NINTH CIRCUIT FINDS USE OF TASER TO BE EXCESSIVE FORCE WHERE THERE IS NO DANGER TO OFFICERS OR CIVILIANS

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.