Stun Guns – Right To Bear Under The Second Amendment and The Use Of Excessive Force

Stun Guns Are Protected Under The Right To Bear Arms

In a short opinion, the United States Supreme Court unanimously reversed a decision by the Supreme Judicial Court of Massachusetts, which upheld a Massachusetts law prohibiting the possession of a stun gun.   The Supreme Court noted that the Massachusetts Court focused on whether or not stun guns were “dangerous per se at common law and unusual.” This statement ignored statements in Heller, an earlier U. S. Supreme Court opinion, that held that the Second Amendment extends to all arms “…that were not in existence at the time of the founding.”   

Since the Missouri Constitution protects the right to bear arms and is interpreted the same as the right to bear arms provision in the United States Constitution, stun guns are also constitutionally protected under Missouri law. Statutory provisions In Missouri do not prohibit possession of a stun gun or its use unless they are used as an offensive lethal weapon. (Mo. Rev. Stat. §§ 571.030, 556.061.)

Excessive Force

Despite the existence of laws in Missouri that protect the possession of stun guns local government needs to be concerned because there is substantial liability for the use of a stun gun when it  is  used to inflict excessive force in carrying out law enforcement activities.

A jury recently found that the City of Ferguson and one of its officers was liable for the use of excessive force in making an arrest involving the use of a Taser[1]. In the Moore case a 31-year-old man weighing approximately 135 pounds was totally naked and running down the street yelling “God is good,” “glory to God,” and “I am Jesus.” Several 911 calls were and a Ferguson Police Department officer was dispatched. When the police officer arrived at the scene he tried to get Moore away from the street; however, Moore rushed the officer with his fist-closed pinwheeling his fists. Moore ignored the officer’s commands to get down. The officer then tased Moore who collapsed to the ground. The office believed that Moore was continuing to resist so the officer tased Moore three more times. The Taser record showed that Moore had been tased four times within a span of about seven seconds. Moore apparently went into cardiac arrest sometime after the second tazing and died. The family and the estate of Moore brought a wrongful death action resulting in a 3 million Dollar verdict against the City and the officer.

[1] For the purpose of my analysis the difference between a stun gun and a Taser is not legally consequential because functionally they are similar.

Howard Wright© 2016

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