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Police officer can be sued for using Taser: Court


PASADENA, Calif.—A police officer can be sued on grounds of using excessive force for using a Taser on an agitated driver stopped for a seat belt violation, a three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled.

The case—Carl Bryan vs. Brian McPherson, Coronado Police Department and the City of Coronado—stemmed from a 2005 traffic stop in Coronado, Calif. As Judge Kim McLane Wardlaw wrote for the court, Mr. Bryan's “day was off to a bad start” when someone accidentally took his car keys and he received a speeding ticket while going to get them. On the way home, he was stopped by Coronado police officer Brian McPherson for not wearing seat belt.

At this point, according to the decision, Mr. Bryan, then 21 years old, was getting angrier at himself, got out of the car, and began crying.

“There is no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes,” Judge Wardlaw wrote for the three-judge panel. “It is also undisputed that Bryan did not verbally threaten officer McPherson and, according to officer McPherson, was standing 20 to 25 feet away and not attempting to flee.”

Nonetheless, Mr. McPherson shot Mr. Bryan with a Taser without warning. Mr. Bryan later sued the officer, the police department and the city on a variety of grounds. A U.S. District Court judge in San Diego granted summary judgment in favor of the city and police department, but denied the police officer's assertion of qualified immunity. Officer McPherson appealed.

The appeals court panel rejected that appeal.

“We, along with our sister circuits, have held that Tasers and stun guns fall into the category of nonlethal force,” Judge Wardlaw wrote. “Nonlethal, however, is not synonymous with nonexcessive; all force—lethal and nonlethal—must be justified by the need for the specific level of force employed.”

“The facts suggest that Bryan was not even facing officer McPherson when he was shot,” Judge Wardlaw wrote. “A reasonable officer in these circumstances would have known that it was unreasonable to deploy intermediate force.

“That there is no direct legal precedent dealing with this precise factual scenario is not dispositive. Rather, 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.”

“We affirm the district court because, viewing the circumstances in the light most favorable to Bryan, officer McPherson’s use of the Taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.”

The appeals court remanded the case for further proceedings.