POSTED: 1:30 a.m. HST, Nov 23, 2010
When the Honolulu Police Department ordered hundreds of high-voltage stun guns in 2005, then-Chief Boisse Correa approved guidelines aimed at preventing harm to police officers or others. Prudent as that safeguard was, valid concerns continue about the Taser gun's use. Two cases being appealed in the federal court system — one involving a Maui incident — should clarify constitutional use of the device and ought to indicate whether local guidelines need to be rewritten.
Law enforcement agencies in 40 nations and all but four of this country's largest 33 cities use the electricity-shooting weapon, which came on the crime scene in the late 1990s. The International Association of Chiefs of Police urged law enforcement in April 2005 to apply caution in developing policies for use of stun guns. That followed the equipping of Maui police and two months before Correa approved guidelines.
An 11-judge panel of the 9th U.S. Circuit Court of Appeals, in hearing the Hawaii and Washington state cases next month, will not be looking at whether these incidents followed guidelines, but whether they violate the Constitution, specifically the Fourth Amendment protection to be secure in one's person against excessive force. Passing constitutional muster should not necessarily mean the guidelines are adequate.
A three-judge 9th Circuit panel in January reversed District Judge David Ezra's ruling that refused to dismiss a lawsuit accusing Maui police of excessive use of the Taser. One of four Maui officers stunned a 43-year-old woman in her home in 2006 after she bumped into him as she tried to prevent the arrest of her husband, who seemed intoxicated. The panel ruled that the single shot from the Taser was reasonable because it was "a domestic violence situation that could have quickly become much more dangerous to everyone involved." That ruling and the Washington state case will be reviewed by the larger 9th Circuit panel.
Since the court case stems from an incident on Maui, HPD's guidelines don't come into play, although they allow the firing of a Taser at a person who is "potentially violent or engaged in active resistance," which means the person "physically counteracts" an officer's control, risking injury to the officer. Such a guideline seems open to broad interpretation.
Amnesty International has determined that 50 of 334 deaths of people in the U.S. after being stunned by Tasers were due, at least partially, to the Taser. Daniel Gluck, senior staff attorney for the American Civil Liberties Union of Hawaii, is right in saying that police should use electronic guns only as an alternative to "lethal force."
The pending 9th Circuit Court decision should provide an indication of what guidelines would be constitutionally sound. That should create a legal ceiling for conditions of Taser use, but police departments, including those on neighbor islands, would be better to settle on guidelines well below that ceiling.