Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A three-judge panel of the 9th Circuit Court of Appeals, including at least one judge who has frequently been mentioned as a potential Obama Supreme Court nominee (Judge Kim Wardlaw), has delivered an important ruling on the use of tasers by police officers. You can see the full ruling here (PDF), which allows a lawsuit against a police officer for excessive force to go forward.
We've talked a lot on this blog about prosecutorial immunity, which is virtually absolute. Police officers are granted a more limited version called qualified immunity, which says in essence that you cannot sue a police officer for actions taken in the course of carrying out their duties unless you can show that those actions violated a clearly established right.
In this case, the police tased an unarmed man from 20 feet away after he got out of his car on a traffic stop and was having something of an emotional breakdown:
Bryan, who's now teaching tennis in Italy, was visiting cousins -- including famed tennis twins Bob and Mike Bryan -- in Camarillo on that fateful day in 2005. He awoke to find one cousin's girlfriend had mistakenly taken his car keys to Los Angeles.After retrieving them on a 100-mile round trip, the then-21-year-old set off in only a T-shirt, tennis shoes and boxer shorts to his parents' home, 180 miles away in Coronado.
On the way, Bryan was pulled over for speeding, then later in Coronado for having an unbuckled seat belt, which he had forgotten to refasten after the first stop. At this point, a very distraught Bryan got out of the car, crying, yelling gibberish and beating his thighs.
Without warning, McPherson tasered Bryan from about 20 feet away, causing him to fall face first onto the asphalt. Bryan sued for use of excessive force, assault and battery, and intentional infliction of emotional distress.
San Diego-based U.S. District Judge Larry Burns granted summary judgment to the city of Coronado and its police department, but held that McPherson was not entitled to qualified immunity. The 9th Circuit agreed.
"Although Bryan had shouted expletives to himself while pulling his car over and had taken to shouting gibberish, and more expletives, outside his car," the court held, "at no point did he level a physical or verbal threat against officer McPherson."
This is important for several reasons. First, it establishes a standard that you cannot use a taser on someone unless there is a credible threat to someone else. It's one thing to tase someone who is resisting arrest; it's quite another to tase someone who is merely being emotional. Second, it establishes that qualified immunity does not shield an officer from suit if he exceeds that standard.
This applies only in the 9th circuit at this point, of course, but while it may not have official precedental value in other circuits, that doesn't mean it won't be influential on other judges if similar cases arise.
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In my opinion, the only advantages to issuing tasers to the cops, is if it reduces the number of times they shoot someone. Since (I hope) the cop wasn't considering shooting the guy, this was a definite misuse.
The all-too-frequent use of the tasers by cops seem more to do with them wanting to either punish someone (not their job) or amuse themselves (definitely not their job). I'm sure they're often used for the right reasons, too. To prove that, maybe someone could pull out the stats on the reduction of shootings by cops now in areas where the cops have tasers...anyone?
Posted by: BAllanJ | January 6, 2010 9:33 AM
I guess it was nice of the cops not to lie about the circumstances under which they tased Mr. Bryan in order to make it seem more justified. I wouldn't expect that degree of truthfulness from most cops.
Posted by: hirst | January 6, 2010 10:17 AM
I'd like to see those statistics too. Though my gut tells me not to expect much, if any, reduction. My gut tells me that as soon as there is any threat of real harm then the old-fashioned hardware comes out.
Posted by: NoAstronomer | January 6, 2010 10:56 AM
Wow, sounds like that guy was having a really bad day... I don't totally blame him for freaking out.
Posted by: James Sweet | January 6, 2010 12:14 PM
Vaguely related, but I had my most in depth view of police officers in action last night. Recently moved to a burb of Portland Oregon and am apartment living while house hunting. The next door neighbors had a funtastic three hour encounter with four officers serving a restraining order while looking for a missing two month old.
The sergeant in charge was professional, polite and calm the entire time despite the lying and bitching from the one being served and his apartment mates. The little cubby leading to my apartment door was the fallback position where officers had private conversations out of earshot of the young men, and even there they retained a calm demeanor.
What first caught my attention was their initial preparation for making a hard entry into the apartment, even after receiving a warning that the man is known to carry a knife. Their beanbag gun was never referred to as such. It was not even referred to as nonlethal. It was always the 'less lethal shotgun' in their conversations. Indicative that they recognize it is still a weapon with the potential to do grievous harm and not a free shot.
After the entry, the man was handcuffed and very agitated while three officers searched his residence. The fourth stayed outside to talk with him. Friendly, chatty, asking questions about and praising the behavior of the man's dog -- he calmed the man and brought the tension level way down.
After two and half hours the man, now under a restraining order, left and the woman who had file the order arrived. The Sergeant was as friendly and supportive to her as he had been to the man -- no one should have left with cause to feel the police were the antagonists in the situation.
Anyway, it was a pleasant experience to overhear after the endless horror stories that come through civil liberty blogs. And I am writing a short note of praise to the department to encourage this behavior and whatever course of training created it.
Posted by: Sean | January 6, 2010 1:24 PM
I have one of those police beanbags. When my brother was in highschool he did a job shadow with the Maine Game Wardens and got a tour of the state police gun range. They let him pick up an keep a couple of the beanbags they had used in training.
If you've never seen one it's about 1 1/2 inches square and weighs a couple ounces, they're serious weapons. No one should think they are non-lethal, less lethal than a bullet of course but not to be used lightly. It also makes a handy little weight for all sorts of jobs, wish I had a few more.
Posted by: Noadi | January 6, 2010 4:45 PM
Sean: Yes, please write that note. It certainly can't hurt.
Posted by: Valhar2000 | January 6, 2010 6:27 PM
Sean: It sounds like you encountered a group of professional officers carrying out their duties in an orderly and proper manner. Now think for a moment how sad it is that our expectation is that this behavior is the exception rather than the rule. And that the expectation of twisted sadistic behavior is continually reenforced by stories of officers using tasers, pepper spray, etc. as torture devices.
Here's my story. I had the opportunity to go on a ride-a-long with a police officer in Southern California. During our time together we discussed beanbag rounds. He explained to me that in his department they were trained to aim for the crotch when firing beanbags at a male suspect. He went on to tell me that "sometimes we get lucky and one of their testicles explodes", and then he grinned.
Posted by: SimpleTruth | January 7, 2010 3:25 AM