We successfully defended the City of Federal Way and two of its officers in a case that has drawn some attention because of the District Court’s discussion of one officer’s multiple Taser applications to the plaintiff, Rickey Beaver. Mr. Beaver, represented at trial and on appeal to the Ninth Circuit by appointed counsel, was arrested following a daylight residential burglary. The single officer on the scene commanded Beaver, a large man high on drugs and alcohol, to stop. Over the next minute, he applied his Taser to Beaver 3 times before a second officer arrived on the scene. He then applied the Taser two more times before Beaver complied with verbal commands and was placed in hand cuffs.
We moved for summary judgment on qualified immunity. Judge Pechman, in a reported decision (2006 U.S. Dist. LEXIS 83097) denied our motion. The matter proceeded to trial before Magistrate Judge Donohue. Following a three day bench trial, Judge Donohue, in a reported decision that has since been frequently cited for its discussion of multiple Taser applications (507 F.Supp. 2d 1137; 2007 U.S. Dist. LEXIS 64665), ruled that the first three Taser applications were reasonable under the 4th Amendment. He ruled that the last two Taser applications were excessive, but found that the officers were entitled to qualified immunity.
Plaintiff appealed the decision to the Ninth Circuit, who affirmed in favor of our clients. In an unpublished decision, the Court held that ” . . . there was no clearly established law on August 27, 2004 [the date of the incident], to put a reasonable officer on notice that tasing an arrestee who was suspected of a serious crime, had attempted to flee from officers, and continued to be non-compliant was unconstitutional. Additionally, the officers’ conduct was not a patently offensive violation of Beaver’s constitutional rights.” Applying the factors set forth in Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001), the court stated: [T]he officers’ conduct was not patently offensive of Beaver’s constitutional rights. Beaver was suspected of committing a daytime burglary, a felony crime in Washington state, and was attempting to flee from officer Laird. He ignored Laird’s warning to stop and remained noncompliant to the officers’ commands. The officers relied on the taser only as a last resort to gain control of Beaver.”
Judge Donohue’s decision has been cited in the Ninth Circuit’s recent decision, Bryan v. MacPherson, 608 F.3d 614, 621 (9th Cir. 2010), which made the important statement concerning Tasers: “We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by “a strong government interest [that] compels the employment of such force.” (Citations omitted) (Id. at 622)
The law on Taser use is developing in the Ninth Circuit. Courts are assessing the level of force differently depending on whether it is applied in drive-stun mode or in dart mode. We work in this area of law daily. If your department is in need of refresher training on this developing area of police liability, contact us.
To read Judge Pechman’s decision, click here. To read Judge Donohue’s decision, click here. To listen to our argument in the Ninth Circuit, including the active questioning by the panel of judges, click here. Finally, to read the Ninth Circuit’s decision upholding the decision in favor of the officers and Federal Way, click here.
