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by Peter Moskos

December 29, 2009

Taser shock in the courts!

The 9th U.S. Court of Appeals (never known for its pro-police views) to be precise.

This perhaps landmark decision has been called, "The clearest and most complete statements yet from an appellate court about the limits of Taser use."

From the story by Hudson Sangree and Kim Minugh in the Sacramento Bee.
In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer's order to stay in the car.
During his second traffic stop in Coronado, he got out of the car. He was "agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes" but did not threaten the officer verbally or physically, the judges wrote.

That's when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan's "bizarre tantrum," fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.
McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

The court decision is here.

I think it's a very good decision, but I wish they had done so without hanging the officer out to dry. McPherson could end up in jail and lose his home. That's not right.

The court wrote:

If an officer’s use of force was “premised on a reasonable belief that such force was lawful,” the officer will be granted immunity from suit, notwithstanding the fact excessive force was deployed.
A reasonable officer in these circumstances would have known that it was unreasonable to deploy intermediate force.
Where an officer’s conduct so clearly offends an individual’s constitutional rights, we do not need to find closely analogous case law to show that a right is clearly established.
No reasonable officer confronting a situation where the need for force is at its lowest—where the target is a nonviolent, stationary misdemeanant twenty feet away—would have concluded that deploying intermediate force without warning was justified. We thus hold that Officer McPherson’s use of significant force in these circumstances does not constitute a “reasonable mistake” of either fact or law. ... Officer McPherson is therefore not entitled to qualified immunity for his use of the Taser X26 against Bryan.


How can the court say that "no reasonable officer" would conclude that force was justified? I’m reasonable (and against such Taser use) and I think what he did, prior to this decision, was legal! Given all the tasering incidents going on, it seems pretty obvious that many if not most officers would do exactly what McPherson did. Using a Taser in compliance situations has become standard operating procedure. That's what needs to change. This is a problem of policy and training, not one sadistic cop!


Anonymous said...

What do you mean by "hung out to try"? Fired? Demoted? Forced to pay somebody's dental surgeon's bill? Something else?

PCM said...

See changes to the original post.

Anonymous said...

Yeah. What is supposed to happen is that the court is always supposed to say that there is no prior precedent exactly on point, so the police officer is immune. Then the court is supposed to say that because the police officer is immune, the court will not state any opinion as to whatever the police officer did was Constitutional or not.

Then the next case goes the same way.

And the one after that.

And the one after that.

Next thing you know, you have department policies that explicitly say that it is okay to electroshock for passive non-compliance.* I remember that when I found that out a couple years ago, I was very surprised. I thought that was crazy. I wondered how long US police could get away with such a regime, but I also thought that they might be able to get away with it forever because of what America has become since 9/11. I still think they might. SCOTUS just got a prosecutor this year and they may get two more before the cert petitin in MacPherson is decided upon.

I will feel slightly bad for Officer MacPherson on a personal level if and when I determine that his insurance / union is somehow not picking everything up.


* I realize that this Officer MacPherson case is probably best characterized as active non-compliance without violence.

Anonymous said...

It is also noted that decision comes at a bad time for Johannes Mehserle. So far as we can tell, his defense is premised on the idea that tasering Oscar Grant would not have been a felony. However, if tasering Oscar Grant a year ago Friday would have been a felony then the murder rap sticks.

PCM said...

Courthouse News Service reports on the tasering of a man who was known to be having a diabetic seizure.

Anonymous said...

The more we taser, the more legal it is. Sounds like the taser itself is making law.