The United States Court of Appeals for the Ninth Circuit, the Circuit to which Oregon belongs, rejected a request for qualified immunity by a police officer who used a taser to subdue a passive bystander. In Gravelet-Blondin v. Shelton, the plaintiff was tased and arrested after he allegedly failed to comply immediately with an officer order to move away from the scene where his neighbor was being arrested. The Ninth Circuit explained that it was “beyond debate” that using non-trivial force in response to passive bystander behavior was unconstitutionally excessive. The Court further explained that it was well known as of 2008 that a taser in dart mode constitutes more than trivial force. Because Gravelet-Blondin did not impose an immediate threat of death or serious injury to himself or others, his actions were those of a passive bystander, and the officer in question should have known that the use of the taser to subdue his passive resistance was unconstitutionally excessive. Accordingly, the Court rejected the officer’s request for qualified immunity. In addition, because the City’s policies related to the use of tasers did not clearly prohibit the use of tasers in this situation, the Court held the City was also potentially liable.
The use of tasers continues to be a source of litigation against local governments and their employees, and local governments need to make sure to have proper policies in place and provide adequate training to their employees to avoid this type of litigation. Please do not hesitate to contact the lawyers at BEH if we can provide you with any assistance in reviewing your jurisdiction’s taser policies or assist with providing training to your employees.