Article from: www.thenewspaper.com/news/33/3339.asp

12/2/2010

California: Court Reaffirms Ruling Against Tasering Motorists
Ninth Circuit Court of Appeals reinforces ruling that tasers should only be used against motorists in extreme cases.

The US Court of Appeals for the Ninth Circuit on Tuesday reaffirmed a decision handed down in January (read decision) limiting the ability of police to taser motorists over minor traffic violations. Coronado, California Police Officer Brian McPherson blasted motorist Carl Bryan, then 21, with a 1200-volt taser during a traffic stop over a minor infraction on the Coronado Bridge near San Diego, five years ago. Bryan lost four of his front teeth and was hit with "resisting arrest" charges. He sued, claiming excessive force had been used.

"We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer," Judge Kim Wardlaw summarized.

The court found that this intermediate, significant level of force delivered by the taser must be justified by a significant threat to the officer. The League of California Cities and California State Association of Counties asked the full court to rehear the case decided by a three-judge panel. The court slightly modified its opinion to grant Officer MacPherson qualified immunity because he could have made a "reasonable mistake" given the uncertain state of the law at the time. A majority of appellate judges found the panel's reasoning sound and rejected Bryan's request to reopen the case on the question of that immunity. The finding opened a bitter rift among some of the judges.

"After mischaracterizing the record, misstating our holding, and attacking our opinion for language it does not in fact contain, Judge [Richard] Tallman ultimately bases his dissent to our decision against rehearing en banc upon the largely unsupported and nonsensical belief that use of a device designed to fire a dart up to one-half inch into bare skin and deliver a 1200 volt charge somehow does not constitute an intermediate use of force," Wardlaw wrote.

Wardlaw recited significant evidence regarding the dangers of using tasers, including serious wounds from the dart fired into the skin to death caused by the electrical shock and injuries from a fall, as happened to Bryan. In his dissent, Tallman focused on how Bryan was acting "bizarrely" when he pulled up to a seatbelt sting operation in his tan Toyota Camry. Tallman insisted that the officer "feared for his life" from the compliant man in boxer shorts standing twenty-five feet away.

"It is what Officer MacPherson knew, not Bryan's innocent, post-filing explanation favored by the panel, that must be considered in assessing objective reasonableness," Tallman wrote in his dissent. "Because the panel relays the facts from Bryan's perspective, rather than the officer's, it was no doubt easy to conclude that Bryan did not pose any threat to the officer. Looked at from a reasonable officer's perspective, however -- as Graham requires -- Bryan's behavior was volatile, irrational, and alarming. Any reasonable officer would be concerned for his safety."

A copy of the revised, final decision is available in a 210k PDF file at the source link below.

Source: Bryan v. MacPherson (US Court of Appeals, Ninth Circuit, 11/30/2010)

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