By Sean Webby
San Jose Mercury News
SAN JOSE, Calif. — An appeals court ruling this week limiting the police use of TASERs may have special importance in San Jose, where every police officer is armed with the stun gun and where their use in a series of situations has raised controversy.
In its ruling, the Ninth District U.S. Court of Appeals stated that the stun guns should only be used under limited conditions, since they represent a more serious use of force than other nonlethal police weapons.
The 3-0 panel ruling, which applies to California and Western states, comes as the Santa Clara District Attorney is reviewing an October incident captured on videotape in which a San Jose police officer stunned a San Jose State University student in a hallway with a TASER as his partner used his baton on the man, Phuong Ho. The Mercury News, in an article on the use of force last Sunday, highlighted an incident last summer in which an officer used her TASER on a couple who were arguing outside the Public Defender’s Office. The families of two suspects who died after being stunned with a TASER by San Jose police are currently suing the department.
In San Jose, Police Chief Rob Davis told the Mercury News he would soon go over the ruling with the city attorney’s office. But City Attorney Rick Doyle said he saw no contradiction between the ruling and city police policy, which he said is based on an officer using a “reasonable” level of force.
The court got it right: The officer has to have some immediate threat to use it,” Doyle said.
Lawyers in two pending lawsuits contending San Jose police improperly used their TASERs said the court ruling would bolster their allegations of excessive force by San Jose police officers.
The Ninth Circuit ruling came in a California case involving a Coronado police officer who used his TASER on a motorist who got out of his car, agitated but not threatening the officer after being pulled over.
In the ruling, which could be reviewed by the full Ninth Circuit or by the U.S. Supreme Court, the panel laid out a series of factors that would determine whether the use of TASERs was appropriate: Is there danger to the officer or others? Was the suspect accused of a felony or misdemeanor? Was the subject actively resisting, or was the resistance passive? Was there some less serious alternative way to quell the disturbance?
The court’s ruling is the first appellate court decision that sets out standards for when TASERs can be used.
“The decision means that the only reason to use the TASER is when you are in danger; it’s a self-defense measure, not a tool, to get compliance or to punish people who do not comply,” said attorney Eric Geffon, who represents Marcos and Cynthia Zuniga. Marcos Zuniga was shot in the face by an officer he allegedly assaulted after the officer stunned his wife with a TASER. “In cases I have seen, it tends to be used for more than just self-defense. It’s used more often than it should be.’'
TASERs have long been controversial in San Jose, spawning public outcry by opponents who claim the weapons are too dangerous. Six people have died in the city after being shocked by police TASERs since San Jose issued the electrical weapons to all officers in 2004. Medical examiners — even within Santa Clara County — have disagreed over whether the stun gun contributes to such deaths.
The department reported that officers used their TASER guns 97 times in 2007. But the department has declined to make public information on the use of force since then.
Attorney Duyen Hoang Nguyen said the ruling is important for his client, San Jose State student Ho. He said his client posed no threat as he was shocked while on the ground in the hallway, surrounded by several officers. The police contend Ho was aggressively resisting their efforts to take him into custody.
Raj Jayadev of Silicon Valley De-Bug, who has been a critic of the department’s use of the stun gun, said he hoped the ruling “will deter officers from using TASERs, and make the city rethink its investment given the mounting liability issues tied to it.”
Other local departments that use TASERs were also reviewing the ruling.
Santa Clara Capt. Mike Sellers said it’s “too premature” to decide whether his department will make any changes since the ruling came out, and he’s just reviewing it. Los Altos Police Capt. Andy Galea agreed, saying he’d have to look at the new ruling to “analyze” it and see what it means for his department.
Copyright 2009 San Jose Mercury News