Lawsuit thrown out E-mail
Written by Mark Nichols   

The 9th Circuit Court of Appeals has denied a San Diego man's request for a full-court rehearing of his excessive force claim against an officer who Tasered him during a traffic stop. The vote to deny the rehearing was four to three. According to a recent article by the Courthouse News Service, it had already taken two hearings for the original three-judge panel to decide whether Coronado Police Department officer Brian MacPherson used excessive force and whether he was eligible for qualified immunity .

 

According to police reports, MacPherson stopped Bryan in 2005 for not wearing his seatbelt.

The officer then Tasered Bryan from about 25 feet when Bryan became upset and began yelling gibberish and hitting his thighs. Bryan was wearing only boxer shorts and tennis shoes.

Bryan fell face-first to the ground, fractured four front teeth and had to be driven to a hospital.

The seven-judge panel initially upheld the district court's denial of qualified immunity to MacPherson and ruled that the officer had indeed used excessive force.

But after MacPherson urged the panel to reconsider, citing two other Taser-related cases pending in the 9th Circuit, the panel ruled that MacPherson was entitled to qualified immunity.

The panel explained that the constitutionality of using the Taser in dart mode was not clearly established when MacPherson Tasered Bryan. Bryan had asked for a rehearing before the original panel or the full court.

MacPherson objected, arguing that the panel had correctly applied the law of qualified immunity.

Judges Stephen Reinhardt, Kim Wardlaw, William Fletcher and Harry Pregerson voted to deny the full hearing.

"We see no conflict between the rule that an officer need not use the least intrusive means in apprehending a suspect and the concept that there are nonetheless circumstances in which an officer who does not use the least intrusive means might use a level of force that cannot be justified," Wardlaw wrote, citing the "the growing national consensus that devices such as the X26 when used in dart mode constitute an intermediate level of force."


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