviously visible? On that issue I'll defer to others.
At the same time, if we're interested in the legal question of whether the use of force was "excessive" under the Fourth Amendment, I think it's worth pointing out the legal standard is actually quite deferential to the police in these situations. The legal standard is objective reasonableness, "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Graham v. Connor. The officer's subjective intent is irrelevant. Id. As the Supreme Court stressed in Graham, "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Thus from a legal standpoint it would have to be pretty clear (even based on a quick, split-second judgment) that the driver was not armed for Greenfield's analysis to have its full force.
Was it that clear? Again, I'm happy to defer to others on that issue.
UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver's pocket without causing a visible bulge. If that's right, I suppose it shows the dangers of characterizing disagreement as a contest between "reality" and an ivory-tower "fantasy world"; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.
This is where it becomes clear that the academic's view lacks practical connection with reality. It's not just the hands. It's the bulge. The minutes the driver exited the vehicle, the cop eyeballed the guy for a bulge, the telltale sign of a weapon. Guns are big and heavy. People who have never seen or held a gun don't realize that they are big and heavy. Check the waistband and the pockets for the bulge. Check under the arms. No bulge, it's safe.I always appreciate careful criticism of my analysis, so I wanted to post this and then offer a few thoughts in response.
The cop isn't afraid that the driver is going to reach into his pocket and throw loose change at him. The only reason for a cop to be concerned is a weapon. There could be a small pocket knife, but the cop already has the taser out and aimed, so he's not worried that the driver will reach him with a pocket knife. There's no chance of that happening. But most importantly, and regardless of what the driver is doing with his hands, there's no bulge.
Why does it matter that a known criminal law scholar like Orin makes such rookie mistakes in his analysis? Because there are a lot of lawyers, and some of them will be your judge someday and others may be on your jury, who think they are learning about "real-life" criminal law from him. . . .
Was the use of force "reasonable" from the officer's perspective? Only if one lives in a fantasy world where one deliberately closes one's eyes to both the reality of police work and the fundamental expectation that police do not go around using force against citizens because they, the cops, are screw-ups. No Orin, I can't agree that it was reasonable. And I can't agree that your efforts to "explain" the cop's perspective demonstrate that you take a fair and reasonable view of police/citizen encounters. You blew this one big time.
I think there are two issues here. The first is Greenfield's claim that no reasonable person could possibly think that the driver was armed based on observing him during the stop. On this, I'll happily defer to others with more experience with handguns. The driver is wearing shorts with big baggy pockets, and I would think a smaller-size handgun could fit in those pockets without making a large and obviously visible bulge. (Of course the officer could frisk the driver for weapons, but he didn't get the chance to do that given how the episode unfolded.) However, I am indeed a "rookie" when it comes to the size of bulges different pistols make in different pockets of different pants; I've fired a pistol before, but it was years ago, and I can't say I've put one in my pocket. Would a pistol necessarily be obviously visible? On that issue I'll defer to others.
At the same time, if we're interested in the legal question of whether the use of force was "excessive" under the Fourth Amendment, I think it's worth pointing out the legal standard is actually quite deferential to the police in these situations. The legal standard is objective reasonableness, "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Graham v. Connor. The officer's subjective intent is irrelevant. Id. As the Supreme Court stressed in Graham, "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Thus from a legal standpoint it would have to be pretty clear (even based on a quick, split-second judgment) that the driver was not armed for Greenfield's analysis to have its full force.
Was it that clear? Again, I'm happy to defer to others on that issue.
UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver's pocket without causing a visible bulge. If that's right, I suppose it shows the dangers of characterizing disagreement as a contest between "reality" and an ivory-tower "fantasy world"; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.
Related Posts (on one page):
- More on the Taser Video -- A Response to Scott Greenfield:
- More Thoughts on the Utah Tasering Video:
- Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?:
But the cop should clearly be fired for being a poor cop. He turned a routine traffic stop into almost shooting two people, as the wife almost came after him as the driver was crying out in pain.
The cop made very little effort to explain what was going on. It is clearly ridiculous to be arresting someone for not signing a ticket in less than two minutes from the time you pulled them over.
One could make an argument to a jury that he was looking for a reason to tazer the reluctant motorist who dared to not follow his every order. I see a big settlement made to driver....
Of course, but cops aren't entitled to deference for split second judgments unless an objectively reasonable officer would view the circumstances as tense, uncertain, and rapidly evolving, and the reasonable officer would need to make a split second judgment. The objectively reasonable officer isn't a paranoid fool who immediately senses danger when an irate motorist whines about a speedtrap.
In performing undercover operations, serving warrants, dealing with drugged/drunk individuals, interacting with people with a history of violence or who are suspected of violent crime, or acting in other situations that would suggest to a reasonable officer that he is faced with some risk, the officer is entitled to a variable degree of deference, depending on the nature of the risk.
The situation in the video takes place every day: you have a ticked off motorist who won't sign a ticket. No fact suggests the motorist poses any danger. A reasonable officer won't order him out of the car, pull his taser, and then within seconds, shock him.
If cops followed such advice, there would be more dead cops. There are numerous low-profile autoloaders, with total thickness of less than one inch, e.g., the Kahr PM9, a 9mm that holds seven rounds and has a three inch barrel. Does it produce a bulge? Not in baggy pockets with a good pocket holster.
And there are even smaller autoloaders, e.g. .25 caliber weapons, that don't even produce a bulge in regular pockets.
The only time you can be sure a man doesn't have a gun in his pocket is if he's wearing speedos.
I don't know enough to comment on what happened on the video (nor do I care to), but this comment is patently absurd. A bulge is a good indicator that a weapon is present, but it is certainly not dispositive.
With due respect to the "real life" defense lawyer, but a "real life" police officer who relied on this no kind of thinking would violate any "real life" police departmnet's felony-stop protocol and would increase his or her "real life" chance of being shot.
But then I'd never had taken on this case in the first place.
No. The driver is wearing pants. These pants have cargo pockets down about 1 ft from where his hands actually reach. The pockets by his belt--where his hands are--look quite tight.
But again, more importantly: he is wearing pants.
Now, in the period up to 2:35 the officer neither places the driver under arrest nor informs him that he's going to taser him if he keeps moving back to the car. I don't know enough about arrest procedures to say with any certainty, but don't you have to A) tell someone you're arresting them and B) read them their Miranda rights?
I know police officers are very leery of handling suspects without backup, due to the possibility of knives/needles and so forth. I also think the driver was an idiot for walking away from an officer with a weapon trained on him. However, I think it represents a true nadir of judgment to taser a man when you know his wife and child are in the car (which is an SUV). He hardly fits the profile of a guy who's going to stab you with a dirty needle if you physically restrain him.
In any case, I'm sure the cop got a slap on the wrist and the man went on with his life. Honestly, though, this is why you don't screw around with the police.
yes. "reasonable" in regards to use of force means a specific thing. "reasonable" in regards to asking the guy to stop from the car and arrest him etc. is NOT the same thing. you are using it in the layman sense. and it is IRRELEVANT. read the case law.
whther or not you think it's reasonable to arrest the guy for what he did etc. thats' irrelevant as to whether the FORCE was reasonable. the first test is essentially you making a call about his judgment etc. that's simply not relevant.
the arrest issue is a DISCRETIONARY matter, assuming the guy committed a misdemeanor. it doesn't have to be "reasonable' according to you, or anybody. it merely has to be LAWFUL.
and it's TOTALLY irrelevant (read the case law) as to the reasonableness of the force.
" That is, where people agree that part 1 illustrates unreasonableness, part 2 depends on that state of affairs to create a reasonable response."
nope. even if you think it was unreasonable (iow bad judgment) for part 1, that's irrelevant to whether the force was justified.
" I think this is all a long way of wondering the point made yesterday whether the officer was (intentionally?) unreasonable so as to jack up the force continuum. Fruit of the poisoned tree, and all that."
again, you are using "unreasonable" in the layman's sense, and comparing to "unreasonable" in the legal sense as relates to force.
regardless, it is not relevant as to the review of the force.
This is the biggest undercut to the "objectively reasonable" analysis. The tasing officer had to make up some stuff to explain why he tased the motorist. He didn't say, "I thought he was going for a weapon," he lied and said that he warned the guy.
correct. the only way you KNOW somebody is unarmed is if you pat frisk them.
also, in regards to carry of weapons... i am aware of one case ( iirc it was omak wa) where a man with a gun had his gun removed by the police (don't remember the exact details), and then he pulled his OTHER gun and shot the cop dead.
i am sure every poster in here (at least the anti-cop ones) would say its ridiculous to think that you need to consider multiple guns, but i have arrested more than one person with multiple weapons.w
i doubt he intentionally misspoke (ie lied). for pete's sake, he knew it was on audio. why would he claim he said that, if he KNEW he didn't say that and the tape would prove that.
also, fwiw, while the gun issue is interesting imo it's really NOT that crucial to this issue of reasonable force.
iow imo, even if he had already patfrisked the guy and thus KNEW the guy was not armed, a tasing given the circumstances was still justified (depending on the agencies particular UOF policy of course).
already explained why in the other thread
not during the process of arrest. case law varies by state, but if you are arresting somebody and tell them "put your hands behind your back" etc. and they don't comply - it's still illegal. it may be good PROCEDURE (imo it generally is) to do so, but it is not required under the law. in some cases, it's better to NOT tell the person, instead getting them into handcuffs before you tell them (generally works better iwth drunks). also, there are many circ's where you handcuff people but are not making a true custodial arrest. iow, handcuffs don't necessraily equal arrest. you can use them to detain people in certain circ's (suicidal people, people during search warrants, certain terry stops, etc.)
" and B) read them their Miranda rights?"
you only have to read them their miranda rights if
1) they are in custody OR being detained to the extent that is functionally equivalent to a formal custodial arrest (immesne amounts of case law on this. it's a very extensive subject as to when a detention has morphed into what would require a miranda warning). note also that the standard to view a detention as sufficiently consistent to = formal arrest IN THE EYES OF THE DETAINEE is much lower than that that would be applied if you were to be sued for "false arrest".
2) you are interrogating them - which means "asking questions likely to elicit an incriminating response"
in most jurisdictions, it does not matter what you INTEND to do, as far as whether one is in cusotdy for the purpose of miranda. what matters is whether a reasonable person in similar circumstances would think he was under arrest.
good cops know all the nuances of miranda law. but in brief, you only NEED to mirandize if BOTH 1 and 2 are in effect.
note that some states use a 'focus" standard where you don't need 1 to require miranda. you just need to consider them the "focus". thus, in those states, even over the phone, you may have to mirandize (which is totally stupid and totalliy inconsistent with miranda v. arizona but such are the liberal judges)
As for the guy who got tasered, this was just a traffic stop. Why act like a jerk and make a federal case out of it? If you act like a weenie to the cops, I expect that you should get knocked about a bit.
Thank you Whit for explaining so clearly articulating why your hundreds of comments on these threads are so unconvincing: your point is simply that the *only* legitimate restriction on the police officer's behavior is the law.
If a high school teacher sleeps with one of his or her students, has an abuse of authority happened? Gee, I'm not familiar with all the relevant statutes and legal precedents, so I guess I have no idea.
Should the officer be demoted for tasering that guy? I don't know, is it legally possible for his superiors to hurt his career if he hasn't done anything illegal? Fortunately there are a lot of law students around here.
For the record my view possibly is biased.
The two acts I will focus on are the failure to sign the ticket and then the failure to obey the officer within a set timeframe and the business with his hands. Finally the actual tasering as a result.
First, the officer acts very frustrated leading up to the tasering in that the officer's requests were not being met or in a timely manner. The driver actually does NOT have to sign that document. If he doesn't he has committed an offense and can/will be duly punished but even then he still doesn't have to sign. Thus any frustrations the officer exhibits and potentially is affected by are unreasonable unless the officer's action (instead of getting frustrated) was to announce the driver was under arrest for So_and_so violation of Section abc-123. At the point the driver's compliance or non-compliance should have zero effect on any subsequent actions as the officer is in arrest/don't arrest mode and not a I'm getting frustrated and just waiting for that piece of straw". Second action was the hand movements and the non-compliance/walking away. Was the officer threatened? No. The officer , if the actions were moving to reasonably threatened, could've ordered a "hands up" or to "drop what you're holding NOW" order. The driver was acting naturally frustrated and then threatened as the driver's done nothing wrong(in the drivers and my mind) that warranted an attack but he has a weapon (which is VERY painful and potentially lethal) pointed at them. The idea of the taser/other non-lethal weapon is still an attack but of a less lethal variety than a firearm. That less lethal aspect can and should not lower the threshold of when one can use them.
The officer did not announce he was under arrest.
The officer never made reference to any threat nor any command to drop "it/the weapon/open hands".
As hand-waving is the likely, but passive-agressive, movement when frustrated in a powerless situation (civilian vs. armed police officer) the bringing of the hands in is often a subconscious attempt at REMOVING risk or threat of force from another person. Ever been in an argument.. a real non-violent but loud argument. What do people hands do? Generally they flail about as they emphasize their anger/frustration. What do they do when the consciously take the effort to lessen their agression - normally a palms out or toward the person or bringing their arms/hands close into the body.
Finally, in my biased opinion the officer acted out of frustration/his authority wasn't being obeyed fast enough. What would the officer have done if say instead of agreeing to sign the driver took 10 minutes to actually read what they were signing as were theoretically supposed to do and (and I did one time creating my bias and a bogus second ticket) read it before signing. Refusing to sign is an arrestable offense but not an assaultable one. Arguing the validity of said signing because of confusion/frustration is understandable but fruitless but is also non-assaultable. The officer was frustrated and unhappy with not being obeyed (power was disregarded) and hence attached the driver which imho should not be allowed. Just from an outsiders point of view do I opine today.
For those of you who think you can determine where a gun is and is not visually, take a look at this:
http://www.snopes.com/photos/gruesome/interrogate.asp
Fair warning - it is a video of a man in police custody whom they forgot to search and put in an interrogation room. He chooses to kill himself with his large .45 caliber handgun. He is wearing slacks, of a reasonable (not tight, not loose) fit, and even though the gun is quite large there is no visible evidence of it.
Many guns could have been concealed by the man in the traffic stop video.
On a slightly lighter note, you reminded me of this short clip showing some small (and not so small) concealed guns.
absolutely false. my point is that when we analyze the justification of force, we make the kind of analysis i did.
when we make an argument about "should this officer have done a better job" ... we use a different metric.
i've said at least a 1/2 dozen times - this officer NEEDS remedial training imo.
"If a high school teacher sleeps with one of his or her students, has an abuse of authority happened? Gee, I'm not familiar with all the relevant statutes and legal precedents, so I guess I have no idea. "
yes.
"Should the officer be demoted for tasering that guy?"
no. why does somebody get demoted for a legal force application.
based on the video, i think corrective training is in order, which is not PUNITIVE (like a demotion) but corrective.
just because he was LEGALLY justified does not mean he could not be trained to do a better job, with the understanding that it is entirely possible that even given supercop (tm) was there, the guy might still have refused to comply and ended up getting arrested.
" I don't know, is it legally possible for his superiors to hurt his career if he hasn't done anything illegal? "
of course. one can employ force in a justified manner and still be subject to discipline for violation of policy.
i'll give you an example. an officer who was justified in pepper spraying two women (force was justified) was disciplined for saying words to the effect of "take this, bitch" as he pepper sprayed them.
just because the force was JUSTIFIED does not mean he did not violate policy (and basic professionalism) by making that statement. he was punished, and he shoudl be punished.
that is COMPLETELY tangential to whether the FORCE was justified.
I just hate comments like that. I know a lot of "real life" criminal laws that I wouldn't trust to represent me in a traffic proceeding. So it seems sort of silly to say that all law professors are FOS, and every "real life" criminal lawyers knows his stuff. There is enough "S" to go around in both groups.
Guns are big and heavy. People who have never seen or held a gun don't realize that they are big and heavy.
I have owned guns all of my life. I grew up in a rural area, so I've shot everything from small pistols to large assault rifles. I was in the military, so I've even shot machine guns.
Not all guns are "big and heavy."
I could likely fit a Walther PPK in my cargo pants pocket. I could certainly fit a Derringer. Heck, I could fit most of these guns in my pocket.
So I think the "real life" criticism is a bit misdirected. Guns come in all shapes and sizes. Many are not big and heavy.
I would think that, if you must have a confrontation with an officer, sticking your hand in your pocket is a very bad idea. Unless you want to see how fast he can draw, I mean, which is likely to lead to your discovering whether he is a good shot.
In my view you say that the only restrictions on the officer's behavior are legal. You say "absolutely not!" and point out that "he should have done a better job" and needs a little more training (corrective, not punitive). How are you disagreeing with me? Oh yeah, there might be a department policy he was violating.
Once again, the only restriction on the cop's use of force is in the legal code (and in department policy). He may not get a gold star if he shoots the guy in the head for putting a hand in his pocket, but whether or not he would be justified in doing so can only be answered by looking at the case law. The lay sense of "justified" is a mere illusion that non-cops are unfortunate to share. But thank you for doing your best to shatter this illusion. You've really put a lot of effort into it.
Have to disagree with you about a few things. First, the notion that the cop would not intentionally lie, because he knows it's on audiotape. I don't know how Utah works their audio recorders, but where I practice, cops often forget to turn their recordings off. Had a case where they had just filled out an arrest warrant for Assault I (several counts) Assaults II and III (several counts) and Attempted Murder. Without turning off his recorder he starts making crack to his partner about how the alleged victim clearly wasn't hurt, she didn't even want to go to the hospital etc. And yes, several of the counts required Serious Physical Injury per statute. He had just filled out an affidavit alleging serious physical injury. Oh yeah, he's still on the force. You can imagine how seriously I take the investigation that found no wrongdoing.
Secondly, you get Miranda law wrong in several respects. First, a person is being detained for Miranda purposes if a reasonable person under similar circumstances would not feel free to leave. It does not require that it be "functionally equivalent to formal custodial arrest." The other area you get Mirand wrong is the "interrogation" element. You do not have to be askign someone questions. It has to be interrogation or the functional equivalent thereof. Another way it has been put is if the officer is aware of a substantial probability that it would elicit a response. But it does not have to be questioning.
The last way you are wrong about Miranda is that most cops understand it. As you've just demonstrated, most cops believe they understand it, but they don't. I've acutally heard cops say you're not under arrest, but you have to stay here and speak to me, and then proceed to ask questions. When the detainee asks about Miranda, the officer then says he doesn't have to give it because they are not under arrest.
There is a difference between reasonable and legal. The officer may not have broken any laws, but it is obviously far from reasonable in my opinion.
The officer showed intent to use the taser as soon as he pulled it out. You could see on his face he was going to use it no matter what. I don't buy the 'going for a gun' argument.
no. i said if you are making an analysis as to whether the FORCE WAS JUSTIFIED, then you make the legal analysis.
there are TONS of restrictions on behavior apart from that.
but they are not relevant to whether the force was justified.
do you understand the distinction.
" You say "absolutely not!" and point out that "he should have done a better job" and needs a little more training (corrective, not punitive). How are you disagreeing with me? Oh yeah, there might be a department policy he was violating. "
i am explaining to you that saying the force was justified =/= saying that the officer did a good job, that he might not be subject to corrective training, etc.
they are different analyses based on different criteria, done for different reasons, and with different standards of evidence.
apart from that, they are EXACTLY the same (rolls eyes)
This guy does not have a clue.
I have a 9mm that is thinner than my blackberry.
the problem here is then semantical.
if you ask 'was the force reasonable' in a legal blog for pete's sake, the word "reasonable" is best (imo) understood as "reasonable force" in the legal sense.
reasonable force = legal use of force.
you can use 'reasonable' in the layman sense, but in a legal blog, it might help to just use a different word. because the term 'reasonable force' has very specific legal meaning, in the same way that "justified homicide does". a person can commit a (legally ) justified homicide and yet still have done a lot of stuff that you might think is "unreasonable"
dig it?
"The officer showed intent to use the taser as soon as he pulled it out."
you pull it out to ready it for use. i've pulled mine many times. i have yet to fire it at somebody. doesn't logically follow. what is correct is to say that GIVEN a certain response by the violator, he was now PREPARED to use it.
"You could see on his face he was going to use it no matter what."
ah, right. another omniscient poster. i love you guys. could you read it in his "beady little eyes?"
really, anybody who says something like this completely loses credibility because there is no way you can "see it on his face". this is laughable.
" I don't buy the 'going for a gun' argument."
right. based on your keen video watching perception.
if a cop had watched the video and said "i could see by the look in the guys eyes that he intended to jump the officer" that would be EQUALLY laughable and indefensible.
what's wonderful about people is that when people have a prejudiced opinion (a prejudgment), they will ignore discomforting facts AND invent such laughable claims as this. it really is more of an insight into your predisposition sans evidence than anything else.
You doubt he intentionally misspoke, even though that's what we see and here in the actual tape? I don't know "why" he lied about the warning, but I sure as hell know that he did.
dum dum dum
Oh yeah, it's the officer himself! Maybe some inner voice telling him, "I stopped this guy for running a 40MPH speed limit, he doesn't actually need to sign the ticket for me to get on with my day, the cost-benefit analysis doesn't add up, I'm not some fucking overly aggressive dipshit now am I?"
Oh no no no -- that last part is way over the line! Why is something so self-critical and harsh in the cop's inner monologue? Probably because too many people tried to reinforce norms of decency and reasonableness by articulating how they felt about such situations! What a bunch of ignorant morons!
That's a good thing, because it's very clear from the cop's comments that he never felt threatened by this driver.
If he's allowed to taser him just for being an ass and walking away, then this was legal.
And let me add to the chorus of people calling Greenfield an idiot for claiming that guns are necessarily big and heavy. That's just not true, and no cop can safely go around acting on that assumption. My Kel-Tec PF-9 isn't remotely the smallest handgun available, and it can easily be concealed in most clothing without a "bulge."
What's interesting to me isn't that Greenfield made a (rookie?) mistake about weapons, it's what this is an example of. Namely, that many, many people confidently offer opinions about weapons, opinions so strongly held that they think police ought to act accordingly, yet the person expressing the opinion doesn't have the slightest idea what he or she is talking about.
The public on guns: Often in error, but rarely in doubt.
as i understand it, you know he misspoke. you do not know he intentionally lied, and why would he since he knows there's a true record of exactly what he said?
believe it or not, he was under stress, and maybe even scared.
any cops knows that in any situation, especially a stressful one, you intervew 10 witnesses, you get 10 (somewhat different stories), some aspects of which are mutually inconsistent. it's not necessarily because people lie. it's because memory is imperfect (that was also the theme of the movie "memento". )
believe it or not, he was under stress, and maybe even scared.
(Yeah the italics work right.)
there can be constraints beyond legality. for example, some dept. use of force (and deadly force policies) are more restrictive than the law requires. so, an officer can be LEGALLY justified in doing X, but still be subject to dept discipline if same use of force is contrary to policy.
pursuits are a use of force. many agencies are restrictive, such that (for example) you can only pursue for BARK felonies (Burglary Arson Rape Kidnapping) essentially. i can pursue for many crimes that a bellevue PD officer cannot. i can also use legal intervention (PIT etc.) where he can't. if he did, he could be fired, even though the force was legally justifiable.
thus, they are restricted BEYOND what the law considers reasonable, to a higher standard. much like any state can recognize broader constitutional protections (mine certainly does) than the fed constitution does, a city, county, or state agency can place more restrictions on force than the law requires.
note also that it is my understanding that if a use of force would be legally justifiable, but is violation of policy, officer can be disciplined AND it is my understanding that civil liability that would not otherwise apply applies more easily if the force was used in violation of policy.
what is not relevant to use of force analysis, despite your snarkiness is whether the officer exhibited dipshittedness (tm) (iyo) by deciding to arrest for refusal to sign, or something equally minor like criminal littering, etc.
and given that (as i stated several times), one does not (under many UOF's) need to FEEL THREATENED to deploy a taser.
it certainly ADDS to the justification, but is not a necessarily element of it, under many UOF's
"If he's allowed to taser him just for being an ass and walking away, then this was legal. "
if i was allowed to tase everybody who was an ass, and i did so, i'd need Seattle Public Utilities to provide me with enough watts to power my taser day and night.
he tasered him for refusing to comply with a lawful order to submit to handcuffing. you may not like that, but that's the legal justification. he gave the command several times, and the guy repeatedly refused to comply.
"What's interesting to me isn't that Greenfield made a (rookie?) mistake about weapons, it's what this is an example of. Namely, that many, many people confidently offer opinions about weapons, opinions so strongly held that they think police ought to act accordingly, yet the person expressing the opinion doesn't have the slightest idea what he or she is talking about.
The public on guns: Often in error, but rarely in doubt"
true dat. but within this blog and elsewhere, i have found far far far more errors in regards to tasers that you would ever have with guns. tasers are newer and misunderstood. numerous posters consider them gun substitutes (false), consider them a high level of force (on most UOF's they are near pepper spray and much lower than batons or even a shin strike to the thigh), believe that tasers cause deaths (case after case, autopsy after autopsy shows they are incredibly safe... the fact that people have always died in custody from excited delirium etc. does not mean tasers are dangerous. they are far safer than most other forms of force in terms of risk of injury and death)
again, this is understandable, due to the newness of the technology, and the wealth of misinformation out there about them.
but it is amazing how many people completely misunderstand their role and place in the use of force continuum, what level of force they are, their true risk, etc.
Right, I suppose you never make credibility determinations? Or determinations of who is likely to be dangerous, etc., based on the look and demeanor of a person's face?
And you never addressed the Miranda issue.
Again, you are wrong. The context of the crime affects the reasonableness of the use of force. The government has less of an interest in ensuring motorists sign their speeding tickets than it does in ensuring murderers are apprehended (thus the police policy you mention allowing pursuit only for BARK felonies). The amount of force allowed to obtain compliance of speeders is much less than when a cop deals with a real criminal.
But a reasonable officer in that position would have to feel threatened to deploy a taser. Say you have protestors who pose no threat and refuse to leave a campus office. You couldn't go in an taze them all. The amount of risk imposed and pain inflicted far outweighs the necessity of using that type of force. You might be able to use pain inflicting techniques, but you couldn't jump right to a tazer.
Check out my old post here about an excessive force case of mine in which the police arrested my client knowing that he was carrying.
http://volokh.com/posts/1177440785.shtml#209850
that's a different issue. of course, a cop arresting for a non-violent misdemeanor is justified in using a lesser level of force than arresting for a violent felony.
that's not the point i was making. i was saying that the fact that it is a misdemeanor (that you consider not worth arresting for ) does not mean you can't use reasonable force to effect an arrest. and regardless of how minor the misdemeanor is, it is justified in using a taser given a noncompliant person like the one in this case. also, the use of force was for both crimes, and the obstructing/resisting is (in most jurisdicitons) considered a more serious crime.
Ever consider that the Use of Force guidelines may not put the taser's where they should be? You claim that they are not dangerous like guns because UOF's put them near pepper-spray. Maybe the UOF's are wrong? Maybe they are slightly more dangerous (at least to certain people) than batons or pepper spray.
false.
"Say you have protestors who pose no threat and refuse to leave a campus office. You couldn't go in an taze them all. "
correct. that would be excessive.
"The amount of risk imposed and pain inflicted far outweighs the necessity of using that type of force. You might be able to use pain inflicting techniques, but you couldn't jump right to a tazer."
its a different scenario. officers can use a higher level of force when dealing with the driver who is refusing to comply with arrest vs. a passive, seated, trespasser.
it's a different environment dynamic, a different fact pattern.
the differences are numerous, evne though they are relatively minor crimes. it's actually an excellent example to bring up because it allows for comparison of similarities as well as differences.
i've explained some of them already numerous times.
but excellent example.
fwiw, there was a case in san fran a while ago iirc where officers literally painted pepper spray on eyelids of protestors who were passively resisting. what was the result of that? was the force deemed excessive?
That depends on the level of noncompliance and the necessity of prompt seizure. The cop in the video had his tazer up almost as soon as the motorist exited the car, and tazed him only seconds later.
The "Don't taze me bro" guy was physically resisting attempts by police to remove him, and a senator was in the room. In that case, I'd say noncompliance did make tazering a reasonable use of force.
"Ever consider that the Use of Force guidelines may not put the taser's where they should be?"
yes
" You claim that they are not dangerous like guns because UOF's put them near pepper-spray."
no, i claim they are not dangerous like guns because the laws of physics, biology, etc. are what they are. i think that BECAUSE they are nowhere near as dangerous as guns (and less dangerous than batons by a long shot) that is why they are where they are on the UOF.
you are reversing the causality. they were put where they were because of their (relative) safety. their safety is not established because they decided to put them there.
" Maybe the UOF's are wrong? Maybe they are slightly more dangerous (at least to certain people) than batons or pepper spray"
then it's up to people to present that evidence and make the case.
fwiw, in the past many pepper sprays used an alcohol based carrier. that made them (in rare circs) VERY dangerous (see: flammable). the problem was not pepper spray qua pepper spray, but the carrier.
and the problem was fixed.
i have yet to see any evidence that tasers are not roughly where they should be. if there is autopsy, medical, scientific evidence, then feel free to present it.
also, the officer is responsible (in terms of use of force justificaiton) for acting in accord with policy etc. if the taser is wrongly placed, then that needs ot be changed. but the officer is responsible for knowing the policy. if the policy was wrong, certainly some sort of lawsuit is probably possible, but that is obviously not the officers fault to have read the latest NEJM report or whatever.
i really do think people fail to realize how many people's lives have been saved by tasers, and injuries too. they LOOK bad. it's icky. but they are very very very very safe, and the vast majority of time result in less injury, and less risk of death than other comparably effective force options.
That was also in a Simpsons episode where Homer was passively resisting police.
In short, a careful policeman should not discount the possibility that someone is carrying a weapon simply because there is nothing to see.
Fortunately, the officer used a Taser rather than his sidearm. This incident could have ended much worse 15 or 20 years ago when the Taser was not commonly available. As stated in an earlier comment, people don't understand Tasers very well. What role they are supposed to fill is still being worked out. Originally, they were an alternative to a firearm. Since they are known to be less lethal, the threshold for their use seems to be sinking lower and lower.
On the larger issue, clearly both parties did not handle the situation well. I would not have behaved as the civilian did, but this is supposed to be a free country. I think that the police officer, as the government representative, has a higher standard to live up to. This degree of force almost certainly could have been avoided by better communication by the officer, so I think it was unreasonable.
"This degree of force almost certainly could have been avoided by better communication by the officer"
i simply think this is at best speculative, and most probably - optimistic given the guy's behavior in general.
iow, i definitely agree that the officer could have handled to communication much better. if the guy then STILL resisted, it would be much more clearly justified (e.g. warning the person - "sir, you are under arrest. i am not going to warn you again. put your hands behind your back NOW". thusly, etc.).
i just think we will never know what WOULD have happened given a better communication skill.
", so I think it was unreasonable."
again, maybe in a "i don't like it sense", but in the legal sense - as in "reasonable force" the fact that the officer was not superskilled (tm) at verbal communication and could have done better, does not make the force unreasonable.
If the wife had taken a few more steps toward the officer, perhaps with her hands in her pocket too, the cop might have shot her dead.
There is no way an attorney for the State of Utah would let this video get to a jury. They would settle for big $$$ to keep it out of court.
But, being a defense attorney, with a defense attorney's reflexes, he attempts to mislead by what might be charitably called omission. More accurately, he lied.
So we learn about defense attorneys here.
Really? You mean cops used to shoot speeders on the side of the road when they complained?
IMO a civil suit against the State of Utah would die on summary judgment. AFAIK the officer violated official policy that persons be advised, when possible, that they would be tased if they did not comply with lawful orders by the police. All the State need do is prove the officer was trained to do that and didn't to show the absence of triable disputes as to it. Then Mr. Moron would have to prove that the officer had a known record for disregarding that policy, which is really, really doubtful.
The officer might be liable, but IMO the State isn't. This has been my day job for thirty years.
And, if I were on the jury, I'd award Mr. Moron all of one dollar nominal damages. Maybe a penny if he comes across as much of a jerk as he seems to be.
A follow-up in the local paper explains the sequences better.
Casey v. City of Federal Heights
http://ca10.washburnlaw.edu/cases/2007/12/06-1426.pdf
The case makes every point I've made in these two threads.
I think the court botched the QI anlaysis though. Lack of caselaw on use of tasers to restrain individuals weighs strongly in favor of QI. The guy wasn't an innocent bystander, and the facts show he didn't immediately submit. I'm not convinced a reasonable officer would know his use of a tazer in that situation was clearly excessive. But, that's moot after this case. It is now clearly established.
Compare this portion to Mr. Massey's repeated questions to Officer Gardner< "what the heck are you doing?" which he asked while Officer Gardner pointed his Taser at Massey. I think the only fact Gardner has going for him is that Massey was backing away to the car, which you could arguably term a "flight" from custody.
This logic sounds nice, until you realize that civillians are sometimes also faced with the same situations (for an example, think of Cory Maye) -- at which point the government goes after them to the maximum extent possible. If a split-second decision to shoot armed night-time intruders in own bedroom amounts to murder, then surely when trained police make wrong split-second decisions they ought to be held accountable.
(to clarify: I'm not a lawyer and am not discussing what the law currently says).
Not necessarily. If the officer believed that Massey was fleeing or a danger, use of the tazer would be reasonable. Whether the officer's actions and statements indicate that he believed that Massey was either fleeing or a danger is, of course, subject to debate.
Again, no. The officer's subjective intent is entirely irrelevant to excessive force analysis.
The court was clear that less forceful means of restraint must be used when the individual is suspected of a minor, nonviolent crime/violation and poses no risk to anybody.
That's not obvious in the Massey case.
When is that the standard of review?
From the case: "This conclusion (that the stop in the cited case was unreasonable) is reinforced by comparison with our recent decision in Mecham v. Frazier, ___ F.3d. ___, No. 05-4297, 2007 WL 2608624 (10th Cir. Sept. 11, 2007). There, we held that officers had not violated the Fourth Amendment in using pepper spray to arrest a woman who was uncooperative during a traffic stop. Although we acknowledged that the “unfortunate” conduct of the officers was possibly wrong in hindsight, we held that it was justified by two of the three factors under Graham—safety concerns and Ms. Mecham’s resistance to arrest."
Unfortunately, the officer used a Taser rather than his brain.
This incident could have ended much worse 15 or 20 years ago when the Taser was not commonly available. As stated in an earlier comment, people don't understand Tasers very well. What role they are supposed to fill is still being worked out. Originally, they were an alternative to a firearm. Since they are known to be less lethal, the threshold for their use seems to be sinking lower and lower.
Unfortunately, instead of serving as "an alternative to a firearm," too many cops are using Tasers as an alternative to using their brain.
Yeah. But it would have taken him so long to draw the shotgun out of his pants that the cop could surely have read him something by Gandhi and defused the situation.
You fascist.
That being said, the cop needlessly escalated this situation by acting like a dick, and I hope he gets fired for it. It would also be nice if he could get sued, and I bet a lawsuit would reap a reasonably nice settlement just because of this video, but if I were a judge I'd likely pitch it on 12(b)(6) grounds.
My wife's carry pistol is a bersa 380. It is slightly thinner than the .38, but just a bit longer to the end of the grip. In a pocket it carries even better as long as the pocket is deep.
That's what I thought. Why exactly is it the reasonable force bar is lower for Officer Joe Shmoe (who is a professional and supposed to be trained to handle delicate person-to-person exchanges) than it is for civilian Joe Shmoe?
I think it's entirely possible the cop was so rattled and panicked that he had no idea what had just happened until he saw the tape too.
He's probably walking around saying "I can't believe I turned my back on that guy."
Some dude: If those were two regular Joe Shmoes on the side of the road after a fender-bender, would that be considered reasonable force?
Volokh.com: *crickets*
If it were two regular Joe Schmoes neither would have the authority to tell the other to get out of the car, turn around, and put his hands behind his back. Neither would have the authority to arrest the other. So neither would be able to claim he was using the authority a policeman is given by the state in order to be able to do his job: the authority to use force to arrest somebody who doesn't want to be arrested. Duh.
Exactly. Why does civilian Joe Shmoe's lack of authority to do this raise the bar of reasonable force? It doesn't make sense. Officer Joe Shmoe has more tools available to handle potentially tricky confrontations. If anything, his ability to order people around should make it so that if he uses force, he better have really, really had to.
Whatever happened to "citizen's arrest"? :(
Nobody wants to get arested (especially somebody cought driving over 40mph on the highway *Ooooo*), should Officer Joe Shmoe go around tazing arrestees?
This case is much more like the 11th circuit case that the court cited:
The court was not sure that it would have agreed with the 11th circuit. And that case may have been worse than this one. I don't think he refused the same order five times. And it's arguable at least about whether he was being "hostile." There are other ways to be a jerk. I would say that he was being stubborn and contradictory. Hostile, at least to me, means posing some sort of threat of violence, and I didn't see that here. Also, I haven't read the 11th circuit case, so I don't know what facts precisely led to the conclusion that the driver there was belligerent and hostile.
In the case you say would control. The woman refused to get out of her car at least 5 times, and she posed a threat to safety (objectively speaking), because she was still in control of her vehicle. Here again, the guys refusals were not as bad as in that case, nor is the threat to safety the same.
Having read this 10th circuit case, I don't know how it would come out on these facts. From nothing more than reading the cases and seeing the video (which means no deposition testimony, and no further facts, like whether the stop was a sham or not), it seems to me that this case "might" be able to get to trial in the 10th circuit. But it would probably more likely fail on the qualified immunity grounds. This case falls in between the cases where force has clearly been approved, and the case just decided where force was not justified. A reasonable officer could probably do nothing better than guess whether the use of force here was legal or not.
That may well be true, and I'm not disagreeing with you. I'm just saying that the many, many posters who defended this cop by claiming he felt threatened were just plain wrong.
Again, I don't think we disagree. This is what I meant by "walking away" -- if it's legal for him to tasesr somebody for walking away from a handcuffing command, then I would agree that this use of force was legal (although I don't think it was particularly well advised).
I threw in the "ass" comment because, I'll admit it, part of me wanted to taser this guy just because he was a jerk.
Watching the tape several times, it's pretty clear that the cop escalated a situation that he almost certainly could have de-escalated.
But, sure, a gun can be concealed in a pocket without a visible bulge.
Occasionally, when I teach carry classes, I carry more than one gun on me, just to demonstrate how easy concealment is. It can takes a bit of time to set up, and the more guns I wear, the longer it is, so when I do it, I normally do it as part of dressing before I leave home.
This one time, I had seven guns on me in various places, ranging from a little KelTec to my .44 Magnum snubby , and found that I'd left the house a little early; I stopped off for a cup of coffee at a local coffee shop. I ended up chatting with a local cop -- not anybody I knew, and while I know a lot of the locals, nobody I know was there -- and we ended up chatting about the carry law, which had just changed in Minnesota from "may issue" to "shall issue."
"I'm not worried about it," the cop said. "We're trained to spot guns."
"Really."
"Sure." He pointed at my range bag, which I'd made a point to keep near me. "If you had your gun on you instead of in there, I'd know."
As my late best friend used to say, there are so many lovely times in life to keep your mouth shut.
So, instead of starting to haul things out, I just said, "Oh. Neat."
Probably the right decision.
Since the government won on a summary judgment motion.
To be a real jerk about it, its not the standard of review. It is the standard that the district court uses to evaluate facts on summary judgment. The standard of review, of course, on summary judgment is de novo.
I also agree with what other commenters have said on other threads, that the officer should have explained to the driver that he would have to arrest him if he didn't sign the ticket. Officers should have to explain (not in lawyerly detail of course) the laws they're enforcing, rather than merely assert their bare authority to do whatever the hell they want to do. There's plenty of other reasons to have zero sympathy for the officer in this case, like the fact that he was just waiting at the temporary speed limit sign to pull someone over who didn't immediately slow down.
John Kindley's related point is also apropos: "It was all about asserting the officer's authority."
Law enforcement officers use tasers as a substitute for their badges.
I bet you'll never get tased during a traffic stop!
Whatever. Doesn't it mean that applying the 10th Circuit holding to facts outside an appeal from summary judgment, you'd be less deferential than this court was to the motorist's point of view?
Basically, yes. In the 10th Circuit case, the court is assuming that the plaintiff's factual account of the case is true. And where there is a dispute, it will regard the evidence in the light most favorable to the plaintiff. Thus, there are at least three accounts of how long the tasing officer was on the scene before using the taser, ranging anywhere from a couple of seconds to a couple of minutes. The court assumed, on a review of summary judgment, that the couple of seconds account is the correct one.
At trial, the finder of fact could come up with a different version of the facts. At that point, on review, the Court of Appeals would have to defer to the finder of fact, unless no it determined that no reasonable finder of fact could have found that way, given the evidence.
What that means for the deference that an average poster on a blog would give to the motorist? Ultimately, who cares? It's pretty obvious that there are some people who wouldn't change their minds no matter how many pesky facts got in the way. They agree with Steven Colbert, and tend to dislike facts because facts are always changing, while opinions are something you can count on, no matter what the facts are.
That doesn't, however, mean that I think it's in any way okay for cops to act other than professionally, and the professional thing to do is, whenever possible de-escalate a situation rather than otherwise.
People tend to be upset when stopped by cops. If cops don't descalate when possible, there's going to be one heck of a lot of tasing going on!
... for which I suppose we can be grateful that (at least as far as I'm aware) a court hasn't yet used the term "reasonable blogger standard."
Tasering the guy did de-escalate the situation. Instead of the guy jumping around like an jackass, he was under control on the ground, end of problem.
People tend to be upset when stopped by cops. If cops don't descalate when possible, there's going to be one heck of a lot of tasing going on!
What does "de-escalation" mean exactly? The cop should let the guy get back in the car and drive away?
The guy who was stopped is an adult and is responsible for acting with self control regardless of how upset he is. Anyone who does not act like an adult and control themselves simply deserves to get tased. If there are not a lot of adults out there - which may even be true - and thus the cops need to do a lot of tasing, then so be it.
the problem here is then semantical.
if you ask 'was the force reasonable' in a legal blog for pete's sake, the word "reasonable" is best (imo) understood as "reasonable force" in the legal sense.
reasonable force = legal use of force.
you can use 'reasonable' in the layman sense, but in a legal blog, it might help to just use a different word. because the term 'reasonable force' has very specific legal meaning, in the same way that "justified homicide does". a person can commit a (legally ) justified homicide and yet still have done a lot of stuff that you might think is "unreasonable"
dig it?
<<<<
'Reasonable force' is a concept, not a law. Laws are written to attempt to have an effect that approximate concepts, but saying that because something is legal it is the same as the concept is clearly wrong. I may not be a lawyer, but I do know the difference between the two. I am an engineer, and what you are suggesting is similar to me looking at a bridge and saying 'that is structurally sound because the design has been reviewed by all of the best engineering firms and they have certified it'. This is mistaken, because in reality the bridge is only structurally sound if it doesn't fall down. If it falls down, it wasn't structurally sound.
What I think you are saying, is that when the term 'reasonable force' is used in a legal sense, it has meaning to the legal process. If what he did is legal, then one can make a very strong argument that it was 'reasonable force'. Of course, others can argue that it was 'not' reasonable force, and that the laws allowing it clearly permit the violation of a persons' civil rights. Having a strong argument does not make it the same, though you might win the argument.
Another way of looking at this is with, say, lethal injection. Is it 'cruel and unusual punishment?'(another legal term of art). It is legal in many states, and, gee, the supreme court seems willing to hear arguments that it might very well be 'cruel and unusual'.
"you pull it out to ready it for use. i've pulled mine many times. i have yet to fire it at somebody. doesn't logically follow. what is correct is to say that GIVEN a certain response by the violator, he was now PREPARED to use it."
Let me embelish your comment: you pull it out ONLY if you are ready to use it. That is intent. Whether he follows through on the intent is not assured. I don't understand your objection to this. We may be saying the same thing.
If I pull a gun out during a robbery, do you agree that I 'intend' to use it?
If he did NOT intend to use it, why pull it out?
whit said:
"ah, right. another omniscient poster. i love you guys. could you read it in his "beady little eyes?"
really, anybody who says something like this completely loses credibility because there is no way you can "see it
on his face". this is laughable."
Take your personal dismissives elsewhere. And I don't need credibility to have a valid opinion. I will grant you that it's not a valuable observation.
whit said:
"right. based on your keen video watching perception.
if a cop had watched the video and said "i could see by the look in the guys eyes that he intended to jump the
officer" that would be EQUALLY laughable and indefensible."
I am not a cop. I am not in court. You are probably right. Your point?
Just becuause it 'could' be a gun, doesn't make it any more likely or probable that it was. It just means you can't say that it 'couldn't' have been a gun. I am not saying that. I am saying that based on what I saw, I don't think it was. I think the officer is trying to get out of a pickle,
whit said:
"what's wonderful about people is that when people have a prejudiced opinion (a prejudgment), they will ignore discomforting facts AND invent such laughable claims as this. it really is more of an insight into your predisposition sans evidence than anything else."
What's wonderful? Your point is..? My mom thinks I'm wonderful too.
I still don't buy the 'going for the gun' argument.
This video is about police officer meets average joe citizen who has never had contact with the law. It is very interesting to see the two different worlds that they live in, with no clue about the other. It's what misunderstandings are made of.
whit said:
""""""
its a different scenario. officers can use a higher level of force when dealing with the driver who is refusing to comply with arrest vs. a passive, seated, trespasser.
it's a different environment dynamic, a different fact pattern.
""""""
How about when an officer tells a passive, seated, driver to get out of the car in response to the driver asking him if they can go look at the speed limit signs? The driver didn't jump out of the car and accost the officer. He though the officer was taking him up on looking at the signs.
The cop changed the 'environment dynamic', not the driver. The driver was just whining about the ticket, and refusing to sign. The driver doesn't have to sign, but if he doesn't, it begins a whole new course of action, and the officer did not initiate that course of action in a manner that the driver understood.
In my mind, that makes it unreasonable.
""""
Tasering the guy did de-escalate the situation. Instead of the guy jumping around like an jackass, he was under control on the ground, end of problem.
""""
Hmm. What if the guy's girlfriend had a gun and shot the officer? She was freaked out, and may have thought it was a gun instead of a taser.
enoch said:
""""
What does "de-escalation" mean exactly? The cop should let the guy get back in the car and drive away?
""""
De-escalation means to go from defcon 4 down to defcon 3. Not 'launch missiles' and destroy.
And no, the officer should have been more clear about the ramifications of not signing the ticket. A ticket is a legal document. It means something specific. If an officer can't articulate what it means, then he should be in a different line of work. Imo of course.
She gets out of the car with a gun, the cop shoots her. That would be her fault, just as it was the driver's fault he got tased.
De-escalation means to go from defcon 4 down to defcon 3. Not 'launch missiles' and destroy.
It went from Defcon 4 to Defcon 1 after he was tased and handcuffed. Classic deescalation!
On the one hand, I agree the driver was acting like a jerk. He was also escalating things. If the driver hadn't been acting like a jerk, interrupting, yelling, not listening and trying to order the cop around, the cop's inability to figure out a way to de-escalate this without tasing would have been irrelevant.
But, I can help but wondering if you'd define exploding a nuclear device in the vicinity of the car "de-escalation".
The cop did not handle this well. There are several points in the process where he could have made different choices and defused things before tasing.
Noting the cops poor choices is not the same as saying that he used unreasonable force in the legal sense but this isn't an either / or situation. I don't know enough about the law to say whether the cop ultimately used reasonable force in the legal sense, but I know the cop failed when handling this particular driver (who was acting like a real jerk.)
It would have been truly sad if, due to a cop's inability to deal with an obnoxious jerk, a woman had freaked out, brandished a gun and gotten killed by a cop who ended up having to defend himself. Cops need to learn how to behave so as to mimiize the risk this sort of thing happens. Let's hope -- for his sake and that of others-- this particular cop learns those skills.
On the off-chance that you're serious, watch the video again. She could have shot him easily, at almost any point in this interaction. When you're alone, partially bent over, eyes off the vehicle, hands on the taser, distracted, _real_ weapon holstered... you're D-E-D dead if a moderately competent shooter pops out on your flank at that range.
If this cop thought that there was even a small chance (above the chance that there always is) that these were dangerous people and still acted as he did he has no business being armed, as a law enforcement agent or otherwise. I said it in another post, but I'll state it more clearly- the officer's tactics in this case are tantamount to standing in the middle of the road, arms spread, face to the sky, yelling "Shoot me!"- they're worse, actually, as even the most violent felons would probably look at that sort of display, shake their heads, and be on their way. This guy is doing it in a tense situation- tense largely because he made it so. Stupid, stupid, stupid, even leaving aside the motorist's interests.
Now someone can jump in and point out that even if the officer did not believe there was a threat and tasered the guy out of pure spite... if some hypothetical officer, somewhere, might have thought there was the slightest possibility that there was a threat then this was fine (you might want to think about what that sort of standard would do to probable cause- the average citizen is far more likely to possess a controlled substance than this guy was to be a threat).
Then, when they are forced to acknowledge that no-one could reasonably see a threat here (Greenfield is, btw, wrong- I could conceal a small arsenal in that clothing, and if I felt like I needed to be armed in a given situation I _would_ be carrying at least a boot knife- but there is no indication that he _is_ armed, or that he intends to use any weapons he might have) they can respond that because the citizen failed to obey orders instantly and comprehensively he deserved the zapping.
Of course, the orders were very unclear, and the officer did not give the citizen much chance to comply. At the point that the citizen is zapped he clearly has no idea what has gone wrong, and is very surprised that actual violence has entered the picture. He's just trying to point out something about some signs and suddenly Officer Friendly is pulling a weapon on him- it's not clear to me that he knows it is a nonlethal weapon at this point. Even with the grainy video you can almost see the man's eye's pupils adjust as the flight or fight response kicks in... he backs away slowly, making no sudden movements, but it does no good. He gets zapped. Later, the placating body language he uses at this point is used (this is the fig leaf the UHP is going with, btw) to justify the attack- his hands were near his pockets, I guess- the thing is that if they hadn't been near his pockets they would have been up, in front of him- clearly aggressive. I always thought that "damned if you do, damned if you don't, and damned if you can find a third option" was bad law. The UHP (and, apparently, some courts) seem to think otherwise.
So, we come to Whit's retreat- let's ignore the fact that the common law is meant to, or is generally understood to have been meant to, serve the interests of justice, as it is meant by civilians. Let's acknowledge that the definitions of "reasonable", "excessive", etc. that are used when judging the actions of law officers are basically unrelated to the meanings that civilians ascribe those words, and that anything at all is justified if some court, somewhere, agreed to it once, even if other courts have disagreed- the powers of a cop should clearly be the union rather than the intersection of the decisions involved. (Of course the reader then gets whiplash watching Whit turn on tuppence and declare that he is only interested in serving the interests of justice when arguing for a something that serves his interests- after all it is only fair that he be allowed to victimize people and then hide behind the fig leaf that "reasonable" and "excessive" are terms of art, but God forbid he should ever have to suffer the consequences of a similar understanding of the word "justice"- a hint, Whit... if you want to make normative arguments you should stop dismissing other arguments as irrelevant on the grounds that they are normative.
At the end we come down to the truth- that guy got tasered for being lippy. That's all. That's the long and the short of it, and it's disheartening that so many people are willing to tell complicated lies about it. At least a lot of your commenters have been honest enough to say "Well, he was a prick to a cop so he got tasered." I don't like the sentiment, but I think it is better than the tortured (in this case that is as bad a choice of words as shocked) justifications you offer. I think you should be as honest.
Anyway, since we have come to the bottom of the wheel you can now shift the discussion back to the fact that it is quite possible that the fellow had a weapon... if you can't win on any basis, make sure the basis changes frequently.
Officer Maine (not his real name, but he is a real person) is called to the house to find Husband just behind the screen door with a knife to Wife's throat. Alcohol is involved; both are screaming. Husband is screaming for Maine to go away and leave them alone; Wife is screaming for Maine to shoot the sonofabitch.
Think about this for a moment. What's the right thing to do? Back away and wait for help to arrive? Good luck; nearest backup is fifteen minutes away, and both Husband and Wife are cycling up. Shoot him in the head? How well's that going to work out?
Maine backs up a few feet and starts crying. "I don't know what to do. She wants me to shoot you; you want me to go away."
Husband lowers the knife and steps out onto the porch. "Hey, man, calm down. It'll be okay. Look -- I'm putting the knife down. Just handcuff me, okay?"
While I agree that many arms can be carried very well concealed, to include full size combat pistols, I have to call BS on this. If you are afraid of being shot, and have a gun yourself, do you draw a taser?
""""
She gets out of the car with a gun, the cop shoots her. That would be her fault, just as it was the driver's fault he got tased.
""""
But the situation has escalated.
enoch said:
""""
It went from Defcon 4 to Defcon 1 after he was tased and handcuffed. Classic deescalation!
""""
You keepa using that phrase. I do not think it means what you think.
If, during the cold war, either the U.S. or the Russians had pressed the button, do you think that it would have gone back to defcon 1?
An escalating act is usually intended to end the confrontation. If it does end the confrontatioin, it doesn't mean that it de-escalated. It means it escalated past the breaking point of one of the parties.
If it doesn't end the confrontation, the potential for unpredictable response is very high. Humans do not always behave the way they are supposed to.
What I dont think cam really be argued about (except from ignorance) is that Police are relying more and more on tasers as a convenient weapon of first resort and as a substitute for actually doing their jobs.
People get tasered for failing to immediately do what a police officer tells them to - misunderstandings or simply slow reactions can get you dropped and possibly a fatal heart-attack. Tying in with your other post on taping the police, people have been threatened with tasers simply for video-taping what they considered to be police misconduct.
Police depts need better training with these things and should not view them as a long-distance night-stick to be used at the first instance of "failure to comply" with whatever legitimate or illegitimate demand is made on them by some cop.
You should ask duglmac if he's "serious" - he's the one who came up with the utterly asinine hypothetical that the pregnant chick would leap out of the car, guns blazing. My hypothetical - that the police officer beats the pregnant chick in any gunfight - is much more sensible than his hypothetical.
watch the video again. She could have shot him easily, at almost any point in this interaction.
Watch the video again. At no point in the interaction does she get out of the car with a gun. Therefore your speculation about how this would have played out is moot.
All the rest of your prolix gabble has been addressed more than sufficiently by other posters in these threads.
If you are afraid of being shot, and have a gun yourself, do you draw a taser?
OK, so you contend that if the cop was justified in tasering him, he was justified in shooting him?
If, during the cold war, either the U.S. or the Russians had pressed the button, do you think that it would have gone back to defcon 1?
Tasering him is not an ICBM launch. Tasering him is a use of force that brings the situation under control and stops actual and potential violence - hence, it de-escalates. There are plenty of examples in history of nations using a discrete amount of force in order to bring a situation under control and prevent an outbreak of greater violence. Barry Blechman wrote a whole book about this - Force Without War - "the book's main conclusion is that the demonstrative use of the US armed forces has often stabilized a deteriorating situation enough to avoid further deterioration."
An escalating act is usually intended to end the confrontation. If it does end the confrontatioin, it doesn't mean that it de-escalated. It means it escalated past the breaking point of one of the parties.
(A) the guy is jumping around out of control waving his arms around, with a lot of different options (run down the road, get back in his car, attack the cop, etc etc). Potential for further violence, not zero.
(B) the guy is on the ground with cuffs on and with no options whatsoever. Potential for further violence, zero.
Does B represent an escalation or a de-escalation of the situation relative to A? Seems obvious to me that it is a de-escalation.
If it doesn't end the confrontation, the potential for unpredictable response is very high.
The potential for unpredictable action was much higher before the guy was tasered than after!
""""
You should ask duglmac if he's "serious" - he's the one who came up with the utterly asinine hypothetical that the pregnant chick would leap out of the car, guns blazing. My hypothetical - that the police officer beats the pregnant chick in any gunfight - is much more sensible than his hypothetical.
""""
You are talking like the way it turned out is the ONLY way it could have turned out. You say we can't talk about hypotheticals, then you use one yourself and say yours is better.
enoch said:
""""
Watch the video again. At no point in the interaction does she get out of the car with a gun. Therefore your speculation about how this would have played out is moot.
""""
Your assertion that he de-escalated by using the taser is what we are talking about here. It is clear to me that you do not understand the concept.
enoch said:
""""
All the rest of your prolix gabble has been addressed more than sufficiently by other posters in these threads.
""""
Do I really need to address this?
enoch said:
""""
OK, so you contend that if the cop was justified in tasering him, he was justified in shooting him?
""""
If he tasered him because he thought the guy was going for a gun, then if he did not have the taser, then he might have shot him. But you do not seem to be real good with the hypothetical thing, so we'll leave this one alone for now.
enoch said:
""""
Tasering him is not an ICBM launch. Tasering him is a use of force that brings the situation under control and stops actual and potential violence - hence, it de-escalates. There are plenty of examples in history of nations using a discrete amount of force in order to bring a situation under control and prevent an outbreak of greater violence. Barry Blechman wrote a whole book about this - Force Without War - "the book's main conclusion is that the demonstrative use of the US armed forces has often stabilized a deteriorating situation enough to avoid further deterioration."
""""
Tasering him was a dramatic departure from the conflict level that preceded it. It took it from talking to excercising force.
There are just as many examples in history where nations have attempted to assert a minimal amount of force neccessary to keep a deteriorating situation from deteriorating more, and having the target of that force respond violently, resulting in all out war. Witness Vietnam, Korea, Japan during WWII, Israel, Iraq, China, etc. I could go on. It only works the way you describe when the force capabilities are asymmetrical. One side can excercise force without the other having the capability to respond.
enoch said:
""""
(A) the guy is jumping around out of control waving his arms around, with a lot of different options (run down the road, get back in his car, attack the cop, etc etc). Potential for further violence, not zero.
""""
Says who? The poor driver thought the cop wanted to talk with him about the signs. He wasn't getting violent. He was still in the talking phase. The cop hadn't given him any reason to think otherwise. And furthermore, the cop had told him to get out of the car without telling him why. That is why the guy is out of the car to begin with. The cop set up the scenario himself.
enoch said:
""""
(B) the guy is on the ground with cuffs on and with no options whatsoever. Potential for further violence, zero.
""""
But how did he get there? The cop tasered him. Just because the taser worked doesn't mean there was not potential for further violence. What if he had...oops, sorry, once again with the hypotheticals.
enoch said::
""""
Does B represent an escalation or a de-escalation of the situation relative to A? Seems obvious to me that it is a de-escalation.
""""
B represents what happens after a conflict has escalated to a magnitude that resulted in the use of force on someone that doesn't have the capability to respond.
enoch said;
""""
The potential for unpredictable action was much higher before the guy was tasered than after!
""""
No, that is my point. When the cop tasered him, he had no idea what the reaction would be. What if the taser had malfuntioned? Do you think the driver would be just as clueless? or more erratic? There we go with hypotheticals again.
If instead of hauling the driver out of the car, the cop had said "If you don't sign the ticket, I have to arrest you. Signing the ticket doesn't admit guilt, it just means you agree to show up in court in lieu of me arresting you" do you think the driver would have behaved differently? I do. I think that is higly likely that the cop would not have even thought of his taser.
Here is link to a dictionary entry for 'escalation' http://dictionary.reference.com/browse/escalation
Note the last example of it, where it talks about the U.S. considering 'escalating' the Korean conflict to include bombing China. The idea was that if the Chinese knew we were serious, they would back down. Do you think they would have? I think we would have gotten our 'a@$#@' kicked. But that's just a hypothetical.
""""
By the way, if tasering him is equivalent to all-out nuclear war, what would it have been in Cold War terms if the cop shot him? Detonation of the anti-matter planet buster bomb?
""""
How about if both sides had launched and taken out their respective launch capabilities. No more nuclear war. No more superpowers. The world can finally breath a sigh of relief and carry on in peace. Glowing in the dark, of course, but hey, it's been de-escalated, right? I would say it escalated to the most extreme scenario.