06-27-2020, 03:17 AM
(06-27-2020, 02:14 AM)Dill Wrote: One question here is surely how is the weapon classified by police and the law.
The National Institute of Justice, has developed a 7-stage continuum, beginning with #1 "Police presence" and rising to #6 "less-than-lethal methods" (pepper spray, blunt impact, and "conducted energy devices" (tasers)), and #7 "lethal force"--i.e., firearms.
This continuum has been adopted in many states, and it defines tasers as "less-than-lethal"--even though people occasionally die from tazing. As a result, judgments about how police use them generally fit into this category.
https://nij.ojp.gov/topics/articles/use-force-continuum
I was waiting for someone other than me to bring this up. The use of force continuum, in practice, states you use a level of force one level higher than that used against you. There are always exceptions, but that's the general policy. In this instance how the NIJ categorizes taser use is immaterial, as they aren't the ones prosecuting cases with wildly conflicting, and contradictory, charges.
Quote:A police baton could kill someone, but it is generally not classified as a lethal weapon. The Atlanta DA charged police who used a taser on two college students with aggravated assault, which implies use of a lethal weapon or use of one with intent to cause grievous harm.
Incorrect, it does not imply use of deadly force, it explicitly states it. The penal code section under which those officers are charged specifically states that the use of deadly force has been used in the commission of the offense. There is no wiggle room in this regard.
Quote:In charging police for combing tazing with violent beating, it is not clear he was classifying all tasers and uses of tasers as lethal force.
A rather ambiguous term, "violent beating". I'll use the CA standard, because that's what I know. The closest analogy to the charges against the college student officers would be 245(a)(1) PC, assault with a deadly weapon. It is worth noting that even this charge is a "wobbler" in CA, meaning it can be charged as a felony or misdemeanor (although it is very rare for it to be charged as a misdemeanor). In order to align with your line of thinking the officers involved would have to had engaged in assaultive conduct, outside of the taser use, that clearly put the student's life in jeopardy. The most common example is kicking someone in the head (I'd point out that I've dealt with people who took their shoes off before kicking someone in the head as they believed that would prevent them from being charged with ADW assault). If not then the sole use of the taser provided the grounds for the ADW assault case. If this is so then the case against the Brooks shooter cannot, by legal definition, be murder. If deadly force is used against an LEO then they have the legal right, even obligation, to respond in kind. It is this point right here where the Fulton County DA digs a hole he will not be able to extricate himself from.
Quote:As I understand the law, if I held an ordinary fork to your jugular and threatened your life, I could be charged with aggravated assault, but that wouldn't imply that from now on, forks are classified as legal weapons. I' d be interested in hearing a lawyers view on this.
This is a fair question. I'll answer it thusly; a kitchen knife, fork or other sharp implement is not a deadly weapon (unless you're in the UK) as long as it's in the kitchen. The minute you remove it from its legitimate sphere of use it becomes a deadly weapon. A BBQ fork could easily cause fatal wounds, but if it's being used to flip burgers and brauts it's not a deadly weapon. The taser question is rather different. The taser has no application outside of its sole intended use. Hence there is no question as to the method of use or the arena in which it is used. Can you use a taser for any purpose other than incapacitating a person? Can you cook with it or do anything other than its designed function? Clearly the answer is no. Consequently its use is either a use of deadly force or it is not. While there are extreme exceptions, such as shooting a dart into someone's eyeball at close range, tasers are, by definition, a less than lethal weapon. The Fulton County DA decided to the contrary, applying emotional reasons instead of legal ones, in the use of them against those college students (which I will again say was completely unjustified and the officers deserved to be charged with a crime). However, as often occurs, when you make a decision based on emotion, politics or any other criteria other than hard facts, later events rose up to bite him in the ass. He now has to defend a completely contrary position, that the use of a taser is absolutely not deadly force (verbatim from his mouth).
In so doing he has destroyed his ability to effectively prosecute either case. You cannot take diametrically opposed positions on two high profile cases and expect to prevail in either. While the DA is an elected position, which I suspect highly motivated his decisions in both cases, judges often are not. Even if they are they tend (not always, but absolutely usually) to rule dispassionately based on the law. This being the case don't be surprised when every single officer in both cases walks completely. This is the consequence of putting politics above integrity and the law as written.
