-
PAGE 5
In this case, appellee has conceded that when Oliver struggled to free himself from Officer Burk in the street, he at least arguably placed himself and Officer Burk in some danger, and therefore, under the rationale of Draper, the use of an initial, single TASER™ shock to calm the suspect may have been justified.
Here, however, the force used against Oliver did not end there. The officers did not merely shock Oliver once and then attempt to engage him, arrest him, or "Baker Act" him. Rather, again viewing the facts in a light most favorable to Oliver, the first shock brought Oliver down to the burning hot pavement. Without any warning or instruction to Oliver, Officer Fiorino then tased [sic] Oliver once again. Ten seconds later, she tased Oliver still again. When her TASER™ broke and lodged the TASER™ prongs in Oliver, she reloaded and tased him again. The first TASER™ shocks left Oliver unable to roll over, and when he tried to sit up, he flopped down like a "wet cloth" because he had no control over his body. Yet Officer Fiorino continued to tase him several more times over the next minute, leaving him totally immobilized and clenched up. He could not sit up, screaming in pain while lying on the burning hot pavement. Yet the officer tased him still again. When Fiorino tased Oliver for the final (and at least eighth) time, he was already lying on his back. By the time the ambulance came, blood was coming out of Oliver's mouth. His body temperature rose to 107 degrees and he ultimately died as a result of the TASER™ shocks.
The justification for the repeated use of TASER™ force, at least beyond an initial TASER™ shock, was minimal. The plaintiff was not accused of or suspected of any crime, and indeed was not threatened with arrest or apprehension at any time prior to (or after) the use of force. The plaintiff posed no immediate threat of danger to officers beyond the moment of struggle with Officer Burk. He did not act belligerently toward the police officers, and he did not curse or yell at them. In fact, he was largely compliant and cooperative with the officers -- moving away from their vehicle when instructed, stopping and talking the first time he was requested to do so (even though not threatened with detainment), stopping when instructed, providing requested identification, and only attempting to disregard the officer and walk away when the officer attempted a "custodial touch" on Oliver's shoulder.
Moreover, the plaintiff did not pose a grave danger to others. While Oliver did stop in the street and may have attempted to cross the street against the light, viewing the facts in a light most favorable to Oliver, we may infer that Oliver was within the lane that was boxed in by the police cars, and thus not exposed to traffic during the incident. This inference is supported by Officer Burk's statement that the entire incident occurred in "the safe area," that "none of this incident took place in the middle of the intersection," and that he did not recall any traffic passing by, honking, or almost striking him or Oliver during the incident. Finally, Oliver was not actively resisting arrest nor attempting to evade arrest by flight.
Quite simply, though the initial use of force (a single TASER™ shock) may have been justified, the repeated TASER™ discharge of Oliver into and beyond his complete physical capitulation was grossly disproportionate to any threat posed and unreasonable under the circumstances.”
Perhaps what is most important about the court’s analysis is the application of a straight Grahami analysis rather than any reference to a deadly force. In denying the officer’s appeal for qualified immunity the court concluded: “TASER™ing [sic] the plaintiff at least eight and as many as eleven or twelve times over a two-minute span without attempting to arrest or otherwise subdue the plaintiff -- including TASER™ing Oliver while he was writhing in pain on the hot pavement and after he had gone limp and immobilized -- was so plainly unnecessary and disproportionate that no reasonable officer could have thought that this amount of force was legal under the circumstances. When measured against these facts, the officers violated a clearly established right.”
A case which includes both law enforcement liability claims and products liability claims against TASER™ International is Heston v. City of Salinas.ii
In the portion of the case dealing with the liability of the officers and the City of Salinas, the court reported the “undisputed” facts as follows:
“On February 20, 2005, Robert Sr. called 911 requesting police to remove Robert Jr. from the Heston residence because Robert Jr. was on drugs. Several Salinas Police Officers responded to the call but left after concluding that Robert Jr. had done nothing illegal and could not be arrested. Shortly after the police left, Robert Sr. called 911 again, reporting that Robert Jr. had knocked him down and was breaking items in the house.
Officer Dominici and Officer Fairbanks, who had responded to the first call, returned to the scene to find Robert Jr. throwing household objects out the front door of the Heston residence. When they arrived, Robert Sr. was on the floor, having been knocked down by Robert Jr. Officer Dominici, looking through the open front door of the Heston residence, observed Robert Jr. drag Robert Sr. out of sight of the doorway into the home.
Robert Jr. then returned to the doorway and resumed throwing objects out of the house and threw one object directly at Officer Dominici. About a minute later, Officer Dominici fired his TASER™ [sic] at Robert Jr. One of Officer Dominici's TASER™ probes missed Robert Jr. and lodged in the door jam. Officer Dominici's TASER™ did not bring Robert Jr. down. Officer Fairbanks then fired his TASER™. Officer Fairbanks' TASER™ did not bring Robert Jr. down.
Officer Ruiz then arrived at the scene. After observing the events and receiving a hurried briefing from Officer Dominici, Officer Ruiz fired his TASER™ at Robert Jr. Officer Livingston, arriving just a few moment earlier, also fired his TASER™ at Robert Jr. After being struck by Officer Ruiz and Officer Livingston's TASER™s, Robert Jr. moved back into the house but did not fall down.
Officer Livingston and Officer Ruiz followed Robert Jr. into the house. Officer Livingston "cycled" his TASER™ a second time inside the house. At this point, Officer Godwin had arrived on the scene. Officer Godwin observed Officer Ruiz and Officer Livingston fire their TASER™s and followed the Officers into the house. Officer Dominici also followed Officer Godwin into the house.
Inside the house, Officer Godwin fired his TASER™ at Robert Jr. Robert Jr. then collapsed to the ground, hit his head on a table as he fell, and ended up prone on his stomach with his arms underneath him. While Robert Jr. was on the ground, Officer Godwin cycled his TASER™ at least three times, as did Officer Livingston, and Officer Ruiz.
Officer Paredez then entered the house and tried to obtain control of Robert Jr.'s left arm. When Officer Paradez grabbed Robert Jr.'s arm, he felt a TASER™ shock. Officer Simpson had also arrived and attempted to assist Officer Paradez in pulling Robert Jr.'s left arm out from underneath him for handcuffing. Meanwhile, Officer Fairbanks had also entered the house and was attempting to remove Robert Jr.'s right arm.
Officer Godwin, believing Robert Jr. was intentionally keeping his arms underneath him, cycled his TASER™ again. Officer Godwin, assuming his TASER™ was having no affect, removed the cartridge from his TASER™, and replaced it with a new one. Officer Godwin then fired his TASER™ directly into Robert Jr.'s back. After Officer Godwin's TASER™ cycled one more time, the Officers were able to pull out Robert Jr.'s hands and handcuff him.
When Robert Jr. was handcuffed, Officer Godwin observed his head turning purple. Officers rolled Robert Jr. over and observed him to be in medical distress. Officer Dominici and Officer Fairbanks called for an ambulance. Officer Godwin began rescue breathing. Robert Jr. was taken to the hospital where he died the following day without regaining consciousness.” (citation and footnotes omitted).
In the trial court’s consideration of the officers’ and city’s motion for summary judgment and qualified immunity for the officers, the court opined that “Considering Robert Jr.'s vulnerability, and the coroner's testimony that the ‘application of TASER™’ partially caused Robert Jr.'s death, it would not be unreasonable for a jury to find the applied force to be deadly… In sum, viewing the above factors in the totality of the circumstances, it appears that a reasonable jury could find that the Officers used unreasonable force in tasing Robert Jr. multiple times after he had fallen and had hit his head on the table. Even if the use of TASER™ was not deadly, it may still have been unreasonable given the testimony of Plaintiffs' experts. A jury could also reasonably find that Officers Godwin, Ruiz and Livingston's use of TASER™ to be non-lethal yet excessive considering that Robert Jr. was already on the ground, that he was not a suspect for a serious crime, and that less intrusive means were available to effect his arrest.”
It should be noted that this “less intrusive means” language has never been an element of use of force analysis by the United States Supreme Court and is contrary to all of the other United States Circuits.iii There are cases where the United States Court of Appeals for the 9th Circuit has rejected this type of analysis.iv There has been some consistency among courts within the 9th Circuit in cases where officers have used deadly force and plaintiff claims that some lesser alternative should have been considered.v
The court concluded that the officers were not entitled to summary judgment or qualified immunity and the case proceeded to trial. “The case was tried to a jury. On June 6, 2008, the Jury returned a verdict finding that the police officers did not use excessive force when they deployed their TASER™ ECDs against Robert C. Heston. Thus, the jury found that the police officers did not violate the constitutional rights of the deceased or his parents, nor did the officers commit a battery. Since there was no finding against the individual officers, the jury, as instructed, did not make a finding with respect to the City of Salinas.”vi
“With respect to Defendant TASER™, the Jury found that on February 19, 2005, Salinas police officers subjected Robert C. Heston to a prolonged deployment from TASER™s [sic]; that Defendant TASER™'s failure to warn of the risks associated with a prolonged deployment was a substantial factor in causing the police officers to administer a prolonged deployment; and that as a consequence of the prolonged deployment, Robert C. Heston suffered acidosis to a degree which caused him to have a cardiac arrest, leading to his death. (See Jury Verdict, Docket Item No. 323.) In sum, the Jury found that reasonably prudent manufacturers of electronic control devices knew or should have known that prolonged administration of electricity from the devices pose a danger, i.e., a risk of acidosis, to a degree which posed a risk of cardiac arrest. The jury found that Defendant TASER™ failed to warn purchasers of those risks.”vii The jury found that the decedent, Robert C. Heston, was 85% responsible for his death due to his toxic use of methamphetamines and related activity, and that TASER™ International was 15% responsible. It should be noted that TASER™ International is appealing the decision reached in this case.
............................................................GO TO PAGE: 1 2 3 4 5 6 7 8 9
CITATIONS: (PAGE 5)
i Graham v. Connor, 490 U.S. 386 (1989).
ii Heston v. City of Salinas, 2007 U.S. Dist. LEXIS 98433 (N.Dist. CA. 2007). (Note-there are several additional citations related to various aspects of this case.)
iii See e.g., Williams v. Holt, 2006 U.S. Distt. LEXIS 55148 (E. Dist. Tennessee 2006) “Contrary to Williams' exhaust-other-means argument, "[t]he Fourth Amendment does not require law enforcement officers to exhaust every alternative before using justifiable deadly force." Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir. 1997). See also Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999)(same). As the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") has said: "The fourth amendment reasonableness standard does not turn on the availability of less intrusive alternatives." Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). Clearly, Williams's proposal deadly force is justified only after all other options have proven futile has no basis in the law and is frivolous.” (emphasis added)
iv Id.
v See e.g., Meceachern v. Manhattan Beach, 623 F. Supp. 2d 1092 (Central Dist. California 2009) (rejecting the proposition that the officer should have utilized his law enforcement canine rather than deadly force under a lesser alternative available argument)
vi See Heston v. City of Salinas, 2009 U.S. Dist. LEXIS 10096 (N. Dist. Cal. 2009).
vii Id.
TASER® (ECD) LEGAL UPDATE ARTICLES
U.S. Court of Appeals, 9th Circuit: TASER® Was Unconstitutional (Graham Analysis) (2011) by Jack Ryan
When Officer Mistakes Firearm for TASER® (2011) by Brian S. Batterton
TASER® Probe Mode, Secondary Impact And Liability (2011) by Jack Ryan
Model Policy - Electronic Control Devices (PDF) by Jack Ryan
Use of TASER® in Drive-Stun Mode on Protestors: Objectively Reasonable in 2nd Circuit (2010) by Jack Ryan
TASER® Case Re-visited in 9th Circuit (2010) by Jack Ryan
TASER® on Non-Compliant Arrestee (2009) by Jack Ryan
TASER® International, Inc. Warns Against Targeting Chest (2009) by Jack Ryan
TASER® & Electronic Compliance / Restraining Devices (2009) by Brian Batterton
11th Circuit Decides Taser® Case Involving Six Year Old (2009) by Brian Batterton
In-Custody Deaths and Excited Delirium (2007) by Jack Ryan
TRAINING:
TASER® (and ECW) Legal Issues & Litigation
RESOURCES:
Checklist for TASER®
laminated 8 1/2 x 11, 2 sided
TRC487: Taser (& ECD's) Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint® and TASER® Legal Update & Best Practices Manual (Electronic copy).
TRC486: Excited Dilirium Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint® and Excited Dilirium Legal Update & Best Practices Manual (Electronic & Print copy)
Critical Task Quick-Reference Legal Guide for Law Enforcement Officers & Supervisors
TRC490: Safe Storage of Firearms Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint®
TRC491: Use of Force, Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint®, Use of Force manual, 2nd ed. (Print copy)
| 
