Like a good neighbor, Donald Blondin was there. When Sgt. Jeff Shelton of the Snohomish, Washington, Police Department was dispatched to deal with an elderly man, Jack Hawes, who was trying to commit suicide, he was told that Jack had guns.

Shelton found Jack in his car trying to asphyxiate himself, and ordered the old man out. He complied, but failed to show his hands upon command.  So they tased Jack, who fell to the ground, then tased him again while cops piled on.

As this was happening, Donald Blondin, Jack’s next door neighbor, came out of his house to see what all the commotion was about.

Blondin called out, “what are you doing to Jack?” He was standing some thirty-seven feet from Jack and the officers at the time, with Jack’s car positioned in between. At least two of the officers holding Jack yelled commands at Blondin: one instructed him to “get back,” while another told him to “stop.” According to a bystander watching the scene unfold, Blondin took one or two steps back and then stopped. Blondin recalls that he simply stopped. Sgt. Shelton then ran towards Blondin, pointing a taser at him and yelling at him to “get back.” Blondin froze. The bystander testified that Blondin “appeared frozen with fear,” and Defendants have conceded that he made no threatening gestures.

Sgt. Shelton began to warn Blondin that he would be tased if he did not leave, but fired his taser before he had finished giving that warning.

Bad enough if we stopped there, but Shelton then delivered the coup de grace:

Blondin, disoriented and weak, began to hyperventilate. Sgt. Shelton asked Blondin if he “want[ed] it again” before turning to Ms. Blondin and warning, “You’re next.”

Blondin, naturally, was charged with obstruction by Shelton, which was subsequently dropped. The Blondins sued, and the majority held what one might pray they would hold, that Shelton’s use of force was excessive and unjustified, that Blondin did nothing to obstruct and, critically important, that it should have been clear to Sgt. Shelton that his conduct of tasing Blondin violated his constitutional rights, and thus was undeserving of qualified immunity.

Not a bad day for Blondin, though the question of whether the compensation he would receive for what Shelton did to him would be adequate remains unanswered. At least his right to pursue damages was upheld.  But, while it’s always great to have a decision that goes the right way, this was the majority’s view. There was a dissent by Judge Jacqueline H. Nguyen.

Judge Nguyen says the majority got it all wrong, because it failed to do the most important thing any court can do under these circumstances. View it from the cop’s perspective.

The majority goes badly astray because it loses sight of the specific context of this case and employs hindsight rather than viewing the scene through the eyes of a reasonable officer. Blondin interjected himself into a rapidly-evolving, highly volatile scene: officers struggling to restrain a combative, armed man in the process of trying to take his own life. At the time Blondin was tased, two loaded firearms were unsecured. Yet, at every turn, the majority attempts to minimize the precariousness of the situation, thinly splicing the facts to assess Blondin’s conduct—and the reasonableness of the officers’ response—in a vacuum.

What about the poor cops facing this precarious, rapidly-evolving, highly volatile scene?  What about the First Rule of Policing?  And really, didn’t Blondin ask for it?

Enter Blondin. Wearing shorts and slippers, Blondin suddenly approached the scene, yelling “What are you doing to Jack?” (Note the accusatory phrasing of this question: not “What’s going on here?” or “Is everything alright, officers?” but “What are you doing to Jack?”) Blondin’s presence and question signaled to the officers that (1) Blondin was not a random passerby, but someone who had come out of his house to see what was going on; (2) Blondin knew the suspect on a first name basis; and (3) Blondin was concerned that the officers were “doing” something to his friend/neighbor.

It’s not entirely clear what the “shorts and slippers” has to do with anything, unless Shelton was a supervisor of the Snohobish fashion police, though Joan Rangers don’t carry tasers. But Judge Nguyen manages to find cause for concern at every turn. Not for Jack. Not for Blondin. But for the police who risk their lives every day and should therefore be allowed to shoot darts into people at will.

A regular discussion when someone is harmed by police without having done anything to warrant such violence is to question why they are so ready to inflict pain, and why courts are so ready to approve it.  Judge Nguyen’s dissent here offers one of the clearest, most outrageous, explanations for how and why that happens. Like a cop, she can manufacture a basis for police to be fearful, to justify inflicting harm on a person, out of thin air. It’s a gift.

The parties dispute how far Blondin was standing from the fray, but accepting Blondin’s view (as we must), he was thirty-seven feet away from where Hawes was struggling with the officers. This is not terribly far; to put it in perspective, thirty-seven feet is little more than half the distance between the pitcher’s mound and home plate. During his deposition (and again in a declaration) Blondin recounted how, in response to his question about what they were doing to Jack, an officer yelled at him to “get back.”

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Yet, for approximately fifteen seconds, Blondin stood inexplicably “frozen,” refusing to comply with officers’ orders. The majority dismisses this as a mere “momentary failure to move[,]” slip op. at 15, but fifteen seconds is a long time to remain motionless when multiple police officers are yelling at you to retreat. (Try counting to fifteen one-thousand out loud, and see for yourself.)

While the relevance of the distance between a pitcher’s mound and home plate, a surprisingly long distance to people unfamiliar with the game, is unclear, what can’t be ignored is that the worst Judge Nguyen can come up with is that Blondin didn’t sufficiently comply (after all, it’s not like he continued to approach) with Shelton’s command. He waited a whole 15 seconds (which, granted, is an eternity when you sit there counting to fifteen one-thousand out loud).

Of course, this was the same “rapidly-evolving” scenario where police can’t be expected to use deliberate thought because it all happened too quickly.  Whenever a point is made such as the sense of how long 15 seconds is, it’s worthwhile to reflect that it’s a double-edged sword.  That few minutes (because the cops are always given more time than the non-compliant) the police had to decide what to do similarly seems like an eternity when counting it out in one-thousands, and yet no one ever seems to consider why they can’t arrive at a reasoned response.

And for this, Shelton shot darts into his body. But even if the use of force was possibly excessive, Judge Nguyen gets to the real question: “Even if we assume that Sgt. Shelton’s use of force was excessive, why wasn’t his mistake reasonable?”

Since the introduction of less-than-lethal weapons into policing, the Taser has proven to be the most elusive of weapons to nail down. Department policies toward tasing vary wildly, which shouldn’t be of any consequence since the police don’t get to make up their own rules as to when to inflict violence on people, even though they seem to believe they do and should. Sadly, courts tend to defer to police policy, even though judges get paid to make their own decisions.

But where the majority holds that a Taser in dart mode is not “non-trivial” use of force, Judge Nguyen responds “meh”:

But tasing him for two seconds? That’s a much closer call. Thus, in my view, asking whether law regarding the use of “non-trivial force” was clearly established is not a fair benchmark by which to gauge an [sic] reasonable officer’s understanding of the legality of his actions.

When the paramedics arrived, they took the barbs out of Blondin’s body. According to the dissent, there was nothing unreasonable about this. It’s the price we pay for the reasonable officer to satisfy the First Rule of Policing, and a good judge like Jacqueline H. Nguyen would be right there to protect a cop’s right to exact that price.