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TASER and the 9th Circuit Decision

Written by Randy Means

The use of a TASER® on a bizarrely behaving but non-threatening driver is excessive force, according to the U.S. Court of Appeals for the 9th Circuit. And, yes, this case has caused a national stir in police, legal and use-of-force training communities.

Carl Bryan’s day began with a series of mishaps, including a trek to Los Angeles to retrieve his car keys, a speeding ticket, and a second encounter with police for failing to wear his seatbelt. When stopped, Bryan stepped out of the car wearing only his boxer shorts and tennis shoes, and stood on the side of the road non-compliantly yelling gibberish and hitting his thighs. His “bad day” culminated when Officer McPherson “shot Bryan with his TASER gun.” Bryan was immobilized by the jolt and fell face forward onto the asphalt, breaking four of his front teeth.

Bryan sued Officer McPherson under federal civil rights law (42 U.S.C. § 1983), alleging use of excessive force. In its later review of the case, the United States Court of Appeals for the 9th Circuit held that use of the TASER X26 (and other electronic control devices) is an “intermediate, significant level of force that must be justified by a strong governmental interest.”

After considering the totality of the circumstances, the court denied qualified immunity for the officer, finding that Bryan’s behavior during the traffic stop, although bizarre, did not pose an immediate threat to McPherson. Thus his use of the TASER X26 was not justified, and his mistake was not reasonable.

In deciding whether to grant or deny qualified immunity for Officer McPherson, the court addressed two questions. First, did the officer violate a constitutional right? Second, was the right clearly established? This two-prong inquiry is the center of any effort by the defense to create immunity for an officer from federal civil liability.

An officer who does not violate a clearly established federal constitutional right is immune from liability under the civil rights laws. A recent Supreme Court case now permits trial courts to decide which question should be addressed first because a negative response to either question would be determinative and would end the inquiry in favor of the officer.

Allegations of excessive force are examined under the Fourth Amendment as potentially unreasonable seizures. In determining whether an officer’s actions constituted an unreasonable seizure, the court must analyze whether the officer’s actions were “objectively reasonable” in light of the facts and circumstances he encountered.

If they were not objectively reasonable, the next question is, in essence, should the officer have known that at the time? That is, was the right of the subject to be free from this particular use or type of force clearly established at the time of the police action? Ironically, the facts of this case are somewhat reminiscent of Graham v. Connor, the case which created the federal constitutional standard for use of force by police.

The Court agreed with other circuits that have characterized the TASER shot as a “painful and frightening blow” and concluded that deployment of the TASER X26, and similar devices, is a “greater intrusion” and is thus somewhat worse than other non-lethal methods of force, such as pepper spray. The physiological effects, high levels of pain, and predictable injuries caused by falls and removal of the probes factored into this view.

Considering the amount of force used compared to the government’s need to use force, the most important factor for this court was whether the suspect posed an immediate threat to the officer or anyone else. Bryan’s behavior was certainly unusual. It is undisputed that he was striking himself, shouting expletives and gibberish and acting erratically.

However, he was also apparently unarmed (wearing tennis shoes, boxers and no shirt), was at least 15 feet away from the officer, stood by his car alone on the side of the road, and directed none of his anger overtly toward the officer. There is some dispute over whether he took (at most) one step toward the officer, but the physical evidence suggested that he was not even facing the officer—a probe was lodged in the side of his arm and he fell away from the officer.

His behavior was bizarre, but he was not threatening; thus the use of force against him was unnecessary, the 9th Circuit ruled. An officer’s conclusory statement that he feared for his safety is not sufficient to justify use of force. There must be objective factors threatening his safety which necessitate the force.

Of further concern to this court was the officer’s failure to warn Bryan of the impending use of the TASER and to consider less intrusive means to apprehend him. Other officers were en route to assist, but the officer deployed the TASER prior to their arrival, even though there was no particular need or urgency. Bryan made no attempt to evade the officer, and the crime he was accused of was the classic “failure to wear a seatbelt.” Officer McPherson alleged additional minor crimes, but he was unconvincing.

In the end, there was simply no immediate need to subdue Bryan; the officer had a static situation that he likely could have maintained, and help was on the way. Deploying the TASER in this situation violated Bryan’s constitutional right to be free from excessive force (unreasonable seizure), according to this court.

The second question for the court was “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,” indicating that the relevant law was clearly established at the time the officer acted. The court revisited these facts: The transaction was over the most minor of offenses. The suspect was 15 to 20 feet away. He did not physically confront or even face the officer. The officer gave no warning.

The use of force is least justified against nonviolent misdemeanants who do not actively resist or pose a threat to the officer, and a reasonable officer in McPherson’s situation would have known that deploying the TASER, which is an intermediate use of force, was not justified. His error was not a reasonable mistake; it was unjustified on all counts, and no reasonable officer would do it, according to the court.

This case is only controlling law in the 9th Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA). However, it provides judicial guidance on law enforcement’s use of electronic control devices, particularly in the context of excessive force allegations. The court calls the use of the TASER X26, or other electronic control device, an “intermediate, significant level of force” that is only justified by a “strong government interest.” In a case like this, the government interest is primarily the immediate safety needs of the officer.

The government’s use of force, while it does not have to be the least available means, must be justified (objectively reasonable) in the context of the officer’s particular situation. This officer encountered peculiar behavior, but not threatening behavior, so this type of use of force was unnecessary and unreasonable. Use of an intermediate level of force in Officer McPherson’s situation was excessive, and a reasonable officer would have known that it was unjustified.

The national stir over this case was caused mainly by the question of whether this case is forewarning of similar rulings by courts in other parts of the country regarding “intermediate” force. Some have wondered whether we now have three types of force: deadly, non-deadly and “intermediate.”

For the vast majority in law enforcement outside the 9th Circuit, the case may be best viewed as simply an “unreasonable” use of force, given the circumstances. An unreasonable use of force by police is unconstitutional in every state. This case, like many others, is warning that not every type of non-deadly force will always be reasonable against non-compliant, but non-threatening, subjects. Many agencies already take this view into account in their policies and training. For them, this ruling only confirms their policy position.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.

In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at pammcdonaldfirm@aol.com.

Published in Law and Order, Apr 2010

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Sergeant

By David Hildebrand

In my opinion, this ruling is another of a long list of ridiculous rulings from the 9th Circuit. The number of cases that they have ruled on and have had overturned by the Supreme Court is staggering. Now maybe the officer did not voice a concern for Excited Delirium but from what Ive read, this guy was exhibiting many of the classis signs. One can, post-incident, assume that he did not since he did not die and was able to sue but hindsight is not available during an unfolding incident. The whole reason for the use of a Taser is to prevent officers from having to go hands-on with a suspect, increasing the risk of injury for both the officer and the suspect. What difference would it have made if he had waited for back-up? Would that mean that it would be better to just jump on him with 4 officers and wrestle him down? Because that is what would have happened. Im seeing another case from California in which the officers did just that. The officer did as he was trained to do by textbook Taser training. The subject was non-compliant and potentially dangerous and the officer used the tools he had at hand to control the situation. I would lay odds that this case will be over-turned when it reaches the Supreme Court. As for the article, I was confused as to whether Mr. Means and Ms. McDonald were agreeing with the courts ruling or if they were just taking language from the ruling and explaining what it meant. As a past participant in one of Mr. Means courses, Im really hoping that he does not agree.

Submitted Jun 1 at 8:55 AM

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