(CN) – In a ruling that reveals the 9th Circuit’s ambivalence about the proper use of Tasers by police, the federal appeals court on Tuesday denied a San Diego man’s request for a full-court rehearing of his excessive force claim against an officer who Tasered him during a traffic stop.
Four judges voted to deny the rehearing, while three judges dissented.
It took two hearings for the original three-judge panel to decide whether Coronado Police Department officer Brian MacPherson used excessive force and whether he was eligible for qualified immunity when he shot Carl Bryan with an X26 Taser in dart mode.
MacPherson stopped Bryan in 2005 for not wearing his seatbelt, and then shot him with the Taser from about 25 feet when Bryan became noticeably upset and began yelling gibberish and hitting his thighs, wearing only his boxer shorts and tennis shoes.
Bryan fell face-first to the ground, fractured four front teeth and had to be driven to a hospital to have the Taser probes removed with a scalpel.
The panel initially upheld the district court’s denial of qualified immunity to MacPherson and ruled that the officer had used excessive force. But after MacPherson urged the panel to reconsider, citing two other Taser-related cases pending in the 9th Circuit, the panel ruled that MacPherson was, in fact, entitled to qualified immunity. It explained that the constitutionality of using the Taser in dart mode was not clearly established when MacPherson Tasered Bryan.
Bryan asked for a rehearing before the original panel or the full court. MacPherson objected, arguing that the panel had correctly applied the law of qualified immunity.
Judges Stephen Reinhardt, Kim Wardlaw, William Fletcher and Harry Pregerson voted to deny the full hearing.
“We see no conflict between the rule that an officer need not use the least intrusive means in apprehending a suspect and the concept that there are nonetheless circumstances in which an officer who does not use the least intrusive means might use a level of force that cannot be justified,” Wardlaw wrote, citing the “the growing national consensus that devices such as the X26 when used in dart mode constitute an intermediate level of force.”
In dissent, Judges Richard Tallman, Maria Consuelo Callahan and N. Randy Smith objected to the panel’s original finding that the officer had used excessive force.
“Police officers are allowed to act in reasonable self defense,” Tallman wrote. “Yet, in Bryan v. MacPherson, we deem unconstitutional the actions of a police officer who did just that.”
He noted that MacPherson “was confronted by a mostly naked man who reacted with irrational rage to being directed to stop his car for a simple seatbelt violation. He shouted ‘fuck’ over and over, repeatedly punched his steering wheel, ignored the officer’s commands to remain in his car, shouted gibberish, pummeled his own thighs, and did not retreat when the officer yelled at him to get back in his car.”
“Rather than recognize the serious potential threat to a lone officer’s safety posed by someone acting this bizarrely, the panel determines that the officer was unreasonable to think that he was in any danger,” Tallman wrote. “Further, the panel’s sweeping language deems the officer’s use of his Taser-an effective means of ensuring compliance that is less likely to cause injury to officers, suspects, and innocent bystanders than nearly any other tool at an officer’s disposal-excessive force as a matter of law.”
Tallman said the case merits a full-court rehearing, because the panel’s decision “endangers officers and citizens alike.”