In what could be considered a landmark ruling on the police use of Tasers, a federal court of appeals issued a strongly-worded judgment this week blaming a Coronado police officer for using excessive force when he shot the device at an unarmed, noncombative motorist during a traffic stop in 2005.
The ruling by the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, means officers can be held liable for their use of Taser weapons and allows the driver, Carl Bryan, to continue to pursue his lawsuit against the Coronado officer.
“It really is the first decision that makes a comprehensive survey of case law, as well as good discussion of exactly how to categorize the use of the Taser in the continuum of force,” said Gene Iredale, Bryan’s San Diego-based attorney.
The appeals decision, written by Judge Kim McLane Wardlaw, describes the officer’s use of the Taser as “unconstitutionally excessive and a violation of Bryan’s clearly established rights.”
“The physiological effects, the high level of pain, and foreseeable risk of physical injury leads us to conclude that the X26 (Taser) and similar devices are a greater intrusion than other nonlethal methods of force we have confronted,” the judge wrote.
The ruling has attracted the attention of local law enforcement agencies, including the San Diego County Sheriff’s Department, which will review the case in the coming weeks to see if policies on Taser use need to change.
Coronado Police Chief Lou Scanlon said yesterday that the department’s Taser policies have evolved since the incident, and they currently comply with the court ruling, including considering the use of Tasers more serious when compared with other nonlethal weapons and, when possible, warning people before they are about to be shot using a Taser.
“But we certainly reviewed our policy after the court decision to make sure we were in compliance,” said Scanlon, who stressed that the case has not been to trial and much of the officer’s side of the story has not been presented in court.
The 22-page decision illustrates how “an already bad morning for Bryan took a turn for the worst” in the summer of 2005.
Bryan, then 21, had spent the night in Ventura County with family and had planned to drive his brother to his parents’ house in Coronado when he realized that someone had accidentally taken his car keys to Los Angeles.
Wearing the T-shirt and boxers he had slept in, Bryan got a ride to Los Angeles with his cousins, retrieved his keys, then headed back to Ventura County to pick up his brother for the ride south again.
On the way to Coronado, the California Highway Patrol stopped Bryan for speeding, and then later Coronado Officer Brian McPherson pulled him over for not wearing a seat belt.
Angry at himself for forgetting to buckle up and for getting his second ticket in a day, the judge wrote, Bryan was clearly agitated during the second stop, at one point hitting the steering wheel and cursing at himself.
He then got out of the car, and was “yelling gibberish and hitting his thighs, clad only in boxers and tennis shoes,” while McPherson stood 20 to 25 feet away, the judge wrote. Bryan reportedly made no threats to the officer and did not attempt to flee.
The officer testified that he had told Bryan to stay in the car and that Bryan had taken “one step” toward him. Bryan denied both statements.
Then “without giving any warning, Officer McPherson shot Bryan with a Taser,” Wardlaw wrote. Bryan, who according to physical evidence was facing away from the officer fell on his face as 50,000 volts of electricity ran through his body. Four teeth shattered when he hit the pavement.
Bryan was hospitalized and charged with resisting an officer in performance of his duties. The case ended with a hung jury, and the charge was dismissed.
Bryan, who lives in Spain and is a tennis coach and part-time actor, sued the city of Coronado and McPherson for excessive force, assault and battery and intentional infliction of emotional distress. A federal judge denied McPherson’s request for summary judgment to rule in his favor. McPherson appealed.
With Monday’s Court of Appeals ruling, which denied McPherson immunity, the officer can either petition for a rehearing, appeal to the U.S. Supreme Court or likely face a jury trial in San Diego Federal Court under the lawsuit.
McPherson’s attorney, Steve Boehmer, did not return a call seeking comment yesterday. McPherson left the Coronado department about three years ago and works as a police officer at a San Diego-area university.
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