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Tuesday, December 29, 2009

A landmark decision

December 29, 2009
Hudson Sangree, Modesto Bee

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

Three men died in the Stanislaus County men's jail this year after they were shot with Tasers, though coroner's reports have suggested other factors caused their deaths. Earlier this month, there was the death of Paul Martinez Jr., an inmate shot with a stun gun while officers said he was resisting them at the Roseville City Jail.

As lawsuits have been filed against police and Taser International, the nation's appellate courts have been trying to define what constitutes appropriate Taser use.

The San Diego case is the latest ruling to address the issue.

The court recounted the facts of the case: In the summer of 2005, Carl Bryan, 21, was pulled over for a seat belt violation and did not follow an officer's order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he'd slept in because a woman had taken his keys, the court said.

During his second traffic stop in Coronado, he got out of the car. He was "agitated and yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes" but did not threaten the officer verbally or physically, the judges wrote.

That's when Coronado officer Brian McPherson, who was standing about 20 feet away watching Bryan's "bizarre tantrum," fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado for excessive force in violation of his Fourth Amendment rights.

The officer moved to dismiss the claim, but a federal trial judge ruled in Bryan's favor.

A three-judge panel of the 9th Circuit affirmed the trial judge's ruling Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan were mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use.

He said after Monday's decision that the courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

"In an era where everybody understands 'don't Tase me bro,' courts are going to look more closely at the use of Tasers, and they're going to try to deter the promiscuous overuse of that tool," he said.

That's especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented a troubled Woodland man who died under police restraint after being struck multiple times with Tasers. The case settled against the city and its officers in June for $300,000.

Law enforcement authorities said they don't expect Monday's ruling to prompt much change.

"We're satisfied with the deployment policy we have in place," Stanislaus County Sheriff Adam Christianson said.

His department's Taser policy advises deputies not to shock suspects who are standing in such a way that a fall would hurt them further, and it tells deputies to warn a subject before firing if possible, both steps the officer in the Coronado case did not take.

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