New Judicial Standards for the Deployment of Tasers
With the proliferation of more “less lethal” tools in campus safety departments and law enforcement agencies throughout the country, the courts are being asked to determine where some of these gadgets should fall on the continuum of force and under what circumstances they should be used. While the Taser and similar controlled electric devices (“Tasers”) are not exactly new technology, the U.S. Supreme Court has yet to specifically rule on their use. That may change if a recent decision by the Ninth U.S. Circuit Court of Appeals is accepted for review by the high court. 
The unanimous decision by a three-judge panel of the Ninth Circuit in Bryan v. McPherson (9th Cir. 2009) 590 F.3d 767, held that a police officer in Coronado, Calif., was not entitled to qualified immunity for his use of a Taser against Carl Bryan, who, by all accounts, acted irrationally and erratically during a traffic stop. Until the U.S. Supreme Court grants review and issues a different opinion, law enforcement agencies, including campus safety departments, – especially those in the Ninth Circuit – should re-examine Taser and use of force policies to ensure compliance with the more rigorous judicial standards announced in this decision.
Facts and Procedural Background
Taking the mandate to review the facts most favorable to Bryan to the extreme, the Court’s recitation of facts began with: “Carl Bryan’s California Sunday was off to a bad start.” Early one morning in the summer of 2005, Bryan – a 21 year-old tennis coach and part-time actor – drove over large stretches of Southern California wearing the t-shirt and boxer shorts in which he had slept, to retrieve some car keys mistakenly taken by a friend. While on the 405 highway, Bryan was stopped by the California Highway Patrol and issued a speeding ticket. He was so upset by the ticket that he “began crying and moping, ultimately removing his t-shirt to wipe his face.” He also forgot to buckle his seatbelt.
When Bryan crossed over the Coronado Bridge near the end of his journey later that morning, the Court opined that “an already bad morning for Bryan took a turn for the worse.” The Court did not address whether the Coronado officer was having a good day, but it would stand to reason that his morning also quickly deteriorated after he motioned for Bryan to pull over as part of his assigned duties to enforce seatbelt regulations. Bryan pulled his car to the curb, hit his steering wheel, yelled expletives, and – without any clear reason – stepped out of his car.
Bryan’s strange behavior then turned bizarre. Clad only in boxer shorts and tennis shoes, and without his tear-stained t-shirt, Bryan was clearly agitated, began yelling “gibberish” and hitting his thighs. The officer told Bryan to remain in the car. Bryan did not hear the command. According to the officer, Bryan took a step toward him. Bryan denied taking any step. The officer shot Bryan with his Taser from approximately 15 to 25 feet. The electrical current immobilized Bryan and he fell to the ground, fracturing four teeth and suffering facial contusions.
Bryan sued the officer, the Coronado Police Department, its police chief, and the City of Coronado for federal and state causes of action. On summary judgment, the district court granted relief to the City of Coronado and Coronado Police Department, but determined that the officer was not entitled to qualified immunity. The district court held that, because a reasonable jury could find that Bryan did not pose an immediate threat to the officer and the officer knew that the Taser would cause pain and possible injury under the circumstances, “it would have been clear to a reasonable officer that shooting Bryan with the Taser was unlawful.” The officer appealed.
Court’s Analysis
The opinion of the Ninth Circuit, by Judge Kim McLane Wardlaw, first took up the issue of where Tasers should fall on the continuum of force available to officers. The Court reasoned that a Taser “intrudes upon the victim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not” and that the Taser shot delivered a “painful and frightening blow.” Comparing the pain of a Taser shot with pepper spray and a control device called “police nunchakus” (two sticks of wood connected at one end by a cord, used to grip a subject’s wrist), the Court found that the pain from a Taser shot was “far more intense…not localized, external, gradual, or within the victim’s control.” Accordingly, the Court concluded that Tasers “constitute an ‘intermediate or medium, though not insignificant, quantum of force.’”
Next, the Court turned to the specific facts of the case before it and applied what it characterized as the “most important” factor in the landmark U.S. Supreme Court use-of-force case of Graham v. Connor: i.e., whether the suspect posed an “immediate threat” to the safety of the officer or others. The Court held that Bryan did not pose an immediate threat and pointed to several factors in support of that conclusion, including: that Bryan was obviously unarmed; that Bryan did not significantly advance on the officer; and, the physical evidence suggested that Bryan was facing away from the officer when he was shot. Taken together, the Court concluded that the circumstances indicated that the officer “was confronted by, at most, a disturbed and upset young man, not an immediately threatening one.”
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