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Taser Ruling Should Raise the Bar for Portland On December 28, the Ninth Circuit Court of Appeals (which covers Oregon) ruled in favor of Carl Bryan, who was tasered by a California officer. Bryan sued, claiming excessive force (Bryan v. McPherson 2009). Bryan had been stopped at a seat belt checkpoint, and was not wearing his seat belt. Bryan became agitated when he was asked to pull to the side of the road. He complied, but stepped out of his vehicle without being asked to. Because of unrelated circumstances, Bryan was wearing only shoes and boxer shorts, so it was clear he had no weapons. Officer McPherson testified that Bryan was standing at least 20 feet away. McPherson ordered Bryan to return to his vehicle, but Bryan says he did not hear this order. Physical evidence at the scene indicates Bryan had his back to the officer when McPherson drew his Taser without warning and fired it. The five-second, 50,000 volt shock caused Bryan to fall forward, shattering his four front teeth and causing contusions on his face. Among the cases cited in the court opinion, Judge Wardlaw quoted Meredith v. Erath, saying "we must 'balance the amount of force applied against the need for that force.'" Not only did Bryan receive injuries during his fall, but "The tasered person also experiences an excruciating pain that radiates throughout the body," wrote the judge. The opinion continues, "A barbed probe lodged in [Bryan's] flesh, requiring hospitalization so that a doctor could remove the probe with a scalpel. A reasonable police officer with Officer McPherson's training on the X26 would have foreseen these physical injuries when confronting a shirtless individual standing on asphalt." An individual trained in the use of a Taser understands that it is certainly not a minor use of force. In critiquing the officer's decision, the court quotes Smith v. City of Hemet, "The most important factor is whether the subject poses 'immediate threat to the safety of the officers or others.'... A simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern." In Bryan's case, these requirements were not met. At one point, the officer attempted to justify the Taser use by claiming he believed Bryan to be mentally ill because of his agitation. To this, the court replied "To the contrary: if Officer McPherson believed Bryan was mentally disturbed he should have made greater effort to take control of the situation through less intrusive means... A mentally ill individual is in need of a doctor, not a jail cell ... Moreover, the purpose of detaining a mentally ill individual is not to punish him, but to help him." We couldn't have said it better ourselves. The opinion makes another important point, noting that while officers do have to be able to make quick decisions, "This does not mean...that a Fourth Amendment violation will be found only in those rare instances where an officer and his attorney are unable to find a sufficient number of compelling adjectives to describe the victim's conduct. Nor does it mean that we can base our analysis on what officers actually felt or believed during an incident." The ruling states that the officers' use of force must be "'objectively reasonable' in light of the facts and circumstances." Portland is still poring over the case to see how it will affect their training and policies. It seems pretty simple to us: You can't use the Taser as a compliance tool any more, there has to be an actual threat.
See other Legal Briefs including Police "union" comments on the Taser ruling. New Study Examines Ways Tasers Lead to Death On March 15, Dr. Marjorie Lindquist told the American Physical Society (a group of physicists) about several ways conductive energy devices, such as Tasers, can kill people. She said that a person with increased lactic acid in their blood from the shocks can experience a reduction in oxygen and a form of asphyxiation. Also, excessive potassium, potentially released by muscle contractions during handcuffing, in conjunction with the Taser can cause death, as can an episode of sickle cell anemia. "They have to understand how it kills," says Lindquist, who generally opposes Tasers use. "To use something that is dangerous safely, you have to understand how it poses a danger" (Skanner, March 16).
Oregon's latest Taser Death?
Man with Disabilities Tasered by Transit Cops In a situation reminiscent of the thirteen taserings of Sir Millage, a teen with autism (PPR #40), two officers working with the Portland Police Bureau's Transit Division used Tasers on Calbruce Jamal Green in early December. Green is 34 and has a verbal IQ of 55, meaning he is considered developmentally disabled. A driver directed Green not to board a bus because the displayed route number was incorrect. To stay warm, several people including Green, who showed his Honored Citizen Tri-Met pass, got on a nearby bus. Soon, the driver of that bus asked the passengers to get off, and all complied except Green. Beaverton Officer Keith Welch quickly boarded and asked Green to deboard and to take his hands out of his pockets. Welch's report indicated that Green kept his hands in his jacket, stared blankly and said, "I just want to go home. I'm not doing anything wrong." When threatened with tasering, Green "appeared to become agitated" (Portland Mercury , February 11). So, Welch tasered him, then pulled a gun on him. Apparently fearing for his life though heavily armed, Welch radioed for cover and was joined by Portland Officer Jack Blazer (#37413), who tasered Green again and removed him from the bus. Green was charged with interfering with public transportation and a police officer. Adding insult to injury, Green was also charged with possession of a controlled substance because officers misidentified his seizure medication as Ecstasy. The drug charge was later dropped. Green's attorney had him assessed to see if he was competent to assist in his own defense. On February 5, Disability Rights Oregon filed a complaint with the Independent Police Review Division about the incident. The ignorant way Green was handled was exacerbated when the jail released him into the night without his scheduled medication. He arrived home after midnight, having walked five miles from the "Justice" Center. He was unaware he was allowed to call his grandmother, who drove around for hours trying to find him. It appears the Crisis Intervention Team (CIT) training given to Portland officers is not having much of an effect--they seem to be unable to recognize mental illness, developmental disabilities or autism, and cannot tell the difference between Ecstasy and prescription medication. Beaverton officers are also required to do 24 hours per year of this training. Green's use of an Honored Citizen pass might have been a clue to those who decided to Taser first and ask questions later. In the Bureau's usual defensive stance, CIT coordinator Liesbeth Gerritsen stated that "If somebody is sitting on a bus and he's got a jacket on and he's not talking, and he's got his hands in his pockets, the first concern is always going to be an officer safety concern." Many transit riders don't talk and have their hands in their pockets. Shouldn't the public's safety be the first concern? |
May, 2010
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People's Police Report
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