Metropolitan News-Enterprise


Tuesday, December 29, 2009


Page 3


Court Denies Qualified Immunity to Officer Sued Over Taser Use


By SHERRI M. OKAMOTO, Staff Writer


A police officer who tasered an unarmed 21-year old man clad only in his underwear during a traffic stop for a seatbelt infraction was not entitled to qualified immunity, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel said that Coronado police officer Brian McPherson’s use of an intermediate level of force on Carl Bryan was unconstitutionally excessive and affirmed the decision of U.S. District Court Judge Larry A. Burns allowing Bryan’s case to proceed past summary judgment.

In her decision for the appellate court, Judge Kim McLane Wardlaw noted that Bryan’s day “was off to a bad start” on the day of the incident.

Bryan’s cousin’s girlfriend had accidentally taken Bryan’s car keys to Los Angeles from the home in Ventura where they all had stayed, and Bryan received a speeding ticket after retrieving his keys and heading to his parents’ home in Coronado, near San Diego.

Bryan said he was wearing the t-shirt and boxer shorts in which he had slept and took off his shirt in order to wipe his tears after becoming distraught over the speeding ticket.

After Bryan and his brother crossed the Coronado Bridge, Wardlaw said, “an already bad morning for Bryan took a turn for the worse,” and Bryan was stopped for a second time by police, this time by McPherson.

Bryan said he was angry with himself for having failed to buckle his seatbelt after his earlier encounter with police and facing the possibility of another ticket, and he began hitting his steering wheel and his legs, and yelling expletives.

McPherson testified that he told Bryan to remain in his car from a distance of about 20 to 25 feet, but Bryan instead took “one step” towards him. The officer then used his taser gun on Bryan, who denied hearing the instruction or moving towards the officer.

Bryan claimed that one of the taser probes embedded in the side of his upper left arm and the electrical current immobilized him, causing him to fall face-first into the asphalt, fracturing four teeth.

He subsequently brought a federal civil rights suit against McPherson and the Coronado Police Department, its police chief and the City of Coronado for excessive force, assault and battery, intentional infliction of emotional distress and failure to train and related causes of action.

The district court granted summary judgment to the city and the police department, but determined that McPherson was not entitled to qualified immunity at the stage of the proceedings since a reasonable jury could find that Bryan “presented no immediate danger to [McPherson] and no use of force was necessary.”

On appeal, Wardlaw reasoned that the “physiological effects, the high levels of pain, and foreseeable risk of physical injury” caused by a taser constitute an “intermediate or medium, though not insignificant, quantum of force.”

Although she acknowledged that Bryan’s “volatile, erratic conduct could lead an officer to be wary” and “created something of an unusual situation,” the jurist reasoned that Bryan did not pose an immediate threat to McPherson or bystanders, despite his unusual behavior and appearance.

Wardlaw said that “it should have been apparent that [Bryan] was unarmed” given that he was dressed only in tennis shoes and boxer shorts, and emphasized that the parties did not dispute that Bryan had never leveled a threat against the officer.

She also posited that even if Bryan had taken a step towards McPherson as the officer claimed, “this would not have rendered him an immediate threat justifying an intermediate level of force, as he still would have been roughly nineteen to twenty four feet away….”

Wardlaw concluded that “the objective facts reveal a tense, but static, situation,” in which Bryan “was neither a flight risk, a dangerous felon, nor an immediate threat” so there was no need to subdue him. A reasonable officer in these circumstances, she said, would have known that it was unreasonable to use a taser on Bryan.

Judges Harry Pregerson and Stephen Reinhardt joined Wardlaw in her decision.

The case is Bryan v. McPherson, 08-55622.


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