Ninth Circuit distinguishes different modes of Taser use

...in a new case overturning a trial court's determination that officers were not entitled to qualified immunity when they tased a pregnant woman who refused to sign a traffic citation and refused to exit her car to be arrested.

(Qualified immunity entitles officers not to stand trial provided their conduct did not violate a clearly established federal right. A qualified immunity inquiry asks two questions: (1) was there a violation of a constitutional right, and, if so, then (2) was the right at issue “clearly established” such that it would have been clear to a reasonable officer that his conduct was unlawful in that situation? If the Officers’ actions do not amount to a constitutional violation, or the violation was not clearly established, or their actions reflected a reasonable mistake about what the law requires, they are entitled to qualified immunity.)

In this case, Brooks v. City of Seattle (opinion by Judge Hall, Berzon dissenting), the court considered the different modes in which Tazers can be employed:

The Taser’s use in “touch” or “drive-stun” mode—as the Officers used it here—involves touching the Taser to the body and causes temporary, localized pain only. According to the SPD’s Use of Force Training Guideline,10 this usage was considered a Level 1 tactic, akin to “pain compliance applied through the use of distraction, counter-joint holds, hair control holds, [and pepper spray]” and used to control passively or actively resisting suspects. By contrast, applying a Taser in dart mode (wherein darts are shot at the suspect from some distance) achieves greater distance between the contact nodes which can cause neuro-muscular incapacitation. In dart mode, the Taser’s use is a Level 2 tactic to be employed only against aggressive resistance.

The court held that the trial court failed to differentiate between the possible modes of use and that the trial court overestimated the force used by the officers. The court ultimately ruled that

this case presents a less-than intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers. In this situation, we find, assuming all the facts in Brooks’s favor, that the Officers’ behavior did not amount to a constitutional violation.