Dec 282009
 December 28, 2009  Posted by  Court, Featured News

The Court of Appeals for the Ninth Circuit has issued its opinion affirming the lower court’s denial of qualified immunity to a police officer who used a taser against a motorist during a routine traffic stop. From the opinion in Bryan v. McPherson:

Early one morning in the summer of 2005, Officer Brian McPherson deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction. Bryan filed this action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment. Officer McPherson appeals the denial of his motion for summary judgment based on qualified immunity. We affirm the district court because, viewing the circumstances in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

You really have to feel for Carl Bryan on a number of levels. As the court writes, he really had a terrible day:

Carl Bryan’s California Sunday was off to a bad start. The twenty-one year old, having stayed the night with his younger brother and some cousins in Camarillo, which is in Ventura County, planned to drive his brother back to his parents’ home in Coronado, which is in San Diego County. However, Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys to Los Angeles the previous day. Wearing the t-shirt and
boxer shorts in which he had slept, Bryan rose early, traveled east with his cousins to Los Angeles, picked up his keys and returned to Camarillo to get his car and brother. He then began driving south towards his parents’ home. While traveling on the 405 highway, Bryan and his brother were stopped by a California Highway Patrolman who issued Bryan a speeding ticket. This upset him greatly. He began crying and moping, ultimately removing his t-shirt to wipe his face. Continuing south without further incident, the two finally crossed the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn for the worse. Bryan was stopped at an intersection when Officer McPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled to Bryan that he was not to proceed. Bryan immediately realized that he had mistakenly failed to buckle his seatbelt after his earlier encounter with the police. Officer McPherson
approached the passenger window and asked Bryan whether he knew why he had been stopped. Bryan, knowing full well why and becoming increasingly angry at himself, simply stared straight ahead. Officer McPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car.

There is no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes. It is also undisputed that Bryan did not verbally threaten Officer McPherson and, according to Officer McPherson, was standing twenty to twenty-five feet away and not attempting to flee. Officer McPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear Officer McPherson tell him to do so. The one material dispute concerns whether
Bryan made any movement toward the officer. Officer McPherson testified that Bryan took “one step” toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan’s upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial
contusions. Bryan’s morning ended with his arrest1 and yet another drive—this time by ambulance and to a hospital for treatment.

Bryan was charged with resisting and opposing an officer in the performance of his duties in violation of California Penal Code § 148. Bryan was tried on this violation, but following a hung jury, the state dismissed the charges.

  One Response to “Court: Cop not entitled to immunity for tasering motorist after seatbelt stop”

  1. So Everyone Knows:
    I used to live in one of the nicer homes in Coronado. I knew where the police hid to give out tickets. At that time, the one square mile city had about 50 police and virtually no crime.

    I was stopped by a Coronado policeman for speeding 65 in 55 which I wasn’t doing. He told me he had used radar but wouldn’t show it to me. I was written up for false 6 charges. I was transported to jail around 5pm where he questioned me for hours after I told him I wanted an attorney present. They had a camera on me the whole time, but when I asked for a copy of the tape, they refused. When I supeoned it, the sound was missing. He released me to walk home at around 2am. The charges included refusing to show drivers license, refusing to show insurance, refusing to show registration, resisting arrest, and some I don’t remember. At the time I had not yet had an operation to repair the seven compressed vertebrae and three ruptured discs in my back. The truth was, he made up everything.

    In his written report, he said he was trying to cuff me, got me to the ground, held me down, but I got away and ran to the car. He had to chase me. His report also said he believed I was reaching for a gun, but he didn’t have a gun to show the court.

    He had the massive muscles and broad shoulders of someone using drugs to enhance his size and strength. These drugs also make people angry.

    I was found guilty, paid a low fine and sentenced to 7 days community service.

    It seemed the judge and the police worked together.
    I asked the court to do a Pitchess motion (The court looks at officer’s record to see if he had any relevant previous complaints. The court said he was clean.

    When I filed a case with his commander, the officer sued me for defamation using a free police union attorney. His attorney later asked him to drop his case against me when he was tired of the officer’s lies.

    My car was towed from a legal parking place that night. I had to bail it out for over $300. When I asked why, I was told it was a dangerous neighborhood.

    Later records showed he didn’t have radar checked out that night and that he was previously fired for multiple abuse of authority, lying under oath and other charges.

    I tried to work with the Chief of Police. He always listened nicely and made promises. He never did anything to help, but instead acted as a buffer until the legal time limit I had to file complaints or lawsuits ran out.

    A Coronado city employee slipped me two tape recordings of his civil service hearing after he had been fired earlier. He was reinstated after a series of police officers stood behind him. These same officers came to my trial and spoke on his behalf.

    I also found where he had followed a mobile home out of Coronado along the 5fwy and up the 163 almost to the 15fwy. He stopped the occupants, handcuffed them and put the elderly couple in the back of his cruiser. He then searched the mobile home for over two hours without cause other than a vague report that someone had drugs in a mobile home. Their lawsuit was later settled by the city. Causes: No warrant. Abuse. He had put the cuffs on with such enthusiasm as to cut off circulation and sever a major nerve to one hand of the elderly gentleman. I’m sure there are more cases.

    Two years later the officer was put on permanent Medical Leave AT FULL PAY. He was about 34 years old.

    I have all the records and would gladly testify to support a similar type abuse and misrepresentation defense.

    david: [email protected]

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