Ninth Circuit Finds Officer Not Entitled to Qualified Immunity

Remember seeing the video of this old lady getting tased by the police officer for being too sassy during a traffic stop? Well the Ninth Circuit has held such police conduct constitutes excessive force and a violation of civil rights. Further, it found the police officer was not entitled to qualified immunity.

Here's a link to a NYT article about the case: http://www.nytimes.com/2010/01/01/us/01taser.html?hpw
And here's a link to the decision: Bryan v. McPherson, http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf.

Mr. Bryan was tased during a traffic stop for a seatbelt violation. He was upset -- shouting gibberish and hitting himself in the quadriceps -- but was unarmed, did not threaten the officer or attempt to flee.

The Court wrote:

"We thus conclude that the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. Consequently, the objective facts reveal a tense, but static, situation with Officer McPherson ready to respond to any developments while awaiting back-up. Bryan was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply no immediate need to subdue Bryan before Officer McPherson’s fellow officers arrived or less-invasive means were attempted. Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable. His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force." Slip Op. p. 16753 (internal quotes, brackets and citations omitted.)

This is an interesting case which will hopefully put the brakes on some of the abusive police practices we've seen. I'll keep an eye on it to see if it goes en banc or up to the Supreme Court.

Happy New Year to all and thanks for your readership and support over the past year.