Posted on 12/30/2009 10:06:50 PM PST by davidosborne
9th CIRCUIT CONCLUSION (posted on end of 22 Page decision) -- FULL PDF at link..
Viewing the facts, as we must, in the light most favorable to Bryan, we conclude, for the purposes of summary judgment, that Officer McPherson is not entitled to qualified immunity. We therefore AFFIRM the district court’s denial of summary judgment and REMAND this case for further proceedings.
MY CONCULSION: The 9th CIRCUIT has once again proven what a bunch of IDIOTS they are.. and WE THE PEOPLE should ABOLISH this court IMMEDIATELY !!!
Please provide backup for your statement that cops use the damn thing too much. What study came to that conclusion? Or did you come up with that thought given the amount of articles you see on the internet?
Not sure if I addressed this point very well so here it goes..... OF COURSE citizens have the right to contest a police officer in ANY given situation..
but the time and place to do that is NOT when you are told that you are under arrest and told to put your hands behind your back.....
failing to comply with this ORDER is resistance....or NON-COMPLIANCE...... and by the way is a crime in and of itself.... at this point the discussion is OVER you have a LEGAL obligation to submit to the arrest and take the issue up with the COURT.... PERIOD....PERIOD.....PERIOD.... what part of this does the 9th circuit NOT understand...... you will have AMPLE opportunity to contest ANY and ALL actions of ANYONE you wish including the officer who arrested you....
That is a pretty harsh opinion of me having never met me.....
lol.... Lord help us if it really does come down to that.. I might need to find another occupation..
You’re a known police stooge, so I will not waste time looking up all the hundreds of cases yearly, such as a 12 year old at school.
I’ve read your posts. Are you a cop? Only explanation!
police stooge? LOL
stooge / stoōj/
• n. 1. derog. a person who serves merely to support or assist others, particularly in doing unpleasant work: you fell for that helpless-female act and let her make you a stooge.
LOL !!!! ∎ a person who is employed to assume a particular role while keeping their true identity hidden: a police stooge.
2. a performer whose act involves being the butt of a comedian's jokes.
• v. [intr.] 1. move around aimlessly; drift or cruise: she stooged around in the bathroom for a while.
2. perform a role that involves being the butt of a comedian's jokes.
packrat35... I will spare you my FULL resume but you can read at your leisure... Here is my LinkedIN profile page..
http://www.linkedin.com/in/davidosborne1
Apparently, you do not understand that “excessive force” is defined by the situation, and not the tool. The taser may be fine in certain situations - and the court is letting a jury decide if this is one of them.
Selecting the tool to be used is a human action. That is what is under question here.
I agree with your logic but NOT your conclusion... IF force was authorized under the policy of the employing agency of the officer in this case.... AND the TASER was an approved “tool” in applying such force.. which I believe to be the case here.. than the 9th circus is putting the TOOL on trial... the only QUESTION that should be asked is whether FORCE was AUTHORIZED.. in other words was there or was there NOT resistance that needed to be overcome for the officer to do his job..... that is the LEGAL question and if the answer is NO the officer and the agency should be LIABLE for “excessive force” regardless of whether the force was applied using a tazer or an arm twist..
You apparently believe that all force is equal. Common sense disagrees.
Let’s break down your argument:
(1) “IF force was authorized under the policy...”
Isn’t the decision to apply force and the level of force applied inherently a decision made by the officer? Your reliance on a “policy” to absolve the officer from making a decision means that the officer needn’t ever consider NOT applying force, ambiguity be damned.
(2) “AND the TASER was an approved “tool” in applying such force”
You appropriately use the phrase “such force”, which implicitly acknowledges that there is a continuum of levels of force that can be applied by police. The taser is not the first level of escalation - that would be repeating the command, probably in a louder voice, if the arrestee is non-compliant but otherwise not belligerent.
(3) “which I believe to be the case here..”
Courts cannot try cases of belief - only those of fact. Appeals courts exist to make sure courts who try facts didn’t hose up the process. Your belief, as stated here, is that the lawsuit is without merit. That would necessarily be an issue of fact to be decided by the court.
The application of force by the police must be proportionate to the level of resistance met. If you believe that there is only a single-trigger for the application of force, then why do police ever bother not using their firearms. That is the ultimate level of force, is the safest for the officer (provided they can shoot straight), and is likely to be the most decisive in resolving the issue.
No, the tool is not on trial. The choice to use the tool in the specific situation is what’s on trial.
BTW, in engineering terms, you are advocating a “bang-bang controller”. Either it is full-on or full-off, with no throttle control. For the police, this translates to “comply or die”.
Is that really what you want?
BTTT
MortMan,
Thanks for your immediate reply...
(1) YES in fact the decision IS made by the officer to determine whether or not the suspect is RESISTING... once that question is answered in the affirmitive then FORCE is needed to overcome the resistance... THE POLICY of the agency will dictate what TOOLS may be used given the LEVEL of resistance.. of course someone who is non-compliant with an officers verbal command does not deserve to be SHOT between the eyes in most cases.... but certainly there may be a situation where deadly force IS appropriate after verbal non-compliance such as a person with a gun running into a crowded theatre saying he is going to kill everyone inside.. you can verbally tell the guy to stop, however if he fails to obey this verbal command than certainly deadly force is something to be considered.....
(2) you asert that the taser is NOT the first level of escalation in ANY case.. well I just gave you one example where deadly force may be considered at the “first level”
(3) you correctly stated that the question “on trial” is whether the taser was appropriate for this situation.. which fits my definition of the “tool” being on trial.... or at minimum the agency POLICY regarding the use of this tool...... suppose for a moment that it was not a TASER that was used but was some other tool or technique (such as an arm twist etc.)... we would not even be having this discussion..... IMHO here is the bottom line my friend.... if the officer was justified in putting his hands on the suspect against the suspects will.... I hope you agree that when an officer puts his hands on someone against their will that is a very dangerous situation... and if the officer chooses to use the taser in the process of going “hands on” than so be it.... There are a lot of folks who think that an officer should try every verbal or “PHYSICAL” technique before even considering the use of the taser.... or worse ONLY use the taser when DEADLY FORCE is appropriate........ that is a POLITICAL DEBATE.... If we want to have the debate about where the taser should be placed in the use of force continnum than so be it .. let’s have that debate not a TRIAL....
What really makes me so mad about this situation is that many folks/organizations have tried, and some successfully I might add.. to force AGENCY policymakers to move the taser further up the use of force continuum almost to the point where the tool becomes useless and puts officers and suspects for that matter in a more dangerous position than they would be if the taser was introduced to the situation sooner rather than later...
I’m sorry, but your insistence that a suspect “resisting” requires physical force is absolutely wrong without any characterization the “resistance” being offered.
Further, you completely mischaracterized my comment on point 2 - where I stated that there is a continuum of response levels. I may have not been completely clear that the independent variable in the equation is the level (including duration) of resistance being met, but I did not specify that all situation require a certain response.
Like you, I provided an example situation, but one in which the suspect isn’t attacked by the police officer.
Finally, your definition of the “tool” being on trial is seriously mucked up if you believe that the decision to use the tool is the same as the availability of the tool.
Let me be very specific: Using a less-lethal (NOT non-lethal) weapon is an escalation of force when the subject is non-belligerent. By your logic, a deaf man should be tazed because he doesn’t comply with instructions he cannot hear. More than that - the deaf man MUST be tazed because he is non-compliant.
Your logic is very, very faulty in this instance, FRiend. I disagree completely with your reasoning and your conclusions.
Yeah, Dave, the courts need to step carefully with this one. You know as well as I, what’s the point of having a device that can overcome resistance from a distance if you cannot deploy until you have to go up and touch the suspect.
That’s when most active and/or aggressive resistance starts.
Mace needs to be tossed unless for crowd control, some people put that on their beans and rice. Didn’t work well on me during certs.
Naysayers need to go do three minutes in the redman suit against the typical young male resistor. Or two. Then ask them if they wish they had the taser.
An earlier generation of police officers just split peoples skull with a baton at resistance. They also had less resistings, strangely enough.
I like to think we have moved on well beyond that. There were always in custody deaths, but now there is a scary tool to blame.
Folks, if cops have to go hands on with suspects, that’s when the injuries go way up for officer and suspect. That equates to more tax dollars being spent for treatment and loss of officers on the street. That hurts the entire public. Taser has proven time and time again that it is a very effective way of overcoming resistance. Humanely. People don’t die because of the taser, they die because other reasons, poor health, drug/alchohol usage, etc.
Doctors and use of force experts make recommendations to police departments where tools and techniques should go on the use of force matrix. Why does the court think it has the best answer rather than consult with those experts?
Okay my friend.. we can go back and forth with examples of this and that.. but we both know that the totality of the circumstances will dictate any and all actions.. and there will always be someone to monday morning quarterback any and all actions an officer makes.... but the fact of the matter remains that the 9th CIRUCS is in fact putting the TASER on trial here... the court is trying to accomplish in one sweeping motion what some activisits have not been able to accomplish to the extent that they desire... I get that some folks think the taser is such a bad tool.. your use of the term “less lethal” implies that the use of the taser CAN cause DEATH...... which raises an entirely different question all together..... there has not been a single case past, present, or (future) which I can say with great confidence that has ever.. or WILL EVER be able to prove that the proper use of a taser is “LETHAL”.... of course you can argue that a pencil is LETHAL if used in a manner other than the manufacturer intended it to be used..... so I don’t even want to go there.....
thanks for chiming in on this one my FRiend.. I am bowing out of this debate at this point is 1900hrs here in Iraq.. I am going to have a new years eve pizza with my battle buddies.. hoooooah
I must protest your use of “fact of the matter”. You have stated your opinion - just as I have. We disagree (but needn’t be disagreeable).
Happy New Year to you, FRiend.
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