A federal appeals court on Oct. 17 ruled that four Maui police officers were not liable for damages in using a Taser on a Wailuku woman during a domestic violence investigation in 2006.

The 8-2 ruling by the U.S. 9th Circuit Court of Appeals determined that the officers could not have known at the time that using a Taser on the woman was an inappropriate use of force.

However, the court also ruled that the Fourth Amendment, which protects against unreasonable search and seizure, applies to the use of Tasers, less-lethal weapons that have become popular with law enforcement agencies in recent years.

A Taser is an electronic shocking device that disrupts the nervous system and can be fired from a distance. It is not the same as a so-called stun gun, which has to make physical contact and causes great pain to incapacitate someone.

The 9th Circuit ruling also applied to a case involving Seattle police who used a Taser on a pregnant woman who refused to sign a speeding ticket.

The ACLU of Hawaii, which submitted “friend of the court” letters in the cases, believes the ruling “sets clear guidelines that prevent the police from using Tasers unless someone’s safety is in danger.”

“This is an important legal clarification limiting the use of Tasers by law enforcement, and a timely ruling in advance of next month’s APEC Conference,” said ACLU attorney Dan Gluck.

‘Gratuitous’ Taser Use

The 9th Circuit confirmed, said Gluck, what the ACLU has been saying for a long time — “that police around the country are using excessive force on everyday people through gratuitous Taser use.”

As The Maui News reported, Eric Seitz, attorney for the Maui plaintiffs, had a similar view of the court’s ruling.

“We’re very happy that the court determined, at least for this circuit, that you cannot simply use Tasers without determining that it’s an appropriate use of force,” he said, adding that the opinion puts police officers on notice “so there will never be a question again whether the Fourth Amendment protects against the unreasonable use of Tasers.”

Sietz continued: “The court gave guidance that establishes very firmly so that in the future, if Tasers are misused again, the police officers will be individually responsible for damages. That is of importance to us. We’re not unhappy about that part of the ruling.”

The 9th Circuit’s ruling has potential consequences for the Honolulu Police Department and groups that plan to protest during APEC.

As Civil Beat reported, the city purchased 39 Taser X26s and 3,000 Taser cartridges.

HPD Spokeswoman Michelle Yu said the department has more than 600 Taser X26s in its inventory but wasn’t sure how many would be used during APEC.

“Some officers will, and some officers won’t,” she said. “It depends on their assignments.”

What A Taser Does

The term Taser is an acronym for the “Thomas A. Swift Electric Rifle,” a name based on a series of children’s books.

Taser, which has headquarters in Scottsdale, Arizona, states on its website that the weapons “prevent conflict,” “protect lives” and “resolve disputes.”

The Taser X26 ECD (“electronic control device”) used by HPD is called the Workhorse. It is described as “easy to use” and “field ready.

(The Taser X2, and not the x26, is the most widely used Taser by police officers, according to Taser.)

The X26, which has a range of 35 feet, uses a “sophisticated pulse wave that utilizes a high voltage leading edge to penetrate barriers such as clothing around the body followed by a lower voltage stimulation pulse to cause Neuro Muscular Incapacitation.”

NMI, as it is called, “temporarily overrides the command and control systems of the body to impair muscular control.”

The company cites a federal study that reports that the chance of a minor injury to a suspect exposed to a Taser is less than 0.25 percent.

The ACLU of Hawaii disagrees.

In 2004, the year HPD and the Maui police started Taser training programs, the ACLU urged both departments to revise their policies on Tasers so that they be used “only in situations where lethal force would be justified.” The ACLU said at least 50 people nationwide had died since 2001 as a result of being “tased.”

In its Oct. 21, 2010, friend of the court letter in the Maui case, the ACLU argued, “TASERs are potentially lethal weapons. Hundreds of individuals have died after being ‘tased’ — both in dart mode and in drive stun mode — with the TASER being the sole or contributory cause in at least forty cases between 2001 and 2008.”

The letter also stated:

Although categorized by this Circuit as “non-lethal” force, the TASER results in the introduction of a significant amount of electrical current into a person’s body, described by a police chief as “very painful … there are shock waves going through your body. It’s a very scary feeling.”

The ACLU added, “TASERs can also cause burns and permanent scarring. … Furthermore, a TASER charge can cause the subject to collapse, causing additional severe (and permanent) injury from falling.”

Asked about Taser use, HPD’s Yu said, “Officers displayed or deployed electric guns 68 times in 2010. No serious injuries were reported.”

Not Sold In Hawaii

As of June 30, approximately 239,000 Taser-brand ECDs have been sold to the general public across the country, according to Stacey Todd, a communications assistant with Taser International in Scottsdale.

Taser use by law enforcement is legal in all 50 states with few restrictions, and most states (but not Hawaii) allow security guards to use them.

Hawaii is one of only six states (the others are Massachusetts, Michigan, New Jersey, New York and Rhode Island) that don’t allow Tasers for consumer use or protection. (Of the 44 states that do allow for consumer use, only four require a permit to posses a Taser.)

In the 2011 session, the Hawaii Legislature considered several bills expanding the use of Tasers.

Measures allowing victims of domestic violence to possess a stun gun or Taser and to permit county liquor authority investigators to possess electric-shock guns did not pass.

But another measure, authorizing qualified members of the Army and Air National Guard to use electric-shock guns when assisting civil authorities in disaster relief, civil defense or law enforcement functions, was signed into law and made effective July 1.

A committee report on the bill cited APEC as a reason for passing the measure:

High profile events, such as the Asia-Pacific Economic Cooperation meetings, carry many security concerns. With security preparations already underway, it is in the State’s best interest to maximize its security resources.

The ACLU of Hawaii opposed the bill.

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