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The Court further held that Bryan’s misdemeanor offenses – resisting arrest, failure to comply with a lawful order, and using or being under the influence of a controlled substance – were minor and not inherently dangerous or violent enough to support the use of the Taser. The three-judge panel also firmly rejected the officer’s contention that the Taser use was justified because he believed Bryan to be mentally ill, holding that “a mentally ill patient is in need of a doctor, not a jail cell…”
Turning to Bryan’s level of resistance, the Court noted the legal distinction between “active” and “passive” resistance – from the individual who physically assaults an officer to the protester who simply refuses to stand – and the wide range of activities which fall between those convenient labels. Reviewing Bryan’s conduct, the court concluded that his level of resistance fell closer to the sit-in protestors who refuse to obey commands. The Court reasoned that, “shouting gibberish and hitting one’s quadriceps is certainly bizarre behavior, but such behavior is a far cry from actively struggling with an officer attempting to restrain and arrest an individual” and “viewing the facts most favorable to Bryan… his conduct does not constitute resistance at all.”
The Court noted that two additional factors compelled a finding that the use of the Taser was unreasonable under the circumstances. First, the officer did not provide a warning to Bryan that he would be shot with the Taser if he did not comply with the order to remain in his car, despite the feasibility to provide such a warning. Second, the officer did not consider “less intrusive means” to apprehend Bryan – namely, to await the additional officers that were en route to the scene and whose arrival might have resolved the situation without the use of a Taser.
The Court concluded that the officer’s “desire to quickly and decisively end an unusual an
d tense situation is understandable. His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”
How This Case May Affect Your Campus:
While many in law enforcement may take issue with judges “Monday morning quarterbacking” what must have been a dynamic, tense, and bizarre situation faced by the Coronado officer that morning, the Bryan decision is now the law in the Ninth Circuit and persuasive precedent in the remainder of the country until the U.S. Supreme Court grants review and issues a different opinion. Accordingly, it is suggested that campus safety departments review and appropriately amend their use of force and Taser policies, and ensure that officers are made aware of the following:
- The use of a Taser is to be considered an “intermediate use of force” – a more intrusive use of force than pepper spray or pain compliance devices like “police nunchakus.”
- All factors which lend themselves to an “immediate threat” by a subject should be clearly articulated in the police report following the deployment of a Taser.
- Absent an articulable “immediate threat,” Tasers should not be deployed to apprehend non-violent misdemeanants.
- Absent an articulable “immediate threat,” Tasers should not be deployed to detain non-violent mentally ill subjects.
- Absent an articulable “immediate threat,” Tasers should not be deployed against a passively resistant subject.
- When feasible, a warning should be given to a subject that the Taser will be deployed if the subject does not comply with commands. The warning, or reasons for the lack of warning, should be documented in the police report following the deployment of a Taser.
- When feasible, “less intrusive means” to apprehend the subject should be considered – such as awaiting the arrival of fellow officers. The consideration of “less intrusive means,” and reasons that “less intrusive means” were not used, should be documented in the police report following the deployment of a Taser.
Because use of force and Taser policies vary, each campus safety department should consult with its legal counsel about whether and how to update policies in keeping with this case.
Todd Simonson ([email protected]) is an associate in the San Francisco office of Liebert Cassidy Whitmore, a law firm representing schools and colleges in education and employment law matters, including those unique to campus safety departments.
Photo courtesy Taser.
