When determining whether the use of force during an arrest
is reasonable, courts carefully balance "the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the
countervailing government interests at stake." Graham v. Connor, 490 U.S.
386, 396 (1989). This analysis requires an examination of the following factors
set forth in the Supreme Court's ruling in Graham v. Connor: (1) the severity
of the crime at issue; (2) whether the suspect posed an immediate threat to the
safety of the officers or others; and (3) whether the suspect was actively
resisting arrest or attempting to evade arrest by flight. Id. The "most
important single element" of this criteria is whether the suspect poses an
immediate threat to the safety of the officers or others. Chew v. Gates, 27 F.3d
1432, 1441 (9th Cir. 1994).
In addressing Defendants' Motion for Summary Judgment, the
Court notes the Ninth Circuit has held that "[b]ecause [the excessive
force] inquiry nearly always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, . . . summary judgment. . . in
excessive force cases should be granted sparingly." Santos v. Gates, 387
F.3d 846, 853 (9th Cir. 2002); see also Liston v. County of Riverside, 120 F.3d
965, 976 n.10 (9th Cir. 1997) ("We have repeatedly held that the
reasonableness of force used is ordinarily a question of fact for the
jury.").
By contrast, applying a Taser in dart mode (wherein darts
are shot at the suspect from some distance) achieves greater distance between
the contact nodes which can cause neuro-muscular incapacitation. In dart mode,
the Taser's use is a Level 2 tactic to be employed only against aggressive
resistance. The district court did not differentiate between the possible modes
of use, noting only that the Taser was discharged on Brooks's thigh, shoulder,
and neck, causing "a level of force (whether once or three times) that
hurt `extremely bad,'" and constituted a "quantum leap" from the
previous force employed. These comments suggest the district court thought the
force used was severe. We find this to be an overestimation that led the court
to err in finding excessive force.
In two recent decisions, we addressed excessive force claims
involving the use of Tasers. See Mattos v. Agarano, 590 F.3d 1082 (9th
Cir.2010) (per curiam) (holding that the use of a Taser stun on a suspected
domestic violence victim while attempting to arrest her husband did not amount
to excessive force); Bryan v. McPherson, 590 F.3d 767 (9th Cir.2009) (holding
that shooting a Taser gun at a disoriented, half-naked man while stopping him for
a seatbelt violation constituted excessive force).
The Bryan panel
undertook a more detailed analysis of the quantum of force. The panel concluded
that the use of a Taser, in a manner equivalent to dart mode,
"constitute[s] an intermediate, significant level of force that must be
justified by a strong government interest that compels the employment of such
force." Bryan, 590 F.3d at 774 (internal quotation marks omitted).[12] In
Bryan, a police officer discharged his X26 Taser from a distance of approximately
20-25 feet, embedding a barbed electrical probe into Bryan's arm. Id. at 771.
The X26's powerful electrical pulse delivered an excruciating pain throughout
Bryan's body and caused Bryan to lose all muscular control, fall face first
onto the pavement, shatter four front teeth, and suffer facial abrasions and
swelling. Id. He also needed to have the electrical barb surgically removed
from his flesh. Id. at 773. Because the pain inflicted by the X26 Taser was
"intense, [was] felt throughout the body, and [was] administered by
effectively commandeering the victim's muscles and nerves," we held the
X26 Taser to be "an intermediate or medium, though not insignificant,
quantum of force." Id. at 774-75.[13]
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 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.
