Vol. 24 No. 28- Use Of Taser Is “Zapped”


December 29, 2009

On December 28, 2009, a unanimous Ninth Circuit U.S. Court of Appeals restricted when and under what circumstances Electronic Control Devices (ECD) can be used.  In the case of Bryan v. McPherson; Coronado Police Department; City of Coronado, the Court ruled that in order to deploy an ECD, the “objective facts must indicate that the suspect poses an immediate threatto the officer or a member of the public.” (Emphasis added.)  Furthermore, the Court upheld the lower court’s denial of qualified immunity from civil liability for Coronado police officer Brian McPherson.

Fact of the Case

Officer McPherson stopped Bryan’s car when he observed that the 21 year old man was not wearing a seat belt.  Bryan was wearing only boxer shorts and tennis shoes.  He had been stopped earlier and issued a speeding ticket and, apparently, failed to fasten his seat belt after receiving the citation.  When McPherson stopped him, Bryan became upset (according to him, with himself) for not having the seat belt on.  He got out of his car, was swearing, shouting “gibberish” and expletives and hitting himself on his thighs.

According to the officer, the only “resistance,” on Bryan’s part, “was a failure to comply with his order that Bryan remain in his car….”  Bryan claims that he did not hear the officer order him to stay in the vehicle and the Court concluded that, “there is, therefore, a genuine issue of fact on this point….”  The Court also noted that “physical evidence demonstrates that Bryan was not even facing Officer McPherson when he was shot” and it is undisputed that no warning was issued before discharging the weapon.

Bryan sustained significant injuries as a result of the use of the ECD.  He “lost muscular control and fell, uncontrolled, face first into the pavement.  This fall shattered four of his front teeth and caused facial abrasions and swelling.  Additionally, a barbed probe lodged in this flesh, requiring hospitalization so that a doctor could remove the probe with a scalpel.”

Use of Electronic Control Devices

Turning its attention to the use of the ECD, the Court stated that such devices “fall into the category of non-lethal force.”  However, “non-lethal … is not synonymous with non-excessive; all force – lethal and non-lethal – must be justified by the need for the specific level of force employed.”  The ECD “instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.  The tasered person also experiences an excruciating pain that radiates throughout the body.”

As a result, “the physiological effect, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted.”

The Court stated that “we recognize the important role controlled electric devices like the Taser X26 can play in law enforcement.”  However, “we hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by ‘a strong government interest [that] compels the employment of such force.’”  (Emphasis in original.)

Denial of Qualified Immunity

“In evaluating the denial of a police officer’s assertion of qualified immunity (from civil liability), we ask two distinct questions.  First, we must determine whether … the officer’s conduct violated a constitutional right; and, second, if a violation occurred, whether the right was clearly established in light of the specific context of the case.”

The Court cited to several significant cases, including the landmark decision from the United States Supreme Court, Graham v. Connor (1989) 490 U.S. 386, and held that when making the decision regarding qualified immunity, “we ask whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.”  When force is involved, “we must balance the amount of force applied against the need for that force.”

Three primary factors must be considered under Graham v. Connor.  “The ‘most important’ factor under Graham is whether the suspect posed an ‘immediate threat to the safety of the officers or others.”  The Court of Appeals agreed with the lower court, which found that “Bryan’s volatile, erratic conduct could lead an officer to be wary.”

However, the Court of Appeals added that it also agreed, “with the district court that Bryan did not pose an immediate threat to Officer McPherson or bystanders despite his unusual behavior.  It is undisputed that Bryan was unarmed ….”   Although he was upset, said the Court, “at no point did he level a physical or verbal threat against Officer McPherson.”  Additionally, “Bryan was standing, without advancing, fifteen to twenty-five feet away from Officer McPherson ….”

The Court also noted that the severity of the offense provided little justification for the use of such force.  Additionally, McPherson argued that “the use of the taser was justified because he believed Bryan may have been mentally ill and thus subject to detention.”  The Court took exception with that stating that, if true, McPherson “should have made greater effort to take control of the situation through less intrusive means.”  The Court also stated that if, in fact, Bryan was mentally ill, Graham “does not support the deployment of an intermediate level of force.”

As such, since the use of “the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake,” Bryan’s Constitutional, Fourth Amendment, right to be free of unreasonable force was violated.  Since the right to be free from unreasonable force is clearly established, Officer McPherson was “not entitled to qualified immunity for his use of the Taser X26 against Bryan.”


This case now establishes standards for law enforcement regarding the use of electronic control devices, such as the Taser.  It cannot be used unless the officer is able to justify that the use is based upon an objectively reasonable belief that a subject poses an immediate threat to the officer or others.

The Court ruled that “a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.”  Such weapons cannot be used simply because a person is disobeying orders, or acting erratically, unless it can be proven that such behavior created the immediate threat of danger to the officer or others.

This decision has, for all intents and purposes, “raised the bar” on when and under what circumstances an ECD can be used.  The Court has specifically stated that this non-lethal weapon is different and more harmful than other types of non-lethal weapons.  It also reinforces the obligation to warn subjects, when possible and reasonable, before deploying such force.

The Court held that “we also recognize the reality that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”  Nonetheless, “we must ask if the officers’ conduct is ‘objectively reasonable’ in light of the facts and circumstances confronting them without regard for an officer’s subjective intentions.”

Training, training, training!  We constantly reinforce how important it is to provide officers with on-going information and training as courts modify and/or change what had been standard or acceptable procedures for law enforcement.

In this last year alone, Jones & Mayer has issued numerous Client Alert Memos because of situations or circumstances which have altered the “way things have been done.”  For just a few examples, we refer you to our website [www.jones-mayer.com], click on Client Alerts and scroll down to Vol. 24, No. 10 (4/22/09); Vol. 24, No. 15 (6/16/09); Vol. 24, No. 17 (7/6/09); Vol. 24, No. 23 (10/26/09); and Vol. 24, No. 25 (12/21/09).

It is imperative that you confer with your agency’s legal counsel for advice and guidance on these types of matters.  As always, if you wish to discuss this issue in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.