( – promoted by Jack McCullough)
UPDATE: I’m bumping this because I think the issue needs more discussion than it got. I also (finally) got around to reading not only the Circuit but also the District Court decision, which explicates the reasoning much more fully.
I’m passing along the District Court decision on the use of a Taser to force trespassers in Brattleboro to comply with police demands. You have probably already heard of the Circuit decision, but the District Court decision is much more detailed in its discussion of how the decision was reached.
The background is that two people living in Brattleboro placed themselves on a piece of vacant property to prevent the owner from building a gas station there, and chained themselves to a barrel filled with concrete and other heavy materials to prevent the police from
physically removing them. They spent the night there, but the next morning, acting on directions from the property owner, the police unsuccessfully tried to get them to leave voluntarily and eventually applied a Taser to get them to comply. They sued the police alleging a
variety of torts, including the use of excessive force.
The decisions both come down in favor of the police, applying a two-step test in which the court must first evaluate whether the action taken by the police violated the plaintiffs’ constitutional rights, and second, if there was a violation of a constitutional right, whether the
constitutional right was so well established that the plaintiffs are entitled to recover damages for the violation.
Both courts determined that the police did not violate any constitutional right of the plaintiffs, and this is where the district Court decision is most instructive.
Some basic points are not at issue, or are easily disposed of: the protesters were trespassing on the property; the police were acting within their authority in ordering them to leave; the police lawfully arrested the protesters; the police pursued an approach of trying less invasive methods, such as telling them to leave, asking them to release themselves from the barrel, and warning them that they were about to be hit with the Taser and it would “hurt a lot” before actually doing it.
The basic question is whether, under these circumstances, the police were permitted to use the Taser, and the analysis of the District Court
is troubling for our work. In the public debate, the police and other Taser supporters are constantly claiming that they need the Tasers
because they save lives by avoiding the need to use guns or other more deadly weapons.
You know how it goes: if the Brattleboro police had had Tasers Robert Woodward would be alive today.
As you follow the reasoning in this decision, thought, it appears that avoiding the use of other deadly force is not the sole legal
justification for using a Taser. The court reviews two other decisions in which a person’s act in resisting a police order was justification to use a Taser as a pain compliance technique. It quotes another court decision which characterized the use of a Taser as “moderate, non-lethal force”. In this case the court finds that the plaintiffs’ refusal to release themselves from the barrel or tell the police how to do it
constituted active resistance to the police’s lawful commands.
This is apparently the same rationale by which the Barre police decided their use of a Taser against the person at Cumberland Farms who wouldn’t leave when they told her to was justified.
I can see some real problems for us here, but one of the big ones is that we’re not even talking the same language that they are. We are making our arguments in part on the presumption that the Taser is deadly force and can only be used when deadly force is justified, whereas the argument the police are using is that they’re entitled to use force to enforce their orders, whether that means a pain compliance hold, a physical takedown, a baton, or a Taser. Legally I think they win that argument.
In debates about whether Tasers should be deployed, however, they’re going to keep using the “Tasers save lives” argument. I think we need to be prepared to convince policy makers that Tasers are deadly force, and that they’re too dangerous to use merely for pain compliance.
Jack McCullough
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Today, it was announced that a federal court upheld the decision to dismiss charges against Brattleboro police who used stun guns on two protestors in 2007. Raise your hand if this decision makes you feel safer in Vermont. Nobody?
Appeals Court Judge David Larimer wrote that even if the officers’ actions weren’t reasonable, they were still entitled to qualified immunity for their good faith actions.
What exactly will be the effect of that decision on future encounters between peaceful protestors and police remains to be seen, but it does raise the question of where “good faith actions” end and arbitrary brutality begins. One would think that whether or not these officers’ actions could be deemed “reasonable” would be highly relevant to their culpability. With this decision, the court seems to be saying that if police think their actions are justified, then they are. Period.
Nevermind all the attendant issues like whether or not use of a stun-gun should be regarded as “non-lethal force,” this federal decision represents yet another blow against civil liberties.
So the judge just said if it was unreasonable, they get civil and criminal immunity for some “good faith” clause that exists (as far as I’ve studied) literally nowhere in Vermont law?
So if a citizen is flashing lights warning oncoming traffic about a police officer, that should fall under a “good faith” clause, right? This leaves so much room for future mishaps that it’s not even funny.
That would sound good to me, especially since Quebec settled the legality of being a good samaritan:
Woo
It really is all about command and control.
All police are above the law.
Look at the BART cop verdict. They reluctantly gave that cop the bare minimum of two years. And only because they were forced to because it was all recorded on video!
If there had been no video recording, that cop would have been given a medal of bravery for heroically shooting a handcuffed arrestee who was laying face down on the ground!
So it is no surprise that police everywhere, including Small-Town Vermont, feel no restraint whatsoever in being hyper-violent for no reason.
I don’t often read posts dedicated to “taser talk” on GMD and I’ve expressed my opinion about them less often.
In this case, Mr. Crowell and Ms. Killmurray got what was coming to them. The police officer’s utilization of a taser achieved an outcome that wasn’t attainable with words alone. It’s irrelevant that the protesters weren’t violent or threatening anyone as they were informed that they were unlawfully trespassing on private property, were warned of the consequence of not leaving, and chose to continue their unlawful protest in spite of this. At that point the use of coersive force was inevitable as Mr. Crowell and Ms. Killmurray refused to comply with a police order to leave. AFTER police made several attempts to remove their arms from the barrel and made several verbal requests that they leave the property. Were you a police officer tasked with enforcing the rule of law, what would you have done in this instance? A baton to their heads, a knee to the spine, a german shepard gnashing inches away from their faces? Instead, the police officers chose a method which forced compliance while causing minimal harm and resulted in no permanent injury to Mr. Crowell, Ms. Killmurray, or to themselves. I know I’m in the minority on this site for expressing this opinion, as most criticize the actions of the police in any case involving tasers, but in this instance I applaud the police officers efforts and thank them for their service.
I’m sympathetic to the call against inappropriate uses of force, but in this case the use of force was justified and appropriate. I wouldn’t say that the federal court case decision makes me feel “safer”, but it certainly doesn’t make me feel any less safe.
Although we should know better, we’re increasingly addressing any and all challenges in our decaying society with violence, force and unflinching coercive measures. The natives under whose soil our oil resides getting restless? Bomb ’em with shock & awe. Protesters not budging? Zap ’em, that’ll show ’em who is in charge.
Really. When the only budget lines that are not only sacred but are growing by leaps and bounds are those related to repression, surveillance and the infliction of harm, then that’s necessarily going to be the go-to strategy for your average decision maker. So, if my local police chief can get an easy grant to buy tasers, why should he bother training his team in conflict resolution tactics or spend time and scarce resources to better understand and deal with the strain that his “customers” are under as they’re being increasingly marginalized by the powerful — who all the while are explicitly shown to be held above the law, immune from the most basic rules that used to apply equally to us all?
In other words: as we stop pretending to be a society that cares, those in power and their eager enforcers can with increasing impunity go straight to the coarse tools of simple repression and brute force.