An appellate court last week ruled a local California police officer violated the constitutional rights of an unarmed, passive man when he tased him after a routine traffic stop, allowing the aggrieved man to continue his lawsuit against the offending officer.
The "landmark ruling," in the words of The San Diego Union-Tribune, by the United States Court of Appeals for the Ninth Circuit "could set the first broad judicial standards for the use of Tasers," reports The New York Times.
During an early summer morning in 2005, Officer Brian McPherson of the Coronado Police Department stepped in front of 21-year-old Carl Bryan's car, signaling him to pull the car over. Bryan instantly knew why he had been pulled over: he forgot to buckle his seat belt. In a fit of anger at himself—he had already received one citation earlier that morning for speeding—Bryan began to scream expletives and hit his steering wheel. McPherson testified that he told Bryan to stay in the car, while Bryan testified he did not hear that command. Bryan then stepped out of the car, "yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes," according to the descriptive 22-page opinion of Circuit Judge Kim McLane Wardlaw.
Bryan was 15 to 25 feet away from the officer when he got out of the car. According to McPherson, Bryan finally took a step towards him, which Bryan denies. The incident then escalated.
"Without giving any warning, Officer McPherson shot Bryan with his taser gun," Wardlaw wrote. "One of the taser probes embedded in the side of Bryan's upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions."
McPherson then arrested Bryan and the young man was taken to the hospital for treatment. One of his wounds was serious enough to require hospitalization so a doctor could use a scalpel to remove the taser probe embedded in his flesh.
Bryan sued Officer McPherson for excessive force, a violation of his Fourth Amendment right prohibiting unreasonable seizures. A lower court found that McPherson could not receive "qualified immunity" because no reasonable jury would find Bryan was a threat to McPherson, himself, or bystanders. The San Francisco-based Ninth Circuit Court agreed, ruling "Officer McPherson's use of the taser was unconstitutionally excessive and a violation of Bryan's clearly established rights."
According to Wardlaw's opinion, the court did not find any of McPherson's arguments to justify the taser shot persuasive. Originally the officer claimed he reasonably believed Bryan resisted him, failed to comply with a legal order, and was under the influence of a controlled substance. Added together, McPherson believed these misdemeanors constituted a "serious—and dangerous—criminal activity." He later argued he believed the use of the taser was justified because Bryan was mentally ill and needed to be detained.
The court, however, found that the facts of the case clearly show Bryan was never a threat to McPherson, himself, or bystanders. "Not only was Bryan standing, unarmed, at a distance of fifteen to twenty-five feet, but the physical evidence demonstrates that Bryan was not even facing Officer McPherson when he was shot: One of the taser probes lodged in the side of Bryan's arm, rather than in his chest, and the location of the blood on the pavement indicates that he fell away from the officer, rather than towards him," Wardlaw wrote. The officer's actions, the judge explained, were further aggravated by his failure to warn Bryan that he would be tased.
Wardlaw also examined the constitutional implications of using tasers and stun guns. "The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted."
The court's decision, reports the Union-Tribune, have law enforcement agencies reviewing their Taser and stun gun policies, including Coronado police.
Coronado Police Chief Lou Scanlon said yesterday that the department’s Taser policies have evolved since the incident, and they currently comply with the court ruling, including considering the use of Tasers more serious when compared with other nonlethal weapons and, when possible, warning people before they are about to be shot using a Taser.
Geoffrey P. Alpert, a professor of criminal justice at the University of South Carolina who just completed a 4-year research study on Tasers for the Department of Justice, told the Times that if the Ninth Circuit's decision isn't overturned, it "is going to impact a lot of departments that have not changed their standards.”
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