By Michael Brave, President of LAAW International, Incorporated, Scottsdale, Arizona; and Mildred K. O’Linn, Manning & Marder, Kass, Ellrod, Ramirez, Los Angeles, California
n December 2009 the United States Court of Appeals for the Ninth Circuit decided Bryan v. McPherson1 decision that has inappropriately led some people to believe that the law regarding the use of electronic control devices (ECDs) has dramatically changed. Whether or not this is true in Ninth Circuit states2 or other states, remains to be seen.3 However, law enforcement must be familiar with the case as the court ruled that in order to lawfully deploy an ECD “the objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public.”4
The case was decided based on a motion for summary judgment, thus the court was required to use a “perceptual lens” that presumes that the plaintiff's facts are true. According to the plaintiff, Bryan, Officer McPherson stopped him for a seat belt violation. Upon being stopped, Bryan, who was 21 years old, did not respond to the officer’s questions, hit the steering wheel, and yelled expletives at himself. Although Officer McPherson ordered him to stay in the car, he claimed that he did not hear that order and got out. Standing outside the car, Bryan, angry at himself, dressed only in boxer shorts and tennis shoes, was agitated, was yelling gibberish, and was hitting his thighs.
Bryan was standing 20 to 25 feet from the officer, was not attempting to flee, and did not take any step toward the officer. While Bryan was facing away from the officer, the officer, without warning, fired a Taser X26 ECD at Bryan, hitting and immobilizing him and causing him to fall face first to the pavement, fracturing four teeth and causing facial contusions. One ECD probe in Bryan’s arm required surgical removal in the emergency room.
The court ruled that Officer McPherson’s use of the ECD under these circumstances was not a reasonable use of force under Graham v. Connor.5 The court followed the familiar Fourth Amendment constitutional standard, as clarified by Chew v. Gates,6 in determining whether an officer’s use of force in seizing a person is excessive and evaluated the government’s interest in the use of force by examining the core factors: (1) whether the suspect poses an immediate threat to the safety of the officers or others; (2) whether the suspect is actively resisting arrest; (3) the severity of the crime at issue; and (4) whether the suspect is attempting to evade arrest by flight.
The court further considered the following additional force factors: (1) the plaintiff’s mental status and behaviors; (2) the officer’s failure to consider less-intrusive tactics and force alternatives; and (3) the officer’s failure to give a warning of impending force to attempt to gain volitional compliance. The court also made a distinction between passive and active resistance in excessive force cases and distinguished the facts in the 11th Circuit opinion in Draper v. Reynolds,7 which held that a Taser ECD was not excessive force when used during the traffic arrest of an aggressive, argumentative individual.
The court concluded that Bryan did not objectively or reasonably pose an immediate threat of harm to the officer, himself, or others, nor did he evade or resist at the time the ECD was used. More specifically, from the court’s perspective, interpreting the plaintiff’s facts, the court concluded that Bryan
Based on these facts, the court found that the officer had used an “intermediate” level of force that was not objectively reasonable under the circumstances. The court stated:
We recognize the important role controlled electric devices like the [Taser X26 ECD] can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by ‘a strong government interest [that] compels the employment of such force.’ (emphasis added)9
In applying prior Ninth Circuit case law, the court found that while the Taser X26 ECD is a “non-lethal” use of force, it is an “intermediate or medium, though not insignificant,” use of force due to the incapacitation and pain it causes and the risk of secondary injuries from falls. The court stated that “[t]he physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other nonlethal methods of force we have confronted.”10
The officer asserted that the ECD use was justified because Bryan may have been mentally ill. The court stated that if that were true, the officer “should have made greater effort to take control of the situation through less intrusive means.” The court explained that it has refused to create “two tracks of excessive force analysis, one for the mentally ill and one for serious criminals,” However, the court believes that “acting out” by “emotionally disturbed” individuals diminishes the level of force that is necessary and that such individuals are “in need of a doctor, not a jail cell” and that, “in the usual case – where such an individual is neither a threat to himself nor to anyone else—the government’s interest in deploying force to detain him is not as substantial as its interest in deploying that force to apprehend a dangerous criminal.”11
Therefore, in accordance with both preexisting law and the Bryan decision, the use of intermediate force would be least justified for a nonviolent misdemeanor suspect who poses little or no threat of harm, resistance or evasion, such as the plaintiff in Bryan.12
As always, context is critical in determining the justification of force, and this case is no exception. Under the specific facts of Bryan, the use of an ECD at that juncture in the officer’s interaction with Bryan was found to be unjustified. Significantly, the court cited several established protocols regarding the use of ECDs that were not followed by the officer. For instance, in a situation where the suspect was not an immediate threat or attempting to flee, the court strongly considered the officer’s failure to give a preemptive warning to Bryan to gain volitional compliance, along with the failure to attempt to use less-intrusive means to engage compliance in determining that the immediate jump to using the ECD was not justified. The decision in Bryan is in line with existing training protocols and established law regarding the proper use of ECDs.
Ultimately, Bryan serves as a significant and important reminder of multiple points. First, ECDs cause pain and are not risk free, and officers need to consider the pain element and the risk of secondary injuries from incapacitation and falls in determining when and how to deploy an ECD. Second, ECDs are an “intermediate or medium, though not insignificant” use of force and every trigger pull must be justified as a separate use of force. Third, as in any Fourth Amendment force analysis, an officer must consider the totality of the circumstances, including whether the suspect poses an immediate threat to the safety of the officers or others; whether he is actively resisting arrest; whether the circumstances are tense, uncertain, and rapidly evolving; the severity of the crime at issue; and whether he is attempting to evade seizure by flight. Fourth, especially when a suspect is not an immediate threat or a flight risk, when officers are attempting to use force to gain compliance, officers need to warn of the impending use of an ECD, assess whether their warnings are clearly heard and understood, and give a reasonable time for volitional compliance. Fifth, there should be regularly scheduled, refresher or remedial training for officers using ECDs. Officers should be reminded to engage suspects in a manner consistent with their department’s force protocols, including the consideration of less than intermediate uses of force where appropriate.
This column is written by members of the Legal Officers Section. Readers are strongly encouraged to read, analyze, and understand the cases cited herein, and confer with their legal advisors. This synopsis does not constitute legal advice or the practice of law and does not address every aspect of the Bryan case. ■
1Bryan v. McPherson, ___ F.3d ___, 2009 WL 5064477 (9th Cir. 2009).
2The Ninth Circuit U.S. Court of Appeals includes within its jurisdiction Alaska, Arizona, California, the Island of Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
3On January 12, 2010, the Ninth Circuit Court of Appeals decided Mattos v. Agarano, ___ F.3d ___, 2010 WL 92478 (9th Cir. 2010) in which it ruled that the use of an ECD on the interfering spouse (not the intoxicated suspect) under circumstances where officers responded to a domestic violence call, were in close quarters confronted by an intoxicated suspect whose spouse was interfering with the arrest, including by touching the officer was not a constitutional violation, even though “the Taser stun gun [is] a serious intrusion in to the core interests protected by the Fourth Amendment…” This court distinguished these facts from those presented in Bryan and demonstrates that these cases remain highly fact-specific.
4Bryan, 2009 WL 5064477 at *4.
5Graham v. Connor, 490 U.S. 386 (1989).
6Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.1994).
7Draper v. Reynolds, 278 Ga. App. 401, 629 S.E.2d 476 (Ga. App. March 23, 2006), cert. denied (September 8, 2006).
8Compare Buckley v. Haddock, 292 Fed. Appx.791 (11th Cir. 2008). Use of an ECD against a noncompliant suspect was reasonable because (1) the incident occurred at night on the side of a highway with considerable passing traffic; (2) the deputy could not complete the arrest because the suspect was resisting; and (3) the deputy resorted to the use of the Taser only after trying to persuade the suspect to comply, repeatedly warning him that an ECD would be deployed, and giving him time to comply.
9Bryan, 2009 WL 5064477.
10“The X26 thus intrudes upon the victim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not. While pepper spray causes an intense pain and acts upon the target’s physiology, the effects of the X26 are not limited to the target’s eyes or respiratory system. Unlike the police ‘nonchakus’ we evaluated in Forrester v. City of San Diego, 25 F.3d 804 (9th Cir.1994), the pain delivered by the X26 is far more intense and is not localized, external, gradual, or within the victim’s control. In light of these facts, we agree with the Fourth and Eighth Circuits’ characterization of a taser shot as a ‘painful and frightening blow.’ We therefore conclude that tasers like the X26 constitute an ‘intermediate or medium, though not insignificant, quantum of force.’” (internal citations omitted).
11Bryan, 2009 WL 5064477 at *10–11.
12See also Landis v. Baker, 297 Fed. Appx. 453 (6th Cir. 2008) (unconstitutional to use ECD against a person not resisting, not threatening anyone’s safety, or not attempting to evade arrest by flight).