||WHEN AN OFFICER MISTAKES FIREARM FOR TASER®

WHEN AN OFFICER MISTAKES FIREARM FOR TASER®

On October 27, 2002, officers of the City of Madera (CA) Police Department arrested Everardo Torres.  While he was seated handcuffed in the backseat of a patrol car, he began yelling and kicking at the rear door window.  Officers standing at the rear of the police car in which Torres was located discussed that someone should “tase” Torres because he would injure himself if he managed to kick out the glass on the car window.

One of the officers walked to the rear of the police car, opened the door with her left hand and mistakenly drew her department issued handgun, rather than her TASER®.  She aimed center mass on Torres using the weapons laser site and fired one shot, killing Torres.  The officer asserted (the plaintiff did not dispute this assertion) that she in fact intended to draw her TASER® which was located in a leg holster, on her dominate side, below the holster for her firearm.  She had intended to use the TASER® in the dart mode rather than drive-stun mode.

Also relevant to the case was the fact that the officer had been issued her TASER® slightly less than one year before this incident and she attended a three hour training class.  The officer carried the TASER® in the department issued holster on her dominate or weapons side.  Shortly after being issued the TASER®, she had mistakenly drawn her firearm, rather than her TASER®, on two other occasions.  Both times, she reported the mistake to her sergeant, whose advice was to keep practicing drawing her TASER®.  The officer did practice daily and had no mistakes in the nine months preceding the incident with Torres.

The Torres family sued the city and the officer for violating Torres’ Fourth Amendment right to be free from an unreasonable seizure, particularly excessive force. The district court granted the officer’s motion for summary judgment finding that the Fourth Amendment was not applicable since this was a mistaken use of force.  The Ninth Circuit Court of Appeals reversed the district court holding that the Ninth Circuit follows the “continuing seizure” doctrine which states that once a seizure has occurred, such as Torres’ arrest, the Fourth Amendment implications continue throughout the time that the arrestee is in the custody of the arresting officers. [i]

The case was remanded back to the district court for further review in light of the “continuing seizure” doctrine.  The district court found that the officer’s mistaken use of the TASER® was reasonable and granted qualified immunity because it would not have been clear to a reasonable officer at the time of the seizure that a mistaken use of force violated the Fourth Amendment.  Torres’ family again appealed to the Ninth Circuit Court of Appeals.

First, the Ninth Circuit stated

Where an officer’s particular use of force is based on a mistake of fact, we ask whether a reasonable officer would have or should have accurately perceived that fact. [ii[

The court also noted that, when reviewing an officer’s use of force against a suspect, the court must

[Stand] in the shoes of the “reasonable officer,” [and] ask whether the severity of force applied was balanced by the need for such force considering the totality of the circumstances, including (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. [iii]

In light of the rules above, the issue before the court was whether the officer’s conduct in mistakenly applying deadly force to Torres was objectively reasonable under the totality of the circumstances. [iv]

In its analysis of the case the court of appeals stated

[I]f [the officer] knew or should have known that the weapon she held was a Glock rather than a Taser, and thus had been aware that she was about to discharge deadly force on an unarmed, non-fleeing arrestee who did not pose a significant threat of death or serious physical injury to others, then her application of that force was unreasonable. See Tennessee v. Garner, 471 U.S. 1, 3 (1985). That she intended to apply lesser force is of no consequence to our inquiry, for objective reasonableness must be determined “without regard to [the officer’s] underlying intent or motivation.” Graham, 490 U.S. at 397. Just as “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force[,] nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id. (citing Scott v. United States, 436 U.S. 128, 138 (1978)). [v]

The court then identified five factors that they must consider when determining whether the officer should have known that she was holding the wrong weapon.  The factors are

(1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that [s]he was holding a handgun; (4) whether the defendant’s conduct heightened the officer’s sense of danger; and (5) whether the defendant’s conduct caused the officer to act with undue haste and inconsistently with that training. [vi]

When applying the factors above to the facts of the case, the court first noted that the officer did perform inconsistent with her practice with the TASER®.  Second, the court noted that the officer articulated that she was more concerned with the danger Torres posed to himself by being cut by glass than danger to the officer or to others.  Lastly, there was no evidence that the officer perceived that she was in danger and had to act hastily. Additionally, the court noted that the officers previous two experience in weapons confusion should have alerted the officer to the risks in this situation.

Another factor noted by the court was that it did not intend to distinguish between the officer’s informal daily practice and more “formal” type training; thus, the court of appeals apparently gives weight to each type of training.  The court stated

[The officer’s] daily practice drawing the two weapons was conducted pursuant to Sergeant Lawson’s instructions, and, as the Torres Family argues, the definition of “training” does not necessarily require supervision and can include “the skill, knowledge, or experience acquired by . . . instruction, discipline, or drill.” Merriam Webster’s Collegiate Dictionary 1326 (11th ed. 2004). Accordingly, a reasonable jury could conclude from the totality of this evidence that [the officer] had trained for nine months specifically to prevent incidents of weapon confusion like this from happening, that she did not act in accordance with what she had practiced on the evening of Everardo’s shooting, and that had she done so, Everardo’s death could have been avoided. [vii]

Additionally, the court considered that since the officer did not articulate a concern for her safety or the safety of anyone other than the suspect (Everado Torres), this may not be the type of “tense, rapidly evolving” circumstance contemplated by Graham v. Connor.  Further, the court found that a reasonable jury could find, based on the facts that the officer acted with undue haste.  Lastly, the court noted that, while the officer’s mistake was an honest mistake, with no ill will toward Torres, the Fourth Amendment is only concerned that the officer acted “reasonably” and is not concerned whether the officer acted with “good faith” or “bad faith.”

In light of the rationale discussed above, the court of appeals found that sufficient facts existed to allow a reasonable jury to conclude that the officer’s mistaken belief was not reasonable.  As such, summary judgment is not appropriate.
The court of appeals next examined whether the officer was still entitled to qualified immunity.  The officer would be entitled to qualified immunity if the unconstitutionality of her conduct was not “clearly established” on the date of the incident.  The court stated

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. [viii]

The court then stated that in Torres’ case

[H]ad [the officer] realized that she was pointing a Glock at Everardo’s chest, she could not have been reasonably mistaken as to the legality of [her] actions. Jensen and Wilkins adequately put [the officer] on notice that an unreasonable mistake in the use of deadly force against an unarmed, non-dangerous suspect violates the Fourth Amendment. [ix] [internal citations and quotations omitted]

As such, the Ninth Circuit held that qualified immunity was not appropriate and reversed the decision of the district court.

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NOTE:    Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

CITATIONS:  

[i] Torres v. City of Madera et al., No. 09-16573, 2011 U.S. App. LEXIS 17459 (9th Cir. Decided August 22, 2011) at fn 8 (citing Robins v.

[ii] Id. at 10 (citing Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998) (mistaken shooting of fellow police officer was unreasonable if it occurred in conditions in which the officer should have been able to recognize the figure before him))

[iii] Id. at 12 (citing Graham v. Connor, 490 U.S. 386. 396 (1989))

[iv] Id. at 12

[v] Id. at 13

[vi] Id. at 14 ((citing Henry v. Purnell, 501 F.3d 373, 383 (4th Cir. 2007))

[vii] Id. at 17

[viii] Id. at 21-22

[ix] Id. at 27 (citing Wilkins v. City of Oakland, 350 F.3d 949 (9th Cir. 2003) and Jenson v. City of Oxnard, 145 F.3d 1078 (9th Cir. 1998))

By |2018-07-10T13:45:45+00:00September 11th, 2011|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.