Ah, Southern California. The fun. The sun. The unnecessary tasering.
Judge Wardlaw writes this one like a novel, so all I have to do to tell the tale is to use her own words:
"Carl Bryan’s California Sunday was off to a bad start. The twenty-one year old, having stayed the night with his younger brother and some cousins in Camarillo, which is in Ventura County, planned to drive his brother back to his parents’ home in Coronado, which is in San Diego County. However, Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys to Los Angeles the previous day. Wearing the t-shirt and boxer shorts in which he had slept, Bryan rose early, traveled east with his cousins to Los Angeles, picked up his keys and returned to Camarillo to get his car and brother. He then began driving south towards his parents’ home. While traveling on the 405 highway, Bryan and his brother were stopped by a California Highway Patrolman who issued Bryan a speeding ticket. This upset him greatly. He began crying and moping, ultimately removing his t-shirt to wipe his face. Continuing south without further incident, the two finally crossed the Coronado Bridge at about seven-thirty in the morning.
At that point, an already bad morning for Bryan took a turn for the worse. Bryan was stopped at an intersection when Officer McPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled to Bryan that he was not to proceed. Bryan immediately realized that he had mistakenly failed to buckle his seatbelt after his earlier encounter with the police. Officer McPherson approached the passenger window and asked Bryan whether he knew why he had been stopped. Bryan, knowing full well why and becoming increasingly angry at himself, simply stared straight ahead. Officer McPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car.
There is no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes. It is also undisputed that Bryan did not verbally threaten Officer McPherson and, according to Officer McPherson, was standing twenty to twenty-five feet away and not attempting to flee. Officer McPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear Officer McPherson tell him to do so. The one material dispute concerns whether Bryan made any movement toward the officer. Officer McPherson testified that Bryan took “one step” toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan’s upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions. Bryan’s morning ended with his arrest and yet another drive—this time by ambulance and to a hospital for treatment."
Not a fun Sunday morning indeed.
Bryan sues, claiming excessive force. McPherson moves for summary judgment on qualified immunity, and Judge Burns (down here in San Diego) denies the motion. McPherson appeals, and the Ninth Circuit affirms. If you view the evidence in the light most favorable to Bryan, it's excessive to taser a guy in his boxers who's 25 feet away from you, unarmed, and not trying to attack you or flee. He's just having a very, very bad day. No need to make it worse.
Two tangential points. First, I like the term "California Sunday." I've never heard it before, but it accurately brings to my mind a lazy, wonderful Sunday morning. Though I'm sure to others it also brings to mind a lazy, wonderful wake-and-bake.
Second, as an attorney, it's bad enough to lose an appeal the first working day after Christmas. But for Steven Boehmer -- a USD Law graduate (whom I've met) -- it's adding insult to injury when the Ninth Circuit misspells his name; in this case, by dropping the "h".
But at least he still has his teeth.