Wednesday, December 1, 2010
Court Denies En Banc Review of Ruling on Police Officer’s Taser Use
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday declined to review en banc a ruling that 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 entitled to qualified immunity.
Over the dissent of three of its judges, the court left standing a ruling that the officer used excessive force, but was entitled to immunity because a reasonable officer could have made a reasonable mistake of law regarding the constitutionality of the taser use.
A three-judge panel ruled last December that tasers, when used in dart-mode, constitute an intermediate, significant level of force that must be justified by the governmental interest involved. Judge Kim McLane Wardlaw wrote that the man tasered, Carl Bryan, did not pose an immediate threat justifying the level of force, and affirmed a lower court’s decision allowing a civil rights suit against Coronado police officer Brian McPherson to go to trial.
The panel reversed itself in June at the request of the League of California Cities and the California State Association of Counties, reasoning that McPherson was entitled to immunity because that principle was not clearly established at the time of the 2005 incident.
McPherson used his X26 taser on Bryan following a series of events on a Sunday morning, which included a prior police stop of Bryan. Clad in boxer shorts and a t-shirt, Bryan was headed to his parents’ home in Coronado, near San Diego, after rising early to travel from Ventura County to Los Angeles to retrieve his car keys, which his girlfriend had accidentally taken the previous day.
A California Highway Patrol officer stopped Bryan on the freeway and issued him a speeding ticket, and Bryan began crying and took off his shirt to wipe his face. He later proceeded to Coronado, but he failed to buckle his safety belt following the encounter and was stopped by McPherson.
Bryan, who later said he was angry with himself for the error, began hitting his steering wheel and his legs, and yelling expletives. He exited the vehicle, and McPherson, who was approximately 20 to 25 feet away, used his taser after Bryan—who was agitated and wearing only shoes and boxer shorts—allegedly took “one step” towards the officer.
Incapacitated, Bryan fell to the ground, breaking four teeth and cutting and bruising his face.
U.S. District Judge Larry A. Burns of the Southern District of California granted summary judgment to the City of Coronado and the police department in Bryan’s subsequent lawsuit. However, the judge determined that McPherson was not entitled to qualified immunity because a reasonable jury could find that Bryan “presented no immediate danger…and no use of force was necessary.”
The Ninth Circuit affirmed in an opinion in which Judges Harry Pregerson and Stephen Reinhardt joined Wardlaw, but then reversed its decision.
A majority of the court’s active judges later declined to vote in favor of en banc consideration, but Judge Richard Tallman dissented from that order. Joined by Judges Consuelo Callahan and N. Randy Smith, he agreed that McPherson was entitled to qualified immunity, but took exception to the panel’s determination that the use of the taser under the circumstances constituted excessive force.
Tallman wrote that the decision “endangers officers and citizens alike.”
Wardlaw, however, wrote to concur with the order denying rehearing. Joined by Pregerson and Reinhardt, and by Judge William A. Fletcher, she said Tallman was “mischaracterizing the record, misstating our holding, and attacking our opinion for language it does not in fact contain.”
She accused Tallman of basing his dissent “upon the largely unsupported and nonsensical belief that use of a device designed to fire a dart up to one-half inch into bare skin and deliver a 1200 volt charge somehow does not constitute an intermediate use of force.”
Wardlaw also wrote that the Ninth Circuit has chosen to hear two other taser cases en banc, not due to disagreement over the intermediate-level-of-force conclusion, but “to reconsider how best to balance ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against ‘the countervailing governmental interests at stake.’ ”
The case is Bryan v. McPherson, 08-55622.
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