Taser Cases in the Ninth Circuit

TASER CASES GONE WILD.

In the Ninth Circuit Court of Appeals, taser cases never cease to surprise the legal community. What was obviously unreasonable force one day, is acceptable force the next. The trilogy of Ninth Circuit Court of Appeals taser cases shows just how far politics has infected what is supposed to be an issue of fact; whether the force used by a police officer is a “reasonable seizure of a person” within the meaning of the Fourth Amendment.

In the first case, Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2009), the Ninth Circuit Court of Appeals held that using a taser on a man in his underwear who was 20 feet away and merely verbally going-off on the police officers, was so obviously unlawful, that no reasonably well trained police officer could have believed that it was constitutional to tase the man.

Two weeks later, in Mattos v. Agarano, Slip Op., No. 08-15567, at 885 (9th Cir. Jan. 12, 2010), another three judge panel of the Ninth Circuit Court of Appeals held that the police tasing of a domestic violence victim did not constitute unreasonable force, since the police were trying to grab the her husband, and she happened to just be between the man and the police. The Mattos court held that their decision didn’t conflict with the Bryan v. McPherson (9th Circuit 12/28/09), because the use of the taser in that case was so obviously unreasonable, that the defendant police officers would not be entitled to qualified immunity from suit.

Thereafter, two and one-half months later in Brooks v. City of Seattle (9th Cir. March 26, 2010), the Ninth Circuit held that it didn’t constitute the use of unreasonable force for a police officer to tase a pregnant woman three times in her neck to get her out of her car.

Having now painted themselves into a corner, the Ninth Circuit decided to grant “en banc review” of all three 2010 taser cases; one en banc panel of judges decided the rehearings of the Mattos v. Argarano and Brooks v. City of Seattle cases, and one en banc panel reheard the Bryan case. The results were almost as confounding, as were the original wrongly decided decisions. In the Mattos and Brooks cases, the Ninth Circuit held that although the defendant police officers did violate the plaintiffs’ Constitutional right to be free from the use of unreasonable force upon their persons (i.e. the tasers), that the officers were nonetheless entitled to qualified immunity from suit, because the law on the use of tasers was not clearly established at the time of the Constitutional violations:

“We now hold that, although Plaintiffs in both cases have alleged constitutional violations, the officer Defendants are entitled to qualified immunity on Plaintiffs 1983 claims because the law was not clearly established at the time of the incidents.”

In the rehearing on the Bryan v. McPherson case, the Ninth Circuit reversed themselves, and awarded qualified immunity to the defendant officers; also because the law regarding the use of tasers was not clearly established at the time of the Constitutional violations:

“Officer MacPherson appeals the denial of his motion for summary judgment based on qualified immunity. We affirm the district court in part because, viewing the circumstances in the light most favorable to Bryan, Officer MacPhersons use of the taser was unconstitutionally excessive. However, we reverse in part because the violation of Bryans constitutional rights was not clearly established at the time that Officer MacPherson fired his taser at Bryan on July 24, 2005.”

So, what is the lesson of the “Taser Trilogy”; everyone is full of it; everyone.

Jerry L. Steering, Esq.