What did the 9th Circuit ruling really say?
Posted by Deborah
In late December 2009, the Ninth Circuit Court of Appeals issued a ruling in the Bryan v. McPherson case. Media accounts of the ruling indicated that this was some new and sweeping restriction on the use of TASER ECDs. It’s not. This judicial opinion actually follows well-established law and applies it to a specific fact situation. We’ve gotten a number of questions about it so wanted to break down those facts and the Court’s ruling.
To start, the Court had to view the facts of the case in the light most favorable to the plaintiff because it was an appeal from a motion for summary judgment based on qualified immunity. Basically, the Court concluded the following plaintiff’s version of the facts:
• Plaintiff was not an immediate threat.
- he was unarmed (wearing only boxer shorts and tennis shoes)
- he did not level a threat at the officer
- he was standing 15-25 feet away from the officer and not advancing
- he was, at most, a disturbed and upset young man, not an immediately threatening one
- he was not facing the officer when he was hit with the TASER ECD in probe mode
• His conduct did not constitute resistance at all.
• He was not a flight risk.
• He was not a dangerous felon.
• He was stopped for a seat-belt violation.
• Officer failed to warn that he would be shot with a TASER ECD if he did not comply.
• Officer did not consider what other tactics, if any, were available to effect the arrest.
• Officer failed to consider less-intrusive alternatives (e.g. waiting for approaching backup).
Also, the Court noted that “[t]he government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.” Non-legalese interpretation: Justifiable use of force standards for mentally-impaired persons are different than for others who are not mentally-impaired.
Based on that and for the specific facts of this case, the Court determined that the level of force used by the officer was excessive. Specifically, it said, “the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. Consequently, the objective facts reveal a tense, but static, situation with Officer McPherson ready to respond to any developments while awaiting back-up. Bryan was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply “no immediate need to subdue [Bryan]” before Officer McPherson’s fellow officers arrived or less-invasive means were attempted.”
Another important point from this ruling is that the court held that while the TASER X26 is a non-lethal use of force, it is an “intermediate or medium, though not insignificant”, use of force due to the incapacitation and pain it causes and the risk of secondary injuries from falls. “We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by ‘a strong government interest [that] compels the employment of such force.’”
The Court used a Fourth Amendment constitutional standard established in Graham v. Connor to determine that the TASER X26 use in this case was excessive force. Three core factors were evaluated to come to this conclusion: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” In the Bryan case, the need for force was “at its lowest” – the target was a nonviolent, stationary, and twenty feet away. Additionally no warning was given before discharging the TASER ECD and other, less intrusive alternatives were not considered.
In conclusion, while the Court’s decision further analyzes use of an ECD, the holding does not establish new law for use of an ECD apart from applying it to the specific facts of this case. The court’s opinion is a good reminder that:
• ECDs are not risk free and officers need to consider the risk of secondary injuries from incapacitation and falls in determining when and how to deploy an ECD.
• ECDs, while non-lethal, are an ““intermediate or medium, though not insignificant” use of force and every trigger pull must be justified as a separate use of force.
• In any Fourth Amendment force analysis, an officer must consider the totality of the circumstances, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
• When circumstances allow, giving a warning and an opportunity to comply is very important prior to discharging an ECD.
• An officer must consider what other tactics if any were available to effect the arrest, and other less intrusive tactics that would have been available to effect the arrest and be able to articulate them in an arrest or force report.
• An officer must ensure that commands are clear, are being heard and the suspect has the opportunity and ability to respond.
• The government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.
• Understanding the difference between active and passive resistance and the different levels of force that can be applied in those different circumstances is very important for all officers no matter the force involved.
• Officers need to understand what constitutional rights are “clearly established in light of the specific context of the case” in order to avail themselves of the protection of qualified immunity in excessive use of force claims.
• This case highlights the importance that smart use training can play in teaching officers the proper use of a TASER ECD in accordance with judicial guidelines.
