Hank Hernandez
February, 2010
Federal Court of Appeals Denies Officer Immunity for the Use of Taser
On December 28, 2009, a U.S. Ninth Circuit Court of Appeals panel denied a Coronado police officer immunity from a civil rights lawsuit in a ruling that caused some frenzy in the media regarding the ability of officers to use the Taser. The appellate panel, which included Justice Stephen Reinhardt, one of the most reversed judges in the federal courts, concluded that the use of a Taser by Officer Brian McPherson on Carl Bryan was excessive force and a violation of Bryan’s constitutional rights.
In Bryan vs. McPherson, 2009 DJDAR 17929, the facts considered by the court were the following: One morning in 2005, Bryan drove from Camarillo to Los Angeles to retrieve keys accidentally taken from him. Afterwards, he drove back to Ventura, picked up his brother and began to drive to San Diego County. Along the way, he received a speeding ticket from a California Highway Patrol officer, which upset him greatly. Later that morning, Officer McPherson stopped Bryan for a seatbelt violation. Bryan was angry with himself, and hit his steering wheel while yelling expletives. Against McPherson’s directions, he stepped out of the car clad only in boxer shorts and tennis shoes and continued yelling gibberish and hitting his thighs, but he did not verbally threaten McPherson. Bryan was standing 20 to 25 feet away, facing away from McPherson, when without warning McPherson shot Bryan with a Taser. Bryan fell face-first into the asphalt, sustaining facial injuries. Bryan sued for excessive force and the trial court granted immunity to the city of Coronado and the Coronoado Police Department, but not to McPherson. The appeal by McPherson followed.
The Ninth Circuit panel concurred with the trial court by finding that the use of the Taser constituted an intermediate, significant level of force that needed to be justified by a strong governmental interest compelling its use. The court found that Bryan’s alleged crime was not severe, that he did not pose an immediate threat to Office McPherson’s safety and that he did not actively resist arrest or attempt to flee. Thus, the court found that McPherson’s use of the Taser was uncalled for and that its employment constituted excessive force.
Soon after the court’s ruling was published, the media created a frenzy claiming that the ruling effectively curbed the ability of officers to use a Taser on suspects who are not resisting arrest. We do not agree. Regardless of what the courts and the media say, we urge all officers to be extremely cautious when dealing with suspects who are refusing to comply with directions and exhibit erratic behavior. In our view, this appellate decision reflects the court’s extreme ignorance of the realities that officers confront in the field almost daily. Remember that if a suspect complies with an officer’s commands, the use of force or a weapon is unnecessary. But when a suspect fails to comply with verbal commands, it means the situation is rapidly escalating and some form of force may soon be necessary to gain compliance. Erratic behavior is not harmless, and prompt and complete compliance is crucial to prevent more danger to officers and/or the public.
Lastly, as we know, the use of non-lethal force can be safest and best way to obtain needed compliance by a suspect. Verbal commands are issued by officers to ensure control of a situation, and for officer and public safety. When a suspect refuses to obey commands, he/she is trying to gain control. Non-lethal force instruments are designed to avoid serious injury to both officers and suspects by swiftly incapacitating the suspect to avoid an extremely dangerous scenario from escalating. Please be careful out there and don’t let this court ruling cause you to disregard erratic behavior as being harmless. Don’t forget your training and what you know to be true!
