BB&K Police Bulletin: Taser Excessive Force - Police Use Excessive Force by Firing Taser in Dart Mode at Passive Bystander

by Best Best & Krieger LLP

Overview: The Ninth Circuit Court of Appeals recently held that Washington state police used excessive force when firing a Taser in dart mode at a passive bystander. The sergeant and four officers had already tased an elderly man and were holding him down, alarming concerned neighbors. An officer yelled at one male neighbor to “get back” while another ordered him to “stop.” The man took two steps back and stopped. The sergeant ran toward the man and tased him. The bystander was arrested but never charged with obstructing police. The bystander sued the sergeant and the city for use of excessive force and unlawful arrest under 42 U.S.C. §1983.

Training Points: There are a four points to consider in this ruling: (1) the orders given by officers on the scene; (2) the level of force used on a passive bystander; (3) the justification to use force in response to perceived “interference” on the part of that bystander; and (4) the law enforcement agency’s policy classifying the use of a Taser as “minimal force” allowing for its use in non-threatening situations.

First, in many situations a use of force can be avoided if a subject is given clear directions by the fewest number of officers possible, which avoid contradictory orders and contributes to compliance.

Second, Tasers clearly are effective tools in overcoming physical resistance and averting physical contact. It is critical, however, for officers to understand that a Taser should not be used to overcome “passive resistance” which calls for a lower level of force.

Third, a person merely being in proximity to an impending arrest by itself may not legally constitute interference. If other conditions are present, such as the issuance of lawful orders for the person to step back followed by both passive resistance and a vocal refusal to obey, then the use of minimal force may be justified for the articulated purpose of officer safety. The key questions to ask are: (1) Is the use of force justified under the circumstances? and (2) What level of force is appropriate? Reverting immediately to the Taser without explicit, concise verbal commands or at least an attempt to physically overcome the interference may result in the use of force being questioned.

Fourth, use of force policies should reflect that the Ninth Circuit consider Tasers to be an intermediate use of force requiring a “strong governmental interest” to justify the use, even though they are non-lethal.

Summary Analysis: In Gravelet-Blondin v. Shelton, Sergeant Shelton and four officers from the Washington Police Department responded to a call made by family members of an elderly suspect, Jack, who was sitting in his car with a hose from the exhaust pipe running into a window. Jack, a gun owner, stepped out of the car with his hands at his sides. After failing to show his hands, Jack was tased twice. His neighbors, Donald and Kristi Gravelet-Blondin, stepped out into the yard between Jack’s house and theirs, and heard Jack moaning in pain. From 37 feet away, with Jack’s car positioned between them, Donald Blondin was given contradictory orders to “get back” and “stop.” He took two steps back and appeared “frozen with fear.” Shelton fired his Taser in dart mode, knocking down Blondin and causing pain, paralysis and loss of muscle control. The Blondins sued Shelton and the city.

The district court ruled in favor of the defendants, but the Ninth Circuit disagreed, finding the discharge of a Taser in dart mode unreasonable given that Blondin’s alleged crime of obstructing an officer was minor. Based on Blondin’s behavior, demeanor and distance from the officers, the court saw no reason to believe that he posed an immediate threat to anyone. He also lacked any connection to the underlying police response. Further, the court held that Shelton was not entitled to qualified immunity because it was well known as of the date of the 2008 incident that a Taser in dart mode constituted more than trivial force. The city was subject to municipal liability because its policy classifying Tasers as “low level” force allowed its use on non-threatening targets.

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