Ninth Circuit Ruling on the Limits of TASER Use

Posted on Wednesday, February 10, 2010 at 12:00PM

The Ninth Circuit recently handed down a ruling regarding police officer use of TASERS that can impact many of our members in the future. This case is referred to as Bryan v. McPherson, 2009 WL 5064477 (9th Cir. 2009). Below you will find the analysis from two of LDFs premier panel attorneys regarding the impact of this decision.

Summary of Facts (taken from the decision)

On a Sunday morning in Summer 2005, Carl Bryan was stopped at an intersection in Coronado by an officer who was working a walking traffic detail, monitoring traffic for seatbelt infractions. Bryan had been pulled over and issued a speeding citation by the California Highway Patrol earlier that same morning, while driving from Camarillo, and had forgotten to refasten his seatbelt after this first incident.

As Bryan crossed the Coronado Bridge, he was signaled to pull over to the side of the road by Officer Brian McPherson. Officer McPherson observed two young men in the vehicle. The driver, Bryan, was not wearing his seatbelt. McPherson approached the passenger-side window and asked Bryan if he knew why he had been stopped. Bryan, upset both because he had already received a speeding ticket earlier in the day and because he was in all likelihood facing a second citation, refused to acknowledge McPherson and, instead, continued to stare straight ahead. Officer McPherson instructed Bryan to turn his stereo down and pull over to the curb. Bryan complied with the officer’s request that he pull over to the curb. Bryan began to shout and swear at himself and bang his hands against his steering wheel, apparently out of frustration. Bryan got out of his car and stood next to it while continuing to yell gibberish and repeatedly hitting himself in the thighs. Bryan had taken off his shirt and was wearing only boxer shorts and tennis shoes. Bryan stood with his back to Officer McPherson and did not make any apparent attempt to flee. In fact, according to Officer McPherson, the only “resistance” offered by Bryan was his failure to comply with Officer McPherson’s order to remain in his vehicle (which Bryan claimed he did not hear). As Bryan continued to behave strangely, making Officer McPherson increasingly uneasy, McPherson removed his TASER and, without warning, fired from twenty to twenty-five feet away, striking Bryan in the upper left arm. In his deposition, Officer McPherson had testified that Bryan had started to take a step toward him.

The TASER responded as intended, overriding Bryan’s central nervous system, which caused him to fall face-first to the pavement. The fall broke four of Bryan’s teeth and caused facial contusions, abrasions and swelling. Bryan was transported to a hospital where a doctor had to surgically remove one of the TASER’s barbs, which had been embedded in his skin, with a scalpel.

Driver Sues for Civil Rights Violations

Bryan was charged criminally with resisting arrest for this incident, but prosecutors dismissed the case after a hung jury. Bryan sued McPherson, the City of Coronado, and the Coronado Police Department for violations of his civil rights under 42 U.S.C. § 1983 and other claims. McPherson sought “qualified immunity” from Bryan’s claims, meaning he wanted the court to find he had been acting “reasonably” in response to a perceived threat and had not violated Bryan’s constitutional rights.

The City and the Police Department won summary judgment motions based on their qualified immunity, effectively dismissing them from the case. However, the District Court held that a reasonable jury could find that Officer McPherson’s use of force was excessive under the circumstances, that a “reasonable officer” would not find this use of force was necessary, and thus that tasing Bryan was unlawful. Therefore, the lawsuit against Officer McPherson was allowed to proceed to a jury trial. The court denied qualified immunity to Officer McPherson, who appealed that finding to the Ninth Circuit.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.