The Taser is a form of conducted electrical weapon (CEW) commonly called a stun gun.  It is an electroshock weapon sold by Taser International.  It fires two metal dart-like electrodes from a hand-held device resembling a hand-gun. The darts stay attached to the hand-held device by wires called conductors.  The unit then delivers an electric current from the hand-held device, through the wires and into the electrodes or darts which lodge into the targeted person. The electrical current disrupts the voluntary control of muscles which is called neuromuscular incapacitation. The target usually becomes ridged as the electric current courses through their body and falls to the ground.

Up until 2009, law enforcement was fairly liberal in its use of CEWs such as Tasers and other branded stun guns. The prevailing theory was that a CEW was not deadly force. Therefore, officers felt they could use this form of force even though they were not in immediate fear of death or great bodily injury to themselves or others. But that all changed in 2009 when the United States Court of Appeals for the Ninth Circuit heard a case out of San Diego brought by Carl Bryan.

On December 28, 2009, the United States Court of Appeals for the Ninth Circuit handed down its much anticipated decision in Bryan v. McPherson. The Bryan case is a landmark decision regarding the constitutional limitations on the use of force (Tasers) by law enforcement. It establishes an intermediate use of force analysis when analyzing such claims. But it is also a very good example of how the doctrine of qualified immunity prevents victims of excessive force from being compensated.

FACTS

The opinion, written by Circuit Judge Kim McLane Wardlaw, begins, “Carl Bryan’s California Sunday was off to a bad start.” The twenty-one year old Bryan spent the previous night in Ventura County, north of Los Angeles, with his brother and cousins. He planned to drive to his parents’ home in Coronado, in San Diego County, on Sunday morning. However, his girlfriend had accidentally taken his car keys with her to Los Angeles. Wearing boxer shorts and the t-shirt he slept in, he drove with his cousins from Ventura to Los Angeles County. He retrieved his car keys and drove back to Ventura County where he was able to get his car. Bryan then started the drive to San Diego.

Along the way, Bryan was stopped by a California Highway Patrol officer near Camp Pendleton and given a speeding ticket. Frustrated, Bryan began to cry and removed his t-shirt to wipe his face. He continued on to San Diego County and eventually drove across the Coronado bridge. As Judge Wardlaw wrote, “At that point, an already bad morning for Bryan took a turn for the worse.”

That morning, the Coronado Police had decided to conduct a random inspection of vehicles coming onto the island. Coronado Police Officer McPherson testified he was specifically checking to see if drivers were obeying the seatbelt law. Bryan had not buckled his seatbelt after his earlier encounter with the California Highway Patrol. Officer McPherson approached Bryan’s car and ordered Bryan to pull over to the curb. After complying with the officer’s orders to pull over and turn his radio down, Bryan hit his steering wheel and swore out loud. Bryan testified he was upset because he knew it was a seatbelt check-point.

After exiting his vehicle, it was not disputed that Bryan was standing outside his car, yelling gibberish and pounding his thighs with his fists. It was also not disputed that he was clad in only boxers and tennis shoes. By Officer McPherson’s account, Bryan was standing 20 to 25 feet from Officer McPherson.

The one disputed fact was whether Bryan made any movement toward Officer McPherson. Bryan said he did not remember. Officer McPherson stated Bryan took “one step” toward him. Without giving any warning, Officer McPherson shot Bryan with his Taser. Bryan was momentarily paralyzed and fell face-first onto the roadway shattering several of his front teeth.

DISTRICT COURT

United States District Judge Larry Alan Burns was the trial judge. Bryan alleged, among other things, that Officer McPherson used excessive force by shooting Bryan with a Taser. Bryan alleged this violated his right to be free from excessive police force which is prohibited by the Fourth Amendment to the United States Constitution. Officer McPherson filed a motion before Judge Burns asking the judge to grant summary judgment to Officer McPherson. Officer McPherson argued that his force was reasonable in light of Bryan’s admittedly erratic behavior. Judge Burns ruled that there was sufficient evidence for a jury to find that Bryan did not advance toward Officer McPherson. Therefore, it was improper for him to grant summary judgment in favor of Officer McPherson. The motion was denied.

NINTH CIRCUIT COURT OF APPEALS

     1.  Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009):

In Mitchell v. Forsyth, the United States Supreme Court held that a section 1983 defendant that loses a summary judgment motion on the issue of qualified immunity is entitled to an immediate appeal of that ruling (commonly called an interlocutory or interim appeal). Qualified immunity requires a two-step analysis. First, the court must determine if the officer’s conduct violated a constitutional right; in this case, the Fourth Amendment right to be free from excessive force. If so, the court must determine in the second step whether it would have been “clearly established” to a reasonable officer that his or her conduct was unlawful. To make this determination, the court must review the “state of the law at the time of the incident” to determine whether a reasonable officer would have reasonably believed the force used was lawful. If so, then he or she is immune from section 1983 liability for excessive force. 

Officer McPherson timely filed his notice of interlocutory appeal to the United States Court of Appeals for the Ninth Circuit. The case was assigned to a three judge panel. Circuit judges Harry Pregerson and Stephen Reinhardt joined Judge Kim Wardlaw on the panel.

In the first step of the qualified immunity analysis, Judges Pregerson, Reinhardt and Wardlaw had to decide whether there was a constitutional violation, i.e., whether the force used by Officer McPherson was objectively reasonable in light of the facts and circumstances faced by Officer McPherson. To do this, the panel had to balance whether the nature of the intrusion against Bryan (force used) exceeded the governmental interest at stake (the need to apply force).

Officer McPherson’s brief relied heavily on the argument that use of a Taser is not deadly force so it can be used with impunity. The three judge panel agreed that the Ninth Circuit, as well as the Sixth Circuit, have held that the Taser is an alternative to deadly force. However, Judge Wardlaw wrote that “non-lethal” is not a monolithic category of force that may be applied freely and with impunity simply because it is not lethal or deadly force.

Judge Wardlaw crafted a intermediate level of force, in between non-deadly and deadly. She wrote, “Officer McPherson shot Bryan with a Taser X26 . . . . The X26 uses compressed nitrogen to propel a pair of “probes” – aluminum darts tipped with stainless steel barbs connected to the X26 by insulated wires – toward the target at a rate of over 160 feet per second. Upon striking a person, the X26 delivers a 1200 volt; low ampere electrical charge through the wires and probes into his muscles. The impact is as powerful as it is swift. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. . . . As a result of the Taser, Bryan lost muscular control and fell, uncontrolled, face-first into the pavement.”

The Ninth Circuit opinion concluded that the use of a Taser is, although not deadly, a significant use of force. Before an officer can use a Taser against the public, there must be an immediate threat of harm to the officer or others before this intermediate level of force may be used. Otherwise, that conduct will violate the Fourth Amendment’s prohibition against excessive force.

The court then addressed the second step, whether it was “clearly established” by the state of the law on the date of the incident that the use of force was excessive. Here, the court acknowledged that there was no “closely analogous” case involving a Taser that would have put Officer McPherson on notice that Tasing Mr. Bryan was excessive under the circumstances. But the court held that it did not need to find such a closely analogous case because the unlawfulness of the officer’s conduct was “readily apparent.” This was in line with my appeal in Lee v. FBI (see my blog post titled, “Qualified Immunity and Knowingly Arresting the Wrong Person from March 1, 2006).

Thus, the Ninth Circuit agreed with Judge Burns that Bryan presented no “immediate threat” to Officer McPherson. Even if Bryan took one-step toward Officer McPherson from 20-25 feet away, it did not pose an immediate threat of harm to Officer McPherson nor any bystander. Therefore, the court held that Officer McPherson was not entitled to qualified immunity. But wait, there’s more . . .

     2.  Bryan v. McPherson, 608 F.3d 614 (9th Cir. 2010):

After losing his appeal, Officer McPherson filed a petition asking the entire Ninth Circuit to review the decision for error (called a Petition for Rehearing En Banc). In addition, the League of California Cities and California State Association of Counties also filed a brief. In it, they argued there were recent opinions in other circuits that conflicted with the opinion in Bryan. In an unusually contentious opinion, the panel reversed itself. They issued this “superseding” opinion which held that, due to conflicting Taser opinions in the circuits, Officer McPherson could have made a “reasonable mistake” regarding the use of force that was necessary. In so doing, they held that it was not “clearly established” by prior case law that his conduct was unconstitutional. Therefore, the court held that Officer McPherson was entitled to immunity from suit and they reversed the trial court’s denial of summary judgment on qualified immunity grounds. 

THE EFFECT OF QUALIFIED IMMUNITY

The court held, in step one, that the use of force was excessive under the circumstances. The case was thrown out simply because there was no closely analogous case putting Officer McPherson on notice that his conduct was unconstitutional. Now, Bryan v. McPherson is that case that other Taser lawyers can point back to when opposing qualified immunity. Bryan v. McPherson is the case that establishes Tasering someone that does not pose a risk of harm to the officer or another is unconstitutional. That is good for litigants after Bryan v. McPherson, but the “clearly established” prong of qualified immunity in this case ensures that the first person to seek compensation for this constitutional violation will not be compensated.

Taser International now provides a legal synopsis of Bryan v. McPherson on its website with the following in red type:

Readers are strongly encouraged to read, analyze, and understand the full case and discuss it with their legal advisors. This synopsis does not constitute legal advice or the practice of law and does not include every aspect of the Bryan case.