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December 29, 2009 – A Coronado police officer who zapped a 21-year-old man with a Taser during a stop for a seatbelt infraction is not entitled to qualified immunity, according to a federal appeals court ruling obtained Tuesday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Monday that the intermediate level of force used by Officer Brian McPherson on Carl Bryan was excessive under the circumstances.
The appellate panel’s ruling upholding a decision by San Diego-based U.S. District Court Judge Larry Burns allows Bryan to pursue damages against McPherson at trial.
Judge Kim McLane Wardlaw, who penned the opinion, said Bryan was having a bad day in the summer of 2005 because of a freeway speeding ticket when McPherson pulled him over for not wearing a seatbelt.
Bryan was upset with himself and began hitting the steering wheel and yelling expletives when the officer stopped him.
McPherson said he told Bryan to remain in his car, but the motorist instead got out of the vehicle and took one step toward the officer, who Tasered him, according to the ruling.
Bryan — who denied hearing the officer tell him to stay away — said the Taser probe hit him in his left arm, causing him to fall face-first to the ground, fracturing four teeth.
He filed a federal lawsuit against McPherson, the Coronado Police Department, its police chief and the city of Coronado, claiming excessive force and intentional infliction of emotional distress.
The district court granted relief to the City of Coronado and the Police Department, but determined that McPherson was not entitled to qualified immunity.
The court concluded that a reasonable jury could find that Bryan “presented no immediate danger to (McPherson) and no use of force was necessary.”
Wardlaw said it should have been apparent that Bryan was unarmed because he was dressed only in boxer shorts and tennis shoes and never threatened the officer.
A reasonable officer would have known that it was unreasonable to use a Taser on Bryan, Wardlaw wrote.
John Gomez founded the firm alone in 2005. Today, John acts as President and Lead Trial Attorney. He has been voted by his peers as a top ten San Diego litigator in three separate fields: Personal Injury, Insurance and Corporate Litigation. Since 2000, he has recovered over $800 million in settlements and verdicts for his clients with more than 160 separate recoveries of one million dollars or more. A prolific trial lawyer, John has tried to jury verdict more than 60 separate cases.
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