(CN) – An officer who Tasered an upset man who was stopped for not wearing his seatbelt won his bid for immunity on appeal because the constitutional violation of the victim’s rights “was not clearly established at the time,” the 9th Circuit ruled.
Carl Bryan, 21, was Tasered by Officer Brian McPherson of the Coronado Police Department in San Diego County after being stopped for not wearing his seatbelt. Bryan, who said he had a long day of driving and had already been pulled over once for speeding, began hitting his steering wheel and himself, and yelling at himself.
McPherson ordered Bryan to get out of his car.
The parties agreed that Bryan was “agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes,” the ruling says.
McPherson, who was standing 15 to 25 feet away, claimed that Bryan took “one step” toward him, though evidence indicated that Bryan had his back to the officer.
Without any warning, McPherson shot Bryan with his Taser. Bryan fell face-first onto the ground, fractured four of his front teeth and had to be driven to a hospital to have the Taser probes removed with a scalpel.
He sued McPherson, claiming the officer used excessive force in violation of his Fourth Amendment rights.
The district court rejected McPherson’s assertion of qualified immunity, and the 9th Circuit affirmed on first appeal, ruling that Bryan was not a threat to McPherson, and that the officer’s use of a Taser was unconstitutional.
“The circumstances here show that Officer McPherson was confronted by, at most, a disturbed and upset young man, not an immediately threatening one,” Judge Wardlaw wrote in the panel’s first ruling.
On a second appeal, the same three-judge panel changed its tune, ruling that “a reasonable officer confronting the circumstances faced by Officer MacPherson … could have made a reasonable mistake of law in believing the use of the Taser was reasonable.”
A Taser uses compressed nitrogen to shoot a pair of probes tipped with stainless steel barbs toward a target at a rate of 160 feet-per-second. It delivers a 1,200-volt, low-ampere charge into the muscles that overrides the central nervous system, causing temporary paralysis.