In Ventura County case, a federal appeals court defines the limits of lawful use of electrifying stun guns by police officers.
A federal Ninth Circuit Court of Appeals ruling published in late December is getting a lot of attention in legal and law enforcement circles for the way in which it advances the law on the use of tasers and seeks to constrain the constitutionally acceptable use of the devices by law enforcement officers.
The December 28th ruling in Carl Bryan v. Brian McPherson and the police department of Coronado, California, squarely challenges the notion that arresting officers can use the non-lethal but physiologically debilitating stun guns in situations where a targeted suspect poses no obvious or immediate threat to officers or other persons. The court’s decision came as it denied officer Brian McPherson’s and the Coronado Police Department’s effort to dismiss a civil suit brought by Bryan. Specifically, McPherson’s summary judgment motion asserted that Bryan’s suit was barred by the “qualified immunity” that should shield McPherson if he acted with a “reasonable belief” that his use of the taser was lawful.
Yet, the appeals court’s decision directly disputed whether McPherson’s use of the taser under the undisputed circumstances of the case could have been considered “reasonable.” Moreover, the decision also plainly explains how the use of tasers–with the immediate and severe pain they inflict on subjects–should be construed by courts as “excessive force” in the absence of compelling evidence that the use of such force is necessary to protect officer or others, including the individual being tasered.
“Tasers and stun guns fall into the category of non-lethal force. Non-lethal, however, is not synonymous with non-excessive; all force-lethal and non-lethal–must be justified by the need for the specific level of force employed.”–Ninth Circuit Court of Appeals.
“Thankfully the Court set a new and higher standard for the use of tasers, observes attorney Breean Beggs, the Center for Justice’s chief catalyst. “The new standard requires that the officer first identify a strong governmental interest and that the use of the taser is “compelled” by the situation. The result should be an elimination of casual and unnecessary tasing of citizens.”
As the court noted in its ruling, Carl Bryan was having “an already bad morning” when he was stopped at an intersection in Coronado by Officer McPherson. In fact, Bryan had already been pulled over earlier on Interstate 405 by a California Highway Patrol officer who’d issued him a speeding ticket. Bryan was apparently so upset by the first stop that he neglected to re-buckle his seat belt, an infraction that Officer McPherson observed when he motioned for Bryan to stop his car.
After complying with the policeman’s request to pull his car over and turn down his radio, Bryan became angry with himself, hitting the steering wheel and yelling expletives before getting out of his car. Dressed only in boxer shorts and tennis shoes, Bryan continued to yell at himself and even strike himself in the thighs. But the abuse seemed only directed at himself, the court noted.
“The one material dispute concerns whether Bryan made any movement toward the officer,” the court noted. “Officer McPherson testified that Bryan took ‘one step’ toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan’s upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions. Bryan’s morning ended with his arrest and yet another drive–this time by ambulance and to a hospital for treatment.”
Although the 9th Circuit Ruling acknowledged that the rules of summary judgment required that Bryan be accorded the benefits of the doubts on factual disputes, it also used the known facts of the case to frame its discussion on how courts should view the use of the taser weapon in such circumstances.
“We, along with our sister [federal] circuits, have held that tasers and stun guns fall into the category of non-lethal force,” the Court ruled. “Non-lethal, however, is not synonymous with non-excessive; all force-lethal and non-lethal–must be justified by the need for the specific level of force employed.”
The court noted that tasers like the one used against Bryan “constitute an ‘intermediate or medium’” use of force, one that involves intense pain and can result in serious injuries, such as those incurred by Bryan when he fell to the pavement on his head. Even giving the officer the benefit of the doubt as to whether Bryan may have taken a single step toward him, the court wrote that it had trouble finding any basis to accept that the officer could have acted with a reasonable belief that his use of the taser was necessary to successfully detain and control Bryan.
“We thus conclude that the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrium with his X26 [taser] drawn and charged,” the court wrote. “Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable. His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”
In concuring with the federal district court that Officer McPherson was therefore not entitled to immunity for the use of the taser, the appeals court remanded the case back to the district for further proceedings.
–CFJ
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