Training is the 13th Juror™

Officer Laird testified that he is trained to assume, however, that until proven otherwise, that all suspects might carry weapons.

...the Court first finds that the use of a Taser constituted significant force....it is...undeniable that being "tased" is a painful experience.

Mr. Beaver appeared to be ignoring Officer Laird's commands --assuming that he understood those commands -- and attempting to rise off the ground. Defendants testified that they interpreted Mr. Beaver's actions as "active resistance." Mr. Beaver testified that he could not remember the event itself. Therefore, it is impossible to know what Mr.Beaver's subjective intentions were in failing to heed Officer Laird's commands.

However, an eyewitness testified that he heard Mr. Beaver say repeatedly, "I can't," while he was struggling on the ground. In addition, defendants' expert testified that being shocked by a taser can render a subject disoriented. Thus, Mr. Beaver's actions may have been as much a reaction to being tased as an intentional effort to resist arrest.

...the Court finds that under the objective inquiry set forth in Graham, Officer Laird's decision to tase Mr. Beaver the first three times was objectively reasonable and did not  violate the Fourth Amendment.
 

The analysis changes, however, with the arrival of Officer Castro. At this point, there were two officers to control the situation. To the extent that Mr. Beaver posed an "immediate threat" to Officer Laird during   the first three tasings, that threat was significantly diminished when Officer Castro arrived to provide backup. Once Officer Laird had backup, his options increased dramatically. Instead of tasing Mr. Beaver, Officer Laird could have covered Officer Castro while she approached Mr. Beaver and attempted to handcuff him. If Mr. Beaver resisted, Officer Laird could have fired the Taser again, or if that posed a hazard to Officer Castro,*fn7 he could have simply moved in to provide manual assistance. If needed, either officer could have resorted to another form of force such as spraying Mr. Beaver with pepper spray or forcing him to stay down with their knees or baton.

Defendants further argue that any option other than using the Taser would have endangered both themselves and Mr. Beaver. They base this argument on the assumption that Mr. Beaver would have     actively resisted being handcuffed, and using a baton or physical blows would have inflicted greater injury than the momentary pain of a Taser. The Court finds defendants' arguments unpersuasive.

...defendants maintain that because Mr. Beaver had not complied with Officer Laird's commands, he was actively resisting arrest and further tasing was warranted. As previously discussed, the defendants confuse involuntary non-compliance with active resistance. Officer Castro testified that she believed that non-compliance was the equivalent of a threat. In light of Mr. Beaver's failure to comply with Officer Laird's     multiple commands, his altered state of mind, and his statement "I can't," a reasonable officer would have concluded that Mr. Beaver was unable to comply with the commands given, and that his refusal to do so was at least in part involuntary. Involuntary actions cannot form the basis of active resistance. See Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th Cir. 2007) (holding that when no immediate threat is posed and suspect's failure to comply may be involuntary, officers were not entitled to use force).

...defendants contend that using any option other than the Taser would have posed greater risk to both themselves and Mr. Beaver. This argument relies on the assumption that Mr. Beaver would have tried to fight them off if they approached him. At the time of the fourth tasing, Mr. Beaver was rolling on the ground, impaired and obviously dazed, and indicating his inability to comply with the officers' commands. Defendants  essentially ask the Court to accept the proposition that the police should be permitted to use means such as a Taser to shield themselves from any possibility of harm and the suspect must suffer the consequences. To accept this proposition would effectively eviscerate the protections of the Fourth Amendment and also ignore the teachings of Graham, which counsels that a key question in this inquiry is whether a suspect poses an  "immediate" threat, not a "possible" threat.*fn8

This argument also conflicts with the training the officers received that instructs them to use a Taser "Only to Stop a Threat" and that an officer should "Never Use [a Taser] for Physical Coercion." Ex. 7, p. 10. Notwithstanding this training, Officer Castro testified that it was appropriate to use a Taser as often as required to force a suspect to comply with an order and that a suspect's noncompliance with an order should be treated as equivalent to resistance. The defendants' expert,Officer Myers proffered testimony that the training restriction "Never Use [a Taser] for Physical Coercion" does not really carry with it the plain meaning of the words. Instead, he stated that this language meant that an officer should not use a Taser to coerce a suspect without a legal basis to do so -- i.e., using the Taser to doing something illegal such as forcing a suspect to make an involuntary confession. To suggest that the words in the training material should so limited is simply another indication of his less than objective perspective regarding use of Tasers. Therefore, the Court rejects this argument and concludes that under the criteria announced in Graham and it progeny, the fourth and fifth tasings of Mr. Beaver were not objectively reasonable in light of the facts and circumstances surrounding the arrest.

"Police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen." Here, Officer Castro not only failed to intercede but affirmatively reinforced Officer Laird's actions by telling him immediately upon her arrival to tase Mr. Beaver again. She then failed to intercede when Officer Laird tased Mr. Beaver a fifth time. Accordingly, the Court concludes that Officer Castro, like her colleague Officer Laird, is responsible for subjecting Mr. Beaver to a deprivation of his Fourth Amendment rights. See United States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th   Cir. 1994), rev'd on other grounds, 518 U.S. 81 (1996).
 

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court clarified the test to be applied in evaluating claims of qualified immunity. The threshold inquiry in a qualified immunity analysis is whether the facts alleged, when taken in the light most favorable to the party asserting the injury, show that the defendant's conduct violated a constitutional right. Id. at 201. If the reviewing court concludes that no constitutional right was violated by the defendant's conduct, the court need not inquire further. Id. However, if the reviewing court concludes that a constitutional right was violated, the court must then determine whether the right was clearly established. Id. The time frame to determine whether the right was clearly established is at the time of the alleged violation of the right, and not the time of the trial of the case. See Rodis v. City and County of San Francisco, __ F. 3d __, 2007 WL 2421417 at *3, *6 (9th Cir. August 28, 2007).

Here, the Court has found that the first prong of Saucier has been satisfied, and that defendants violated Mr. Beaver's Fourth Amendment rights. The next step is to determine whether the right was clearly established. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . . . [T]he right the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id.at 201-02. However, even in the absence of directly analogous case law, if the actions taken were not only unconstitutional, but patently so, the officer will be deemed to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. See Cunningham v. Gates, 229 F.3d at 1290.

After reviewing the case law, the Court concludes that in 2004, when Mr. Beaver was arrested, the contours of Fourth Amendment jurisprudence and, in particular, excessive force claims of this type,were not sufficiently clear that a reasonable officer would have  understood that multiple tasings of Mr. Beaver under these circumstances violated his rights.

...the Court finds that at the time of the arrest, a reasonable law enforcement officer might well have failed to recognize that the actions taken by defendants -- specifically, the fourth and fifth tasings of Mr. Beaver -- violated his Fourth Amendment rights. Under the second prong of Saucier, the officers are entitled to qualified immunity.

The reader is encouraged to review their respective police practices as to the use of Tasers and Use of Force Policies so as to comport to the existing "clearly established" standard in their respective jurisdictions.

Reginald F. Allard Jr.

13thjuror, LLC

www.expertcop.com

13thjuror@cox.net