Constitutional law - Ninth Circuit characterizes taser as 'intermediate' level of force requiring justification of strong governmental interest.

• Author: Baxter, George G., IV

Constitutional Law--Ninth Circuit Characterizes Taser as "Intermediate" Level of Force Requiring Justification of Strong Governmental Interest--Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010)

When analyzing a claim under 42 U.S.C. [section] 1983 that a law enforcement officer used excessive force during the course of a seizure, courts typically use the objective reasonableness standard of the Fourth amendment. (1) In Bryan v. MacPherson, (2) the Court of Appeals for the Ninth Circuit considered whether a police officer's use of an electronic control device (ECD)--commonly known as a Taser--during a traffic stop for failure to use a seatbelt violated the plaintiff's Fourth Amendment rights. (3) Because of the significant level of force delivered through Tasers like the one the officer used in this case, the court determined that ECDs may only be used when justified by a strong governmental interest. (4) As the officer had no reason to suspect the plaintiff was a dangerous felon or presented an immediate threat to the officer or others, the Ninth Circuit held that the use of an ECD violated the plaintiff's right to be free from excessive force. (5)

Carl Bryan left Camarillo, California early during the morning of July 24, 2005--clad only in the boxer shorts and tee shirt in which he slept the previous night--and drove south towards Coronado, California with his brother. (6) After being stopped by a California highway patrolman and issued a citation for speeding, the twenty-one-year-old Bryan became so upset that he began to cry, at which point he removed his shirt to wipe away the tears and apparently forgot to buckle his seatbelt when he embarked on the remainder of his journey. (7) A short time later, Officer MacPherson, positioned at an intersection to monitor motorists' compliance with seatbelt laws, stopped the now-shirtless Bryan because he was not wearing his seatbelt. (8) After pulling over, an agitated Bryan stepped out of his car and, standing between fifteen and twenty-five feet away from officer MacPherson, began hitting his own thighs in frustration and speaking "gibberish." (9) It is unclear whether Bryan stepped toward Officer MacPherson before officer MacPherson--without warning--shot Bryan with his Taser X26 model, injuring him. (10)

Based on this encounter, Bryan sued officer MacPherson under [section] 1983 for using excessive force in violation of the Fourth Amendment. (11) Upon motion for summary judgment, the district court declined to grant officer MacPherson qualified immunity, leaving him subject to liability arising from Bryan's [section] 1983 claim. (12) On Officer MacPherson's appeal from the denial of summary judgment, the Ninth Circuit held that MacPherson's use of the ECD was excessive because it was not justified by a strong governmental interest due to the fact that Bryan was clearly unarmed and not resisting, was not a flight risk, and was positioned far enough away from officer MacPherson and others that he did not pose an immediate danger to anyone. (13) on officer's MacPherson's appeal on the basis of qualified immunity, however, the court reversed the district court's denial of summary judgment because the law regarding proper Taser use was not clearly established at the time of the challenged conduct. (14)

In 1871, Congress passed [section] 1983 to provide a federal civil remedy for constitutional violations by state officials because its members reasoned that state governments often refused to enforce existing laws that theoretically provided the same substantive protections. (15) Nevertheless, because [section] 1983 lacked a clear culpability standard for various types of violations--including the use of excessive force--many courts initially applied the due process standard the Court of Appeals for the Second Circuit set out in Johnson v. Glick. (16) Twelve years after Glick, the U.S. Supreme Court attempted to provide clarity in the landmark case of Tennessee v. Garner, (17) in which the Court held that the Fourth Amendment's objective reasonableness standard applied to the use of deadly force against a fleeing felon because such conduct by law enforcement officials clearly constitutes a seizure under the Fourth Amendment. (18) Despite Garner's instruction to the contrary, however, many courts still applied the due process standard to all excessive force claims, including those arising from seizures. (19)

In the 1989 case of Graham v. Connor, (20) the U.S. Supreme Court made explicit what it thought was implicit in Garner--namely, that all [section] 1983 claims must identify the "specific constitutional right allegedly infringed" by the challenged conduct, whereupon the court will apply the relevant standard, rather than simply apply a generic due process standard to all claims. (21) Additionally, for [section] 1983 claims involving excessive use of force, the Graham Court set out a highly fact-sensitive balancing test to determine whether a use of force was objectively reasonable. (22) The test weighs the level of intrusion on the individual's Fourth Amendment interests caused by the use of force against the governmental interests in using that level of force. (23) Critically, courts evaluate the use of force from the perspective of a reasonable officer in the actual officer's situation--not from the perspective of an officer with the benefit of the "20/20 vision of hindsight" or the perspective of the victim. (24) The Court stressed that the reasonableness standard of the Fourth Amendment requires "careful attention" to the circumstances of each case, including, but not limited to: considerations of the severity of the underlying crime giving rise to the use of force; whether the suspect posed an "immediate" threat to the officer or others; and whether the suspect was "actively" resisting or attempting to flee arrest. (25)

The development of ECDs and their widespread use by law enforcement agencies required courts to apply the Graham test to a type of instrument and force that law enforcement officials did not use until many years after Graham was decided. (26) Many [section] 1983 claims of excessive force resulted from the widespread use of Tasers by law enforcement officials, and courts struggled to consistently apply Graham's fact-sensitive balancing test to the myriad of circumstances in which law enforcement officials use Tasers. (27) Although Tasering a suspect who "actively" or aggressively resists law enforcement officials has typically been held constitutional, the law is less clear regarding the constitutionality of Tasering suspects who merely resist "passively" by refusing to respond to or follow police officers' verbal commands. (28)

In Bryan, the Ninth Circuit considered whether the use of a Taser on a passively resisting suspect constituted excessive force under the Fourth Amendment's objective reasonableness standard. (29) Guided by Graham, the court first examined the intrusiveness of the force. (30) Although it acknowledged ECDs are "non-lethal" weapons, the court held that Tasers constitute a significant or "intermediate" level of force because of the power of their electrical charge and the "high levels of pain and foreseeable risk of physical injury" their use causes. (31) The Bryan court considered the extent of injuries in its "intrusiveness" analysis, determining the use of the Taser X26 model was intrusive despite producing merely temporary pain because that pain was extensive and intense, and carried with it a significant risk of serious injury. (32) Because their intrusion on a victim's "physiological functions" is much greater than that of other types of non-lethal force, the court held that ECDs may only be used in situations where a governmental interest exists that is strong enough to "compel" their use. (33)

The Ninth Circuit then evaluated the government's interest in the use of force against Bryan, viewing the facts in the light most favorable to Bryan. (34) Despite Bryan's "unusual" and "erratic" behavior, the court held that he did not pose an immediate threat to officer MacPherson or others because he was clearly unarmed and never made any verbal or physical threats. (35) The court noted that the minor offenses Bryan committed were not inherently violent. (36) The court also determined that Bryan's conduct--when considered from the view of a reasonable officer on the scene--was "at most" passive resistance because Bryan was not aggressive and the only order he failed to comply with was the order he contended he did not hear. (37) Additionally, the court held that officer MacPherson did not properly consider "less intrusive" alternatives to the use of an ECD and failed to warn Bryan about the impending Tasering, even though it was feasible for officer MacPherson to have done so prior to firing his ECD. (38) In light of these circumstances, the court held that Officer MacPherson's use of the Taser X26 model was excessive under the Fourth Amendment's objective reasonableness standard. (39)

In Bryan v. MacPherson, the Ninth Circuit contradicted Graham's requirement to view the facts from the perspective of a reasonable officer at the scene when evaluating the governmental interest in the use of force, and instead improperly analyzed the case largely from the perspective of the Tasered driver. (40) In particular, the way the court addressed the question of whether Bryan posed an immediate threat to Officer MacPherson was dismissive of how Bryan's conduct likely would have appeared to a reasonable officer acting in a tense situation without the benefit of hindsight or any knowledge of the events giving rise to Bryan's agitated state. (41) Although Bryan claimed he did not hear Officer MacPherson's commands to remain in the car, in evaluating this disputed material fact, the Bryan court improperly discounted the reasonableness of Officer MacPherson's belief that Bryan did hear those commands yet chose to actively disobey...