SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

alternatives to obtaining the same evidence, is force that “shocks
the conscience” and a violation of the defendant’s Fourteenth
Amendment due process rights. (People v. Herndon (2007) 149
Cal.App.4 th 274; held to be “harmless error” in light of other
evidence and because defendant created the situation causing the
force to be used.)
An officer used a Taser to subdue the plaintiff after he was stopped
for a seat belt violation. The Taser, model X26, using compressed
nitrogen to propel a pair of “probes” (i.e., aluminum darts tipped
with stainless steel barbs connected to the X26 by insulated wires)
at its target, was held to be a form of “non-lethal force,”
constituting an “intermediate or medium, though not insignificant,
quantum of force.” (Bryan v. MacPherson (9 th Cir. 2010) 630
F.3 rd 805.)
Plaintiff was obviously irate, yelling expletives and other
“gibberish,” and hitting his thighs, while dressed only in
boxer shorts and tennis shoes. Plaintiff got out of his car
after being ordered to stay in it. He also may have taken a
step towards the officer although he was still 15 to 25 feet
away from him. Use of the Taser on the plaintiff, who
never verbally threatened the officer nor made any attempt
to flee, was held to be excessive under these circumstances.
(Bryan v. MacPherson, supra.)
Officers had reasonable cause under the Washington statutes to
take plaintiff for a mental evaluation on the basis of her paranoid
comments to the officers and the 911 reports that she had been
hiding under a car with her son, screaming that someone was
trying to kill her and that she would kill herself. The officers’ use
of force in arresting and detaining her was reasonable. There was
no genuine dispute from the evidence that she posed a threat to
herself, her neighbors, and the officers. The evidence was
undisputed that she was actively resisting arrest. (Luchtel v.
Hagemann (9 th Cir. 2010) 623 F.3 rd 975.)
Duty to Warn:
See “Deadly Force,” below.
The Ninth Circuit Court of Appeal has held a number of times that
where it is possible to do so, the officer must warn a person before
applying force, at least when the force is likely to cause injury.
(Deorle v. Rutherford (9 th Cir. 2001) 242 F.3 rd 1119, 1284,
© 2012 Robert C. Phillips. All rights reserved
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