Thoughts on Bryan v. McPherson, the New Ninth Circuit Taser Case

Earlier today I mentioned Bryan v. McPherson, the Ninth Circuit’s new case on police use of tasers. My earlier post was a partially tongue-in-cheek point about the possibility of Supreme Court review based on the panel and result alone, before I had even read the case. But now that I’ve read the case, I can take my tongue entirely out of my cheek and offer some thoughts on the case. Here’s what stood out to me in reading the case.

1) I was surprised that the opinion recounts the events from the perspective of the driver who was tased rather than the officer who did the tasing. Supreme Court precedent requires the lawfulness of a use of force to be judged from the officer’s perspective: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” Graham v. Connor, 490 U. S. 386, 388 (1989). Instead of telling us what the officer perceived, the opinion takes us through the plaintiff’s morning and offers us a highly sympathetic perspective on why he was acting so strangely. (“Carl Bryan’s California Sunday was off to a bad start,” the opinion begins.) From a literary perspective, I find this rather engaging. It flows nicely, keeping the reader’s attention. But it leaves the reader rather in the dark on the only legally relevant perspective of how the facts looked to the officer “on the scene” who did the tasing.

2) The second odd part of the opinion is that it hands down a general legal rule about the use of tasers based only on a limited summary judgment record. The Court notes that Officer McPherson tasered Bryan with an X26 taser that has a 1200 volt charge; that Bryan testified (presumably in his deposition) about the temporary “paralysis and intense pain throughout his body when he was tasered.”; and that because Bryan was standing on hard pavement when he was tased, his fall “shattered four of his front teeth and caused facial abrasions and swelling.” At that point, the court’s analysis sounds really fact-specific.

But then the court uses those specific facts as the basis to announce a general Fourth Amendment rule that going forward regulates the use of tasers:

The 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 non-lethal methods of force we have confronted. . . . We hold . . 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.’ . . . Although the taser used by Officer McPherson was the X26 model, our holding applies to the use of all controlled electric devices that cause similar physiological effects.”

I’m a crim guy, not a civil procedure maven. But it seems a little odd to announce a general legal rule about the constitutional regulation of a new technology — specifically, “the X26 model. . . [and] all controlled electric devices that cause similar physiological effects” — based only on a summary judgment record about what happened in one case according to the deposition testimony of one plaintiff.

3) The third part about the case that stood out to me was how the court deals with whether Bryan was posing a threat to the officer. We have to go through the opinion and assemble how it must have appeared to officer McPherson, as the opinion presents the facts from the perspective of the tased young man instead. But here’s what I was able to reconstruct about what the officer observed:

Officer McPherson is watching an intersection for seatbelt violations at 7:30 on a Sunday morning when a shirtless young man who is “crying and moping” comes up to the intersection not wearing a seatbelt. McPherson signals to the young man not to continue and asks the man if he knows why he has been stopped, but the man simply stares ahead, not acknowledging the officer. The officer tells the man to pull over to the side of the road. The man starts hitting his steering wheel and yelling expletives as he complies. After the young man has pulled over, Officer McPherson then orders the man to stay in the car. The man does not comply, however: He instead gets out of the car and begins to engage in what the court describes as a “bizarre tantrum.” The man is wearing only underwear and shoes, and he begins “yelling gibberish,” cursing, and “hitting his thighs.” At this time, the young man is about 15-20 feet away from the officer (that is, about the length of one car) McPherson then testified that the man took a step toward him, and that at that point he tased the young man. The young man was later charged with resisting an officer, but the jury could not reach a verdict.

The Ninth Circuit reconstructs these facts by explaining why the young man was so agitated (according to him, he had just gotten a ticket earlier on the same drive); why he didn’t respond when the officer asked him if he knew why he was pulled over (according to him, he was so mad at himself for committing yet another traffic violation that he was unable to say anything); as well as why he didn’t comply with the officers order to stay in the car (according to him, he didn’t hear the officer’s command). Maybe that’s accurate, but I don’t know how the officer “on the scene” is supposed to know that — and it’s his perspective, not the young man’s, that the Supreme Court says is the legally relevant one.

The Ninth Circuit then discounts the officer’s testimony that the young man took a step towards him before the tasering on the theory that this is just a dispute of a material fact that cannot be considered at the summary judgment stage. The court notes that during the young man’s deposition testimony, he was asked if he “took a step out of the car” or a “step out away from the car,” and that he testified that he did not. But I’m not sure this creates a genuine issue of material fact: Maybe I’m just missing something, but I can’t quite tell exactly where the officer was located relative to the car, and thus whether a step “out of the car” or “away from the car” is the same or different as a step “towards the officer.”

4) The fourth part that’s odd is the focus on the minor nature of the offense that led to the traffic stop. Yes, that’s relevant in a case of escape, see Garner, where the use of force has to weigh the government’s interest in making sure the suspect is arrested. But I read Scott v. Harris to say it’s not relevant if the use of force is responding to a potential danger to the officer that became apparent after the stop. See fn 9 of Scott. So I would think under Scott that the issue is danger to the officer regardless of the seriousness (or lack of seriousness) of the offense that led to the stop.

5) Finally,the qualified immunity analysis was fairly sparse. The basic idea was that given the facts and the basic legal standard, a reasonable officer in 2005 should have know that a taser was excessive force in the circumstances even though there were no particular Ninth Circuit opinions on the books saying so or that were particularly similar to the facts of this case. The qualified immunity analysis is always hard to gauge given the difficulty of mastering the circuit court precedents and the judgment required to pick the right level of generality. So I won’t venture a guess as to whether the court was right or wrong on that point — especially in light of the difficulty of understanding the facts, which are usually the key to these cases. Still, it stood out that this was an unusually general analysis.