A police officer who claimed that she intended to use her Taser on a handcuffed detainee, but instead shot him in the chest with a semiautomatic pistol, was not entitled to qualified immunity in a lawsuit over his death. At the time of the shooting, the detainee was kicking a police vehicle's rear door from the inside. The appeals court noted that the officer had had prior difficulty in drawing the correct weapon. A "jury might question," the court stated, "the reasonableness of choosing to send 1,200 volts of electricity through a person when the alleged concern is for that person's safety." A jury could also possibly find the officer's mistake reasonable, but the trial court should not have reached that conclusion on summary judgment. Torres v. City of Madera, #09-16573, 648 F.3d 1119, 2011 U.S. App. Lexis 17459 (9th Cir.), cert. denied, Noriega v. Torres, 132 S. Ct. 1032 (2012). An earlier ruling by the three-judge panel addressed a product liability claim.    The court noted that the Taser and holster were not "used" when the injury occurred, and such use was necessary for a design defect claim. The court also found that the manufacturer exercised reasonable care in choosing a gun-shaped design for the Taser, when the only evidence presented on the decision-making process indicated that a handgun-shape was better for accuracy and feedback from training officers indicated that they preferred a handgun-shaped design. The court also rejected failure to warn, negligent warning, and training claims. Torres v. TASER International, # 05-16468, 2008 U.S. App. Lexis 10169 (Unpub. 9th Cir.).

     An officer who shot a man running away who was only suspected of a misdemeanor failure to pay child support was not entitled to summary judgment. Even though the officer claimed he intended to use his Taser rather than his gun, a jury could view the shooting as objectively unreasonable. The suspect posed no threat of death or serious bodily injury to anyone. As for the officer's alleged confusion between his gun and his Taser, the appeals court noted that the Taser was holstered approximately a foot lower than his gun was, had no thumb safety, unlike his gun, and only weighed half as much as his gun. Because of these facts, the officer should have realized he was holding and shooting his gun. Henry v. Purnell, #08-7433, 652 F.3d 524, 2011 U.S. App. Lexis 14391 (4th Cir. en banc), cert. denied, Purnell v. Henry, #11-458, 132 S. Ct. 781 (2011).

     Because the law on the threat of the use of a Taser to compel compliance by a detainee was not clearly established, an officer was entitled to qualified immunity on the claim that the threat was an excessive use of force. One officer stated that he had intended to use a Taser against one of a group of young men being detained on a transit station platform, but that he mistakenly drew his pistol and fired a single shot into his back, killing him. There was a genuine issue of fact as to whether the individual, Oscar Grant, was being cooperative or resisting, and therefore, whether any use of force was justified. The officer was therefore not entitled to qualified immunity on his mistaken use of his gun, nor on his action of handcuffing Grant after he was mortally wounded and posed no threat to the officers. Johnson v. Bay Area Rapid Transit, #CV-09-00901, 790 F. Supp. 2d 1034 (N.D. Cal. 2011). A $1.5 million settlement was subsequently reached with the mother of Grant's daughter, with the funds to be paid to the daughter in a series of payments.

     When the evidence showed that a DUI arrestee was kicking, spitting, and refusing to cooperate with officers just before he was accidentally shot by an officer in the left buttock, the officer was entitled to use reasonable force. The officer intended to draw and fire his Taser, but mistakenly pulled out and fired his gun instead. The court found that the plaintiff's claim that the officer was not entitled to use any force at all was barred. Additionally, the fact that the arrestee was convicted for resisting the officers was inconsistent with his claim that he had offered no resistance to them, so that they were unjustified in any use of force. The plaintiff could, however, pursue his claims arising out of the accidental use of deadly force. Yount v. City of Sacramento, # S139762, 43 Cal. 4th 885, 183 P.3d 471, 76 Cal. Rptr. 3d 787, 2008 Cal. Lexis 5426.