Don't Tase Me - Bro!

Law enforcement professionals undertake a very dangerous and oftentimes violent job.  They are often confronted with situations involving non-compliant subjects who must be controlled through the use of physical force.  Since 1993, the TASER Corporation has provided devices that use proprietary technology to incapacitate dangerous, combative, or high-risk subjects who pose a risk to law enforcement officers, corrections officers, civilian members of the public or themselves.  According to the manufacturer, the state-of-the-art TASER X26 Electronic Control Device (ECD), which transmits electrical pulses through wires and into the body of the perpetrator as far as thirty-five feet away, it has the lowest injury rate of any force option, allowing potentially violent offenders to be controlled with minimal risk of injury compared to traditional blunt force options.  I emphasize "potentially violent" in view of the December 28, 2009 decision and order by the federal Ninth Circuit Court of Appeals in Bryan v. McPherson, et ano.    

In a twenty-two page opinion, the Court explained it's rationale in holding that Police Officer McPherson's use of the 26X on Carl Bryan, a twenty-one year-old  male who exhibited the behavior of an emotionally disturbed person after simply being stopped for not wearing a seat belt, was "significant force" which was not justified. 

Bryan apparently had a morning filled with unfortunate events that may try the patience of a well-adjusted person.  The Court recites the facts in which Bryan's car keys were mistakenly taken by an acquaintance.  Bryan was then required to make a one-hundred mile round trip by car to retrieve his keys.  In the course of that trip he was stopped by a California Highway Patrol officer and issued a summons for speeding.  Some time after that traffic stop, he was directed to stop by Officer McPherson when he observed Bryan operating his motor vehicle without a wearing a seat belt.  Despite  being directed to remain in his vehicle, a lawful command which Bryan denied hearing, he exited and stood outside dressed only in boxer shorts and sneakers.  Bryan, who was approximately twenty-five feet from the officer, then launched into a tirade in which he was shouting profanity and gibberish while striking his thighs with his hands.  Obviously concerned for his safety and that of Bryan, the officer deployed the 26X to maintain order.  Bryan was precipitated to the pavement by the  effects of the device and thereby sustained injury to several teeth.  Accordingly, Bryan prosecutes an action under 42 USC 1983 alleging the use of excessive force in violation of his Fourth Amendment right.  

The Court explained in a detailed opinion that, inter alia, the officer's use of the 26X without prior warning, and the physical evidence that Bryan was facing away from the officer when the device was deployed, were facts that demonstrated the unreasonableness of the use of force when evaluating that conduct by an objective standard.  Moreover, the Court found that Bryan's conduct did not pose a threat to the officer where there was no testimony that Bryan advanced toward the officer in the course of his belligerent tirade.  Rather than deploy the device, the Court concluded that the officer should have remained idle and subject to the verbal harassment until additional officers arrived at the location.

Not having the benefit of reviewing the appellate record, I can only reasonably infer that Officer McPherson did not adequately articulate the potential threat posed to him when confronted with such a situation.  The Court made much of the fact that Bryan  was unarmed.  However, what was apparently not articulated in the deposition testimony was the fact that Officer McPherson was armed and that an unarmed 21-year-old emotionally disturbed man could potentially disarm the officer and use deadly force with the officer's own weapon.  By way of example, the NYPD Patrol Guide establishes that an officer provide no less than a twenty-foot distance from an emotionally disturbed person.  Further, the officer's testimony did not establish the  demonstrated fact that a  potentially violent subject can traverse twenty-feet of ground before an officer can even unholster a firearm.  Perhaps the determining factors were overlooked in  the preparation of the officer for his examination before trial.