Proving yet again that the law is too blunt an instrument to protects us from ourselves, the Ninth Circuit en banc decision in the consolidated cases of   Brooks v. Seattle and Mattos v. Agarano, via Orin Kerr at Volokh Conspiracy, rules that the use of tasers in two cases constituted “excessive force.” 

Hooray?  Not quite.  The 6-4 divided court also held that despite its use being excessive, the cops enjoyed qualified immunity. So even though the use of Tasers, at least under the circumstances of the cases under consideration, violated the 4th Amendment, it was plenty of harm, no foul.  A right without a remedy is worthless.

Orin describes the facts of the underlying cases.

Excessive force cases are always fact-specific, but here are the basic facts of the two cases. In the first case, Brooks, the plaintiff was arrested for refusing to sign her speeding ticket. She then refused to get out of the car upon her arrest. The officer told her he would have to tase her if she didn’t get out of the car, but she still refused, and he tased her on a low setting. She still refused to get out of the car, and the officer then tased her on a higher setting.

In the second case, Mattos, the police responded to a 911 call about a domestic dispute between a husband and wife. After a brief investigation, the police announced that they were placing the husband under arrest. The wife was physically between the arresting officer and her husband at that time, and she did not move; as the officer approached, she put up her hands to block the officer and apparently said something about the need for them to defuse the situation. The officer responded by tasing the wife.

The irony in the Mattos case is awfully sweet, as tasing the victim in order to arrest her husband, likely due to a mandatory domestic violence arrest policy, is the height of absurdity.  And yet, the message from the majority is clear:  The cops were absolutely wrong to do so; now go get a donut. 

The dissent, led by Chief Judge Alex Kozinski, takes the majority opinion very seriously,

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.

Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

Dire consequences?  A stern look from their superior officer while waiting for the next batch of donuts doesn’t strike me as a particularly strong incentive to give up tasing victims.

Judge Kozinski’s point is that the use of a taser, “an effective alternative to more dangerous police techniques,” will “be paid for in blood and lives of police and members of the public.”  Why he includes the lives of police in there is unclear.  It’s always members of the public who pay in blood for excessive force.  And use of a Glock instead of a taser certainly escalates the force to a higher level.

But the dissent, while it’s concern seems well-intentioned, wholly misses the mark when it comes to the police use of tasers.  The choice isn’t between a gun and taser.  Fortunately, the shooting of victims is still frowned upon.  Most of the time, anyway.

Rather, the distinction missed by the court is that tasers have become a substitute for a few minutes of patience, the occasional use of reason and perhaps having to bend just a bit, both physically and metaphysically, to resolve a situation without resort to force at all.  In other words, the taser has become the default to bring any situation that requires thoughtfulness to a swift close. 

These are the situations where a taser tends to constitute excessive force, because there was no need for force at all.  This goes to the marketing of the little zapper, the non-lethal way to shut up annoying people that makes a cop’s job fun and easy.  So what if it is brutally painful?  It wears off, and as long as no one dies, no harm done.

Yet people do die, and the potential for the needless killing of people for whom the justification for tasing is that they didn’t jump high enough or fast enough can’t be ignored.  It may not happen with great frequency, but for each dead body left behind by a taser used for no good reason, it matters.  It matters a lot.

Perhaps the majority’s point on excessive force, in light of the dissent’s argument, is that if you don’t have sufficient reason to shoot someone between the eyes with your handgun, then you shouldn’t be using force on them at all.  Or maybe they’re just saying that it’s bad form to tase the victim, particularly when she’s the wife in the domestic dispute.

Either way, there’s nothing in this decision that will cause sufficient delay in getting to the donut shop as the next batch makes its way to the counter.  While there may be “resulting uncertainty” as to when it’s appropriate to tase someone, there’s no uncertainty when it comes to the realization that there’s no exposure regardless.  Tase on, bro.