Stew Estes, "Court Upholds TASER Use During Traffic Stop"

The Ninth Circuit’s recent decision in Jones v. Las Vegas Metro. Police Dep't, 873 F.3d 1123 (9th Cir. 2017) clarifies the law on police officers’ use of a TASER to control non-compliant subjects. Most observers have discussed the Court’s primary holding that the officers could be liable for an extreme TASER application (multiple and continued applications on a arrestee on the ground). But lost in the opinion is one ruling that supports officers’ use of a conducted electrical weapon during a routine traffic stop for officer safety purposes.

Here, the officer who pulled the vehicle over was confronted by a much larger man who exited his car and would not obey commands. He confronted the officer and when the officer drew his weapon, ran off and was then TASERed. The facts were:

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away. Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger. [Other officers arrived and the man was repeatedly TASERed for prolonged periods of time.]

Significantly, the court held (using the first prong of qualified immunity) that the first officer’s initial actions were lawful under the Fourth Amendment:

Here the officers’ use of force began appropriately enough: Despite Jones’s large size and the fact that he had run away from a traffic stop, he had neither threatened Hatten nor committed a serious offense, and he didn’t appear to have a weapon. Based on these facts, Hatten believed that something less than deadly force was justified, so he used his taser to subdue Jones. This decision was consistent with our case law, as we’ve held that use of tasers can be intermediate force. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Using a taser to stop Jones and place him under arrest was reasonable under the circumstances. Id., at *5 (emphasis supplied).

The fact that the Court cited this opinion in is significant as Bryan is often claimed (cited 460 times) to stand for the proposition that an officer cannot use a TASER unless he or she is being attacked. The appellate court in Jones just summarized the initial events, but the trial court opinion describes what happened after Jones fell while running away and the officer grabbed him:

Freeing himself from Officer Hatten's control, Jones eventually stood up and turned to face Officer Hatten, at which point Officer Hatten holstered his firearm and took out his taser gun. “[G]et on the ground,” he said, “or I'm going to tase you.” But instead of getting on the ground, Jones advanced toward Officer Hatten; in response, Officer Hatten deployed his taser against Jones in “dart-mode.”  

Seemingly unfazed, Jones continued to advance. So Officer Hatten deployed his taser again, this time in the more powerful “drive-stun” mode. Yet this too appeared to have no effect on Jones, who was now only about a foot away from Officer Hatten. Then, with a third tase, Jones's body finally locked up, and Officer Hatten guided him to the ground. Jones kept resisting, however. In particular, he would not remove his hands from underneath his body. Officer Hatten responded by tasing Jones again and wrestled with him until additional officers arrived.

Jones v. Las Vegas Metro. Police Dep't, 2014 WL 5793853, at *2 (D. Nev. Nov. 6, 2014), aff'd in part, rev'd in part, 873 F.3d 1123 (9th Cir. 2017).

Thus, four TASER applications on an unarmed subject who has not threatened an officer, but simply walks toward him while being told to get on the ground are lawful.