Taser ruling sets standards for police, claims

SF Chronicle



Police need reasons to believe a suspect is dangerous before firing a
Taser and can't use their stun gun simply because the person is
disobeying orders or acting erratically, a federal appeals court in San
Francisco ruled Monday.

The decision by the Ninth U.S. Circuit Court of Appeals sets judicial
standards for police and for people who claim they were victims of
excessive force after police hit them with a Taser dart.

"The objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public," Judge Kim Wardlaw said
in the 3-0 ruling.

Though stun guns may offer a valuable, nonlethal alternative to deadly
force in defusing dangerous situations, Wardlaw said, they inflict a
"painful and frightening blow" and must be used only when substantial
force is necessary and other options are unavailable.

"It's a significant use of force, not like cuffing someone or using pain
compliance or pepper spray," said Eugene Iredale, a lawyer for a San
Diego-area man who was Tasered by a police officer who had stopped him
for not wearing a seat belt. "It's not to be used promiscuously or lightly."

The ruling allows Iredale's client Carl Bryan to go to trial in his
damage suit against Brian McPherson, a policeman in Bryan's hometown of
Coronado. McPherson's lawyers were unavailable for comment.

Tasers enjoy wide support among law enforcement officials, including
George Gascón, San Francisco's new police chief, who is considering
recommending the devices for his officers and has ordered a study of
past police shootings to see whether stun guns would have made a
difference. On the other hand, Amnesty International says 334 people
died in the United States from 2001 to August 2008 after being hit by
Tasers.

McPherson stopped Bryan's car on a summer morning in 2005 as the
21-year-old was driving home. Wearing only boxer shorts and tennis
shoes, and upset at himself for forgetting to fasten his seat belt,
Bryan swore at himself as he stepped out of the car, and was shouting
gibberish and banging his thighs as he stood 15 to 25 feet away from the
officer, the court said.

McPherson said Bryan then took one step toward him. Bryan denied it, and
the court said the evidence indicated that Bryan was facing away from
McPherson when the officer fired his Taser. Bryan fell on his face,
breaking four front teeth, and needed a hospital visit to remove the
electronic dart, the court said. He was charged with misdemeanors of
resisting and opposing an officer, but prosecutors dropped the charges
after the jury deadlocked.

Upholding a judge's refusal to dismiss Bryan's civil suit, the appeals
court said a jury should decide whether the officer had used too much
force to subdue someone who was not threatening him.

Bryan was clearly unarmed and did not challenge McPherson verbally or
make any menacing gestures, Wardlaw said. She said McPherson's claim
that Bryan had ignored an order to stay in the car - an order that Bryan
denied hearing - would not justify a Taser shooting, nor would the
officer's concern that Bryan might be mentally disturbed.

Other factors that could support a claim of excessive force, Wardlaw
said, were the minor nature of the traffic offense, McPherson's failure
to warn Bryan that he might be Tasered and the fact that other officers
were on the way to the scene.

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Kudos to the court.