Cgiugale

My name is Carla Giugale. I am working on a wikipedia project for Yale's Computer Science 183 course. I plan to write an article with two other people on Bryan v. MacPherson.

Bryan v Macpherson

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Preliminary Bibliography 1. Ryan, Jack. "9th Circuit Use of Force Case Law - TASER® Case Re-visited, Bryan v. McPherson." Legal & Liability Risk Management Services & Training: Law Enforcement, Jails, Insurance Pools & Risk Managers. June 2010. Web. 06 Nov. 2011. http://www.llrmi.com/articles/legal_update/taser_9th_2010.shtml. 2. Winston, Ali. "Ninth Circuit Says Police Tasers Must Be Used with Caution | The Informant." The Informant. 1 Dec. 2010. Web. 06 Nov. 2011. http://informant.kalwnews.org/2010/12/ninth-circuit-says-police-tasers-must-be-used-with-caution/. 3. Griffin, Drew, and David Fitzpatrick. "Man Dies after Cop Hits Him with Taser 9 times - CNN." CNN. 22 July 2008. Web. 06 Nov. 2011. http://articles.cnn.com/2008-07-22/justice/taser.death_1_pikes-family-winn-parish-baron-scooter-pikes?_s=PM:CRIME. 4. Brave, Michael. "Bryan v. McPherson- A New Standard for the Use of Electronic Control Devices?" LAAW International, Inc, 13 Jan. 2010. Web. 6 Nov. 2011. http://www.ecdlaw.info/Cases/CA_Bryan_v_McPherson_Synopsis.pdf. 5. Wu, Sam W. “When Can I Tase Him, Bro?”: Bryan v. McPherson and the Propriety of Police Use of Tasers, 40 Golden Gate U. L. Rev. (2010), http://digitalcommons.law.ggu.edu/ggulrev/vol40/ iss3/5. 6. Bryan v. MacPherson. 608. F.3d 805. US 9th Circuit. 2010. LexisNexis Academic. Web. 7 Nov. 2011.

One Sentence Hook: Bryan v. Macpherson is an important case from 2010 which discusses the ethical and acceptable use of force, with a specific focus on taser use.

Preliminary Paragraphs:

FACTS In the summer of 2005, 21-year old Carl Bryan planned to drive his brother from their cousin’s home in Ventura County back to his parent’s home in San Diego County. That day, numerous unfortunate events occurred to trigger a general state of agitation in Bryan. His cousin’s girlfriend had accidently taken his keys to Los Angeles and Bryan, wearing the boxers and shirt he had slept in, had to drive there to pick up the keys, and then drive back to Ventura to pick up his car and brother. While traveling on the 405, Bryan was stopped by a California Highway Patrolman and issued a speeding ticket. He began crying and moping and removed his t-shirt to wipe his face. After crossing the Coronado Bridge at about 7:30 in the morning, Bryan was stopped by Officer Macpherson at an intersection, stationed to enforce seatbelt regulations. Bryan had failed to buckle his seatbelt after his previous encounter with the police. Officer MacPherson approached Bryan’s window and asked if Bryan if he knew why he had been stopped. Bryan did not answer. Officer MacPherson asked that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, while hitting the steering wheel and yelling expletives to himself. Officer MacPherson testified that he told Bryan to remain in the car, while Bryan testified he did not hear that. Standing outside of the car, approximately 20-25 feet away from the Officer, Bryan hit his thighs, clad only in his boxer shorts and tennis shoes, and yelled gibberish to himself. It is undisputed that Bryan did not verbally threaten Officer MacPherson. However, it is disputed whether Bryan made any movement toward the Officer. Officer MacPherson testified that Bryan too “one step” toward him. Without giving any warning, he shot Bryan with a taser gun, a devise designed to fire a dart up to ½ inch into bare skin and deliver a 1200-volt charge. Immobilized by the electric shock, Bryan fell face first to the ground, fracturing four teeth and suffering facial contusions. The physical evidence of blood on the pavement and the fact that the probe was embedded in Bryan’s upper left arm suggest that Bryan was facing away from the officer. He was arrested and an ambulance took him to the hospital. Bryan was charged with resisting and opposing an officer in the performance of his duties in violation of California Penal Code § 148. Bryan was tried on this violation, but following a hung jury, the state dismissed the charges.

PROCEDURE Bryan sued Officer MacPherson and the Coronado Police Department, its police chief, and the City of Coronado for excessive force in violation of 42 U.S.C. § 1983, assault and battery, intentional infliction of emotional distress, a violation of California Civil code § 52.1, as well as failure to train and related causes of action. The U.S. District Court for the Southern District of California granted summary judgment to the City of Coronado and the Coronado Police Department on the basis of qualified immunity. However, the District Court determined that Officer MacPherson was not entitled to qualified immunity. The Court concluded that a reasonable jury could find that Bryan “presented no immediate danger and no use of force was necessary.” Officer MacPherson appealed to the 9th Circuit, arguing that he was entitled to qualified immunity because “the use of one single, properly-administered deployment of a non-deadly taser to subdue a person behaving as violently and irrationally as Bryan…[was] reasonable under the Fourth Amendment.” He requested that the 9th circuit reverse and District Court’s denial of his motion for summary judgment. The Court of Appeals reversed the District Court order denying summary judgment on the basis of qualified immunity, arguing that in 2005 there were no precedents ruling on the use of tasers for Officer MacPherson to follow. The opinion was filed on June 18, 2010 and withdrawn. A panel unanimously voted to deny the Petition for Panel Rehearing and the Petition for Rehearing En Banc. The Ninth District ruled not to review the decision despite dissent from Judges Richard Tallman, Consuelo Callahan and N. Randy Smith who believe MacPherson’s use of his taser did not constitute excessive force.

IMPLICATIONS This case effectively announced a general legal rule and the constitutional regulation of a new technology. The principle is now established that 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." (6) This particular taser case is significant in that it placed the taser at a higher level of force than most law enforcement agencies and the International Association of Chiefs of Police had placed them. Some speculate that, as a result, Bryan v. MacPherson may affect police training and taserings of suspects by California police officers, and that similar challenges to taser usage will crop up in other states. The “less intrusive means” language has never been an element of use of force analysis by the United States Supreme Court and is contrary to all of the other United States circuits (1). There are cases within the United States Court of appeals for the 9th Circuit where this type of analysis has been rejected (1). For example, in Williams v. Holt 2006 U.S. Distt. LEXIS 55148 …..

Preliminary Paragraphs V2-Implications IMPLICATIONS This case effectively announced a general legal rule and the constitutional regulation of a new technology. The principle is now established that 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.” This particular taser case is significant in that it placed the taser at a higher level of force than most law enforcement agencies and the International Association of Chiefs of Police had placed them. Some speculate that, as a result, Bryan v. MacPherson may affect police training and taserings of suspects by California police officers, and that similar challenges to taser usage will crop up in other states. The “less intrusive means” language has never been an element of use of force analysis by the United States Supreme Court and is contrary the other United States circuits . There are cases within the United States Court of appeals for the 9th Circuit where this type of analysis has been rejected . For example, in Forrett v. Richardson , 112 F.3d 416, 420 (9th Cir. 1997), the court held that, contrary to Williams’ (Williams v. Holt 2006 U.S. Dist. LEXIS 551) exhaust-other means argument, “the Fourth Amendment does not require law enforcement officers to exhaust every alternative before using justifiable deadly force.” See also Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999)(same). As the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") has said: "The fourth amendment reasonableness standard does not turn on the availability of less intrusive alternatives" Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). The case also established that the use of a taser requires a strong government interest that this opinion indicates is “an immediate threat” by the subject to the officer. The court found facts, which many officers would consider threatening to not qualify as an imminent threat, such as taking one step forward when the person is still twenty feet away . An officer must consider the totality of the circumstances, including whether the subject poses an immediate threat to safety, whether he is actively resisting arrest, the severity of the crime at issue, and whether he is attempting to evade seizure by flight. A takeaway from the court’s analysis is that an officer’s warning is important and should be done unless exigent circumstances exist. They should assess whether their warnings are clearly heard and understood and give a reasonable time for volitional compliance. Recent negative media attention related to law enforcement’s improper use of Tasers has brought to light the tragic effect on victims, the costs to the justice system, and other detrimental externalities. Some suggest that Bryan may provide the legal framework and the necessary incentive to diminish, if not completely eliminate, improper police use of Tasers . Cgiugale (talk) 15:27, 9 November 2011 (UTC)

Notes

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