In a decision that, from start to finish, reflects the most thoughtful and incisive review of the impropriety of police use of Tasers whenever it’s convenient, the 9th Circuit in Bryan v. McPherson held that the propriety of police use of a Taser is judged by 4th Amendment standards for seizure, and that it constitutes an intermediate level use of force that can only be justified by an immediate threat and the absence of less invasive alternatives.
This is a huge decision. No longer, at least in the 9th Circuit, can a police officer tase a person at will.
The facts of the case are truly atrocious. From the Sacramento Bee :
In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer’s order to stay in the car.Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he’d slept in because a woman had taken his keys, the court said without further explanation.
During his second traffic stop in Coronado, he got out of the car. He was “agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes” but did not threaten the officer verbally or physically, the judges wrote.
That’s when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan’s “bizarre tantrum,” fired his Taser, the court said.
Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.
Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.
McPherson then went into Bryan’s “gibberish”, alleging that he might have been mentally ill, for which he was excoriated by the court for suggesting that mental illness was the perfect justification for using force. I would anticipate police officers nationwide to exclaim how the 9th Circuit doesn’t “get it,” that mentally ill people pose a threat to their safety (since one never knows what a mentally ill person will do), thus justifying a quick tasing to make sure that the officer makes it
“Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable,” Judge Kim McLane Wardlaw wrote for the court. “His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”Finally, we have a clear and decisive ruling that knee-jerk resort to the Taser, the lazy-man’s method of ending non-threatening citizen encounters just shy of a bullet between the eyes, is an unconstitutional use of excessive force in effecting a seizure under the 4th Amendment. Amen.
H/T Dr. Sunwolf
Add this to the dimissal for witness intimidation last week, and it makes me think there might be some hope for this country after all. Not much, mind you, but some.
I would rejoice with you but for the unfortunate fact that this is a 9th Circuit opinion. In my jurisdiction citing a 9th Circuit decision as authority is an invitation to be laughed out of court. (Texas)
My hope is that one day we, too, will come into the light.
Yeah, the 9th doesn’t get as much respect as it should. But it’s got to start somewhere. Perhaps the reasoning, if not the authority, will do some good?
It’s that way here in Oklahoma City, too. Nonetheless, it’s refreshing to see courts that aren’t in bed with the cops.
As a Special Constable (reservist police officer in the UK) I can sympathise with the officer’s predicament. If you have ever been in the situation where you are dealing with someone screaming and shouting, clearly in an agitated and unpredictable state (he was in his underwear and striking himself), you would probably not feel so smug at this “judgement”. You have no idea whether his next action will be to run for it or attack you or a member of the public. Just be grateful there are officers who put themselves at risk day in, day out on the “donut run” as it amuses you to call it, keeping you and your family safe.
While not amazing that UK cops use the same excuses as the colonials, you do express it with particular flare. But it’s every bit as vapid whether delivered with a Brit accent or Brooklyn. Ignorance of what a person might do is no justification to do pre-emptive harm just to make sure you don’t have to use your brain. And yes, it amuses me to no end to call it a donut run, as cops taser people who pose no threat just to get the encounter over with as quickly as possible. After all, the only reason we have police is to make sure their life is as easy as possible.
Now what was that about keeping me and my family safe? The biggest threat facing me is a cop with a taser at donut time.
I don’t think anyone actually wants police officers of any type to be harmed. However dealing with unpredictable (and potentially dangerous) people is exactly what the police are there to do. Shooting first, with a taser or a gun, and asking questions later is a poor way to do that job.
The issue here is that the police should wait until the unpredictable become dangerous before shocking them with a taser. This seems perfectly reasonable. The case mentioned in the post involved a man who was clearly agitated, but not actually dangerous, being wrongly treated as if he was dangerous. Sure the man was acting strangely but he was then attacked by a police officer.
I think the idea that the public should “just be grateful” that you “put yourself at risk” is a truly terrible sentiment for a law enforcement official to hold if by that you mean tasing them for acting strangely. That’s not what put yourself at risk means to the rest of us.
You are confusing reason and restraint with an article of faith held by police officers, that by the time they know that there is a threat to their safety, it might be too late. Rather than face any potential risk of harm to themselves, best to pre-emptively harm someone else. The first rule of policing is to get home safe, no matter what the cost.
I dunno, I am kind of amazed to find an officer from across the pond practically quoting from the PBA flack manual. I mean, its almost word for word- step 1, you don’t know what its like. step 2, just be grateful coupled with the loosely implied but for me, something bad will happen to your family.
I dunno, I think it’s kind of sweet how our reserve constable parrots the blue line, especially coming from a place with no 4th Amendment. Probably one of those “one world” types.
I’m sorry you don’t feel appreciated, Richard, but I’m calling bullsh*t on your comment.
I was part of a team that trained police and fire personnel how to respond at accident scenes and emergency calls. In my experience, it was the case then, and is now, that police over-react and will continue to over-react unless they get better training at recognizing and dealing with people who might have neurological or mental health problems. While not all situations can be easily de-escalated or managed, many can.
Had the police officer in this case remembered the part of the job description that says “to serve” and simply said to the young man “You look really upset. Do you need help?” the incident might have had a radically different outcome.
Imagine. A kind word instead of a taser. What a concept.
I agree. It seems awfully hypocritical that they demand to be regarded as “brave” and “heroes” in society yet they refuse to accept even one iota of personal risk in dealing with a lowly citizen. Well cops, the people have spoken: You cannot have your donuts and eat them too.
I’ve never quite figured out what it is they’re keeping us safe from either. Unless they’re there at a fortuitous moment, their role is remedial. Any deterrent effect is a result of the entire criminal justice system, not cops in particular. And even then, it only impacts that minority of people who are restrained only by the threat of punishment. The majority of people aren’t inclined to commit crimes (real ones, not the mass of malum prohibitum crimes we’ve created) and that portion who ARE inclined to criminal behavior don’t seem much deterred. As you said, at this moment in history, the biggest threat I face is the cops themselves.
As a former LEO, I am daily disgusted by the “use of force” advocates. An officer gets exactly the same pay to go off shift without using force to effect arrests. Physical presence and numerical superiority will always improve outcomes with difficult people. When I qualified with the Taser, we couldn’t even draw the thing unless another officer was there with lethal cover. My point is this; a Taser should be the next-to-last resort, not the first. There has never been a 1983 complaint for “verbal jiu-jitsu” techniques.
The attitude reflected by Officer McPherson is the very reason I quit, and is the precise reason I make a living on the defense side.
The aspect I find most disturbing, and enraging, is “love me or leave me.” The options are not mindless support of police, no matter how dirty or violent they may be, or you’re on your own. While many cops I know cringe when others, often the union, spouts this rhetoric, the unfortunate truth is that most cops buy into it. It’s not just a snow job for the public, but something they actually believe. It’s got to be difficult for the thoughtful cop to stay on the job, and yet this is the person who should be a cop. It’s a dilemma.
Do they believe it the day they sign up, or do they come to believe it after it is relentlessly drummed into their heads by their superior officers, union reps, peers, academy instructors, etc.?
Actually, I do feel appreciated, Dissent, but thanks anyway for your concern! Also, I agree that training police officers (and other emergency service personnel, for that matter) in dealing with people with mental illness or neurological disorder can only be beneficial. However, a couple of points: first, it would have been completely useless in this case, as apparently the suspect was angry about being chucked out by his girlfriend and getting a speeding ticket, and wasn’t mentally ill; second, even in cases such as in mental hospitals, where staff have intensive training and the situation is much more controlled than on a public street, force is still necessary to subdue persons posing a risk to themselves or others, because mental illness is inherently unpredictable. So it would make more sense to see mental health awareness as a complement to current police practice, rather than a replacement.
As you point out “While not all situations can be easily de-escalated or managed, many can.” The key is in appreciating that officers have to decide in about 2 or 3 seconds, with a wide range of distractions also occupying the officer’s attention e.g. passers-by, traffic, etc (A) if the situation can be de-escalated and (B) how to do this without putting the public at risk.
SHG, far from saying “Love me or Leave me”, I was actually wondering why anyone would show such ignorance and contempt for the role of police in society by childishly referring to their job as a “donut run”. Obviously, like any citizen, I want the police to be under the rule of law, and not to abuse their power. However, also like any citizen, I would not want to live in a state of civil chaos where criminals prey at will upon the vulnerable, because officers cannot protect them for fear of themselves being considered criminals. There is a balance to be struck here, and it must take into accout the extremely unpredictable nature of policing modern society. On a brighter note, I am glad that “the biggest threat facing you is a cop with a taser at donut time”. You must live a very safe life indeed!
not sure what happened with the smiley face, that wasn’t intentional!
My “donut run” references aren’t childish, Richard, but ridicule. Perhaps that doesn’t translate well into English.
You see it as ignorance and contempt because it differs from your simplistic blind faith. Fair enough. There’s always a need for true believers, without which there would be no bar to measure those who don’t see the world in black and white, or make excuses for being the most prominent root of harm to others while suffering martyrdom. There is a reason why you’ve managed to persuade no one with your empty rhetoric, but you won’t be able to see it. However, you have served the important purpose of reminding those disinclined to blind faith why the world exists in color rather than black and white.
I am surprised that you consider seeking a balance between necessary oversight of the police and upholding the rule of law to be “simplistic blind faith”. I’d say it was a good demonstration of the world in colour (or even color, if you prefer ;)). As for whether I’ve convinced anyone of anything with my “empty rhetoric”, well, that’s probably for them to say, unless you’re the spokesperson of everyone that uses this website. Not sure what you mean by “being the most prominent root of harm to others while suffering martyrdom”. I don’t consider myself a martyr, and have rarely been accused of causing harm to others. Perhaps unsubstantiated accusations like that might be best saved for people you actually know, rather than people who have simply disagreed with you on your website?
Well, on that basis I think your defence of the right of the police to defend themselves from dangerous criminals might equally have been better saved for a more suitable example of the police needing to defend themselves from dangerous criminals. The concept of any sort of balance really doesn’t come into this one.
This case shows the court catching the police officer apparently lying as well as violating the right of the public not to be mistreated by the police – the victim was shot in the side/back yet the police officer claims he was stepping towards him (was he walking backwards?).
What this situation involved was an officer deciding to end a difficult situation as quickly as possible, causing serious physical damage to the victim, and then lying about it afterwards. There is no silver lining here and it shows how bad police misconduct can be.
Your self-attribution of “balance” is quite interesting, considering that you position has been that we can’t possibly grasp how difficult a cop’s job is, and should simply defer to his split second decision. Tasing people for no reason hardly qualifies as the rule of law. And despite the fact that I am the spokesman of everyone using this website, you need only read the other comments to realize how unconvincing you are to anyone lacking your blind faith.
Where you miss the boat is that, having made your point, you return to argue it in the face of wholesale disagreement. It’s always funny to watch the commenter with whom everyone else disagrees thinking that they are entitled to argue ad naseum. You’re not. If you don’t want your rejoinders to meet with further “unsubstantiated accusations,” then stop trying to push your agenda. Should you continue to try to spin yourself out of your hole, then expect to be called on it. You’re a guest here. You don’t get to make the rules.
I think that the “Just be grateful…” sentiment is highly suggestive of seeing the world in black and white. Don’t contemplate whether there are better ways of doing things, just be grateful there are police officers, without whom, your door would be broken down, your house ransacked, your wife and daughter raped and murdered. If you want people to think you’re seeking some kind of balance, try taking that one out of your script.
Nothing Richard’s had to offer thus far has been any different than the standard cop rationalization script. That he doesn’t understand why its empty rhetoric isn’t your responsibility to explain, and it just suggests that the “cops never know what’s going to happen” part offers any justification for shoot first, think later. It’s not mere the “just be grateful” nonsense, but the entirety of his position that fails.
Err… no, on several gounds. The balancing act between upholding the rule of law and necessary oversight of the police was, in this case, the court, which decided that the cop’s actions were, well, wrong, despite — or, perhaps, in part because of — his attempted justification. He did cause harm to another person — the broken teeth and all the other injuries. If it had been necessary — or even arguably useful — in protecting himself or another person, the court would have bent over backwards (as they most often do) to say that it was permissable; it didn’t.
Where I think you go wrong is in thinking that because it was a cop doing it, he was inherently “upholding the rule of law.” Stopping a seat belt law violator was, although hardly in a big way; went it went from that to tasing the guy because he thought the guy was having a “bizarre tantrum” (and, sure, the behavior was bizarre, but not harmful or threatening), he wasn’t. If he’d tried to run at the cop, it would have been appropriate to stop him with unlikely-to-be-lethal force, and, arguably, the taser would be better than going hand-to-hand with him or clubbing him.
But Bryan didn’t do anything of the sort.
It really isn’t complicated.
But you don’t know what its like to be in that position. Thankfully, you have police to protect you. Otherwise you’d be dead. Rinse. Repeat.
Exactly.
Richard: Your point that my suggestion wouldn’t be useful because the young man wasn’t mentally ill actually supports my point about why the officer should have taken one second to ask a question. Police may have trouble interpreting nonverbal behavior, and the content of the answer to the question could have enabled the officer to determine if this young man was merely upset with himself or others, angry at the officer himself, or exhibiting a thought disorder. What I am suggesting is no different than looking at a person choking and asking “Can you speak?” as a quick diagnostic tool to determine an obstructed airway.
Nor are most mental illnesses “inherently unpredictable,” as you suggest. The fact that you hold to that false belief may help explain why police may be too quick to assume danger to themselves or others when there is none.
In any event, I didn’t suggest replacing training with mental health awareness training, but spending more time on it as a way of protecting both the public and the police. Wouldn’t you want to know signs and symptoms that if you see them, you know to back off or take a particular approach to keep everyone safe?
The bottom line in this case is that you had a young man in boxer shorts (not as many places to hide a weapon) outside his car (so he can’t reach down and grab a weapon as quickly should there be one) ranting and agitated. He was not pulled over for driving erratically or aggressively but merely for a seatbelt infraction. There is no indication that anything in the content of what he was ranting was indicative of anger at police or a threat to the officer. And of course, the actual physical evidence did not support the officer’s version of events.
Having trained and worked along side a number of law enforcement personnel, I do not see them all as “the enemy.” But there are too many cases I’ve been involved in where police have over-reacted and the public has been harmed physically or in terms of their civil liberties for me to just accept your claim that we should just be grateful and shut up when police over-react or abuse their power.
That and there is no reason for the police to go around shocking people because they’re mentally ill in the first place. This was used in Bryan as an explanation for why the officer though he needed a good shocking and the court was not impressed. The people the police need to use force against are people who are actually a danger at the point where the force is applied. The taser is a self- /public-defence weapon, not a portable ECT device. The mental illness angle is a red herring here.
It doesn’t matter what else is going on in the individual’s life, police officers just don’t get to use force against the public unjustifiably and currently having or being suspected of having a mental illness is not a valid justification. You can be as mad as a hatter but if you’re not dangerous the police need not use force on you.
I don’t think it is unreasonable for citizens and the court to expect those who claim to be professional enforcers of the law to exercise professional judgement according to well thought out standards and to be trained in dealing with those who are mentally ill and know how to professionally evaluate their behavior.
What is the name of that psychological pheomenon that makes people feel compelled to argue a point with someone who they know has no desire to consider alternatives?
There was a lie from M*A*S*H, where Col. Potter was asked to explain himself, and responded that when the put the bird on his collar, they removed the bone from his head that made him feel like he had to explain himself. I’ve never forgotten that line, and never felt compelled to explain something obvious to someone who chooses not to understand.