Lawless Judges Protecting Lawless Police Officers

September 17, 2008 | | Comments Off on Lawless Judges Protecting Lawless Police Officers

Tasers were marketed to the public as an alternative to deadly force, but it seems every week there is another case where the police use them for passive non-compliance.

Excessive force claims under section 1983 are governed by an objective reasonableness standard. Factors to consider include “(1) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted” (Draper factors). The nature and degree of appropriate force is weighed against “[a] the severity of the crime at issue, [b] whether the suspect poses an immediate threat to the safety of the officer or others, and [c] whether he is actively resisting arrest or attempting to evade arrest by flight” (Graham factors). Other than that, the reasonableness assessment has been acknowledged to be very loose and fact determinative.

In this case an officer pulled over a car for speeding. The speeder (Plaintiff, here) began to sob and refused to sign the citation. After being warned twice, Plaintiff was arrested for refusing to sign the citation. He was placed in handcuffs and led to the cruiser. On the way he dropped to the ground, crossed his legs, and continued to sob. After being warned, and told to stand up, the Plaintiff was tasered. The officer then called for backup. The officer again told Plaintiff to get up; again he did not, and again he was tasered. The officer attempted to lift him but could not. Again he was told to get up; again he did not, and a third time he was tasered. When backup arrived Plaintiff complied.

The court points to three factors that control its decision. First, “the incident occurred at night on the side of a highway with considerable passing traffic.” Second, “the deputy could not complete the arres – that is, truly control the Plaintiff – because Plaintiff was resisting.” Third, the deputy resorted to using the taser only after trying to persuade Plaintiff to cease resisting, after attempting to lift plaintiff and after repeatedly and plainly warning Plaintiff that a taser would be used and then giving the Plaintiff some time to comply.

Acknowledging that a traffic offense is a minor infraction, the court credits a significant interest in enforcing the law on its own terms to the government, without waste of time and resources, and the safety interests in leaving the side of the highway. Weighed against that is Plaintiff’s emotional injuries, sixteen small taser burns (incidentally, how did he get sixteen burns when he was tasered three times? There are two leads on a taser when it fires) and scarring and keloid growth on those burns. These injuries the court characterizes as “significant but not severe” and the use of force ‘moderate, non-lethal’ force.”

The court contends the Plaintiff was not under control because his feet were not bound; that “as a matter of federal constitutional law [an officer in this situation need not] wait idly for backup to arrive to complete an otherwise lawful arrest.”

This decision is outrageous and intolerable for two reasons. First, it is the perfect example of how judges’ misunderstanding of section 1983 perpetuates itself. Judges like Chief Judge Edmondson here seem to view section 1983 as a windfall to criminals . The problem is, because it uses fines and litigation to deter violations of civil rights it has to rely on an element of deterrence, which will only arise if the law is strictly enforced. For example, after explaining that the law was not violated here, the court went on to find qualified immunity because the illegality of what the officer did was not clearly established. Whatever you think of that decision, that is where section 1983 incorporates leniency for the police who protect us and realistic application of aspirational codes of conduct. Qualified immunity should make for more honest assessments of whether the law was actually violated, because even if it was the Plaintiff must show the officer should have been aware of that standard, but when courts couple qualified immunity with extraordinary deference to police on the question of reasonableness, not only are they making a bad decision on the law, but they doubly delaying the deterrence of section 1983 which will only come about after the law has been fixed AND that fix has become firmly established.

The second reason this decision is outrageous and intolerable is that it is a very poor decision on the law. The Chief Judge went to the trouble of citing the law in the first few paragraphs, but that was the very last time it made an appearance in the decision. As the Chief judge says, “[the court] does not sit in judgment to determine whether an officer made the best or a good or even a bad decision in the manner of carrying out the arrest.” Indeed, the court sits to fairly apply the law. It had two sets of factors to consider (see above). The third Drape factor is only there to be balanced against the first two. The first two quantify the relationship between the need to use force and the force used. The problem here is that the need is almost nonexistent. Judged by the Graham factors; (a) the severity of the crime could not be lower – refusal to sign a traffic citation and passive resistance of arrest for that refusal; (b) whether the suspect posed an immediate threat to the safety of the officer or others – by lying, handcuffed, on the ground and refusing to move; and (c) whether he was actively resisting arrest or attempting to evade arrest by flight, the decision is unjustifiable. Moreover the rational relationship between tasering someone and trying to get them to stand up and comply is dubious, especially when the taser is set to “stun-gun mode.”

The Chief Judge continuously characterizes the Plaintiff’s resistance as an active and ongoing action. He was lying on the ground, sobbing. Now, if the Chief Judge wanted to argue that was “active[]” resistance, he should have done so. Otherwise, none of the Graham factors are even met. Instead of arguing the law, the Chief Judge had the nerve to assert sweeping constitutional law drawn from nothing other than his personal sentiments about the case – that “as a matter of federal constitutional law [an officer in this situation need not] wait idly for backup to arrive to complete an otherwise lawful arrest.” It should strike you as odd, because the Chief Judge is here asserting that a particular practice is per se reasonable, after he went to great pains to acknowledge the fact dependent nature of reasonableness inquiries.

The Chief Judge forgot that his job was to apply the law, not his own sense of right and wrong. If his argument differed on what the law meant, that would be one thing, but it didn’t. His argument was that, without reference to the law, what the officer did was per se reasonable. Thus does a lawless judicial opinion protect lawless police action.


Comments are closed.

Name (required)

Email (required)


Speak your mind