The US Court of Appeals for the Ninth Circuit on Tuesday reaffirmed a decision handed down in January (read decision) limiting the ability of police to taser motorists over minor traffic violations. Coronado, California Police Officer Brian McPherson blasted motorist Carl Bryan, then 21, with a 1200-volt taser during a traffic stop over a minor infraction on the Coronado Bridge near San Diego, five years ago. Bryan lost four of his front teeth and was hit with “resisting arrest” charges. He sued, claiming excessive force had been used.
“We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer,” Judge Kim Wardlaw summarized.
The court found that this intermediate, significant level of force delivered by the taser must be justified by a significant threat to the officer. The League of California Cities and California State Association of Counties asked the full court to rehear the case decided by a three-judge panel. The court slightly modified its opinion to grant Officer MacPherson qualified immunity because he could have made a “reasonable mistake” given the uncertain state of the law at the time. A majority of appellate judges found the panel’s reasoning sound and rejected Bryan’s request to reopen the case on the question of that immunity. The finding opened a bitter rift among some of the judges.
“After mischaracterizing the record, misstating our holding, and attacking our opinion for language it does not in fact contain, Judge [Richard] Tallman ultimately bases his dissent to our decision against rehearing en banc upon the largely unsupported and nonsensical belief that use of a device designed to fire a dart up to one-half inch into bare skin and deliver a 1200 volt charge somehow does not constitute an intermediate use of force,” Wardlaw wrote.
Wardlaw recited significant evidence regarding the dangers of using tasers, including serious wounds from the dart fired into the skin to death caused by the electrical shock and injuries from a fall, as happened to Bryan. In his dissent, Tallman focused on how Bryan was acting “bizarrely” when he pulled up to a seatbelt sting operation in his tan Toyota Camry. Tallman insisted that the officer “feared for his life” from the compliant man in boxer shorts standing twenty-five feet away.
“It is what Officer MacPherson knew, not Bryan’s innocent, post-filing explanation favored by the panel, that must be considered in assessing objective reasonableness,” Tallman wrote in his dissent. “Because the panel relays the facts from Bryan’s perspective, rather than the officer’s, it was no doubt easy to conclude that Bryan did not pose any threat to the officer. Looked at from a reasonable officer’s perspective, however — as Graham requires — Bryan’s behavior was volatile, irrational, and alarming. Any reasonable officer would be concerned for his safety.”
A copy of the revised, final decision is available in a 210k PDF file at the source link below.
Source: 
Bryan v. MacPherson (US Court of Appeals, Ninth Circuit, 11/30/2010)
[Courtesy:Thenewspaper.com]
Just imagine if Barney Fife would’a had a Taser instead of an empty gun. Wait, I don’t have to. I need only look at Officer MacPherson (hopefully, not through my car window).
The taxtaker parasite in the government costume will get a promotion.
American taxpayers are just retarded to allow this filthy animal to suck their teats.
Glad we have winners like Officer MacPherson out there… Making sure we don’t injure ourselves by not wearing seat belts.
I am no liberal, as conservative as they come, but some actions by today’s police officers make me sick to my stomach. The judges apparently worry more about immunity than injury suffered and the increased mistrust of government authority by the public from this type of abuse of power. The public employee unions that I despise, along with the “lawnorder” types that believe the police have such a hard job that anything goes, need to wake up.
If you’re implying what I think you’re implying with your opening sentence, then you’re confusing your definition of what a conservative SHOULD believe.
Don’t taze me, bro!
Dang. You beat me to it.
Bad photo for the story. The incident discussed in the article is not the incident that took place in this photo or the video that went with it.
That’s the case for many, if not most of the posts here.
Shoot first, ask questions later. It’s the only way to be sure.
“Nuke the entire site from orbit. It’s the only way to be sure.” — Ripley
The legal aftermath of the encounter between Bryan and Officer MacPherson is especially useful, because it illustrates why an officer would act this way: because he can. There are no material consequences.
he could have made a “reasonable mistake” given the uncertain state of the law at the time.
What could be more reasonable than electrocuting an unarmed, compliant man from 25 feet away for not wearing a seatbelt.
This kind of abuse isn’t going to stop until officers get not only fired but jailed for assault. He got immunity for testifying. He lost nothing. Judge Tallman also sounds like a real piece of work.
Paying the highway taxes are far and away the most common direct interaction with law enforcement. 20 million stops a year, mostly for speeding and mostly resulting in tickets. For the boring middle class that’s typically the only police interaction we get. Of course it leaves a bad taste. Even when they don’t tase you and knock your teeth out.
However much money these programs take in, and it’s in the low tens of billions of dollars a year, it isn’t worth the cost in ill will. Look at the comments in any discussion about cops, anywhere. Look above my comment. We all know it’s about money. That’s fine, the world runs on money. But there are better ways to get it. Raising the gas tax a dime would do the same thing. A lot fewer people would think all cops are pigs.
Wait … Doesn’t the 9th Circuit Court have an 88% reversal rate by the Supreme Court?
http://www.nytimes.com/2010/04/25/us/25sfninth.html
This court is a bag of liberal moonbat nut-jobs. Their opinions are worse than useless.
Um, no. They had 14 out of their tens of thousands of decisions overturned by the Supreme Court. Nice troll, try again.
But the ruling is very much in favor of the police by allowing them immunity from the officer’s actions. If the 9th were a bunch of “liberal moonbat nut-jobs” they would have let Bryan reopen the case. So you’re wrong on the facts and wrong on the analysis as well.
I know this is an ancient thread, but Both random1 and ClutchCarGo accused my post of being a troll, and my facts being wrong. If you don’t believe the NY Times article, how about this one ?
http://www.foxnews.com/politics/2011/02/02/hint-supreme-court-rejects-rulings-row-west-coast-bench/
But I suppose you both know better than the US Supreme court on this stuff, eh?
This case is not as one-sided as the “The Newspaper” summary would imply. As stated in the Ninth Circuit opinion:
While Officer MacPherson was watching traffic, a tan Toyota Camry driven by Carl Bryan approached. At the time, Bryan was wearing only boxer undershorts, tennis shoes, and
socks. Bryan’s sixteen-year-old brother Alexander was seated in the passenger seat. Officer MacPherson noticed that the driver was not wearing his seatbelt, so he put out his hand to
signal the car to stop. Bryan stopped at the stop sign in the lane of traffic. Officer MacPherson approached the passenger window to speak with him. Looking into the car, Officer Mac-
Pherson noticed that the driver was not wearing a shirt. The radio was turned up. Bryan sat in the driver’s seat staring straight ahead with both hands clutching the steering wheel.
When the officer asked Bryan to turn the radio down, he turned it off. Officer MacPherson then asked him to pull the car over to the curb. In response, Bryan began punching the
steering wheel with both fists and started shouting “fuck” over and over. He was yelling loudly enough that a man playing tennis at a club fifty to seventy-five feet away could hear
him screaming “fuck, fuck, fuck.” While continuing to pound the steering wheel and shout, Bryan pulled his car ahead and stopped in the intersection blocking a crosswalk several feet
from the curb.
Although Bryan was compliant with the Coronado officer’s instructions to this point, Officer MacPherson was concerned about the odd behavior he was seeing: the driver was acting
in an irrational, violent, angry, and aggressive manner. Because the officer considered that Bryan might be high on PCP or another drug, or might be mentally unstable, he
radioed for backup. Help did not arrive in time.
Bryan’s next actions did nothing to dispel Officer MacPherson’s concerns. Bryan began to open the driver’s side door. Officer MacPherson, who was fifteen to twenty feet
away, began yelling at him, “Stay in the car, stay in the car, stay in the car,” and removed his X26 taser from its holster. Although a jogger forty feet away and the tennis player heard
the officer yelling for him to stay in the car, Bryan continued to open the door and get out. Officer MacPherson continued ordering Bryan to get back in the car, but Bryan did not do
so.
Once out of the car, Bryan started yelling gibberish and pounding his thighs with both fists. He was between the open door and the car, still within arm’s reach of the passenger compartment. Fearing for his safety, Officer MacPherson deployed his taser, hitting Bryan with a single dart in the left arm. Bryan fell to the ground, breaking four teeth and cutting
and bruising his face.
— “Officer MacPherson . . . was fifteen to twenty feet away.”
— “Officer MacPherson continued ordering Bryan to get back in the car, but Bryan did not do so.”
— “Once out of the car, Bryan started yelling gibberish and pounding his thighs with both fists. He was between the open door and the car, still within arm’s reach of the passenger compartment.”
— “Fearing for his safety, Officer MacPherson deployed his taser, hitting Bryan with a single dart in the left arm.”
Would anything in these circumstances give MacPherson the right to pull out his gun and shoot Bryan? No, that would clearly be excessive force.
The majority’s point, and I think it is a good one, is that using a taser is using force. Indeed, it is fairly far down the road toward using a gun. Bryan was not doing anything threatening. Nothing that should make an officer “fear for his safety.” So his use of a taser — “significant force” — was wrong.
As the court points out, most courts have reached the same conclusion. Using a taser is force that should not be applied unless there is threatening — not bizarre, but threatening — circumstances.
“fearing for his safety” is a cover all phrase similar to “think of the children” or “it’s a different world since 9/11” – it covers all sins. I seem to recall the cop who tasered the 70 old woman who tore up a traffic ticket also feared for his safety. If you’re that fearful, maybe you’re in the wrong line of work.
Tallman insisted that the officer “feared for his life” from the compliant man in boxer shorts standing twenty-five feet away.
This is not reporting; it is editorializing. It is conspicuously lacking in detail which might explain the police officer’s perspective.
I’m all in favour of catching bad cops, but how about bad journalists?
If you’ve ever been to Coronado, there is no rationale for this. It’s a tourist and sleepy area of San Diego where your biggest worry is where you can find parking near the beach.
If the cop is on edge, you can’t blame it on the neighborhood
I live down here in Alabama and I can tell you, any interaction with the police can be fatal. Locally, a van was stopped by the cops. One office talked to the driver while the other stood at the back of the van. The officer at the back decided that something was wrong and fired twice through the body hitting the driver in the chest. He was excused as feeling his partner was in danger. The cop at the front said there was no reason to fire. It did not matter. I don’t know about California, but here in good old God fearing Alabama a cop can literally get away with murder. If you want more, google Mobile Alabama police brutality. I am 65 years old and want nothing to do with the local cops. If you do get stopped by the cops, be very careful.
Same thing with Chicago; cops can run lights and stop signs with impunity when in the cars and off duty can drive drunk, kill a few people and not be given a breathalyzer test for eight hours after being detained while attempting to leave the scene of the accident. The little things really add up over time.
I’ve been reading a lot of comments on The Truth About Cars and I’ve come to realize that a of people that frequent the site to read the articles are biased against law enforcement in general. I’m not here to start a flame war but would like people to realize that journalism, more often than not, distort the truth in order to produce sensational headlines. There have been many a times where I was personally there to witness something but when it comes out on the papers, the truth takes a back seat. Facts not supporting that sensational headline are often omitted and the whole article is written to sway the reader in one direction. I’m a hundred percent sure that TTAC is well intentioned but the headlines and the way they present the story is biased.
I’m also sure that the incident here has more to it than we are lead to believe. I for one, hold judgment until there are enough facts to formulate a probable conclusion. A lot of people think that all cops are assholes that are out to screw the regular populace over but that is not the truth. There are bad apples in every demographic, include law enforcement personnel. I for one believed that the officer did not use excessive force. The teeth loss is an unfortunate result of the motorist hitting the floor after being hit with the taser which very likely will not have happened if the motorist was not acting in a manner that warrants the use of force. I am not for law enforcement using the taser on every car stop but I also know that every, and I mean every car stop is inherently dangerous. Car stops and anything involving law enforcement to enter one’s home is dangerous because we all have weapons which only we know where they are located. Put yourself in the officer’s shoes for a second here. If you were a law enforcement officer and you do a car stop where the motorist is behaving weird, your suspicion would be raised as to why the motorist is acting this way. A motorist who is wearing boxers, shirtless but compliant can be classified as weird. So as a law enforcement officer you could think the motorist is just loopy or very likely also high on drugs. A person who is high on drugs can display inhuman feats of strength and often do not feel pain. Pepper spray is often ineffective on a person with enough drugs in their system so a law enforcement officer now possibly has to contend with an illogical person that is not deterred by pain (pepper spray and baton) and physically stronger. Most car stops take place on a roadway with moving vehicles which pose another possible threat to law enforcement and stopped motorists. Do you people ever wonder why law enforcement stop you from behind and always have their vehicles encroach onto the lane where traffic is flowing? It is to protect both himself and the motorist, if the motorist decides to step out, from oncoming vehicles by creating a buffer with the patrol car. Law enforcement also hate it when the motorist step out of the vehicle unless given an order to do so. This stems from the possibility of the motorist having a weapon. The motorist is a smaller threat if armed in the confines of the vehicle than armed outside of the vehicle. Those that understand firearm tactics will understand this and it is the same with a firearm or with a cutting instrument. A law enforcement officer now has to deal with both the motorist and possibly getting struck by a vehicle while engaging the motorist in a physical confrontation. Besides getting struck by a vehicle, physical confrontations are also bad because there is always a gun involved in every case: the officer’s. People have to remember law enforcement officers are people also and are not willing to put their safety more at risk than somebody else so when the motorist starts cursing at the top of his lungs with a violent display of punching the steering wheel and finally ignores the officer’s orders to stay in the vehicle what would you do if you were him? The officer resorted to the taser, the less lethal of the two options he has left. Back up may be on the way but it may be to late when it gets there.
Moral of the story is, even if you act weird, as long as you comply with a law enforcement officer, the worse you may get is a ticket. At least that is what it seems like in this case. I myself often found it weird why a cop does certain things a certain way until I spoke out and had a conversation with one who was nice enough to answer some of them. Understanding the law enforcement’s side has led me to a lot fewer unfavorable encounters with the law.
With that said, the use of a taser is a use of force but a lot less lethal than the other option on an officer’s hips. I also found it quite ridiculous when NY wanted officers to shoot non-vital areas of perpetrators. I guess the people making the laws have no law enforcement knowledge and/or no experience with firearms. Sorry for the long rant.
OK so the individual cop is not at fault so much as the cops in general. If a “seatbelt sting” is so life threatening, they should have had three or four guys there to secure the perp before giving him a seatbelt ticket, instead of having to taser every other dude that might be a threat to an individual officer.
I’m going out on a limb here, as I don’t have the time or inclination to read that Faulkner-esque paragraph here.
Having not read your second paragraph, I’m going to presume that it incorporates the phrase ‘bad apples,’ and that it was written by someone employed by law-enforcement.
Amirite?
To cackalacka,
No I am not employed by law enforcement but instead have made friends out of some of them as I stated in the second to last paragraph. You also just proved how by reading something incompletely and taking the small portion you read out of context will lead to an incorrect assumption.
I’m just trying to shed some light on some of the reasons an officer may have to act the way they do. What would you do if someone starts screaming and punching the steering wheel before coming out of the car at you after a road rage incident involving you? What would you think that person’s intentions are, to shake your hand and apologize?
coming out of the car at you
Key phrase right there. According to the report I read, he was not approaching or directly threatening the officer in any way. He was tazed for acting weird, not for acting threateningly.
@ cackalacka
I doubt SpOoNeeUs needed to request your time or indulgence before he posted his comment. In any event, our Twitter-obsessed culture notwithstanding, not all thoughtful and careful commentary can be reduced to 140 characters. Had you spent a few minutes to read SpOoNeeUs’s comment instead of criticizing its length, you would realize his point to not to blame “bad apples,” as you believe. Rather, his point (well taken, in my opinion), is that there are generally two sides to each story, both of which need to be heard before judgment is passed.
Makes you wonder what officer McPherson would have done to Mr. Bryanthe if he suspected him of committing a serious offense, like littering.
I’m in general agreement that tasers are probably being overused, and the legal requirements/circumstances will need to go through a lot of sausage-grinding in state legislatures before it’s somewhat consistent.
That said, if you don’t comply with the reasonable request of a lone officer to stay in the vehicle (as anyone in their right mind would do), you shouldn’t expect the officer not to have fear of your intentions and act in a manner that would help him get home to his family.
With *that* said, the overarching power of the police (especially unwarranted stops over non-use of seat belts, or profiling of all sorts), can push people over the edge, releasing frustrations long-suppressed against law enforcement, resulting in a normally “eccentric” person reacting in a genuinely threatening way – not against the officer personally, but against “authority” in general.