Monthly Law Journal Article: Weapon Confusion and Civil Liability, 2012 (6) AELE Mo. L. J. 101.

     A police officer who claimed that she intended to use her Taser M26 on a handcuffed detainee, but instead shot him in the chest with a semiautomatic pistol, was not entitled to qualified immunity in a lawsuit over his death. At the time of the shooting, the detainee was kicking a police vehicle's rear door from the inside. The appeals court noted that the officer had had prior difficulty in drawing the correct weapon. A "jury might question," the court stated, "the reasonableness of choosing to send 1,200 volts of electricity through a person when the alleged concern is for that person's safety." A jury could also possibly find the officer's mistake reasonable, but the trial court should not have reached that conclusion on summary judgment. Torres v. City of Madera, #09-16573, 648 F.3d 1119, 2011 U.S. App. Lexis 17459 (9th Cir.), cert. denied, Noriega v. Torres, 132 S. Ct. 1032 (2012). An earlier ruling by the three-judge panel addressed a product liability claim.    The court noted that the Taser and holster were not "used" when the injury occurred, and such use was necessary for a design defect claim. The court also found that the manufacturer exercised reasonable care in choosing a gun-shaped design for the Taser, when the only evidence presented on the decision-making process indicated that a handgun-shape was better for accuracy and feedback from training officers indicated that they preferred a handgun-shaped design. The court also rejected failure to warn, negligent warning, and training claims. Torres v. TASER International, # 05-16468, 2008 U.S. App. Lexis 10169 (Unpub. 9th Cir.).

     An officer who shot a man running away who was only suspected of a misdemeanor failure to pay child support was not entitled to summary judgment. Even though the officer claimed he intended to use his Taser M26 rather than his gun, a jury could view the shooting as objectively unreasonable. The suspect posed no threat of death or serious bodily injury to anyone. As for the officer's alleged confusion between his gun and his Taser, the appeals court noted that the Taser was holstered approximately a foot lower than his gun was, had no thumb safety, unlike his gun, and only weighed half as much as his gun. Because of these facts, the officer should have realized he was holding and shooting his gun. Henry v. Purnell, #08-7433, 652 F.3d 524, 2011 U.S. App. Lexis 14391 (4th Cir. en banc), cert. denied, Purnell v. Henry, #11-458, 132 S. Ct. 781 (2011). See, "Qualified Immunity, Mistaken Shootings, and the Persistent Importance of Perspective: Henry v. Purnell, 652 F.3d 524 (4th Cir. en banc)," by Stephen Wills Murphy, 63 South Carolina Law Review 1057 (2012).

     Because the law on the threat of the use of a Taser X26 to compel compliance by a detainee was not clearly established, an officer was entitled to qualified immunity on the claim that the threat was an excessive use of force. One officer stated that he had intended to use a Taser against one of a group of young men being detained on a transit station platform, but that he mistakenly drew his pistol and fired a single shot into his back, killing him. There was a genuine issue of fact as to whether the individual, Oscar Grant, was being cooperative or resisting, and therefore, whether any use of force was justified. The officer was therefore not entitled to qualified immunity on his mistaken use of his gun, nor on his action of handcuffing Grant after he was mortally wounded and posed no threat to the officers. Johnson v. Bay Area Rapid Transit, #CV-09-00901, 790 F. Supp. 2d 1034 (N.D. Cal. 2011). Two settlements, totaling $2.8 million, were subsequently reached with the mother of Grant's daughter, with $1.3 million to be paid to the mother and $1.5 million to be paid to the daughter in a series of payments.

     California appellate court affirms the conviction of a BART police officer who mistakenly discharged his firearm, when he intended to deploy his M26 Taser -- killing a man who was resisting arrest. The officer was sentenced to two years confinement for involuntary manslaughter, but was acquitted of second degree murder and voluntary manslaughter. He was sentenced to two years confinement. Documents in the trial court can be accessed by clicking here. An appeal was taken, and a three-judge panel unanimously confirmed the conviction. People v. Mehserle, #A130654, 206 Cal.App.4th 1125, 142 Cal. Rptr. 3d 423 (2012). The panel wrote: “We find sufficient evidence that his conduct of mistakenly drawing and firing his handgun instead of his taser constitutes criminal negligence under the second prong of manslaughter liability: that defendant committed a lawful act in an unlawful manner, or without due caution and circumspection -- i.e., he believed he was tasing an arrestee, but mistakenly, and criminally negligently, drew and fired his handgun with lethal results. [...] The jury also heard evidence that in the past 10 or 11 years, several hundred thousand, if not a million, tasers had been deployed by 13,000 police agencies across the United States. In all that time, with all those deployments, the jury was told there were only six documented instances of taser/handgun confusion in the United States and Canada. The jury could reasonably have concluded ‘inattentional blindness’ is uncommon and is not something suffered by a reasonably prudent person. Finally, the jury could reasonably have concluded the situation on the platform was not an extreme high-stress situation at the time of the shooting itself. There were seven officers on the platform, the detainees were under control, and the crowd from the train was being held back."  Editor's note: Click here to view a detailed visual presentation of the controversial shooting, by Capt. Greg Meyer (LAPD Ret.) who served as a litigation consultant in the criminal case.

     When the evidence showed that a DUI arrestee was kicking, spitting, and refusing to cooperate with officers just before he was accidentally shot by an officer in the left buttock, the officer was entitled to use reasonable force. The officer intended to draw and fire his Taser M26, but mistakenly pulled out and fired his gun instead. The court found that the plaintiff's claim that the officer was not entitled to use any force at all was barred. Additionally, the fact that the arrestee was convicted for resisting the officers was inconsistent with his claim that he had offered no resistance to them, so that they were unjustified in any use of force. The plaintiff could, however, pursue his claims arising out of the accidental use of deadly force. Yount v. City of Sacramento, # S139762, 43 Cal. 4th 885, 183 P.3d 471, 76 Cal. Rptr. 3d 787, 2008 Cal. Lexis 5426.

     An officer shot an intoxicated man with his Glock firearm, asserting that he had mistaken the Glock for his Taser M26. In a lawsuit for excessive use of force against the officer and inadequate training against the city which employed him, a federal trial court granted summary judgment for the city, but denied it to the officer. The court found no evidence of “recurring situations that alerted or should have alerted the city to any obvious need to further train its officers.” It rejected the plaintiff’s argument, supported by expert witness testimony, that the city’s failure to train officers to carry their Taser on the weak side of their body was sufficient, even based on a single incident, to show deliberate indifference to an “obvious” training need. The officer was not entitled to qualified immunity, the court reasoned, since there was a disputed factual issue as to whether he intended to seize the plaintiff through the use of deadly force. Atak v. Siem, #04-cv-02720, 2005 U.S. Dist. Lexis 37185 (D. Minn.). Subsequently, the claim against the officer was settled without trial for $900,000.