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The Trouble with Tasers

photograph of stun gun held up by hand

Recently a Sheriff’s Deputy in Florida was charged with culpable negligence for tasing a fleeing suspect soaked in gasoline and so causing a fire that resulted in second and third degree burns over seventy-five percent of the man’s body. Should the Deputy be criminally liable in such unusual circumstances? Hard cases make bad law, the saying goes. That is, good law is based on common, ordinary occurrences, rather than on rare and extraordinary ones. But the case does raise issues about something quite common but, unfortunately, less and less discussed: the wide-spread use of Tasers by law enforcement in America. Civilian, non-federal police alone are involved in approximately 421,000 use-of-force incidents a year (cases where they resort to some sort of physical force) and deploy a Taser in 36% of these – making for over 150, 000 tasings a year. How concerned with Tasers should we be?

U.S. law enforcement agencies own nearly a million Tasers. “Taser” is a brand name, but it is often used generically to characterize many different energy-directed weapons that deliver painful and debilitating shocks to their victims. Originally marketed as “non-lethal,” Tasers are now supposed to be a “less lethal” alternative to the use of a firearm – although they can kill. Reporting practices make it difficult to say exactly how many people have died from being tased, but estimates suggest as many as a thousand people have been killed between 2000-2018 in the United States. Furthermore, since 2001 at least ten people have been shot by police officers who later said that they were attempting to draw their Taser, but mistakenly drew their service revolver and fired.

Still, might Tasers be a less lethal alternative to firearms? Actually, they don’t seem to be an alternative to firearms at all. The only comprehensive study of the question reviewed 36,112 use-of-force incidents by the Chicago police and found no evidence that carrying and deploying Tasers reduced the use of firearms or that a Taser played the role of substituting for the use of a firearm. In fact, the study’s principal investigator, Professor Jeffrey Grogger, said unequivocally, “We find no substitutions between Tasers and firearms.” Hence, despite widespread acceptance of the practice of police carrying Tasers, and using them as weapons of compliance, the reality is that tasing is often not a substitute for a firearm, but a form of intentional, or unintentional, torture.

“Torture” is standardly defined as “the action or practice of inflicting severe pain or suffering on someone as a punishment or in order to force them to do or say something.” When Tasers are used by the police in the United States to assure immediate, unhesitating compliance with police orders, they are torture devices. Lower voltages are even referred to by police themselves as “pain-compliance” settings. At higher voltages, tasing renders the victim completely physically incapacitated via neuromuscular spasms. But higher voltages are also, of course, quite painful.

So, tasing inflicts severe pain and suffering on people in order to force them to do or say what the police want them to do or say without hesitation or negotiation. Given that the Bill of Rights in general, and the Eighth Amendment in particular, with its ban on “cruel and unusual punishments,” are generally taken to prohibit torture by the United States’ government and its representatives, why is torture via Taser so widely ignored?

Police would argue that this is a mischaracterization of the purpose and use of Tasers. Typical policy statements by police (follow Axon Enterprises’, the company that still manufacturers the original Taser, model statement) reserve the use of Tasers to cases where the suspect is “violent or physically resisting” or “has demonstrated an intention to be violent or to physically resist and who reasonably appears to present the potential to harm officers, him/herself or others.” But then adds: or where the police have “a reasonable belief that an individual has committed or threatened to commit a serious offense.” In other words, the criteria start with violence but end up incredibly broad. Who doesn’t have the “potential to harm” or to commit an offense in the future?

Despite these issues, some experts, including, for example, the Stanford Criminal Justice Center, still advocate for the use of Tasers – if they are used in the right way. They say, for example, Tasers should not be used on children, pregnant women, the elderly, the mentally ill, and those under the influence of drugs. As they admit, however, it’s not always easy to tell if someone is pregnant, mentally ill, on drugs, or even that they are a child. Still, they argue, “The purpose of Tasers and other weapons is to subdue violent and dangerous individuals…and [should] never [used] on individuals who are passively resisting arrest.” Perhaps, then, it is the misuse, rather than the use, of Tasers we should be worried about.

If we are not going to eliminate, or very strictly limit, police use of Tasers, how do we ensure that Tasers are used in the right way by law enforcement? What should our goal be?

Maybe, we should end on the one unequivocally good thing about Tasers. They have, in fact, reduced the number of police injured in use-of-force events. “But,” as Professor Grogan puts it, it might “be better if the distribution of injury reduction was better split between [police] and suspects.”

Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?
Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.
Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.
Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.
The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.
Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.
It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.
The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.
Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?

Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.

Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.

Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.

The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.

Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.

It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.

The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.

Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

Traffic Cameras: Hidden Tax or Safety Measure?

We all hate getting tickets, but would you rather argue your case face to face with a police officer, or receive a letter in the mail weeks after the infraction?

For years, many cities have relied on red light and speed cameras to enforce traffic laws and automatically send out fines to rule breakers. However, recently some cities are questioning the ethics involved. While integrating these cameras is not illegal, some citizens and lawmakers alike fear their usage serves as more of a hidden tax than a safety measure.

Continue reading “Traffic Cameras: Hidden Tax or Safety Measure?”

“Broken Windows” Policing and the Role of Police

What does it take to make people feel “safe” in their communities? Proponents of police reform have struggled to find a middle ground between the legal and physical protection of the implicated and the interests of communities with high crime rates. Policies like New York City’s infamous “stop and frisk” laws have been proven to both increase arrests that become convictions as well as target people of color, while independent policing models implemented in Native American, First Nation and other Indigenous populations have enabled these people’s legal sovereignty but left internal populations at serious risk.

Continuing police reform efforts all seem to beg the question: just what do we expect of the police?

Continue reading ““Broken Windows” Policing and the Role of Police”