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Notable Court Cases: OIS Breath Testing & Alleged Excessive Force

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Two recently published, force-related court decisions of interest, brought to our attention by Americans for Effective Law Enforcement, the nonprofit organization that monitors judicial actions affecting police and conducts training seminars on legal issues:

Case 1: Is an agency legally justified in requiring breath testing after an OIS?

Three unions representing NYPD personnel sued in U.S. District Court to overturn a departmental order that requires a breathalyzer test to be administered to any New York City officer involved on or off duty in a shooting that results in an injury or death.

The plaintiffs argued that the order mandates an “unreasonable search” and an “unconstitutional invasion of privacy” in violation of the 4th Amendment, and also is “unconstitutionally vague.” They see it strictly as a ploy to collect evidence for use in potential criminal proceedings against officers.

Judge George Daniels disagrees. He has denied the unions’ challenge and has issued a summary judgment in favor of the city, the department, and the police commissioner, all defendants in the case.

Daniels ruled that the primary purpose of the breathalyzer test was “personnel management–specifically, to deter police officers from becoming intoxicated and discharging their weapons,” a concern of “substantial and practical interest” to the department. “[T]he immediate confirmation that alcohol is not involved [in a shooting] fosters public confidence and eliminates speculation of wrongdoing,” he wrote, and ensures that “officers are fit for duty.”

Breath testing takes only a few moments, is not unreasonably traumatic or intrusive, fits with well-established “special needs” that qualify for limited 4th Amendment exceptions, and is not “impermissibly vague,” Daniels declared. Thus, the department’s order stands.

You can access the full decision without charge by clicking here.

Case 2: Police vs. violent exorcist. Excessive force?

Two Phoenix cops muscle their way into a tiny, sweltering, barricaded bedroom where they’ve heard “a little girl screaming and crying” as if she’s in severe pain or being tortured. Inside they find: blood-splattered walls, a shirtless, heavy-set adult male choking a three-year-old girl (now “silent and motionless”), and a naked woman shrieking in a corner, her face showing “evidence of a recent beating.” The unarmed male has gouged her eye and is choking the child in an effort to “exorcize” their “demons.”

To overcome his flailing and kicking resistance, the officers Tase him repeatedly, pulling the trigger on an X26 22 times in either probe or drive-stun mode before finally wrestling him into submission. He dies, from excited delirium with cardiovascular disease a contributing factor, according to the autopsy.

Excessive force? Of course the suspect’s survivors–including the beaten woman–thought so. They brought a federal civil rights action seeking recompense for the officers’ “unreasonable” behavior.

The 9th Circuit Court of Appeals agreed that there was “considerable” and “significant” force used to bring the suspect under control. But “there was no constitutional violation,” the court’s majority determined.

In their decision, the justices describe the special danger to officers in domestic violence situations, disagree with the plaintiffs that a Taser constitutes deadly force, argue that the circumstances would have indisputably justified lethal action had the officers chosen to take it, and confirm that the manufacturer’s warnings about the risks of the X26 are fully adequate.

Worth noting: In a brief dissent, one of the circuit judges raised doubt about the safety of the Taser. He cited a journal article by Dr. Douglas Zipes, which asserted that Taser shocks to the chest can cause cardiac arrest leading to sudden death.

Force Science News [8/23/12] discussed Zipes’ report and quoted a Force Science instructor and prominent researcher to the effect that Zipes’ work was seriously flawed. Nonetheless, it was predicted in our transmission that his controversial finding would “carry over into the legal arena.” And here it has, perhaps for the first time.

To read this decision in full, click here.

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