The Lombardi Law Firm Blog

Ninth Circuit Court of Appeals Decision Brings Reality Back to Police Work

The Ninth Circuit Court of Appeals issued a decision December 28, 2009 in Carl Bryan vs. B. McPherson, Coronado Police Department and City of Coronado, Docket No. 08-55622, San Diego District Court allowing a lawsuit to proceed towards trial on an excessive force claim in violation of 42 U.S.C. section 1983, assault and battery, intentional infliction of emotional distress, a violation of California Civil Code section 52.1 and a failure to properly train its officers.

 In ruling in favor of the arrestee the Court specifically found the following:

“The court concluded that a reasonable jury could find that Bryan “presented no immediate danger to [Officer McPherson] and no use of force was necessary.” In particular, it found that a reasonable jury could find that Bryan was located between fifteen to twenty-five feet from Officer McPherson and was not facing him or advancing toward him.

The court also found that a reasonable officer would have known that the use of the taser would cause pain and, as Bryan was standing on asphalt, that a resulting fall could cause injury. Under the circumstances, the district court concluded it would have been clear to a reasonable officer that shooting Bryan with the taser was unlawful.”

What is most interesting in this decision is that the officers’ bare claims of justification by fear that the unmentionable might occur during the arrest fell on deaf ears. Where this decision appears to be heading is a reexamination of the Taser as a nonlethal weapon and a policy towards professionalism rather than "anything goes". [Page 16741] The Court seems to be sending a message to the police that they better think twice about what other levels of force would be more appropriate.

“We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by “ ‘a strong government interest [that] compels the employment of such force.’ ” Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003) (quoting Deorle, 272 F.3d at 1280 (9th Cir. 2001)).” [Page 16743]

Factually, it’s important for the evidence to show the arrestee posed no immediate threat to the safety of the officers or others. [Page 16743 and 16744] The officers simply saying they sensed an immediate and imminent threat isn’t going to be sufficient.

“The “most important” factor under Graham is whether the suspect posed an “immediate threat to the safety of the BRYAN v. MCPHERSON 16743 officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281.”

RULING BY FEAR

TYPICALLY THE POLICE REPORT, “THE SKY IS FALLING! AND NONE OF US ARE SAFE!”

Shouting expletives isn’t enough and being half naked does help.

This suspect was in boxer shorts and sneakers, not really able to hide a weapon. His yelling expletives at himself was just that. After all if all you’re wearing are boxer shorts and sneakers there isn’t anywhere to hide a gun or other weapon. Odd behavior simply isn’t enough to justify the use of a taser.

“We agree with the district court that Bryan did not pose an immediate threat to Officer McPherson or bystanders despite his unusual behavior. It is undisputed that Bryan was unarmed, and, as Bryan was only dressed in tennis shoes and boxer shorts, it should have been apparent that he was unarmed. Cf. id. at 1281 (“Deorle was wearing no shirt or shoes, only a pair of cut-off jeans shorts. There was nowhere for him to secrete any weapons.”). Although Bryan had shouted expletives to himself while pulling his car over and had taken to shouting gibberish, and more expletives, outside his car, at no point did he level a physical or verbal threat against Officer McPherson.”

The bottom line is that using a Taser instead of exercising communication skills just isn’t going to cut the mustard under the U.S. Constitution and the Bill of Rights. Are the Courts tiring of the Taser being used in place of traditional methods of communication? Only time will tell. Until then we will continue to yell, “Don’t tase me bro!”

Follow the link for all decisions issued by the Ninth Circuit Court of Appeals.

Specific decision of CARL BRYAN V. B. MCPHERSON, Docket Number 08-55622, issued 12/28/2009 or paste this address in your URL box.

 http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf