Tasing and Excessive Force

The Ninth Circuit issued its first opinion, Bryan v. McPherson, regarding the use of a taser and excessive force.  Taking into account the physical pain and risk of additional injury due to the paralyzing effect of the shock, the court concluded that the taser is an intermediate level of force for purposes of excessive force analysis.  Accordingly, a taser may only be used when a strong government interest compels employment of such force.  Generally, the government’s interest in the use of force is evaluated according to three factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to flee.  The court acknowledged that there is a continuum of resistance, ranging from passive resistance to physical assault.  The use of a taser should be reserved for those instances where a suspect is closer to active resistance than passive resistance.  Please contact your city attorney should you need assistance in reviewing your taser policy in light of this case.

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