(Jan. 22, 2010) A federal appeals court has held that police use of a taser gun on a criminal suspect can constitute an unconstitutionally excessive use of force in some circumstances.
Appellant Brian McPherson, a police officer for the city of Coronado, California, stopped appellee Carl Bryan for not wearing his seat belt while driving. Bryan stood outside his car, behaving erratically but non-threateningly, 20-25 feet away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. Bryan sued in federal court alleging several claims, including violation of his right under the Fourth Amendment to the United States Constitution to be free from the use of unreasonable force. The district court denied Officer McPherson's claim of qualified immunity, ruling that it would have been clear to a reasonable officer that shooting Bryan with the taser was unlawful. Officer McPherson appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit.
The Ninth Circuit affirmed the district court's ruling. It first ruled that a taser gun's physiological effects, high levels of pain, and foreseeable risk of physical injury make taser use a significant, albeit nonlethal, level of force that must be justified by a strong government interest that compels its use. It agreed with the district court's finding that Bryan did not pose an immediate threat to Officer McPherson, since he was unarmed and standing a safe distance from him. It concluded that under these circumstances, Officer McPherson's use of the taser violated Bryan's constitutional right to be free from excessive force. Lastly, the court ruled that a reasonable officer in Officer McPherson's circumstances would have known that the use of a taser was unlawful, and therefore Officer McPherson is not entitled to qualified immunity for this violation. (Bryan v. McPherson, No. 08-55622 (9th Cir. Dec. 28, 2009), available at http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf.)