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''Bryan v. McPherson'', 630 F.3d 805 (9th Cir. 2009), was heard by
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts for the following federal judicial districts: * Distric ...
in October 2009. Plaintiff-appellee Carl Bryan was
taser Taser (stylized in all caps) is a line of handheld conducted energy devices (CED) sold by Axon Enterprise (formerly Taser International). The device fires two small barbed darts intended to puncture the skin and remain attached to the targe ...
ed by defendant-appellant Officer Brian MacPherson after being pulled over to the side of the road for failure to wear a
seat belt A seat belt, also known as a safety belt or spelled seatbelt, is a vehicle safety device designed to secure the driver or a passenger of a vehicle against harmful movement that may result during a collision or a sudden stop. A seat belt reduce ...
. The case considered whether MacPherson's use of a taser during a routine traffic stop violated Bryan's Fourth Amendment rights. The majority opinion, written by
Kim McLane Wardlaw Kim Anita McLane Wardlaw (born July 2, 1954) is an American lawyer and jurist serving as a United States circuit judge of the United States Court of Appeals for the Ninth Circuit since 1998. She is the first Hispanic American woman to be appointe ...
, declared that the use of the taser in this situation could be considered
excessive force Police brutality is the excessive and unwarranted use of force by law enforcement against an individual or a group. It is an extreme form of police misconduct and is a civil rights violation. Police brutality includes, but is not limited to, ...
. Richard Tallman and
Consuelo María Callahan Consuelo María Callahan (born June 9, 1950) is a United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Background Consuelo María Callahan was born June 9, 1950, in Palo Alto, California. She was raised in F ...
wrote the dissent. This case affirmed that this use of a taser could indeed be considered
excessive force Police brutality is the excessive and unwarranted use of force by law enforcement against an individual or a group. It is an extreme form of police misconduct and is a civil rights violation. Police brutality includes, but is not limited to, ...
.''Bryan v. MacPherson'', 630 F.3d 805 (9th Cir. 2009).


Facts

In the summer of 2005, 21-year-old Carl Bryan planned to drive his brother from their cousin's home in
Ventura County Ventura County () is a county located in the southern part of the U.S. state of California. As of the 2020 census, the population was 843,843. The largest city is Oxnard, and the county seat is the city of Ventura. Ventura County comprises ...
back to his parents' home in
San Diego County San Diego County (), officially the County of San Diego, is a county in the southwest corner of the U.S. state of California, north to its border with Mexico. As of the 2020 census, the population was 3,298,634; it is the second-most populous ...
. That day, due to certain events, Bryan was greatly upset. His cousin's girlfriend had accidentally taken his keys to Los Angeles and Bryan, wearing the boxers and shirt that he had slept in, had to drive there in order to pick up the keys. He then drove back to Ventura and picked up his car and brother. While traveling on the 405, Bryan was stopped by a
California Highway Patrol The California Highway Patrol (CHP) is the principal state police agency for the U.S. state of California. The CHP has primary jurisdiction, including patrol and Criminal investigation, investigations, over all California Controlled-access highw ...
officer and issued a speeding ticket. He began crying, moping, and removed his T-shirt to wipe his face. Bryan and his brother then continued south and crossed the
Coronado Bridge Coronado may refer to: People * Coronado (surname) * Francisco Vázquez de Coronado (1510–1554), Spanish explorer often referred to simply as "Coronado" * Coronado Chávez (1807–1881), President of Honduras from 1845 to 1847 Places United S ...
at about 7:30 a.m. At that point, Officer Brian MacPherson of the
Coronado Coronado may refer to: People * Coronado (surname) Coronado is a Spanish surname derived from the village of Cornado, near A Coruña, Galicia. People with the name * Francisco Vásquez de Coronado (1510–1554), Spanish explorer often referred t ...
Police Department stopped Bryan at an intersection where he had been stationed to enforce seatbelt regulations. Bryan had failed to buckle his seatbelt after the earlier traffic stop by the CHP officer. MacPherson approached Bryans' window and asked if he knew why he had been stopped. Bryan did not answer. MacPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but angrily hit the steering wheel and yelled expletives to himself in the process. MacPherson testified that he told Bryan to remain in the car, while Bryan testified he did not hear that. Standing outside of the car, approximately 20–25 feet away from MacPherson, Bryan began jumping up and down in the middle of the street with clenched fists. Bryan claimed he struck himself on his thighs because he was angry at himself. He was clad only in his boxer shorts and tennis shoes, and claimed he was yelling gibberish to himself. It was undisputed that Bryan did not verbally threaten MacPherson; however, the parties provided conflicting testimony regarding whether Bryan made any movement towards MacPherson: MacPherson testified that Bryan took "one step" toward him, while Bryan testified he made no such advancement. Without giving any warning, MacPherson shot Bryan with his department-issued
taser Taser (stylized in all caps) is a line of handheld conducted energy devices (CED) sold by Axon Enterprise (formerly Taser International). The device fires two small barbed darts intended to puncture the skin and remain attached to the targe ...
gun, a device designed to fire a dart up to ½ inch into bare skin and deliver a 1200-volt charge. Immobilized by the electric shock, Bryan fell face first to the ground, fracturing four teeth and suffering numerous facial contusions. The physical evidence of blood on the pavement indicated Bryan fell away from Officer MacPherson, and thus was not moving toward him. He was arrested and an ambulance took him to the hospital. Bryan was charged with resisting and opposing an officer in the performance of his duties in violation of
California Penal Code The Penal Code of California forms the basis for the application of most criminal law, criminal procedure, penal institutions, and the execution of sentences, among other things, in the United States, American state of California. It was origin ...
§ 148. Bryan was tried on this violation, but following a
hung jury A hung jury, also called a deadlocked jury, is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. A hung jury may result in the case being tried again. Thi ...
, the state dismissed the charges.


Procedural history

On July 24, 2006, Bryan filed suit against Officer MacPherson, the Coronado Police Department, its police chief, and the City of Coronado for excessive force in violation of 42 U.S.C. § 1983, assault and battery, intentional infliction of emotional distress, a violation of California Civil code § 52.1, as well as failure to train and related causes of action. The U.S. District Court for the Southern District of California granted summary judgment to the City of Coronado and the Coronado Police Department on the basis of
qualified immunity In the United States, qualified immunity is a legal principle of federal law that grants government officials performing discretionary (optional) functions immunity from lawsuits for damages unless the plaintiff shows that the official violated "c ...
. The District Court denied summary judgment for MacPherson on the basis that he was not entitled to qualified immunity. He filed an interlocutory appeal on the denial of summary judgement to the
Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts for the following federal judicial districts: * District ...
, arguing that he was entitled to qualified immunity because "the use of one single, properly-administered deployment of a non-deadly taser to subdue a person behaving as violently and irrationally as Bryan... asreasonable under the Fourth Amendment." On December 28, 2009, a three-judge panel of the Ninth Circuit affirmed the District Court. On June 18, 2010, the three-judge panel entered a superseding opinion, reversing the District's denial of summary judgement on the basis of qualified immunity, holding, ''inter alia'' that MacPherson's use of a taser did not violate clearly established Fourth Amendment rights. On November 30, 2010, the three-judge panel entered a second superseding opinion and unanimously denied the Petition for Panel Rehearing and the Petition for Rehearing
En Banc In law, an ''en banc'' (; alternatively ''in banc'', ''in banco'' or ''in bank''; ) session is when all the judges of a court sit to hear a case, not just one judge or a smaller panel of judges. For courts like the United States Courts of Appeal ...
. In addition, a vote on whether to rehear the case en banc failed to receive a majority of votes by the active judges.


Majority opinion

The majority opinion, authored by Justice
Kim McLane Wardlaw Kim Anita McLane Wardlaw (born July 2, 1954) is an American lawyer and jurist serving as a United States circuit judge of the United States Court of Appeals for the Ninth Circuit since 1998. She is the first Hispanic American woman to be appointe ...
, held that MacPherson applied
excessive force Police brutality is the excessive and unwarranted use of force by law enforcement against an individual or a group. It is an extreme form of police misconduct and is a civil rights violation. Police brutality includes, but is not limited to, ...
when he used his X26
taser Taser (stylized in all caps) is a line of handheld conducted energy devices (CED) sold by Axon Enterprise (formerly Taser International). The device fires two small barbed darts intended to puncture the skin and remain attached to the targe ...
in dart mode to apprehend Bryan. The Court noted that Bryan was obviously and noticeably unarmed and did not resist arrest or attempt to flee. On the issue of whether Bryan made a step toward MacPherson, the Court found that the parties' conflicting testimony was a genuine dispute of material fact and, applying the standard of review, assumed Bryan's version was true and that he did not take a step toward the officer. The Court's decision reasoned that MacPherson's X26 taser (and similar devices), when used in dart mode, is considered an "intermediate, significant level of force that must be justified by the governmental interest involved." However, the Court ultimately concluded that MacPherson was entitled to
qualified immunity In the United States, qualified immunity is a legal principle of federal law that grants government officials performing discretionary (optional) functions immunity from lawsuits for damages unless the plaintiff shows that the official violated "c ...
from Bryan's lawsuit, as this principle hadn't been established in 2005 when the incident occurred.


Dissent


Implications

This case effectively announced a general legal rule and the constitutional regulation of a new technology. The principle has now been established that an X26
taser Taser (stylized in all caps) is a line of handheld conducted energy devices (CED) sold by Axon Enterprise (formerly Taser International). The device fires two small barbed darts intended to puncture the skin and remain attached to the targe ...
and similar devices, when used in dart mode, constitute an "intermediate, significant level of force that must be justified by the governmental interest involved." This particular taser case is significant in that it placed the taser at a higher level of force than most law enforcement agencies and the International Association of Chiefs of Police had placed them. Some speculate that, as a result, Bryan v. MacPherson may affect police training and taserings of suspects by California police officers, and that similar challenges to taser usage will crop up in other states. The "less intrusive means" language has never been an element of use of force analysis by the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
and is contrary the other United States circuits.Ryan, Jack. "9th Circuit Use of Force Case Law — TASER® Case Re-visited, Bryan v. McPherson." Legal & Liability Risk Management Services & Training: Law Enforcement, Jails, Insurance Pools & Risk Managers. June 2010. Web. 06 Nov. 2011. http://www.llrmi.com/articles/legal_update/taser_9th_2010.shtml. There are cases within the United States Court of appeals for the Ninth Circuit where this type of analysis has been rejected. For example, i
Forrett v. Richardson
112 F.3d 416, 420 (9th Cir. 1997), the court held that, contrary to Williams'
Williams v. Holt
2006 U.S. Dist. LEXIS 551) exhaust-other means argument, "the Fourth Amendment does not require law enforcement officers to exhaust every alternative before using justifiable deadly force." See als

183 F.3d 645, 652-53 (7th Cir. 1999)(same). As the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") has said: "The fourth amendment reasonableness standard does not turn on the availability of less intrusive alternatives" Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). The case also established that the use of a taser requires a strong government interest that this opinion indicates is "an immediate threat" by the subject to the officer. The court found facts, which many officers would consider threatening to not qualify as an imminent threat, such as taking one step forward when the person is still twenty feet away. An officer must consider the totality of the circumstances, including whether the subject poses an immediate threat to safety, whether he is actively resisting arrest, the severity of the crime at issue, and whether he is attempting to evade seizure by flight. A takeaway from the court's analysis is that an officer's warning is important and should be done unless exigent circumstances exist. They should assess whether their warnings are clearly heard and understood and give a reasonable time for volitional compliance. Recent negative media attention related to law enforcement's improper use of Tasers has brought to light the tragic effect on victims, the costs to the justice system, and other detrimental externalities. Some suggest that Bryan may provide the legal framework and the necessary incentive to diminish, if not eliminate, improper police use of
tasers Taser (stylized in all caps) is a line of handheld conducted energy devices (CED) sold by Axon Enterprise (formerly Taser International). The device fires two small barbed darts intended to puncture the skin and remain attached to the targe ...
.


Legal criticism and praise

The Volokh Conspiracy Blog's writeup is overall critical of the decision, with the argument broken down into five main points. Orin S. Kerr, the writer, said he was surprised at the opinion's focus on the perspective of the driver rather than the police officer. The blog describes that while the flow makes for an "engaging" read from a literary perspective, this manner of describing the case makes it ambiguous to determine the legality from how the facts appeared to the officer on the scene. Next, Kerr writes how the ruling on tasers is based on a limited summary judgment record, arguing that the case uses very specific facts to draw "a general Fourth Amendment rule that going forward regulates the use of tasers." The third criticism Kerr makes of the case is how the court dealt with whether Bryan was posing a threat to the officer. As Kerr writes, the facts make it seem as though Bryan did indeed pose a threat, which is somewhat made light of by the court. The fourth point Kerr makes is that the case overly focuses on the minor nature of the traffic violation that led to the traffic stop. Kerr argues that instead, more focus should be put on the threat the man posed to the officer, rather than what led to the situation. Finally, Kerr describes how the qualified immunity analysis was "fairly sparse," stating that such a standard is extremely hard to gauge and overly general to use to interpret the case. An article in the Bay Area ''The Informant'', calls the decision "landmark," and is intrigued to see how it will affect future police training. The ''California Appellate Report,'' a blog written by
University of San Diego School of Law The University of San Diego School of Law (USD Law) is the law school of the University of San Diego, a private Roman Catholic research university in San Diego, California. Founded in 1954, the law school has held ABA approval since 1961. It ...
Professor Shaun Martin, seems to poke fun at Judge Wardlaw's writing style, describing how she writes the decision "like a novel." He saves special compliments for her use of "California Sunday" as a description in her decision.Martin, Shaun "Bryan v. McPherson (9th Cir. - Dec. 28, 2009)": ''California Appellate Report'' (December 28, 2009), http://calapp.blogspot.com/2009/12/bryan-v-mcpherson-9th-cir-dec-28-2009.html.


See also

*
Death of Otto Zehm Otto Zehm (October31, 1969March20, 2006) was a man with a developmental disability from Spokane, Washington, who died on March 20, 2006, during an altercation with Spokane Police Department, police officer Karl F. Thompson Jr. Zehm committed no c ...
*
Rodney King Rodney Glen King (April 2, 1965June 17, 2012) was a Black American victim of police brutality. On March 3, 1991, he was severely beaten by Police officer, officers of the Los Angeles Police Department (LAPD) during his arrest after a high spe ...


Related cases

*'' Graham v. Connor'' *'' Tennessee v. Garner''


Notes

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External links


RCMP to review Taser policy in wake of airport death: commissioner
United States Court of Appeals for the Ninth Circuit cases Coronado, California Taser Law enforcement in California Police misconduct in the United States 2009 in United States case law