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Reposted from the Sacramento Bee
by Hudson Sangree and Kim Minugh

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

There have been at least nine Taser-related fatalities in the Sacramento region, including the death earlier this month of Paul Martinez Jr., an inmate shot with a stun gun while allegedly resisting officers at the Roseville jail. As lawsuits have proliferated against police and Taser International, which manufactures the weapons, the nation’s appellate courts have been trying to define what constitutes appropriate Taser use. The San Diego County case is the latest ruling to address the issue.

The court recounted the facts of the case:

In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer’s order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he’d slept in because a woman had taken his keys, the court said without further explanation.

During his second traffic stop in Coronado, he got out of the car. He was “agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes” but did not threaten the officer verbally or physically, the judges wrote.

That’s when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan’s “bizarre tantrum,” fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado, alleging excessive force in violation of his Fourth Amendment rights.

The officer moved to have the claim dismissed, but a federal trial judge ruled in Bryan’s favor.

A three-judge panel of the 9th Circuit affirmed the trial judge’s ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use “less intrusive means,” the judges said.

“Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable,” Judge Kim McLane Wardlaw wrote for the court. “His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use. He said after Monday’s decision that courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

“In an era where everybody understands ‘don’t tase me, bro,’ courts are going to look more closely at the use of Tasers, and they’re going to try to deter the promiscuous oversue of that tool,” he said. That’s especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented the family of a troubled Woodland man who died under police restraint after being struck multiple times with Tasers. In May 2008, Ricardo Abrahams walked away from a voluntary care facility and disobeyed the orders of officers called to check on his well-being. They shot him repeatedly with stun guns. The case against the city of Woodland and its officers was settled in June for $300,000. ”I think it confirms what I and other lawyers in this area have been saying: You can’t treat a person with mental illness the same as someone without mental illness,” Griffin said.

Law enforcement authorities in Sacramento said they don’t expect Monday’s ruling to prompt much change.

Sacramento Police Department and Sacramento County Sheriff’s Department policies permit the use of force to gain control of a suspect or prevent harm to others. ”Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough,” said Sheriff John McGinness.

Sgt. Norm Leong, spokesman for the Police Department, said his agency’s policy on the use of stun guns mainly covers safety considerations. It doesn’t list behaviors or situations that warrant using the devices, he said. ”Ideally, in every circumstance, we try to gain compliance verbally, and force is the last option we ever want to use,” he said.

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“The NAACP is shocked and outraged by the Illinois State Police finding that the Rockford Police acted properly in shooting and killing Mark Barmore, who was unarmed” said Norma Joseph, President of the Rockford Branch NAACP.

The Rockford, Illinois branch of NAACP, along with community leaders, faith leaders and concerned citizens in the State of Illinois, have formed a coalition which is calling for an independent investigation by the US Department of Justice through the US Attorney General for the Northern District of Illinois into the incident. The community-based coalition has also called for the establishment of a citizen’s police review board with subpoena and disciplinary power.

“We are seeking accountability for the law enforcement officer’s actions,” explained Attorney Don Jackson, President of the Illinois State NAACP. “In only five years of service, one of the officers has been involved in four shootings, two of which resulted in fatalities.”

“It is a sad day in this country when two police officers with guns drawn can charge into a church day care center, terrorize children and staff and fatally shoot an unarmed man in the back with impunity,” stated Benjamin Todd Jealous, NAACP President and CEO.

The NAACP has requested the US Department of Justice to launch a full “pattern and practice” investigation into the Rockford police department in addition to criminal and civil rights investigations into the actions of the police officers. The Rockford police force has experienced a rash of police shootings in the past 10 years. The Coalition is also asking the City of Rockford to provide psychiatric counseling to the pre-school children and adult daycare workers who witnessed the shooting, many of whom are already exhibiting signs of post traumatic stress disorder.

“The lack of supervision by Rockford of its officers threatens the safety of all Rockford residents and mars the integrity of its police department,” stated Jealous. “Lack of accountability will tear the fabric of trust between law enforcement officials and the communities they serve, making it more difficult to solve or prevent crimes. In some cities where police misconduct is prevalent, the unsolved homicide rates are as high as 80 percent. Without trust, witnesses will not come forward and crimes will remain unsolved,” Jealous concluded.

The NAACP has called for Congress to enact legislation to mandate national standards for training and use of force for all law enforcement.

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Longtime readers of the blog may remember that we have been working to bring real reform to the Child Welfare system since 2004, and have posted numerous articles detailing our efforts since the blogs inception back in 2007:

08/2007: The Wichita NAACP joins with Youthville in an effort to encourage more African American families to become foster parents 
05/2008: Wichita Branch NAACP Legal Redress Chair to meet with Kansas SRS Secretary Don Jordon 
09/2008: Progress report on Sedgwick County Child Welfare issues 
11/2008: Governor Sebelius agrees to examine disproportionalities in Child Welfare and Juvenile Justice systems 
12/2008: The Wichita Eagle reports on the Wichita NAACP’s Child Welfare efforts 
02/2009: Current Branch Legislative and Policy Projects 
02/2009: Legislative Action Alert – CINC notification (HB2303) and Insurance Premiums and Credit Scores (SB203) need your attention 
03/2009: The Kansas Disproportionality Study Gets Underway 

As reported back in September of 2008 (see the “Progress Report” link above), a team from the Wichita Branch NAACP consisting of Mary Dean, Carolyn Wallace, and President Kevin Myles, traveled to the State Capitol to meet with the Governor’s office and present the results of our internal study of Child Welfare issues. We asked at the conclusion of our presentation that the Governor would commission a more detailed and larger scaled study of disproportionalities in the Child Welfare system throughout the State. Then Governor Sebelius formed the Kansas Disproportionality Task Force in the beginning of 2009 and in March of this year, teams throughout the State began looking at the issue of disproportionality throughout the Child Welfare and Juvenile Justice systems. Dozens of people were brought together from Law Enforcement, Child Welfare, Foster Care and placement, Community Organizations, Corrections Staff, Legislators, Parents, Educators and concerned citizens, all looking for ways to reform the system and eliminate the disparities…

The Task force has now completed it’s work – the study is finished and the recommendations will now go to the Governor’s office for consideration and approval. For us, this is the culmination of almost 6 years worth of study, travel, and work. Now, we will gear up to lobby the legislature for the full adoption and funding of our specific and detailed recommendations.

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Police shot and killed Mark Anthony Barmore, a 23-year-old black man, in a church day care center a few weeks ago in Rockford, Illinois. We have also learned that one officer involved in this killing has been accused of several other questionable police shootings. As you can imagine, tension is running high in the Rockford community and we are deeply concerned.

I thought you should know what the NAACP is doing about it.

Today I will be leading a delegation of NAACP leaders and staff to launch the NAACP’s investigation of this police killing and the police department itself.

In Rockford today, we will address a rally of community leaders and report on NAACP’s engagement with the Department of Justice to thoroughly investigate this awful tragedy.

We are also working with Congress to require the establishment of national standards for use of force, and training in use of force, for law enforcement officers. Currently, there are as many use-of-force policies as there are law enforcement agencies in our Nation today, and there are as many interpretations of those policies as there are law enforcement officers. This lack of uniformity is one of the core reasons behind the tragedy in Rockford and in too many other instances across the Nation.

We thank the Department of Justice for taking this case seriously through the outreach efforts its Community Relations Service. But to help re-establish trust in the community and to ensure that the Rockford police department is operating with integrity, we need a federal investigation into this case. Please, sign our petition urging the Department of Justice to conduct a full investigation of this shooting and the ongoing use of force by the Rockford police department.

So what actually happened in Rockford? Eyewitnesses say that outside a church day care center, Mr. Barmore encountered two police officers who apparently were looking for him on an allegation of domestic violence. He ran inside the church, and the officers followed him, guns drawn, without a warrant. After Mr. Barmore entered a small boiler room, the police demanded he come out. He slowly exited the room with his hands up. Then, witnesses say, police shot him — in front of small children in the day care center.

While he lay face down, witnesses say, police shot him three more times in the back! Additionally, officers have been using intimidation tactics against witnesses, such as sitting outside their homes and slowly driving by their homes.

We all must act to stop this kind of police abuse, so I need your help now.

Please, sign the petition and help us promote smart and safe law enforcement policies. I will be keeping you updated on the killing in Rockford and our efforts to investigate it – and prevent future tragedies.

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