9th Circuit Says Police Officer Can Be Sued for Tasing

9th Circuit: Cop Can Be Sued for Tasing

Mike McKee

The Recorder

Carl Bryan probably thought things couldn't possibly get worse one summer day in 2005: His car keys had been accidentally taken by a relative's girlfriend, he was cited for speeding after driving across town to retrieve them, and then later got pulled over for not having his seat belt secured.

After all that, Bryan got tasered while having an emotional meltdown over the seat belt infraction, fell flat on his face and broke four teeth.

Bryan got some good news Monday, though, when the 9th U.S. Circuit Court of Appeals ruled that Coronado Police Officer Brian McPherson may have used too much force to subdue Bryan and can be sued for damages.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim Wardlaw wrote in Bryan v. McPherson , 09 C.D.O.S. 15248. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Wardlaw, joined by Judges Harry Pregerson and Stephen Reinhardt, also held -- in what appears to be a case of first impression nationwide -- that the use of tasers and similar devices must be justified by a strong government interest that "compels" the employment of such force.

"While Bryan's behavior created something of an unusual situation," Wardlaw wrote, "this does not, by itself, justify the use of significant force."

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."

At the very least, the court added, McPherson should have given Bryan a warning that he might be tasered.

The officer's attorney, Steven Boehmer, a partner with El Cajon's McDougal, Love, Eckis, Smith, Boehmer & Foley, didn't return a call seeking comment.

San Diego lawyer Eugene Iredale, who represented Bryan, said the ruling is "probably the leading case in the nation on the legal standards concerning the use of the taser.

"There are a couple of other circuits which have addressed the issues," he added, "but it is fair to say this case has dealt with it in the most comprehensive and analytical way."