Alaska Employment Law

Introduction

In an opinion issued last week that police or public safety departments will want to closely study, the Ninth Circuit held that a police officer was not entitled to qualified immunity for using a Taser against a person who was stopped for a seatbelt infraction. The case is Bryan v. McPherson, Slip Op. 16731 (9th Cir. December 28, 2009). 

The Case

As described by the court, “Carl Bryan’s California Sunday was off to a bad start.”  Bryan was going to drive his brother back home to the San Diego area, but an acquaintance accidentally took his car keys to Los Angeles.  Bryan drove to Los Angeles to retrieve his keys and was stopped for speeding. After picking up the keys, Bryan turned around and drove back south to get his brother home. He was wearing only boxer shorts and a t-shirt.  Shortly before getting home, he was stopped again, this time for not wearing his seatbelt.  Bryan was angry and upset at himself for having received two tickets in short duration.  He got out of his car in an “agitated” state, “yelling gibberish and hitting his thighs.”  However, he did not otherwise pose any sort of threat and was not attempting to flee the scene. 

Bryan was approximately fifteen to twenty five feet away from the officer. The officer thought that Bryan took one step towards him and, without warning, fired his Taser.  The Taser used was an X26 model that fires twin aluminum dart barbs or “probes” by use of compressed nitrogen at over 160 feet a second.  The barbs deliver a 1200 volt low ampere electrical charge that instantly paralyzes muscles and causes significant short duration pain.  The barbs hooked into Bryan’s skin, causing him to fall face first into the street.  He broke four teeth and cut his face.

Bryan filed suit for excessive force. The officer argued that he was entitled to qualified immunity.  Qualified immunity is a preliminary defense in civil rights cases that protects police officers and others who have claims filed against them as a result of circumstances arising from their duties.  In determining whether or not to grant qualified immunity, the court first determines if a police officer’s conduct violated a constitutional right.  If a constitutional right was implicated, the court then determines whether the right at issue was clearly established in light of the specific context of the case.  In this case, that involved an examination of Taser use for traffic stops.  In one formulation, qualified immunity “protects all but the clearly incompetent,” and it is a somewhat rare case where qualified immunity will not shield individual defendants.

This was such a rare case. The district court denied the officer’s qualified immunity defense.  The Ninth Circuit agreed with the district court and affirmed.  The officer argued that other courts had upheld Taser use in traffic stop situations, and therefore he did not reasonably know that he was violating Bryan’s constitutional rights.  The court rejected this contention because the cases the officer was relying upon all involved situations where argumentative and potentially violent suspects were posing a direct or potential threat to police officers.  Here, no such imminent threat existed. The court acknowledged that the Taser was non-lethal, but this did not mean that its use could not be excessive.  Bryan may have been agitated, but he was complying with all orders.  No warning was given. The offense was minor. No less intrusive methods were considered or used.  Under these circumstances the court concluded that the officer was not entitled to qualified immunity.

Significance

Bryan v. McPherson should not be read as prohibiting all use of Tasers.  However, the court’s opinion is a timely and well-served warning. Police should incorporate sound judgment within their training and procedures. See Fisher, “Cracking Down on Soccer Moms and Other Urban Legends on the Frontier of the Fourth Amendment: Is It Finally Time to Re-Define Searches and Seizures?,” 38 Willamette L. Rev. 137 (2002).