Ninth Circuit Places New Limitations on TASER Use

Posted on Wednesday, February 10, 2010 at 12:00PM
Posted by Christopher W. Miller & Dawniell A. Zavala

Ninth Circuit Deems Officer’s Actions Unconstitutional

Any judicial evaluation of a use of force starts with Graham v. Connor, 490 U.S. 386 (1989), in which the U.S. Supreme Court stated the courts are to balance the force used by the officer against the need for that force – i.e., was the officer’s use of force objectively reasonable under the circumstances?

Graham v. Connor identifies three criteria courts are to use in deciding whether the force was reasonable: (1) how severe was the crime? (2) did the suspect against whom force was used pose an immediate threat? and (3) was the suspect fleeing or actively resisting arrest? The courts have given greatest importance to the second question – whether the suspect is an immediate threat to the safety of the officer or others.

In this instance, the Ninth Circuit said Bryan’s behavior did not justify Officer McPherson’s use of the Taser because Bryan was facing away from the officer, at a safe distance; was not violent, threatening, or armed; there were no bystanders in the immediate area (other than Bryan’s brother, who was still in the car); and other officers were en route to the scene. Thus, the Court concluded Bryan was not an immediate threat and held the officer’s use of force was objectively unreasonable, especially in light of the fact he did not warn Bryan of his intent to tase him, did not consider the extent of the injuries Bryan might sustain from falling onto the ground, and did not use lesser levels of force or alternative methods to control Bryan’s behavior.

Moreover, the Court held the fact Bryan’s behavior suggested he may have been mentally ill or emotionally unstable weighed against using the Taser. The Court distinguished unarmed, distraught individuals from dangerous criminals who have recently committed serious offenses, stressing that the tactics used against the two categories of people are ordinarily different, and officers should generally attempt to control situations involving the mentally ill through less intrusive means. Thus, in considering the totality of the circumstances, the Court held the officer’s use of force was excessive and violated Bryan’s constitutional rights.

Court Announces New Rule in Taser Cases

The Ninth Circuit Court of Appeals further announced that because Tasers and similar “stun gun” devices “intrude[] upon the victim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not. . . . [Tasers] constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the use of such force.” The Court distinguished Tasers from other non-lethal force instruments such as pepper spray and “nonchakus”, calling a “taser shot . . . a painful and frightening blow” that may lead to further injury. Therefore, the court said, any Taser use must be justified by a compelling need.

This new rule means Taser use will be under greater scrutiny by Ninth Circuit courts. While the Graham v. Connor balancing test applies no matter what level of force is employed, the Ninth Circuit and district courts within its jurisdiction are now more likely to consider whether force less harmful than a Taser should have been used in a given situation. Courts will examine whether an officer gave warnings, exhausted other means of non-lethal force, had backup officers arriving, and deployed the Taser in a manner designed to minimize injury to the suspect. This “second-guessing” by the courts is common in § 1983 civil rights actions, but the McPherson case makes it much more likely courts in this circuit will reject the use of Tasers against unarmed, nonviolent resistance.

Ninth Circuit First to Label Tasers “Intermediate” Force

The Ninth Circuit appears to be the first federal appellate court to explicitly label the use of Tasers and similar devices as an intermediate level of force falling somewhere between lethal and non-lethal uses of force. Other circuit courts have not gone so far as to create a new, intermediate category of force, but they have held Tasers and stun guns inflict levels of pain severe enough to surpass the de minimus injury threshold necessary to make a prima facie case of excessive force or cruel and unusual punishment.1

The Ninth Circuit’s focus on the fact McPherson did not warn Bryan before deploying the Taser contrasts with the holding in another key case, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), in which the Eleventh Circuit found the tasing of an unarmed belligerent subject who ignored an officer’s repeated instructions to calm down and return to his truck was reasonable, even though the officer had not warned the man he would be tased if he continued in his behavior.2 While other Circuits have expressed recognition that some circumstances may justify the use of a Taser without a prior warning, most Circuits finding an excessive use of force or cruel and unusual punishment resulting from the use of a Taser or stun gun have criticized, sometimes harshly, the use of such devices without first warning the subject and providing him or her with an opportunity to comply before being shocked.3

Lessons from Bryan

With the Ninth Circuit’s holding in mind, you should consider the following in deciding whether to employ a Taser or similar device:

The subject’s overall demeanor

  • Is the subject hostile or merely distraught?
    • o Is the subject verbally or physically threatening officers or others nearby?
    • o Is the subject physically agitated?
    • o Has the subject made motions toward the officer or others?
    • o Is the subject actively or passively resistant?
    • o Is the subject generally compliant and/or non-threatening?
    • o Is the subject responding to officer commands?
    • o Is the subject attempting to flee or otherwise evade law enforcement?
  • Whether the subject is armed or likely to be armed
    • o What is the subject wearing?
    • o Does the subject have ready access to potentially hidden weapons?
  • The distance between the subject and the officer or others nearby
  • The severity of the offense the subject has committed or is suspected of committing
  • The subject’s surroundings and the likelihood a fall may result in serious injuries
  • Whether other, less invasive methods of control can be used before resorting to the Taser
  • Whether the subject has received adequate warning that his or her actions are likely to result in being tased, and whether the subject has heard such warnings and has had time to comply
  • Whether other officers are nearby or available to assist

The Ninth Circuit decision is available online at If you have any questions regarding this case or any related issues, please do not hesitate to contact Mastagni, Holstedt, Amick, Miller & Johnsen.

Christopher W. Miller is a former prosecutor and managing partner of the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen. Dawniell A. Zavala is an associate attorney at the law firm, where she provides representation to peace officers through the PORAC Legal Defense Fund.

  1. See Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (stating the injury and pain from a stun gun “is exactly the sort of torment without marks . . . which, inflicted without legitimate reason, supports the Eighth Amendment’s objective component.”); Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) (holding the district court had properly rejected the deputy’s claim that the victim’s injuries were de minimus because the Taser was applied for only a few seconds); Lewis v. Downey, 581 F.3d 467, 475 (“the use of a taser gun against a prisoner is more than a de minimus application of force.”2 369 F.3d 1270, 1278 (11th Cir. 2004). In addition, the Court in Draper found that “although being struck by a taser gun is an unpleasant experience, the amount of force [the officer] used – a single use of the taser gun causing a one-time shocking – was reasonably proportionate to the need for force and did not inflict any serious injury.” This view significantly departs from other Circuits’ rulings on the seriousness of the harm caused by Tasers and stun guns.
  2. See generally Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008); Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009); Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009); Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007); Oliver v. Fiorino, 583 F.3s 898 (11th Cir. 2009).

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