Carl Bryan’s car was stopped by officer Brian McPherson of the Coronado, CA Police Department in 2005 as the 21-year-old was driving home. Granted, Bryan did appear strange: as he stepped out of his vehicle, wearing only boxer shorts and tennis shoes, he slapped his thighs and muttered gibberish to himself. However, he wasn’t making any threatening verbal or physical gestures towards McPherson. However, McPherson tasered Bryan without warning. As a result, Bryan fell on his face, breaking four front teeth and also required a hospital visit to remove the electronic darts from his body.
Subsequently, Bryan sued the city, police department, and McPherson. A trial judge dismissed all but the McPherson part of the lawsuit and on Monday the 9th Circuit Court of Appeals agreed with the decision. Specifically, the 9th Circuit Court of Appeals voted 3-0 that officer McPherson wasn’t immune to the damages lawsuit filed by Bryan. According to the opinion, the court ruled that officer McPherson violated Bryan’s constitutional right "to be free from excessive force."
The decision could open the door for lawsuits against police officers who carelessly use their Taser guns, since it is the first of its kind to set specific standards for when Tasers can be used. In the court’s opinion, Judge Kim Wardlaw wrote:
While Bryan’s behavior created something of an unusual situation, this does not, by itself, justify the use of significant force.
At the very least, the judges decided, McPherson should have given Bryan a warning that he might be tasered.
recently named in the 2009 edition of Best Lawyer's In America, David Mittleman has been representing seriously injured people since 1985. A partner with Church Wyble PC—a division of Grewal Law PLLC—Mr. Mittleman and his partners focus on medical malpractice, wrongful death, car accidents, slip and falls, nursing home injury, pharmacy/pharmacist negligence and disability claims.