Home > Criminal Law, Criminal Procedure > Tasering the Fourth Amendment: What’s Everyone Complaining About . . . It’s Not Like You Got Shot?

Tasering the Fourth Amendment: What’s Everyone Complaining About . . . It’s Not Like You Got Shot?

by Christopher Dize

By now, everyone is probably familiar with the device. It’s small, sort of squarish, sci-fi-looking, make a clicking sound when discharged . . . .

Remember the kid who cried, “Don’t tase me, bro!” at a John Kerry speech a few years ago . . . there was some clicking and then a lot of “Aaaggghhhhh!!!!”

In the United States, Tasers continue to grow in popularity with law enforcement.  As police tools, they are revered by officers for their ability to subdue suspects without causing injury.  Not just because it’s fun to zap bad guys and mouthy hecklers.

It is increasingly questionable, however, whether Tasers actually increase our safety without zapping too many of our Constitutional rights in the process.

But controversy abounds.

In our society, we should at least be asking to what degree is it permissible for the police to Taser someone.  After all, we don’t want them going around shocking every double-parker and jaywalker they see . . . .

Okay, honestly, I wouldn’t mind zapping the double-parkers too much.  (Sorry, I live in the city . . . it’s stressful.)

Some have suggested that the use of Tasers by police should be limited to those situations in which lethal force would also be warranted. Is this too restrictive?

Using Tasers to make arrests has spawned nuanced Constitutional questions.

Is it excessive force for a police officer to Taser a person in order to make the arrest go a little more smoothly?  What if the person is resisting?  What if he’s just mouthing off at a political rally?  What if he threatens the officer but is clearly complying with the arrest?

I think it was Billy Shakespeare who put it best:  “To zap, or not to zap.  That is the question.”

Sure, sure, sure  . . .  But what about the law?

The Constitution

The Constitution – and the Fourth Amendment in particular – has something to say about all of this.

The Fourth Amendment tells us that the “right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . .”

When it comes to law enforcement, the question is how much force would be “unreasonable” against a person.  The United States Supreme Court has construed the language of the Fourth Amendment as a prohibition on the use of “excessive force.”

Thus, if a police officer beat you with a baton and strip searches you for parking too close to the cross-walk, your Fourth Amendment rights may have been violated.  However, if you’re on a bus and yelling “I’ve got a bomb!” . . .

You get the point.  Like everything else in life and law, it’s about striking a balance.

Civil Rights Violation?  What about the injury . . . is there one?

A violation of the Fourth Amendment is not without a remedy, of course.  But it gets tricky when we’re talking about weapons that don’t “actually” injure.

Under Section 1983 of the Civil Rights Act, a person whose Fourth Amendment rights have been violated may be able to bring a civil suit against the officer or agency responsible for the violation.

There is a catch, however, when it comes to Fourth Amendment violations regarding Taser use. And recently, the standard for assessing a Section 1983 federal claim has come to butt heads with the nature of the physical injury that a Taser causes.

That is to say, there is no physical injury!  Or at least nothing to point to afterwards . . . such as in the presence of a jury.

Picture this:

“Ladies and gentlemen of the jury, just look at what officer Smith did to me!  My leg is wrapped around my head!  My face has more dents than a crushed soda can!  These broken wrists alone must be worth two hundred thousand dollars!

Now picture this:

“Well, umm . . . no, I don’t have any marks or scars.  But it really really hurt!”

After getting Tasered, the most that can be said about a person’s injury is that he or she has some emotional scarring . . . perhaps a couple of pricks from the Taser barbs.

Thus, the proponents of the use of Tasers as law enforcement tools argue that Tasers help the police to save lives, with minimal injury. For an in-depth treatment of recent criticism of the use of Tasers among law enforcement agencies, take a look at Shaun H. Kedir’s 2007 article, Stunning Trends in Shocking Crimes: A Comprehensive Analysis of Taser Weapons.  Kedir also addresses the rebuttal of Taser International, the company that produces the nonlethal weapon.

The Courts

Many federal courts look beyond just the circumstances of an arresting officer’s use of a Taser.  They look at the injury the person suffered.  No injury = no case.

One commentator explains that in the federal courts holding this view, plaintiffs “generally cannot survive summary judgment unless the law enforcement officer’s force left a sufficiently serious wound.”  See Bryan N. Georgiady, Note, An Excessively Painful Encounter: The Reasonableness of Pain and De Minimis Injuries for Fourth Amendment Excessive Force Claims, 59 Syracuse L. Rev. 123 (2008). As his article points out, a “bruise, scrape, or even pain is insufficient as a matter of law” to keep a claim in court.  Because the Taser caused no sustained physical injury, its use was not unconstitutionally excessive.

The correct standard may be a standard that has been previously articulated by the United States Supreme Court.  I am referring to the “objective reasonableness test.”  This test looks to the facts and circumstances of the particular case to ask whether an officer’s use of a Taser constitutes excessive force under the Fourth Amendment.

Perhaps the answer lies at the intersection of the arrestee’s behavior and the arresting officer’s careful judgment of the situation, not with the nature of the physical injury.

Conclusion

Today, with Tasers continually growing in popularity with law enforcement agencies, it’s time for the Supreme Court to address whether the Fourth Amendment requires an “actual” injury before a person can bring a Section 1983 civil suit.  If not, there are probably a lot of plaintiffs getting kicked out of court for lack of injury.

Moreover, lowering the injury threshold would encourage more responsible use of the weapon among police.  Officers would certainly give due consideration before deploying a Taser if a civil suit would potentially lie on the other end.

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  1. January 31, 2011 at 2:40 pm

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