630 F.3d 805 (9th Cir. 2010), 08-55622, Bryan v. MacPherson

Docket Nº:08-55622.
Citation:630 F.3d 805
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:Carl BRYAN, Plaintiff-Appellee, v. Brian MacPHERSON; Coronado Police Department; City of Coronado, a municipal corporation, Defendants-Appellants.
Attorney:Steven E. Boehmer, David Stotland, Carrie L. Mitchell of McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon, CA, for the appellant. Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G. Iredale, San Diego, CA, for the appellee.
Judge Panel:Before: HARRY PREGERSON, STEPHEN REINHARDT and KIM McLANE WARDLAW, Circuit Judges. Order; Concurrence to Order by Judge WARDLAW; Dissent to Order by Judge TALLMAN; Opinion by Judge WARDLAW. WARDLAW, Circuit Judge, joined by Judges PREGERSON, REINHARDT, and W. FLETCHER, concurring in the denial of...
Case Date:November 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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630 F.3d 805 (9th Cir. 2010)

Carl BRYAN, Plaintiff-Appellee,

v.

Brian MacPHERSON; Coronado Police Department; City of Coronado, a municipal corporation, Defendants-Appellants.

No. 08-55622.

United States Court of Appeals, Ninth Circuit.

November 30, 2010

Argued and Submitted Oct. 9, 2009.

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Steven E. Boehmer, David Stotland, Carrie L. Mitchell of McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon, CA, for the appellant.

Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G. Iredale, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:06-CV-01487-LAB-CAB.

Before: HARRY PREGERSON, STEPHEN REINHARDT and KIM McLANE WARDLAW, Circuit Judges.

Order; Concurrence to Order by Judge WARDLAW; Dissent to Order by Judge TALLMAN; Opinion by Judge WARDLAW.

ORDER

The opinion filed on June 18, 2010, and reported at 608 F.3d 614, is hereby withdrawn. The clerk shall file the attached superseding opinion.

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Having considered the opinion as amended, the panel has unanimously voted to deny the Petition for Panel Rehearing and the Petition for Rehearing En Banc.

The full court was advised of the Petition for Rehearing En Banc and a judge of the court requested a vote on whether to rehear the case en banc. The en banc call failed to receive a majority of votes by active judges in favor of en banc consideration. Fed. R.App. P. 35.

The Petition for Panel Rehearing and the Petition for Rehearing En Banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

WARDLAW, Circuit Judge, joined by Judges PREGERSON, REINHARDT, and W. FLETCHER, concurring in the denial of rehearing en banc:

The panel paid the " require[d] careful attention to the facts and circumstances of [this] case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight," Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer. See Bryan v. MacPherson, 608 F.3d 614, 618 (9th Cir.2010). At the heart of our holding was the conclusion that the X26 taser and similar devices, when used in dart mode, constitute an " intermediate, significant level of force that must be justified by the governmental interest involved." Id. at 622. We nonetheless concluded that Officer MacPherson was entitled to qualified immunity from Bryan's 42 U.S.C. § 1983 suit, because this principle was not clearly established in 2005 when Officer MacPherson deployed his dart gun on Bryan. See id. at 629. A majority of the active judges of our court voted against rehearing en banc, and I concur.

The opinion accurately recites the factual record and we need not repeat it here. See id. at 618-19. Although the panel's original opinion affirmed the district court's denial of qualified immunity, Officer MacPherson and amici curiae League of California Cities and California State Association of Counties suggested we reconsider given that two other taser cases arising from incidents that occurred about the same time as Bryan's tasing were pending in our circuit. We did so, and, although we did not alter our holding that Officer MacPherson used excessive force on Bryan, we concluded that, based on " recent statements [in other circuit opinions] regarding the use of tasers, and the dearth of prior authority," a " reasonable officer in Officer MacPherson's position could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances Officer MacPherson confronted in July 2005." Id. at 629. After the panel filed its amended opinion, only Bryan petitioned for panel rehearing or rehearing en banc. Officer MacPherson opposed Bryan's petition, arguing that the panel had correctly applied the law of qualified immunity. In other words, our current decision is a denial of Bryan's-and not Officer MacPherson's-petition for rehearing en banc.

After mischaracterizing the record, misstating our holding, and attacking our opinion for language it does not in fact

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contain, Judge Tallman ultimately bases his dissent to our decision against rehearing en banc upon the largely unsupported and nonsensical belief that use of a device designed to fire a dart up to one-half inch into bare skin and deliver a 1200 volt charge somehow does not constitute an intermediate use of force. He cites no intra-circuit conflict created by our decision, but instead asserts that we erred by quoting binding circuit precedent. He cites no inter-circuit conflict created by our decision, but instead faults us for joining the growing national judicial consensus that tasers in dart mode constitute an intermediate level of force. More strikingly, he fails to tell the public that our court has simultaneously chosen to rehear the two other taser cases en banc-not because those opinions disagreed with the intermediate-level-of-force conclusion in Bryan, for they did not -but instead to reconsider how best to balance " the nature and quality of the intrusion on the individual's Fourth Amendment interests" against " the countervailing governmental interests at stake" as required by Graham, 490 U.S. at 396, 109 S.Ct. 1865. See Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir.2010), rehr'g en banc granted by 623 F.3d 911 (9th Cir.2010); Mattos v. Agarano, 590 F.3d 1082 (9th Cir.2010), rehr'g en banc granted by 625 F.3d 1132 (9th Cir.2010).1

I.

Our conclusion that use of the X26 taser and similar devices in dart mode constitutes an " intermediate, significant level of force that must be justified by the governmental interest involved," Bryan, 608 F.3d at 622, falls well within the national mainstream of the decisions which have examined the nature and quality of the intrusion posed by tasers. Most recently, the Tenth Circuit (Judges Kelly, Brorby, and Gorsuch) concluded that the use of a taser gun like the one at issue here " against a non-violent misdemeanant who appeared to pose no threat and who was given no warning" was unconstitutional excessive force under Graham, for which the officer did not enjoy qualified immunity. Cavanaugh v. Woods Cross City, 625 F.3d 661, 663-65 (10th Cir.2010). Citing our decision in Bryan, Judge Kelly wrote

Although Tasers may not constitute deadly force, their use unquestionably " seizes" the victim in an abrupt and violent manner. Accordingly, the " nature and quality" of the intrusion into the interests of Ms. Cavanaugh protected by the Fourth Amendment was quite severe.

Id. at *3. This follows upon numerous decisions agreeing that the use of tasers is at least an intermediate, if nonlethal, level of

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force. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 903 (11th Cir.2009) (recognizing that the taser is " designed to cause significant, uncontrollable muscle contractions" ); Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir.2008) (rejecting the contention that a taser constitutes a minor or de minimus level of force); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993) (" We find defendants' attempt, on appeal, to minimize the pain of being shot with a stun gun ... to be completely baseless. The defendants' own testimony reveals that a stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless." ); Cavanaugh v. Woods Cross City, 2009 WL 4981591, at *5 (D.Utah Dec.14, 2009) (" The Graham factors in this case clearly cautioned against a significant use of force, such as the deployment of a taser." ); Crowell v. Kirkpatrick, 667 F.Supp.2d 391, 408 (D.Vt.2009) (recognizing that tasers have " been described by other courts as ‘ moderate, non-lethal force’ " and cause " acute-even severe-physical pain" ); Orsak v. Metro. Airports Comm'n, 675 F.Supp.2d 944, 957-59 (D.Minn.2009); Cyrus v. Town of Mukwonago, 2009 WL 1110413, at *21 (E.D.Wis. April 24, 2009) (" The Court will view the use of a taser as an intermediate or medium, though not insignificant, quantum of force...." ); Kaady v. City of Sandy, 2008 WL 5111101, at *16 (D.Or. Nov.26, 2008) (" I therefore conclude that use of a Taser constitutes an intermediate level of force and a significant intrusion on a victim's Fourth Amendment rights." ); McDonald v. Pon, 2007 WL 4420936, at *2 (W.D.Wash. Dec.14, 2007) (" Taser use is considered an intermediate control tactic." ); Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1144 (W.D.Wash.2007) (" [T]he Court first finds that the use of a Taser constituted significant force." ); Parker v. City of South Portland, 2007 WL 1468658, at *22 (D.Me. May 18, 2007) (" In the circumstances, the Taser fairly can be characterized-as it has been by one court-as a significantly violent level of force." ); DeSalvo v. City of Collinsville, 2005 WL 2487829, at *4 (S.D.Ill. Oct.7, 2005). Indeed, Judge Tallman fails to cite a single case in any circuit or district court suggesting otherwise.

The growing national consensus that devices such as the X26 when used in dart mode constitute an intermediate level of force is also clearly reflected in national studies-including the one study that Judge Tallman cites in his dissent-and in the views of law enforcement professionals. See, e.g., William P. Bozeman et al., Safety and Injury...

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