The U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled on Dec. 29, 2009, in a Sacramento County case, that "police must face an 'immediate threat' from an offender before using a taser gun to subdue them," the Univ. of Pittsburgh School of Law website Jurist reported. -- The court, upholding a lower court decisionl, said that a civil suit against the police officer could now proceed. -- Sarah Miley called the ruling "one of the most significant decisions yet concerning limitations on taser guns." -- The New York Times agreed two days later, calling the case one that "could set the first broad judicial standards for the use of Tasers," emphasizing that it involved using a taser "against an unarmed person during a traffic stop." -- John Schwartz cited a study showing that tasers and like devices are "used by more than 17,000 law enforcement agencies and that some departments had already upgraded their rules to allow their use only in the case of an 'active or immediate threat.'" -- The Los Angeles Times also took an interest in the story and interviewed a number of experts, one of whom said that the decision "prohibits officers from deploying Tasers in a host of scenarios and largely limits their use to situations in which a person poses an obvious danger." -- At present, "[s]ome departments allow Tasers in cases of passive resistance, such as protesters who won't move," he said. Tasering for "passive resistance is out the door now with this decision. Even resistance by tensing or bracing may not qualify." -- "The judges . . . said Tasers should be considered a more serious use of force than pepper spray -- a distinction that runs counter to policies used by most law enforcement agencies in California and elsewhere," Joel Rubin and Richard Winton reported. -- They noted that tasers are about thirty years old, but that their use has "proliferated in the last 10 years." ...
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NINTH CIRCUIT UPHOLDS RULING LIMITING USE OF TASERS
By Sarah Miley
December 29, 2009
The US Court of Appeals for the Ninth Circuit ruled Tuesday that police must face an "immediate threat" from an offender before using a taser gun to subdue them. Sacramento County police officer Brian McPherson had shot Carl Bryan with a taser gun during a traffic stop causing him to fall face-first on the asphalt, fracturing his teeth and causing facial contusions. The court held that because Bryan's actions posed no threat to McPherson or others, the use of the taser was unwarranted and unconstitutional: "Although Bryan had shouted expletives to himself while pulling his car over and had taken to shouting gibberish, and more expletives, outside his car, at no point did he level a physical or verbal threat against Officer McPherson. An unarmed, stationary individual, facing away from an officer at a distance of fifteen to twenty-five feet is far from an 'immediate threat' to that officer. Nor was Bryan’s erratic, but nonviolent, behavior a potential threat to anyone else . . . The circumstances here show that Officer McPherson was confronted by, at most, a disturbed and upset young man, not an immediately threatening one."
The case originated as a civil suit by Bryan against McPherson for the use of excessive force in violation of 42 U.S.C. § 1983 and assault and battery and intentional infliction of emotional distress, a violation of California Civil Code § 52.1. The court below had also found in Bryan's favor.
The ruling is one of the most significant decisions yet concerning limitations on taser guns. In February, the American Civil Liberties Union [official website] petitioned [press release] the US Supreme Court to hear a case involving a Florida resident claiming excessive use of a taser gun by a law enforcement official. The petition involves the 2008 decision [text, PDF] of the Eleventh Circuit in which an officer was found to be justified in using the weapon. The event was captured [YouTube, video] on the officer's patrol car video camera.
FEDERAL COURT LIMITS THE USE OF TASERS
By John Schwartz
New York Times
December 31, 2009
In a case that could set the first broad judicial standards for the use of Tasers, a federal appeals court in California has ruled that the police can be held liable for using one of the devices against an unarmed person during a traffic stop.
The United States Court of Appeals for the Ninth Circuit, based in San Francisco, said the electrically disabling device constituted excessive force when used against an unarmed man who did not pose a threat, and it refused to allow a police officer immunity for its use.
In a vividly worded opinion issued by the court this week, Judge Kim McLane Wardlaw described a “bad morning” for Carl Bryan, a 21-year-old Californian who drove over large stretches of Southern California to retrieve car keys mistakenly taken by a friend and ended up being Tasered by a Coronado, Calif., policeman and breaking four teeth when he fell to the ground.
Mr. Bryan was stopped twice on his driving odyssey, once for speeding and once for not wearing his seat belt. After the second stop, he was “agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes,” the court said.
The judge noted, however, that Mr. Bryan did not threaten the officer, Brian McPherson, and was not trying to flee -- all elements of a three-part test that the United States Supreme Court has used to determine when significant force is justified. As for the third factor in the court’s test, the severity of the offense at issue, the Ninth Circuit judges observed that “traffic violations generally will not support the use of a significant level of force.”
The court found that the policeman’s use of force so exceeded the threat posed by Mr. Bryan that it denied his request for immunity for his actions and for a quick dismissal of the case against him. Instead, the judges will allow the case to go forward.
Eugene G. Iredale, a lawyer for Mr. Bryan, hailed what he called a “landmark decision.”
A lawyer for Officer McPherson, Steven E. Boehmer, did not return calls seeking comment.
Orin S. Kerr, a former federal prosecutor and a professor at George Washington University Law School, called it “an important case” that was unusual in the way it set a broad rule without giving deference to the use of force by the police.
Geoffrey P. Alpert, a professor of criminal justice at the University of South Carolina who recently completed a four-year study of Tasers for the Department of Justice, said that Tasers and other “conducted electrical devices” were used by more than 17,000 law enforcement agencies and that some departments had already upgraded their rules to allow their use only in the case of an “active or immediate threat.”
If the Ninth Circuit ruling is not overturned, Professor Alpert said, the Bryan case “is going to impact a lot of departments that have not changed their standards.”
FEDERAL COURT RESTRICTS TASER USE BY POLICE
By Joel Rubin and Richard Winton
Los Angeles Times
December 30, 2009
A federal appeals court this week ruled that a California police officer can be held liable for injuries suffered by an unarmed man he Tasered during a traffic stop. The decision, if allowed to stand, would set a rigorous legal precedent for when police are permitted to use the weapons and would force some law enforcement agencies throughout the state -- and presumably the nation -- to tighten their policies governing Taser use, experts said.
Michael Gennaco, an expert in police conduct issues who has conducted internal reviews of Taser use for the Los Angeles County Sheriff's Department and other agencies, said the ruling by the U.S. 9th Circuit Court of Appeals prohibits officers from deploying Tasers in a host of scenarios and largely limits their use to situations in which a person poses an obvious danger.
"This decision talks about the need for an immediate threat. . . . Some departments allow Tasers in cases of passive resistance, such as protesters who won't move," he said. Tasering for "passive resistance is out the door now with this decision. Even resistance by tensing or bracing may not qualify."
The weapons, which resemble handguns, can be fired from about 20 feet away and project two dartlike electrodes. The electrodes send an electrical charge coursing through the target -- a shock that temporarily paralyzes the person's muscles and causes extreme pain. Almost all of the stun guns used by law enforcement agencies in the United States are manufactured by Taser International Inc., including the one fired in the current case.
Though stun guns have been in use for about three decades, the number of police departments issuing them to officers has proliferated in the last 10 years. Advocates tout the weapons as a less-than-lethal alternative to firearms and say they help resolve dangerous face-to-face confrontations with combative suspects. But several controversial Taser incidents, some involving fatalities, have led to widespread debate over when police should be allowed to deploy the weapons.
Last year, a National Institute of Justice study found that the weapons were employed safely in the vast majority of cases, but concluded that more research is needed to determine the health effects of shocking small children and the elderly, among other groups.
The unanimous ruling, issued Monday by a three-judge panel, stemmed from a 2005 encounter in which a former Coronado, Calif., police officer, Brian McPherson, stopped a man for failing to wear a seat belt while driving. The driver, Carl Bryan, who testified that he did not hear McPherson order him to remain in the car, exited the vehicle and stood about 20 feet away from the officer. Bryan grew visibly agitated and angry with himself, but did not make any verbal threats against McPherson, according to court documents. McPherson has said he fired his Taser when Bryan took a step toward him -- a claim Bryan has denied.
Bryan's face slammed against the pavement when he collapsed, causing bruises and smashing four front teeth.
The appellate court did not rule on whether McPherson acted appropriately, but simply cleared the way for Bryan to pursue a civil case against the officer and the city of Coronado in a lower court. Based on Bryan's version of events, though, the judges found that McPherson used excessive force in firing the Taser, since Bryan did not appear to pose any immediate threat.
In spelling out their decision, the judges established legally binding standards about where Tasers fall on the spectrum of force available to police officers, and laid out clear guidelines for when an officer should be allowed to use the weapon. The judges, for example, said Tasers should be considered a more serious use of force than pepper spray -- a distinction that runs counter to policies used by most law enforcement agencies in California and elsewhere, according to Greg Meyer, a retired Los Angeles Police Department captain and consultant on use-of-force issues.
The ruling does not appear to affect the LAPD, which has a relatively strict policy on Taser use. Gennaco said that the same is more or less true of the Sheriff's Department, but that he would discuss with Sheriff Lee Baca the possible need for "tweaking" the policy and training.
The Orange County Sheriff's Department seems more likely to be affected. Spokesman John McDonald said the department's policy allows officers to fire Tasers at people who try to flee an encounter with police or who refuse, for example, to comply with an officer's order to lie down during an arrest. Those scenarios appear to be prohibited under the court's ruling.
"It sounds like this court is attempting to raise the bar for nonlethal use of force," Meyer said.