Category Archives: Law

Did Tasers Kill Oscar Grant?

If we believe the statements made by BART police officer Johannes Mehserle, Oscar Grant died because an officer mistook his sidearm for his Taser stun-gun. Critics have attacked Mehserle’s explanation, noting the differences between the Taser and the sidearm in size, weight, coloration, trigger weight, and other factors.

A bigger question is why Mehserle felt that the use of a potentially lethal weapon was needed in a minor altercation, when Grant was already on the ground and surrounded by Mehserle and other officers.

When Tasers and related shock weapons were introduced, they were heralded as “non-lethal” countermeasures for police to use in subduing suspects- an alternative to shooting a suspect that was dangerous but who police didn’t want to shoot.  Soon, that branding was dropped in favor of the moniker “less than lethal”; Tasers, it turned out, along with beanbag rounds and other so-called “non-lethal” countermeasures could inflict fatal injuries under the right- or wrong- circumstances.

Despite that knowledge- and despite a number of high-profile cases of death or serious injury resulting from the use of Tasers and other sub-lethal countermeasures- policing in the US seems to have come to increasingly rely on the Taser not as an alternative to the handgun, but as an alternative to the night stick or baton- a means of forcing compliance, rather than of incapacitating a subject who was presenting an immediate threat.  Officers continue to use their sidearms to kill suspects who are armed and potentially dangerous, while using the Taser to force compliance from resistors.

This use of a potentially lethal weapon in lower risk situations contravenes years of police training concerning the use of sidearms.  Modern police officers are trained never to fire their sidearms to injure, disarm, or incapacitate: the sidearm is to be used only to kill a subject that presents a credible, immediate threat.

One reason for this policy is to protect police officers: shots to wound or disarm can fail to drop a dangerous suspect or miss entirely, resulting in injury or death for the officer.  This is also why Tasers continue to not be employed in highest risk situations; if a suspect has a gun or other weapon, or is threatening an officer of bystander, a Taser may fail to stop a subject.  Successive shots to the center of mass- police are trained to aim for the chest and fire until the subject drops or the magazine is empty- guarantee stopping the suspect, and allow for multiple attempts if the first one misses.  This is why victims of police shootings- lawful and otherwise- typically are shot multiple times, sometimes receiving seven or eight rounds from a single shooter.

A second reason for these tactics, oddly enough, is the protection of suspects.  Officers are instructed to move through a ‘continuum of force’, starting with verbal warnings, escalating to laying hands on the subject, and continuing to pepper spray and blows with a nightstick.  Only if the officer felt there was no choice but to kill the suspect, and that the suspect presented a continuing threat, was he to draw his sidearm and fire.

This policy keeps the threshold for potentially lethal force as high as possible.  If officers were trained to shoot to wound or disarm, an errant shot could kill a suspect or bystander in a situation where an officer would never have intentionally used lethal force.  By keeping the gun- a countermeasure that always carries the potential for death- in the holster until a situation arises where the officer believes he may need to kill the subject, the officer is discouraged from ever using the weapon in a situation where the death of the subject might not be necessary.

The introduction of Tasers has changed that equation- and particularly, the much looser standards of training and deployment that exist for them.  In the wrong situation, a Taser can kill as surely as a gun.  Low thresholds for use and weaker reporting and documentation requirements (compared with firearm discharge) create the potential for abuse and over-reliance.  Amnesty International has documented ongoing issues with Taser use by police forces, including incidents of deaths and allegations of use as an implement of torture.  Mehserle testified that he had received only 6 hours of training on the use of his Taser, compared with the 90 hours or more of firearms training required by some police agencies, and the 12 hours a year required by BART as part of its continuing education program.

Communities would never tolerate police receiving less than a full day of training in the use of their sidearm.  And yet, officers like Mehserle report for duty every day with only a few hours of instruction on a weapon that is also potentially lethal.  Police do not have sufficient guidelines in many localities about when use of their Taser is and isn’t reasonable force, and these guidelines, when they exist, are not well known to the public.

The Taser has come to be seen as an invisible alternative to the baton, rather than as a substitute for the hand gun.  Police use it perhaps believing they can elicit compliance without risking death.  Meanwhile, the taser is more attractive than the night stick, as it leaves no visible wounds and does not evoke memories of 60’s era police beating civil rights marchers.  The baton has an image problem; meanwhile, the invisibility and ease of use of the clean, modern Taser is seductive.

Ambiguous policies and poor training in the use of Tasers- and perhaps an unwillingness on the part of its manufacturers and law enforcement to acknowledge its potential for abuse and lethal injury- has created a situation where the force continuum is being subverted.  Police are pulling their tasers in situations where they would never pull their firearm, and using them in situations that would have been resolved in previous years either unarmed or with a baton.

By the time Johannes Mehserle tried to reach for his Taser, he had already opened himself up to the possibility that he was going to kill Oscar Grant, whether either man realized it or not.

His negligent use of his sidearm instead of the taser is inexcusable, but what happened to Grant is consistent with an officer thinking that he was using a lower-threat “safer” alternative.  Mehserle pulled the taser, reportedly, when he had difficulty getting control of Grant’s hands to handcuff him.  Rather than solving the solution with a baton strike, he pulled a pistol-grip from his belt, pressed the weapon up to Grant, and pulled the trigger once.  He did not fire the multiple shots you would expect from an officer intending to kill a suspect; more likely, he held down the trigger on the weapon, attempting to engage the Drive Stun mode used by law enforcement for pain compliance.

Tasers have some very good qualities.  They can enable an officer to disable a subject without exposing himself to the risk of a close encounter.  But the truth is, they are not a substitute for any weapon in an officer’s arsenal; they are too unreliable to use in place of a firearm, and too dangerous to use in place of a baton.  Their use for ‘pain compliance’ in Drive Stun modes presents too much potential for abuse, and too much danger, to be allowed to continue as it has.  The taser should occupy a new and distinct slot in the threat continuum, being used only in its incapacitation function, and only with sufficient training to an officer that acknowledges the potential for lethal injury.

Officers should not have to risk their lives because of non-cooperative suspects.  But neither should citizens have to risk death because of policy gaps in their police agencies.

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Private Marriage

Good piece in the Times today regarding marriage, and why exactly it became the business of the state to decide who was and wasn’t married. The author, Stephanie Coontz, makes a good case for taking marriage back into the private sphere, and cutting the state out of the loop entirely. Doing so, presumably, would solve all debates regarding the state’s role in granting recognition to gay marriages. But would taking marriage private really end the debate?

Coontz’s version of private marriage seems to constitute what some gay couples have been doing independently (and expensively!) for years now. In place of the single, blanket marriage license that serves as short hand for a whole range of civil rights and responsibilities, couples would create specific, legally binding arrangements or contracts with their partner to cover specific rights or obligations. Want to give your SO power of attorney in the event of a medical emergency? Sign a directive. Want your partner to receive your pension or social security survivorship? Sign another directive. Want to be considered as a single household? Another form.

Two problems seem to represent themselves. First of all, there is a very wide range of eventualities that marriage currently covers. Anticipating all of the possible situations where marital status comes into play would require significant research, and a significant investment of time and, potentially, expensive expertise. The virtue of the current system- and the prospect of extending that system to gays and lesbians- is that it provides a pre-packaged set of exactly such arrangements. No single source anywhere in any particular state or municipality has to know all of what is entailed- indeed, it’s doubtful of anyone, possibly including divorce attorneys really has that sort of info at their fingertips. Thus the first problem is working out all of what marriage currently entails, and crafting agreements to cover all of them. Certainly not an unconquerable task, but one that could be much simplified by simply extending the current institution of marriage to anyone who wants it.

The second problem is one of recognition. The issue with gay marriage is that the state will not recognize that two people of the same sex are legally able to participate in an agreement between them and the state that is perfectly straightforward for two members of the opposite sex. What reason do we have to believe that the states- which ultimately will be the place where these agreements will be challenged and enforced through the court system- will be more amenable to recognizing these independent agreements? In areas of family law and responsibility, will state recognize these contracts and arrangements as binding, given that were they gathered together under the heading of ‘marriage’ they presumably would not be enforced or recognized in states not recognizing gay marriage.

Ultimately, proposals to replace marriage with a network of private arrangements suffers from the same weakness as civil unions; they are, ultimately, semantic attempt to circumvent opposition to gay marriage that should be met head on. Proponents of “traditional marriage” will be no more eager to countenance the removal of marriage from the public sphere than they will be to admit gay marriage. Marriage for gay Americans shouldn’t be snuck in as a legal technicality; as the example of Massachusetts and other states shows, it can be introduced openly and the consequences (or rather, the lack thereof) will speak for themselves.

Only Mostly Dead

Absolutely random thought of the moment: if someone is executed and deemed to be dead by the doctor present at the execution, can he be resuscitated afterwards? Most execution orders- going by numerous cop dramas here- read something like ‘hung until dead’, ‘electrocution sufficient to cause death’, etc. So… once you’re dead, is the sentence carried out? If you pop back into the realm of the living with a little help from Mr. Defibrillator, does the state no longer have a claim on your body?

Peculiarly enough, I am apparently not the first person in the world to consider this scenario. In fact, back in 1894, a New York doctor petitioned for the right to try and resuscitate a prisoner following his execution. The state attorney general said no, primarily on technical grounds; the statute said that following the execution, the body would be given a post-mortem, and then either handed over to a family member or buried on the state’s dime. As the doc in question was no relation to the convict, he couldn’t take possession of the body following the execution. Of course, the whole post-mortem examination (assuming they mean autopsy, and not ‘yeah, he’s dead’) might make resuscitation a bit dicey.

Unfortunately, that still leaves the original question unanswered. Let’s say you find a state without a clear requirement for an invasive examination of the body following the execution, and a cooperative family member willing to give a crash team access to the condemned following his close encounter with the light at the end of the tunnel. Could you immediately begin attempts to revive the deceased?

On the slightly more macabre end of the spectrum, we have statements from prison officials and others indicating that, should a death row convict’s life end by illness or misadventure prior to their appointment with ol’ sparky, every effort will be made (at taxpayer expense) to revive the condemned individual and make sure that they are restored to health before being executed. I’m hard pressed to discern what state interest is furthered by such actions, particularly given that many capital punishment advocates maintain that the deaths of capital prisoners are more painless and humane than anything else available.

Supreme Court: High Prices are Good for Consumers

Another in a series of unfortunate decisions out of the SUpreme Court today, again flexing it’s Bush-crafted “pro-business”/anti-individual muscles in it’s decision to overturn the 96-year old ban on price floors. Essentially, the Supremes declared that rather than being a blanket evil for consumers, price fixing between producers and retailers can sometimes help consuermsr, and it’s up to lower courts to decide the difference. Some of the logic used in the decision has to be read to be believed:

“In sum, it is a flawed antitrust doctrine that serves the interests of lawyers — by creating legal distinctions that operate as traps for the unaware — more than the interests of consumers”

Right. Because a bright-line standard like ‘price floors are always illegal’ requires so much more explanation and lawyering than the vague, meaningless standard that the court gave today. There seemed to be little or no guidance provided to lower courts on how to decide which floors hurt consumers, and which ones help them in some vague, nebulous way.

For example, they said, such agreements can make it easier for a new producer by assuring retailers that they will be able to recoup their investments in helping to market the product. And they said some distributors could be unfairly harmed by others — like Internet-based retailers — that could offer discounts because they would not be incurring the expenses of providing product demonstrations and other specialized consumer services.

So- let’s require Internet discounters to charge the same rates as brick-and-mortar retailers, even though they’ve created a more efficient business model that results in lower costs. That sounds like healthy competition. Wouldn’t want to let the market decide if it preferred higher-priced, higher-overhead shopping for itself.

The case involved an appeal of a judgment of $1.2 million against Leegin Creative Leather Products Inc. after it cut off Kay’s Kloset, a suburban Dallas shop, for refusing to honor Leegin’s no-discount policy. The judgment was automatically tripled under antitrust law.

Leegin’s marketing strategy for finding a niche in the highly competitive world of small leather goods was to sell its “Brighton” line of fashion accessories through small boutiques that could offer personalized service. Retailers were required to accept a no-discounting policy.

Let me summarize the origin of this suite. Leegin, realizing that they can compete neither on quality nor price, opts to fix their prices high in the hopes of attracting well-healed idiots who like bragging about the exclusivity of their latest purchase. The decision of a retailer to sell them for what they’re worth in the marketplace to any plebe who walks through the door threatens their branding. Thus, the overturning of a century-old piece of consumer protection.

Google and the Feds

A lot of chatter today about a possible decision in Google’s case with the Justice Department… Can I just say that everything about this suit bothers me? Either the media have done the worst job in history of preventing the facts of this case, or it looks like the DOJ is using the legal system to compel Google to provide them with material for research. Their argument seems to be “you have it, we want it, and we’ll tie you up in court if you don’t just give it to us”. Now there is talk that Google might be compensated for their time and effort. Gee, that’s neat. The government is willing to pay a private company for the time and effort involved in turning over their private business information to the government.

One of the government’s arguments is that AOL, Microsoft, and Yahoo have already complied with these sorts of requests. That’s just great. The fact that these other companies gave in to attempts at intimidation on the part of the government, or found that it was better for business to go along with it rather than fight it in court, has no bearing on whether or not the government has the right to compel Google, or anyone else, to turn over this sort of information not to punish criminals but to do research in order to put a flawed piece of legislation back on the table (the vague and incredibly subjective Child Online Protection Act).

The final kicker for me is this line from the article:

Philip Stark, a professor of statistics at the University of California at Berkeley, has been hired by the Justice Department to create a study showing that filtering software is flawed and COPA is necessary.

This is how policy is decided in the US today. The government decides the results that it wants, and then assigns an “academic” to produce a study showing that the government solution is the right one, and that the data supports the conclusion. It’s the same sort of bizarro-world logic that has been applied to environmental law since the Bush administration and its energy lobby cronies took office in 2001.

All Your Property Rights Are Belong to Us

As if the bizarre Kelo v. New London “your property rights are proportional to your contribution to the tax base” decision wasn’t shameful enough, now we have this:

…now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It’s a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation.

In some cases, their debt could amount to hundreds of thousands of dollars.

Read the initial article here. Voice your disgust to the New London Development Company here.

Making Sense of the TSA

Good editorial at the New York Times today from John Tierney about the giant mess that the creation of the TSA has made of airline security. Hot on the heels of the news that dangerous babies have been prevented from boarding their scheduled flights, Tierney points out a few basic facts that seem to have escaped Congress and the TSA. Things like the comparative ease of bombing a crowded airport security checkpoint or check-in desk. Things like the uselessness of nail scissors in holding a plane hostage. Or the strange and seemingly obvious fact that the way to fix a bloated federal bureaucracy like the former FAA is not to replace it with a new bloated federal bureaucracy like the TSA.

We all know that the carry-on restrictions before September 11th were a joke. In the spring of 2000, I walked through a checkpoint with a Leatherman multi-tool in my backpack that featured a five-inch long, razor sharp locking blade. I didn’t get a second look from the sparsely staffed security check at Logan Airport- because I wasn’t doing anything illegal. Just like the 9/11 highjackers weren’t doing anything illegal until they pulled their boxcutters out and started taking hostages.

While the old rules may have been stupid, two stupids don’t make a smart, to paraphrase an old saying. These days, a terrorist on a plane with nail scissors or a Swiss Army knife can do one of two things: 1) trim his nails, 2) be beaten to a bloody pulp by an entire cabin full of already-paranoid air travelers who no longer think they have any incentive to cooperate with terrorists. No one is benefitting from the TSA’s bizarre toiletry rules (except for the highly influential nail clipper lobby).

Unfortunately, like any bureaucracy, security organizations do a poor job of thinking creatively or taking risks. The pattern that we are going to see for the next several years will be terrorists thinking of new ways to stage attacks, followed by security organizations racing like mad to prevent attacks that have already happened.

The case of Richard Reid is particularly instructive. Nearly four years after the so-called ‘Shoe Bomber’
almost destroyed his Paris-Miami flight with explosives concealed in his shoes, do we have sophisticated procedures and chemical tests for every piece of baggage that passes through the security checkpoint, looking for concealed explosives in everyday items? Nope. But we sure do know what everyone in line’s socks look like.