Sony® unleashed the first commercially available camcorder, the BMC100P Betamax, upon the world in 1983.   Shortly thereafter, a child somewhere probably struck his father in the crotch in front of someone with one of those new devices and an industry was born.  Three years after Sony’s Betamax release, Japanese television show Kato-chan Ken-chan Gokigen TV became the first commercial exploitation of the most perfect match since peanut butter and jelly. Kato-chan Ken-chan Gokigen TV was a satirical comedy show, which featured a segment of viewer submitted videos the hosts would comment on.  In 1989, this new phenomenon caught on in the United States and America’s Funniest Home Videos was born.

From this long proud tradition comes a new spin that incorporates Viral Videos, Tosh.0.  On the show comedian Daniel Tosh comments on various Viral Videos found on the web, which inevitably involves some form of groin trauma.  The September 22, 2010 episode included an internet clip of a man being tasered during a demonstration.  Afterwards Daniel Tosh imagined how much joy he could bring to the world if he could taser thousands of people at once, which he termed “Tase Across America.”  While it is admittedly funny when people voluntarily do stupid things to show off, Tasers have become a staple of law enforcement’s tool belt.

University of South Carolina criminal justice professor Geoffrey P. Alpert conducted a four-year study on Taser use by police departments for the Department of Justice.  Geoffrey and his colleagues found significant arrestee and police injury reduction during arrests experienced by the approximately 17,000 police departments using Tasers as a “less lethal technology.” However, even if Tasers reduce arrestee and police injuries during arrests the 4th Amendment of the U.S. Constitution still prohibits unreasonable search and seizures.  Thus, the intrusion on the arrestee’s 4th Amendment rights must be balanced against law enforcement’s interest in reducing injuries incident to arrest.

To date, the U.S. Supreme Court has not specifically answered the question of when law enforcement may constitutionally use Tasers in subduing arrestees.  In Graham v. Connor, it did establish a balancing test to determine if police force during a seizure is excessive.  The Court balances the nature and quality of the intrusion on the suspect’s Fourth Amendment interests against the governmental interests at stake.  It looks to such things as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, or if the suspect is actively resisting arrest or attempting to evade arrest by flight.  The Court emphasized this determination must be made from the perspective of a reasonable officer on the scene without the benefit of hindsight.

In 2008, the U.S. Eleventh Circuit Court applied the Graham balancing test in the Florida case, Buckley v. Haddock.  In Buckley, a homeless man pulled over for speeding was arrested after refusing to sign the citation.  The homeless man allowed himself to be handcuffed prior to exiting the car, but broke into tears and collapsed prior to reaching the officer’s car.  The homeless man next responded he “would be better off dead,” to the officer’s repeated demands to stand up.   The officer then tasered the homeless man repeatedly for resisting arrest.  The Eleventh Circuit held the officer’s use of force against the passively resisting homeless man was not unconstitutionally excessive.

Unfortunately, the Eleventh Circuit’s holding highlights a conflict among the Appellate Court Circuits as noted in the ACLU amicus curiae brief to the U.S. Supreme Court regarding the Buckley case.   Police Department Policies vary greatly as to when they permit their officers to use Tasers, as the ACLU points out in its study on the subject.  One police department mentioned permits Taser use after verbal commands fail but before pain compliance holds may be used.   Furthermore, many police departments do not have restrictions on how many times the Taser may be used or for how long.

Given this lack of guidance we should not be shocked to hear of cases from across the nation involving police using Tasers in questionable circumstances.  For example:

An officer responding to a public urination complaint in a city park tasered an 82 year old man suffering from dementia when he refused to comply with the officer’s order.  (The officer claimed the old man “squaring off” on him)

Officers responding to a robbery call in Dallas tasered a man to death for resisting arrest as he   lay on the ground.  (There were at least 8 officers present at the time to subdue the single suspect.)

An officer tasered several middle school children who responded to his question, “Who wants Taser?”

As the U.S. Eleventh Circuit Court reasoned in Buckley, “[t]he government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment.”  While this certainly is a valid governmental interest the Supreme Court has pointed out there is also a countervailing interest involved.  Even Justice Clarence Thomas’ nephew was recently tasered during an unfortunate incident with hospital security personnel in New Orleans.  Perhaps the conflict in the circuits on this issue will soon be resolved.