11 January 2010

bryan v mcpherson et al ninth circuit ruling leaves the policeman on the liability hook for illegal taser use

via what really happened

new america media
excerpt:

In what is being heralded as a landmark decision, the United States Court of Appeals for the Ninth Circuit recently declared that police officers could be held liable for using a Taser without proper cause.

And in making their determination, the court also set new legal parameters on how law enforcement is to use Tasers, stating, "The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public."

The federal finding substantially changes the landscape of Taser usage, and may signal the end of Tasers for law enforcement agencies who are now more vulnerable to civil and criminal action then ever before. ~ read more
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click here to download twenty-two page .pdf from the ninth circuit website
or our copy here [107 kb].

OPINION
WARDLAW, Circuit Judge:

Early one morning in the summer of 2005, Officer Brian McPherson deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction.

Bryan filed this action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment.

Officer McPherson appeals the denial of his motion for summary judgment based on qualified immunity.
Officer McPherson shot Bryan with a Taser X26 provided by the Coronado Police Department. The X26 uses compressed nitrogen to propel a pair of “probes”—aluminum darts tipped with stainless steel barbs connected to the X26 by insulated wires—toward the target at a rate of over 160 feet per second.

Upon striking a person, the X26 delivers a 1200 volt, low ampere electrical charge through the wires and probes and into his muscles.

The impact is as powerful as it is swift. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.

[...]

No reasonable officer confronting a situation where the need for force is at its lowest—where the target is a nonviolent, stationary misdemeanant twenty feet away—would have concluded that deploying intermediate force without warning was justified.

We thus hold that Officer McPherson’s use of significant force in these circumstances does not constitute a “reasonable mistake” of either fact or law. Deorle, 272 F.3d at 1286.

Officer McPherson is therefore not entitled to qualified immunity for his use of the Taser X26 against Bryan.
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.

[W]e conclude, for the purposes of summary judgment, that Officer McPherson is not entitled to qualified immunity.

We therefore AFFIRM the district court’s denial of summary judgment and REMAND this case for further proceedings.

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Posted by wst... at 12:28