From isolated cases across the country, a debate is emerging over the use of electric stun guns as a "pain compliance" device by law enforcement.
At issue isn't whether police can use the weapon, known as a Taser, to protect themselves from dangerous suspects or to prevent a criminal from escaping. That is its designed purpose. Instead, the question is to what extent police may use a stun gun against someone who is not actively resisting arrest but who is passively refusing to obey a police command.
To some officers, such refusal is a form of resisting arrest and constitutes grounds to shoot 50,000 volts of electricity into that person's body in five-second bursts. When a person is tased, the central nervous system is overridden and the person experiences a seizure accompanied by intense pain.
Such tactics would be unconstitutional in a police interrogation room.
By contrast, during an arrest or roadside traffic stop, there are no clear standards for when police use of a stun gun for "pain compliance" might violate Fourth Amendment protections.
Officials at UCLA recently agreed to pay a student $220,000 to drop a lawsuit against the university in connection with a November 2006 incident in which the student was repeatedly tased after refusing a police order to leave the school library.
Last week, the US Supreme Court declined to take up the case of a handcuffed Florida motorist who was tased three times because he disobeyed a deputy sheriff's command to stand up and walk to a patrol car.
Given the proliferation of police stun guns, the issue is expected come up with increasing frequency across the country, according to civil libertarians.
A controversial alternative to guns
Developed in the 1990s, stun guns have helped reduce injuries to both police officers and suspects by offering officers a safer alternative to a firearm or a night stick.
Today there are more than 375,000 stun guns being used at 13,400 law enforcement and military organizations in 44 countries, according to Taser International, the manufacturer of the leading brand of stun gun.
But stun guns have come under increasing scrutiny. According to Amnesty International, more than 300 individuals have died after stun gun encounters in the US in the past nine years. And even their nonlethal use has been controversial.
In September 2007, campus police at the University of Florida used a stun gun to neutralize a disruptive student at a John Kerry speech. The student's plea, "Don't tase me, bro," became a popular tee shirt slogan.
In the case of the Florida driver, the Supreme Court justices offered no explanation for their decision not to hear his case. The move lets stand a federal appeals court decision that found the deputy's actions reasonable and justified.
"I hope [law enforcement officials] don't see this as open season to tase anyone who doesn't do exactly what they are told," says Tallahassee lawyer John Jolly, who successfully represented the deputy in the Florida case.
"In the end it is all going to come down to a question of reasonableness under the circumstances," Mr. Jolly says. "If a reasonable person would think that use of force is going to accomplish a lawful objective and make it less likely that somebody gets hurt, they can do it."
The tasing of Jesse Buckley
The Florida case involves a motorist named Jesse Buckley who was pulled over for speeding on a remote Florida highway in March 2004.
Mr. Buckley was issued a traffic ticket, but became distraught and refused to sign it. Washington County Deputy Sheriff Jonathan Rackard placed Buckley under arrest, cuffing his hands behind his back. As instructed, the motorist exited his car and headed toward the patrol car.
Before he reached the cruiser, Buckley collapsed to the ground. The encounter was captured on the video camera mounted on the dashboard of Mr. Rackard's cruiser. The video has been posted on the Internet.
The deputy tried to lift Buckley, but he went limp and started sobbing. Buckley was warned that if he didn't get up he would be shocked with a Taser.
"I don't care anymore," Buckley said. "Tase me."
The deputy tased him three times before backup arrived, and the two officers walked Buckley to the patrol car.
Photos of Buckley's body later revealed 16 burn marks.
Buckley filed a lawsuit against the deputy for excessive use of force by a police officer. A federal judge refused to throw out the lawsuit, but a divided panel of the 11th US Circuit Court of Appeals in Atlanta sided with the deputy. The suit was dismissed.
"The government has an interest in arrests being completed efficiently and without waste of limited resources," wrote Chief Judge J.L. Edmondson in the 2-to-1 decision. "Even though [the motorist] was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions – that is, to stand up and to walk to the patrol car."
In a dissent, District Judge Beverly Martin said that "no reasonable officer could have believed that the force used by [the deputy] was necessary in response to the situation at hand."
Judge Martin added: "The question in this case is whether a taser gun may be used repeatedly against a peaceful individual as a pain-compliance device – that is, as an electric prod – to force him to comply with an order to move."
Courts loath to second-guess police
"It isn't hard to envision police officers dealing with anti-abortion protesters or civil rights protesters – pick your political issue," he says. "There is nothing in this decision that forbids police officers from using tasers to break that up."
Jolly views the case differently. He says police officers face an array of dangers during roadside stops and that it is wrong to second-guess split second judgments after the fact.
"This guy could turn from sobbing basket-case into a raging wild man at the snap of a finger. That officer is in a surprisingly difficult situation," Jolly says.
Mr. Masinter disagrees. "Mr. Buckley was no threat to anybody," he says. "There was no active resistance here and therefore no authority to use this kind of force."
Jolly says the courts – including the Supreme Court – are generally reluctant to second-guess a police officer acting alone in a potentially dangerous situation. "In baseball, all ties go to the runner," he says. "In federal civil rights litigation against individual officers, all doubts go to the officer. Close calls are his."