swatspyder
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Training Bulletin January 4, 2010 No. 10-01
[align=center]TASER USE:[/align] [align=center]EXCESSIVE FORCE[/align] Bryan v. McPherson, (December 28, 2009, 9[sup]th[/sup] Circuit).
FACTS: Mr. Bryan spent the night at his brother’s home. However, his girlfriend accidently took his keys and all he had was his tee shirt and boxer shorts in which he had slept. Wearing only those clothes he arose early and traveled to get his car. While driving toward his parent’s home he was stopped by the California Highway Patrol for speeding. He was issued a ticket. This upset him greatly. He began crying and moping and removed his tee shirt to wipe his face. He continued driving and was stopped at an intersection when Officer McPherson, who was stationed there to enforce seat belt regulations stepped in front of Bryan’s car and had him stop. The Officer approached and asked him if he knew why he had been stopped. Being angry with himself, he simply stared straight ahead. The Officer asked him to turn down his radio and pull to the curb. He complied with both requests. Further angry with himself he hit his steering wheel and yelled expletives to himself. He then stepped out of his car. He was agitated, yelling gibberish and hitting his thighs wearing only boxer shorts and tennis shoes. He was standing about 20’ away from the officer. The Officer said that he told Mr. Bryan to remain in the car and Bryan testified he did not hear that command. The Officer says that Mr. Bryan took one step toward him (denied by Mr. Bryan) and the Officer then shot him with a Taser. He fell face first to the ground and fractured four teeth and facial contusions. Bryan sued the Officer for excessive force (and other things).
ISSUE: Did the Officer employ constitutionally excessive force?
HELD: YES!
REASONING: The court analyzed the type and amount of force used against Mr. Bryan. The court found that a Taser delivers a high degree of pain and a foreseeable risk of physical injury (due to loss of muscular control and possibility of falling). The court found that a Taser is non-lethal force but that non-lethal force must be justified by the need for a specific level of force employed. In making it’s findings the court found “…tasers…constitute an intermediate or medium, though not insignificant, quantum of force.”. The court then went on to say: “We hold only that the [taser] constitute an immediate, significant level of force that must be justified by a ‘strong government interest that compels the employment of such force’.”.
The court then found that the most important factor for the police to consider is whether the suspect posed an immediate threat to the safety of the officers or others. And, a simple statement by the officer that he or she feared for their safety is insufficient. There must be objective factors to justify such concern of immediate threat to officer or others. Because Mr. Bryan was clothed only in boxer shorts and tennis shoes and was apparently unarmed and was about 20’ away from the officer, the court found that he could not be a threat to anyone. And, the court went on to say that traffic infractions and misdemeanor crimes are only minor offenses and there is no substantial government interest in using significant force to effect arrest for minor offenses. In the opinion the court says that if the Officer believed that Mr. Bryan was mentally disturbed that the Officer should have made a greater effort to take control though less intrusive means! The court found that the purpose of detaining the mentally ill is to help them, not punish them! One factor that the court considers, only briefly, is a failure by the Officer to provide any warning that he was going to deploy the Taser. So, the question became: why did the Officer use an intermediate level of force without consideration of other options/less intrusive methods of force? The court found that the use of force on Mr. Bryan was unconstitutional and a violation of the 4[sup]th[/sup] Amendment.
WHAT THIS MEANS: This means that the 9[sup]th[/sup] Circuit has found that Taser use is now an intermediate level of force. We must change our Use of Force policy and change where the Taser may be used. In addition, any Taser use MUST now have full documentation of all facts which show that the suspect posed an immediate threat to the officer or other members of the public. And, Taser use should, wherever possible, be done only after a clearly expressed verbal warning. The opinion should be read as cautionary in any Taser use on the mentally ill, infractions or misdemeanors. This of course can be overridden by conduct of the suspect which shows immediate threat.
There is an old saying “bad facts make bad law”. This is certainly true of this case. This was not a good Taser application and now the rest of law enforcement is stuck with some very bad law on what is a very good tool.
http://www.andrewdefilippis.com/uploads/Documents/TB 10-01 Taser Use.doc
Training Bulletin January 4, 2010 No. 10-01
[align=center]TASER USE:[/align] [align=center]EXCESSIVE FORCE[/align] Bryan v. McPherson, (December 28, 2009, 9[sup]th[/sup] Circuit).
FACTS: Mr. Bryan spent the night at his brother’s home. However, his girlfriend accidently took his keys and all he had was his tee shirt and boxer shorts in which he had slept. Wearing only those clothes he arose early and traveled to get his car. While driving toward his parent’s home he was stopped by the California Highway Patrol for speeding. He was issued a ticket. This upset him greatly. He began crying and moping and removed his tee shirt to wipe his face. He continued driving and was stopped at an intersection when Officer McPherson, who was stationed there to enforce seat belt regulations stepped in front of Bryan’s car and had him stop. The Officer approached and asked him if he knew why he had been stopped. Being angry with himself, he simply stared straight ahead. The Officer asked him to turn down his radio and pull to the curb. He complied with both requests. Further angry with himself he hit his steering wheel and yelled expletives to himself. He then stepped out of his car. He was agitated, yelling gibberish and hitting his thighs wearing only boxer shorts and tennis shoes. He was standing about 20’ away from the officer. The Officer said that he told Mr. Bryan to remain in the car and Bryan testified he did not hear that command. The Officer says that Mr. Bryan took one step toward him (denied by Mr. Bryan) and the Officer then shot him with a Taser. He fell face first to the ground and fractured four teeth and facial contusions. Bryan sued the Officer for excessive force (and other things).
ISSUE: Did the Officer employ constitutionally excessive force?
HELD: YES!
REASONING: The court analyzed the type and amount of force used against Mr. Bryan. The court found that a Taser delivers a high degree of pain and a foreseeable risk of physical injury (due to loss of muscular control and possibility of falling). The court found that a Taser is non-lethal force but that non-lethal force must be justified by the need for a specific level of force employed. In making it’s findings the court found “…tasers…constitute an intermediate or medium, though not insignificant, quantum of force.”. The court then went on to say: “We hold only that the [taser] constitute
The court then found that the most important factor for the police to consider is whether the suspect posed an immediate threat to the safety of the officers or others. And, a simple statement by the officer that he or she feared for their safety is insufficient. There must be objective factors to justify such concern of immediate threat to officer or others. Because Mr. Bryan was clothed only in boxer shorts and tennis shoes and was apparently unarmed and was about 20’ away from the officer, the court found that he could not be a threat to anyone. And, the court went on to say that traffic infractions and misdemeanor crimes are only minor offenses and there is no substantial government interest in using significant force to effect arrest for minor offenses. In the opinion the court says that if the Officer believed that Mr. Bryan was mentally disturbed that the Officer should have made a greater effort to take control though less intrusive means! The court found that the purpose of detaining the mentally ill is to help them, not punish them! One factor that the court considers, only briefly, is a failure by the Officer to provide any warning that he was going to deploy the Taser. So, the question became: why did the Officer use an intermediate level of force without consideration of other options/less intrusive methods of force? The court found that the use of force on Mr. Bryan was unconstitutional and a violation of the 4[sup]th[/sup] Amendment.
WHAT THIS MEANS: This means that the 9[sup]th[/sup] Circuit has found that Taser use is now an intermediate level of force. We must change our Use of Force policy and change where the Taser may be used. In addition, any Taser use MUST now have full documentation of all facts which show that the suspect posed an immediate threat to the officer or other members of the public. And, Taser use should, wherever possible, be done only after a clearly expressed verbal warning. The opinion should be read as cautionary in any Taser use on the mentally ill, infractions or misdemeanors. This of course can be overridden by conduct of the suspect which shows immediate threat.
There is an old saying “bad facts make bad law”. This is certainly true of this case. This was not a good Taser application and now the rest of law enforcement is stuck with some very bad law on what is a very good tool.
http://www.andrewdefilippis.com/uploads/Documents/TB 10-01 Taser Use.doc
