During the incident, Bryan says that he did not hear McPherson tell him to remain in the car and exited. While he was not swearing at McPherson (he was allegedly berating himself), he took one step toward McPherson who then shot him with the taser from about 20 feet away. That caused Bryan’s face to slam against the pavement when he collapsed, causing bruises and smashing four front teeth.
While the officer can still argue that the tasering was justified at trial, the panel was skeptical:
Not only was Bryan standing, unarmed, at a distance of fifteen to twenty-five feet, but the physical evidence demonstrates that Bryan was not even facing Officer McPherson when he was shot: One of the taser probes lodged in the side of Bryan’s arm, rather than in his chest, and the location of the blood on the pavement indicates that he fell away from the officer, rather than towards him.9 An unarmed, stationary individual, facing away from an officer at a distance of fifteen to twenty-five feet is far from an “immediate threat” to that officer. Nor was Bryan’s erratic, but nonviolent, behavior a potential threat to anyone else, as there is no indication that there were pedestrians nearby or traffic on the street at the time of the incident.10 Finally, while confronting Bryan, Officer McPherson had unholstered and charged his X26, placing him in a position to respond immediately to any change in the circumstances. The circumstances here show that Officer McPherson was confronted by, at most, a disturbed and upset young man, not an immediately threatening one.
The three judges on the panel were Circuit Judges Harry Pregerson, Stephen Reinhardt and Kim McLane Wardlaw.
Here is the opinion: 08-55622
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