Bryan v. McPherson to be Reviewed by the Supreme Court?

Orin Kerr suspects that Bryan v. McPherson, a Ninth Circuit opinion regarding the use of Tasers, might be reviewed by the Supreme Court.  I hope it's reviewed.

In Bryan v. McPherson (CA9), a police officer tasers a motorist posted no threat to police officers.  The motorist was wearing his boxes.  Thus, the throw-away, "He might have been concealing a gun!" line couldn't be used.  Rather, the cop tased the motorist out of narcissistic rage.  The officer, Southpark character Eric Cartman style, said, "You Will Respect My Authoritah!"

There are a lot of interesting issues surrounding the use of Tasers and the Fourth Amendment. Tasers were first sold to the public as an alternative to deadly force. The idea, we were told, was that police would use Tasers rather than shoot people. Thus, under the rationale Tasers were sold to the public, police should use Tasers only when they face an immediate threat of harm.

Instead, Tasers are being used as general compliance and officer frustration devices. “Do as I say, now, or get tased.” For an example of that, see the Eighth Circuit Court of Appeal’s split opinion in Cook v. City of Bella.

Legally, would a reasonable officer know that you shouldn’t taser someone merely because the officer is frustrated? TO me, the answer is, clearly, Yes. To Scalia and Thomas, the answer would be: “You’re lucky we’re not putting thumb screws on you.” Alito isn’t a Thomas-Scalia style Inquisitor, but will still no doubt side with the officers on the QI issue.

Roberts is a sensible man, and not nearly as cruel as Thomas and Scalia. See, e.g., Hedgepeth v. Washington Metropolitan Area Transit Authority (DC Cir.). He’s a bit pro-law enforcement...So he might decide that the law regarding the use of Tasers was not clearly established.

For the Court’s liberals, this should be an easy case. In fact, it’s a great test case from my perspective. There was no threat to the police officer who tased the young man. So why tase him?

Personally, I hope it gets reviewed. Those of us who are tired of police using Tasers Eric Cartman style couldn’t ask for a much better set of facts.

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