Reasonableness Governs Accidental Shooting Inquiry

A Glock 23, the external lever safety can clearly be seen behind the trigger.Image via Wikipedia

There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying.

This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though I don’t know if the officer had the same model) and Taser (pictured left) “similarly-sized-and-weighted,” and they were both holstered on her right side, the Glock on her belt and the Taser in a thigh holster. To add to this sad situation, the sequence of events was triggered by nothing more than a loud music complaint.

In this suit alleging a violation of the victim’s Fourth Amendment rights, the officer and the city moved for summary judgment, contending that because a Fourth Amendment seizure can occur only “through means intentionally applied,” and there was no dispute over the fact that the officer thought she was firing the Taser rather than the Glock, the firing of the Glock could not constitute a seizure. The Court of Appeals reverses, noting that the firing of the Glock itself does not constitute the seizure in this case because the victim had already been arrested, handcuffed, and placed in the patrol car. Under the Ninth Circuit’s “continuing seizure” rule, under which an initial seizure continues “throughout the time the arrestee is in the custody of the arresting officers,” the officer’s conduct remained governed by the Fourth Amendment throughout the course of the seizure, and liability requires only that the officer’s conduct was unreasonable, not that she had subjective intent to fire her Glock.

Reference: Accident lawyers around Austin, Tx.