Taser Pain May Be Considered by Supreme Court as Excessive Force

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Although the court found a constitutional violation on the facts presented to it, it ruled that the officers were entitled to qualified immunity from Brooks' constitutional claim because the law was "not sufficiently clear at the time of the incident."

Chief Judge Alex Kozinski disagreed strongly with the majority's conclusion that the use of the Taser gun qualified as excessive force.

"Bull Pucky!" Kozinski wrote in his 2011 partial dissent. He pointed out that Brooks had been resisting arrest and that the officers had chosen the safest tool in their arsenal to deal with the woman's defiance.

"Having already warned Brooks that he'd tase her if she wouldn't comply, Jones tried the lightest possible application of the device, pressing it against her clothed thigh for five seconds," Kozinski wrote. He said the final result was "utterly positive," the officers had defused the situation, Brooks suffered only minor scars, and her daughter was born healthy.

He chastised the majority for counting the seconds between tasings and finding that the rapid succession provided no time for her to recover. "Although Brooks claims she was 'scared' and 'in shock" after the initial tasing, she also admits that she began yelling for help and honking her horn" with a "deliberate decision to continue her defiance," Kozinski wrote.

Both Brooks and the officers have appealed the case to the Supreme Court. Brooks wants the court to find that the officers should not be immune from her suit, and the officers want the justices to overrule the lower court on the constitutional violation.

The officers say they need guidance from the Supreme Court. In court papers their lawyers write that the appeals court "abolished application of a useful pain compliance technique without describing why the technique was unreasonable and without evaluating or even discussing alternatives that the officers could have used to reasonable effect their lawful duties."

Each side cites a 1989 Supreme Court decision regarding the use of excessive force that said such cases should be analyzed using an "objective reasonableness standard." The court held that "the 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

But experts think the court might be reluctant to take up the taser case.

"This case looks very dramatic on its facts," says Robert Weisberg of Stanford Law School. "But that doesn't mean it's a very good case for the court to take." Weisberg notes that both parties have filed petitions asking for the court to step in and that there is no decision below imposing damages.

"The Supreme Court might say 'This is procedurally too weird a situation to be the right vehicle for us to say something about Tasers,' " Weisberg says. "I think the court is likely to view Tasers as a legitimate means of inflicting non lethal force. If so, it may find it impractical to declare a constitutional rule about when Taser use is okay and when it isn't because the legitimacy of Taser use may just depend on the situation. If so, the court's view might be, 'we don't want to treat Tasers differently from other non lethal means of force' therefore it's not desirable to have a rule for Tasers. The rules governing Tasers will be the general rules governing excessive force and therefore we don't want to make a constitutional doctrine out of Tasers. "

He says in general that lower courts have tended to defer to police on the use of Tasers, but there have been a few cases where a person has won a lawsuit against police, where the Taser use was arguably unnecessary and where it happened to inflict serious harm.

Lisa Kern Griffin of Duke Law agrees that the court may not step in to take this case.

"The issue is not presented well in this particular case, if they wanted to engage with new technologies for both the apprehension of suspects and crowd control, both of which have been in the news and in the courts lately, they will look for a case that presents the issue at a higher level of generality and has significance beyond the particular facts of the tasering that happened in this case, " she says.

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