Re: Tasers back in the news?

**CallousDisregard** · 06-24-2010, 10:13 AM

If they didn't have the authority to arrest her in the first place then the entire situation changes doesn't it ?

But " it's not illegal to resist an unlawful arrest " .....WTH does that mean ?
If I think the cop is wrong I get to fight him in the street ?
That part I really don't understand.

**snooggums** · 06-24-2010, 10:15 AM

Originally Posted by CallousDisregard

Define " force " since you have said this situation doesn't call for a nightstick, what kind of force should they be allowed to use because "waiting her out" is simply ridiculous.

Beating her with nightsticks as they forcibly restrained her. For example, subduing a violent offender.

It's not a cattle prod.

**CallousDisregard** · 06-24-2010, 10:35 AM

I think we got crossed up here.

Originally Posted by snooggums

The same thing they have done for the decades before they had tazers, decide to wait it out or force her out. A tazer should not be used in a situation where they wouldn't fire a gun or strike the person with a club. It is an alternative to lethal action, not a cattle prod.

Are you saying it would have been OK to force her out of the car so long as they didn't use a billyclub or a taser?

I'm guessing the way it would or should have happened was one cop pushing her out from the passenger side while another pried her hands off the steering wheel, probably using joint lock or pressure point techniques.
I think the chances of her being injured are far higher in a physical struggle than a simple tase.
If they broke her wrist or fell on her during the struggle ....what would have been better ?

One more thing....were the cops aware she was pregnant at the time of the arrest ?
If she gave birth in Jan and the arrest was in Nov you would think it would be obvious but the article states that the EMTs said she was pregnant.
I'm guessing that she might have mentioned it during the altercation but it isn't noted in the article.

**mp40x** · 06-24-2010, 10:49 AM

Originally Posted by CallousDisregard

If they didn't have the authority to arrest her in the first place then the entire situation changes doesn't it ?

Right, according to the judge.

She argued that under Washington law, the officers had no authority to take Brooks into custody: Failure to sign a traffic infraction is not an arrestable offense, and it's not illegal to resist an unlawful arrest.

Originally Posted by CallousDisregard

But " it's not illegal to resist an unlawful arrest " .....WTH does that mean ?

Apparently, according to Washington state law.

Originally Posted by CallousDisregard

If I think the cop is wrong I get to fight him in the street ?
That part I really don't understand.

Not sure, I would have to read the statute.

The judge is pointing out the fact that according to Washington state law, you can resist an unlawful arrest. And, that failing to sign a traffic citation is not an arrestable offense. Therefore, the police were wrong in almost every aspect of that incident. Not to mention that tasering a pregnant woman shows a dereliction of duty toward the citizens they are supposed to be sworn to protect, and just seems morally wrong.

Try to put yourself in the officers position. You pull over a pregnant women for a traffic infraction who is taking her kids to school. She becomes argumentative, you just hand her the ticket and say "sorry you feel that way, have a nice day." You don't taser her three times and forcibly pull her out of the car in front of her kids. It's too much force, were not talking about a murder suspect here.

The officer was acting like a Decepticon, instead of an Autobot. Remember the movie Tranformers? One of the Decepticon's was using the form of a police car, on the side of the car it said, "To punish and enslave," as opposed to "To protect and serve." Clearly, the officer who tasered the pregnant women was a Decepticon and not an Autobot - i.e., one of the good guys.

**snooggums** · 06-24-2010, 12:04 PM

Originally Posted by CallousDisregard

Are you saying it would have been OK to force her out of the car so long as they didn't use a billyclub or a taser?

As mp40x noted, in this case no because it wasn't an arrestable offense.

In situations where they needed to arrest someone inside a car who isn't being violent and isn't a danger that would require nightstick use to comply then they should force her out of the car without a taser. Basically they would follow the escalation of force:

Request compliance > strong arm > billy club > taser/gun.

I'm guessing the way it would or should have happened was one cop pushing her out from the passenger side while another pried her hands off the steering wheel, probably using joint lock or pressure point techniques.
I think the chances of her being injured are far higher in a physical struggle than a simple tase.
If they broke her wrist or fell on her during the struggle ....what would have been better ?

You discounted waiting for the person to comply, and that doesn't necessarily mean camping out for hours. It just means that sometimes people need a few minutes to understand they won't just be let go for not complying, but also aren't forcibly resisting. In this case, since the officer was wrong to force compliance (since it wasn't an arrestable offense) any amount of force was wrong. In a generic case, if arrestable, then yes the physical struggle is more appropriate because once again: A taser is not a cattle prod.

One more thing....were the cops aware she was pregnant at the time of the arrest ?
If she gave birth in Jan and the arrest was in Nov you would think it would be obvious but the article states that the EMTs said she was pregnant.
I'm guessing that she might have mentioned it during the altercation but it isn't noted in the article.

Doesn't even matter except for appeals to emotion in a civil case for restitution. The officer was wrong to initiate the arrest so everything after that was equally bad no matter what her pregnancy status was.

**Kerostasis** · 06-24-2010, 12:08 PM

The takeaway I get from all that is that the judge thinks signing your tickets is just a courtesy -- that most people are not, in fact, obligated to sign their tickets and would probably be better off if they didn't (from a legal standpoint at least, ignoring the possibility of abuse). Is that what you mean? Because that goes against everything I've ever been told about tickets. Maybe its one of those secret things they hope most people don't find out about, because it would make their jobs harder?

**snooggums** · 06-24-2010, 12:17 PM

Originally Posted by Kerostasis

The takeaway I get from all that is that the judge thinks signing your tickets is just a courtesy -- that most people are not, in fact, obligated to sign their tickets and would probably be better off if they didn't (from a legal standpoint at least, ignoring the possibility of abuse). Is that what you mean? Because that goes against everything I've ever been told about tickets. Maybe its one of those secret things they hope most people don't find out about, because it would make their jobs harder?

Different areas of the countries have different laws on how tickets are handled, whether they need to be signed, whether it is an arrestable offense, etc. The judge doesn't think anything, he cited the laws that showed it was not applicable. The majority opinion was based on either the officer believing it was an arrestable offense meant it should be handled like an arrestable offense or they ignored the law that the person could legally refuse to comply/resist an invalid arrest. I'd have to check back on the decision.

You might be required to sign in your area.

Kansas:
(e) Except in the circumstances to which subsection (a) of K.S.A. 8-2104, and amendments thereto, apply, in the discretion of the law enforcement officer, a person charged with a misdemeanor may give written promise to appear in court by signing at least one copy of the written citation prepared by the law enforcement officer, in which event the law enforcement officer shall deliver a copy of the citation to the person and shall not take the person into physical custody.

So, the signature requirement and option to arrest is based on the officer's discretion if it is a misdemeanor in Kansas. Basically, if he is fine with it he can write the citation and just leave it with the person, require them to sign it or just arrest them (there's a few specific exceptions but that is the nitty gritty). This isn't the case everywhere.

**Kerostasis** · 06-24-2010, 01:27 PM

Originally Posted by CallousDisregard

If they didn't have the authority to arrest her in the first place then the entire situation changes doesn't it ?

Indeed it does. And, (bizarrely to my sensibilities) it appears they did not have that authority.

Originally Posted by snooggums

Different areas of the countries have different laws ...

Kansas:
(e) Except in the circumstances to which subsection (a) of K.S.A. 8-2104, and amendments thereto, apply, in the discretion of the law enforcement officer, a person charged with a misdemeanor may give written promise to appear in court by signing at least one copy of the written citation prepared by the law enforcement officer, in which event the law enforcement officer shall deliver a copy of the citation to the person and shall not take the person into physical custody.

So, the signature requirement and option to arrest is based on the officer's discretion if it is a misdemeanor in Kansas. Basically, if he is fine with it he can write the citation and just leave it with the person, require them to sign it or just arrest them (there's a few specific exceptions but that is the nitty gritty). This isn't the case everywhere.

Yeah that's sort of how it works in my area, and I guess I just assumed it was that way everywhere. But after an hour's worth of looking though the Washington civil code online I can't find anything similar. It's certainly possible I'm missing something, but between my research results and the professional opinion of the judge I'm forced to conclude that these officers did not, in fact, have the authority to arrest that lady, and that completely reverses my opinion on this case. If they didn't have the authority to arrest her, then there is no justification whatsoever for the escalation of force needed to effect that arrest.

**snooggums** · 06-24-2010, 03:19 PM

Originally Posted by CallousDisregard

One more thing....were the cops aware she was pregnant at the time of the arrest ?
If she gave birth in Jan and the arrest was in Nov you would think it would be obvious but the article states that the EMTs said she was pregnant.
I'm guessing that she might have mentioned it during the altercation but it isn't noted in the article.

Yes, she told them and that is a matter of record in the court's decision, found here: http://www.ca9.uscourts.gov/datastor...6/08-35526.pdf

I would strongly suggest reading the entirety of the dissenting opinion, it picks apart all of the majority opinion's decisions by showing how the case comparisons are not comparable, that they overlooked the fact that it was not an arrestable offense and that the officers treated the person with a certain level of disrespect to start with. If you question the right to arrest in the first place, this is a quote from that dissent:

According to the Seattle Police Department’s Policy and Procedure Manual, an officer may “use only the minimal amount of force necessary to overcome physical aggression or resistance to compliance with a lawful process.” (Emphasis added.) Also, nondeadly force is justified only when “necessarily used . . . [i]n the performance of a legal duty.” Officer Ornelas, testifying in Brooks’s criminal trial, confirmed that departmental regulations prohibited taking Brooks into custody for refusing to sign the notice of infraction:

PROSECUTOR: So, then just so I make sure I am clear then and to make sure I’m not misunderstanding, although she refused to sign the speeding ticket, which itself is a crime, you did not book her for that.

ORNELAS: Correct, sir.

PROSECUTOR: Could you within your discretion if you had wanted to at that point?

ORNELAS: Do what, sir?

PROSECUTOR: Arrest her for refusing to sign the speeding ticket —

ORNELAS: No, sir.

Because the Officers knew they had no authority to effect a custodial arrest, they were not performing a legal duty and Brooks was not refusing to comply “with a lawful process.” Under the Seattle Police Department’s own policies, then, the Officers were not justified in using any force. The Officers’
failure to comply with departmental standards is evidence a jury could rely on in deciding that the repeated use of a Taser — any Taser — on Brooks was unreasonable. See Smith, 394 F.3d at 703.

**CallousDisregard** · 06-24-2010, 05:04 PM

But there are lots of examples where the cop tases the motorist simply for not following his directions, no violence involved.
In those cases, where the arrest is legal but the person is not being violent toward the cops, you don't think a Taser is justified, right ?
You want the cop to wrestle with them first, lose, then go to baton, lose and then they can use the Taser ?
I think it is much easier for everyone involved to not fight the cops on the street, take it to the courtroom.

**snooggums** · 06-24-2010, 05:26 PM

While I agree that it is easier for people to comply, the case this thread is based on is someone who didn't comply because she (correctly) stood up for herself and did not comply with an order from an officer that was not based on law. I'll make an extreme example using the Kansas laws that I partially quoted above.

A person is pulled over for speeding and the officers observe a misdemeanor. The officer decides to arrest the person legally.

As in the example case, the person refuses to comply, and officers take the same first steps as in the example (yes, they strong armed her first in the case, then tasered her when she resisted their movement by becoming stiff and while she was already subdued because she wouldn't exit the car) after giving the person a few minutes to comply (assuming no external dangers). If unable to move the person at that stage, and they would otherwise employ additional force such as a baton, they could use the lower setting on the taser to force compliance after explaining the effects it will have. At that stage they had already attempted the physical restraint prior to escalating to the taser/baton per police procedure.

Yes, there will be a few extraordinary cases where it is necessary, but those would also be cases where I would expect a little injury of the arrested due to certain circumstances (pulling someone out of harms way while they resist, or after escalating force as appropriate for that type of offense). In the thread's original example the officers were not allowed to taser her in a situation where she wasn't violent anyway, the majority opinion speculated on a threat of violence that the officer couldn't even substantiate for a situation they created by attempting to arrest her illegally that would not have allowed force without the threat of danger. I'm not the only one saying non-violence shouldn't be met with violence, the law does in most locations too.

**CallousDisregard** · 06-25-2010, 10:07 AM

OK
I have been hit with a bat and I have been zapped and I much prefer to be zapped.
I don't think the baton is any better than the taser, worse IMHO.

**snooggums** · 06-25-2010, 11:58 AM

So I was looking for the Seattle Force Escalation policy and found this Audit from 2007 (the thread's incident was in 2004):

http://www.seattle.gov/police/OPA/do...ptember_07.doc

Taser Use

I commented in several cases about the use of the taser, particularly on passively noncompliant arrestees. An officer tased a driver who refused to get out of his car. He had opened his car door and told the officer he was supposed to come get his license. This made the officer suspect an assault and treat the situation as “high risk.” So, rather than explain the unusual request that the intoxicated man throw his keys out and step out, he asked another officer to approach the driver side to “distract” the driver while he “approached the passenger side with another officer for lethal cover.” He then opened the door and tased the driver. This all occurred right in front of the North Precinct, where the subject had parked in “order to have a witness,” due to past encounters with police.

The IIS sergeant was to be commended for his insistence on getting an interview from the complainant, which entailed going to court and twice to the man’s house.

In another case, I agreed that the complainant lacked credibility for a very tardy complaint, but thought the officer’s use of his taser on an individual (a loud, profane man they were trying to trespass from an am/pm store) was questionable, since again the man was already on the ground. They had decided to chase him down and tackle him to deliver a trespass admonishment, when he ran, after being told he was not under arrest. They had no concern he was armed during their earlier interaction. Yet, they tased him twice while on the ground to get his hands out from under him.

It is not unusual for officers to shock, often with more than one five second burst, an individual they have “taken down” onto the pavement, and may have a knee on, who refuses to bring his hands out from under him. I think that use of the taser on passive noncompliant individuals should be looked at as a policy issue.

I also found this 2001 use of force continuum which appears to be current, batons and tasers are on the same levels, the lowest of which is:

aggressive the violator is attacking the officer and is attempting to injure the officer in the process of resisting or escaping

http://www.seattle.gov/police/public.../Continuum.PDF

Since being verbally non-compliant is supposed to be addressed with verbal interaction (refusal to sign) and passive resistance, such as stiffening to not be removed, is to be addressed with holds, pepper spray and joint locks the whole incident is clearly breaking the force's policy even if the arrest was legitimate.

**CallousDisregard** · 06-25-2010, 03:56 PM

The El Reno police department feels that "an agressive posture" even from somebody in a hospital bed is sufficient.
http://www.courthousenews.com/2010/06/24/28330.htm
There has to be more to the story but .....

**snooggums** · 06-25-2010, 05:00 PM

Doubtful, if you read the court case decision I liked above for the subject of this thread and the auditor report in my last post in several cases the official story really was as simple as person simply remained stationary or didn't move when told to comply so they received a taser shock. I don't think El Reno really feels that is necessary but the officers might.

Of course if they are really stupid enough to use a taser on a person connected to an active oxygen tank I'm not sure they are really qualified to determine whether someone presents a threat...

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