Does Mistaken Use of Handgun Instead of Taser Constitute Excessive Force?

Does Mistaken Use of Handgun Instead of Taser Constitute Excessive Force?

Police responded to loud music complaints at a residence, and at the scene, the arrestee was handcuffed and placed in the back of a police car.  The arrestee fell asleep, but when he awoke, he started screaming and kicking the rear car door.  One of the police officers opened the door, pulled out her weapon and shot the arrestee in the chest.

The officer claimed that she meant to draw her Taser gun, which she wore on her right side just below her handgun.  The officer had confused her weapons on two previous occasions.  Based upon her confusion, the officer had practiced drawing both of her weapons for a period of nine months. 

The arrestee's family initiated an action under 42 U.S.C.S. § 1983 asserting a violation of the arrestee's Fourth Amendment right against unreasonable searches and seizures.  Initially, the district court granted the officer's motion for summary judgment finding that the arrestee was not "seized" by the officer's unintended use of her handgun.  On interlocutory appeal, the Ninth Circuit reversed, holding that under the "continuing seizure" doctrine, the arrestee had been seized within the meaning of the Fourth Amendment.  The case was remanded to the trial court for consideration as to whether the officer's mistake was objectively unreasonable, which would have caused the arrestee to suffer a constitutional injury.

On remand, the trial court determined that the officer's mistake was reasonable and further held that the officer was entitled to qualified immunity.  The arrestee's family filed an appeal. 

The Ninth Circuit held that although a jury might determine that the officer's mistake of weapon was reasonable, it was not appropriate for the trial court to reach such a conclusion with material factual disputes at evidence. 

An officer is not entitled to qualified immunity in a § 1983 action if "(1) the facts alleged, taken in the light most favourable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation." 

The Ninth Circuit held that not all errors in perception or judgment, even when made by police officers in the line of duty, are reasonable.  Standing in the shoes of a reasonable police officer, the court had to ascertain whether the amount of force applied was balanced by the need for such force.  The court had to consider the totality of the circumstances, including: "(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight."

There was no dispute of facts that the arrestee had not committed a serious offense.  In addition, although the arrestee was "acting out," he was sitting handcuffed in the back of a police care and posed no immediate threat to the officers or anyone else.  Finally, the court found that the arrestee was not attempting to evade arrest by flight. 

The court held that material facts were in dispute as to whether the officer's mistaken belief was reasonable or unreasonable.  Therefore, the court determined that the trial court erred in granting summary judgment in favor of the officer.

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