A Sunday morning traffic stop that ended with a tasering – I would rather have a cup of coffee for breakfast. But that’s just how 21-year-old Carl Bryan started his day early one summer morning in 2005. And according to the Ninth Circuit Court of Appeals, the Coronado police officer who zapped the young man with a Taser during that stop – for a seatbelt infraction – is not entitled to qualified immunity.
A three-judge panel of the federal appeals court ruled Monday that the intermediate level of force used by Officer Brian McPherson on Carl Bryan was excessive under the circumstances. The ruling upholds a decision by San Diego-based U.S. District Court Judge Larry Burns that allows Bryan to pursue damages against McPherson at trial under 42 U.S.C. § 1983.
Judge Kim McLane Wardlaw penned the decision so eloquently here are her version of the facts:
“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 arrest and yet another drive—this time by ambulance and to a hospital for treatment.”
Bryn filed a federal lawsuit against Officer McPherson, the Coronado Police Department, its police chief and the city of Coronado, claiming excessive force and intentional infliction of emotional distress. The district court dismissed the city of Coronado and the police department, but found that McPherson was not entitled to qualified immunity. The district court further concluded that a reasonable jury could find that Bryan “presented no immediate danger to (McPherson) and no use of force was necessary.”
Judge Wardlaw said it should have been apparent that Bryan was unarmed because he was dressed only in boxer shorts and tennis shoes and never threatened the officer. And from a common sense perspective, it seems excessive to taser a guy standing in his boxers 25 feet away, unarmed, and not trying to flee or attack.