In a ruling that may change how police departments around the country deploy electronic weapons, the US Ninth Circuit Court of Appeals in California unanimously upheld a lower court ruling allowing a lawsuit against a police officer who deployed his Taser to continue.
Coronado, California Police Officer Brian McPherson stopped 21 year-old motorist Carl Bryan in 2005 for not wearing a seatbelt. When Bryan exited his motor vehicle he was wearing only boxer shorts, speaking incoherently and hitting himself. According to the testimony, Bryan did not make any verbal or physical threats towards Officer McPherson. However, Officer McPherson testified that Bryan took a step toward him, causing him to feel sufficiently threatened to deploy his Taser. Officer McPherson deployed his Taser on Bryan, resulting in Bryan falling to the ground and breaking four teeth. Bryan also visited the hospital to have the Taser barbs removed from his body.
Subsequently, Bryan sued the city of Coronado, the Coronado Police Department, and Officer McPherson. A trial judge ruled that the city and police department were immune to the lawsuit, however, Officer McPherson was not. The Ninth Circuit affirmed the lower court ruling, stating that Officer McPherson violated Bryan’s constitutional rights. “Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable,” Judge Kim McLane Wardlaw wrote. “His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”
In the ruling, Judge Wardlaw wrote that the use of a Taser should be limited to situations where there is “an immediate threat to the officer or a member of the public”… “Officer McPherson stopped Bryan for the most minor of offenses. There was no reasonable basis to conclude that Bryan was armed. He was twenty feet away and did not physically confront the officer,” Judge Wardlaw wrote, adding, “The facts suggest that Bryan was not even facing Officer McPherson when he was shot. A reasonable officer in these circumstances would have known that it was unreasonable to deploy intermediate force.”
Wardlaw went on to explain that in cases where suspects appear mentally ill officers should apply even more caution before using electronic weapons. “[If] Officer McPherson believed Bryan was mentally disturbed, he should have made greater effort to take control of the situation through less intrusive means.”
The court also differentiated between the use of electronic weapons and other less-lethal alternatives such as the baton and pepper spray. While still classifying electronic weapons as less-lethal, the court placed them into a higher force level somewhere between impact tools such as the baton or PR-24 and deadly force. “The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that [electronic weapons] are a greater intrusion than other non-lethal methods of force we have confronted,” Wardlaw wrote.
As the use of electronic weapons grows in the US, arguments between human rights groups and police over the safety of the device grows also. A 2008 Amnesty International report states that more than 330 people in the US have died after being stunned with electronic weapons. Taser International claims that the use of electronic weapons has reduced officer and suspect injuries by 30 to 80 percent.
This case could have a widespread impact on police training and the use of electronic weapons if the United States Supreme Court becomes involved.
-Attorney John MacLaughlan