The First Department has struck with case extraordinarily hostile to civil rights claims. It is apparently OK, according to the Manhattan appellate court, to Taser an emotionally disturbed person who is already strapped to a chair, involuntarily, by law enforcement and medical personnel. It is OK as a matter of law. In fact, it is so OK, that when a fair minded and impartial jury, hearing all the evidence, returns a verdict in favor of the person who gets Tasered, finding that the Tasering was unreasonable, the First Department decides they should substitute their judgment for the judgment of the jury. After all, who knows better about what is an unreasonable search and seizure, or what constitutes excessive force? Some random group of pesky jurors, or a distinguished group of jurists with their finely attuned street sense?
Well, they didn’t exactly substitute their judgment for the jurors’. Rather, they substituted the NYPD’s judgment: “Since the Patrol Guide of the New York City Police Department permits an officer to use a Taser to restrain an emotionally disturbed person who threatens injury to himself or others (Procedure No. 216-05 at 5), the officer’s action comported with acceptable police practice.”
So now, the First Department has delegated the role of deciding what force is reasonable to the NYPD. Really, I guess there’s no need for a jury OR a judge. I can’t really improve on these comments: http://appellatesquawk.wordpress.com/
It is extremely frustrating to be a criminal defense lawyer or a civil rights lawyer in this type of climate.