Ninth Circuit sets high standard for police use of Taser

Finding that Tasers and similar stun-gun devices "constitute an intermediate, significant level of force,” the three-judge panel held that police officers may legally use a Taser to restrain a suspect only if doing so is justified by a “strong government interest.”

The Ninth Circuit has held that police use of a Taser must be justified by a “strong government interest [that] compels the employment of such force.” (Bryan v. McPherson, 2009 WL 5064477 (9th Cir. Dec. 28, 2009).)

"This is the first case to set some clear limits on the use of Tasers," said Eugene Iredale of San Diego. He represents Carl Bryan, who sued police officer Brian McPherson, alleging that by shooting him with a Taser stun gun, the officer used excessive force in violation of his Fourth Amendment rights. The Ninth Circuit agreed.

Judge Kim McLane Wardlaw wrote for the three-judge panel 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.

McPherson had stopped Bryan for driving without wearing his seat belt. Bryan got out of the car agitated, yelling gibberish and hitting his thighs,

upset that this would be his second ticket of the day after a long journey. McPherson shot him with the Taser, and he fell face first, fracturing four teeth and suffering facial contusions. Because the Taser incapacitates the subject, Bryan could not catch himself as he fell.

The Ninth Circuit noted that it and other circuits have held that Tasers are considered nonlethal force but that the device "intrudes upon the victim's physiological functions and physical integrity in a way that other nonlethal uses of force do not."

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.

There was an issue of fact as to whether Bryan moved toward McPherson, but the parties agreed that he remained about 20 feet away and complied with McPherson's commands except one asking him to stay in the car, which Bryan said he didn't hear. McPherson did not warn Bryan that he would shoot him with the Taser. The court noted that "despite his unusual behavior," Bryan did not pose a threat to anyone. The court concluded that "the totality of the circumstances here did not justify the deployment of the Taser X26."

McPherson relied on an Eleventh Circuit decision holding that the police use of a Taser did not constitute excessive force. (Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).) But the Ninth Circuit said Bryan was "clearly distinguishable" from Draper, in which the person being arrested heard the officer's commands, refused to comply, and argued with the officer.

Iredale said the decision will make it easier to show excessive force. He added that it might have implications for products liability as well, because Taser International, the manufacturer, "has resisted giving appropriate warnings regarding use" of its product, and now the Ninth Circuit has said that this use constitutes a significant use of force.

According to Amnesty International, more than 350 people have died in the United States after being shocked by police Tasers. Bryan "points to the need to reconsider how Tasers have been classified and deployed," said Vienna Colucci, Amnesty International USA's managing director and senior adviser for policy. She noted that police departments typically place Tasers "in the mid-range of the force scale (even below batons or impact weapons), rather than at, or just below, lethal force."

The decision should cause law enforcement agencies and individual officers "to think more carefully about when and how to use these weapons," Colucci said.