Taser Use Standard Set By Ninth Circuit Court Of Appeals

In a January 21, 2010 posting at www.justice.org , the American Association for Justice (AAJ) reports that the federal Ninth Circuit Court of Appeals has held that police use of a Taser must be justified by a “strong government interest [that] compels the employment of such force.”  The lawsuit giving rise to the decision alleges that by shooting Carl Bryan with a Taser stun gun, a police officer, Brian McPherson, used excessive force in violation of Bryan’s Fourth Amendment rights.  The Ninth Circuit agreed with Bryan.  See, Bryan v. McPherson, 2009 WL 5064477 (9th Cir. Dec. 28, 2009).  In this regard, the plaintiff’s attorney stated that “This is the first case to set some clear limits on the use of Tasers.” 

As stated in the AAJ posting, a judge writing for the three judge panel stated that Tasers and similar devices “constitute an intermediate, significant level of force” that may be used only under limited circumstances that meet the “strong government interest” standard.  To determine whether McPherson used excessive force, the court applied the Supreme Court’s test in Graham v. Connor (490 U.S. 386 (1989)) and considered the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or attempting to flee.  Under the facts of this case, the court concluded that “the totality of the circumstances here did not justify the deployment of the Taser X26.” 

For his own part, McPherson relied upon an Eleventh Circuit decision holding that the police use of a Taser did not constitute excessive force.  See, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).  But the Ninth Circuit said the Bryan case was clearly distinguishable from Draper, because the alleged victim being arrested in Draper  heard the police officer’s commands, refused to comply, and argued with the officer. 

According to a spokesperson for Amnesty International quoted in the posting, the decision should cause law enforcement agencies and individual officers to think more carefully about when and how to use these types of weapons.