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Supreme Court Will Not Overturn Ninth Circuit Court of Appeals Tasering Cases

The U.S. Supreme Court has decided that it will not review the appropriateness of stun guns used by police on suspects, including a case in which Seattle officers repeatedly used a Taser on a pregnant woman during a 2004 traffic stop.

In a closely watched case, the high court on Tuesday refused to hear appeals from three Seattle officers and police in Hawaii, or the people who were stun-gunned by officers.

Some law enforcement groups had hoped the court would clarify the issue.
The Seattle City Attorney’s Office had urged the court to let stand a ruling by the 9th U.S. Circuit Court of Appeals, which said the officers could not be sued in federal court by the woman, Malaika Brooks, but also determined that they had used excessive force by deploying stun guns.

“Fortunately the Court recognized this regrettable but unique case to be inappropriate as a basis for judicial guidance for using Tasers consistently with the Fourth Amendment,” City Attorney Pete Holmes said in a written statement Tuesday. “It is important to recognize that the Taser use under the circumstances in Brooks is no longer permitted under SPD policy.”

City attorneys argued that the appeals-court ruling had addressed the use of Tasers “in the particular, atypical circumstances of this case,” and not the “sky is falling” interpretation of the Seattle officers.

Brooks claimed the officers violated her constitutional rights. U.S. District Judge Richard Jones allowed her case to continue, declining in June 2008 to grant the officers immunity for performing their official duties. Jones said Brooks posed no threat to anyone and that her rights were clearly violated.

A divided three-member panel of the 9th Circuit then overturned Jones’ ruling that allowed Brooks’ civil-rights lawsuit to go to trial.

The city appealed, and the panel voted 2-1 to overturn that order, sparking a rare decision to let a larger, “en banc” panel of 11 appellate court judges rehear the case. In October, that panel overturned the smaller panel on a vote of 6-5, finding that the three officers cannot be sued in federal court, despite evidence they used excessive force, because the law governing Taser use was unclear at the time.

But in the ruling, the court said Brooks could still sue the officers on a state claim of assault and battery. Brooks is now pursing a state claim in federal court, but no longer can seek attorney fees.

Although granting immunity to the three Seattle officers, the majority concluded the Taser use was improper and could be a violation of her civil rights.

A portion of that panel’s ruling is what the Supreme Court declined to hear. The court also declined on Tuesday to hear Brooks’ request that it review the 9th Circuit’s finding that she can’t sue the officer on federal claims.

The appeals court combined the Brooks case with another Taser case out of Hawaii. The appellate judges concluded that the use of a Taser in some circumstances could be considered excessive force and expose officers to lawsuits.

Writing for the majority, Judge Richard Paez said the circumstances in both the Seattle and Hawaii cases were such that a jury could find the officers overstepped constitutional bounds.

In the Brooks case, Paez and the majority concluded that Brooks’ traffic violation was not serious and that she never posed a serious threat to the officers.

Brooks was stopped for speeding in a school zone. When she refused to sign the citation, the officers decided to arrest her.

Brooks refused to get out of the car, and resisted officers’ attempts to remove her. The court found that while she did resist arrest and refused to sign the ticket or leave her car, that in itself did not justify the use of a Taser on her thigh, arm and neck in short succession, the opinion says.

“We note that Brooks bears some responsibility for the escalation of this incident,” Paez wrote.

However, the judges considered two “overwhelmingly salient” factors that weighed in Brooks’ favor: She had told the officers she was within 60 days of delivering her baby, and that after learning of this, the officers took time to discuss how they should proceed and even where they should apply the Taser.

The officers were identified as Juan Ornelas, Donald Jones and Sgt. Steven Daman.
“The second overwhelmingly salient factor is that (Officer Jones) tased Brooks three times over the course of less than one minute,” the opinion said.

“Three tasings in such rapid succession provided no time for Brooks to recover from the extreme pain she experienced, gather herself and reconsider her refusal to comply.”
Brooks did not suffer serious injuries, aside from small scars from the Taser. Her child was born healthy, the opinion notes.

Over the objection of Seattle city attorneys, an attorney for the officers, Ted Buck, filed a petition asking the Supreme Court to hear the case, saying the appeals-court ruling “stated a claim of excessive force but did so without an explanation as to why, and without any mention or analysis of what would have been an appropriate alternative response.”

Buck was later replaced by another attorney, Robert Christie, after the city asked him to withdraw from the case. But the petition remained in place.

Seattle police changed their policy after the incident with Brooks to no longer require drivers to sign tickets, and state law was subsequently changed along the same lines.

Up until now, the use of a Taser in the so-called “drive-stun” mode — when it is applied directly to the target rather than used to fire darts — has been considered a relatively low-force “pain compliance” tool for officers to use on resisting subjects.

The ruling raised concerns that officers will be reluctant to use it now, and will resort to other methods, such as arm-holds, batons or pepper-spray, the officers’ attorneys have argued.

Brook’s attorney, Eric Zubel, said he’s satisfied with the fact that the 9th Circuit ruling now becomes precedent in the largest federal judicial circuit in the country, comprising nine Western states, including California, and two territories.

“This authority is going to have effect across the country,” Zubel said. “I feel we’ve made a difference.”

Brooks will now pursue a civil assault claim against the officers, most likely in state court, Zubel said.

Brooks declined an interview. Zubel said the 2004 incident and an eight-year legal battle, including a criminal prosecution and three appeals in federal court, has been difficult for his client. “She’s been through a tremendous amount of emotional stress,” he said.

Two large police groups, the National Tactical Officers Association and the Los Angeles County Police Chiefs Association, filed briefs with the Supreme Court asking the ruling to be struck down.

In the Hawaii case, the judges found that Maui police likely used excessive force and violated the rights of Jayzel Mattos, who had called police on her husband during a domestic dispute in 2006. An officer shot her with a Taser in the dart-mode, which not only causes excruciating pain but also causes temporary paralysis.

The court determined Mattos did not pose a threat nor was resisting the officers when she failed to get out of the way while an officer moved to arrest her husband.

Cited for speeding, Malaika Brooks, seven months pregnant, refused to sign the speeding citation. A Seattle police offer then pulled out a Taser and asked Brooks if she knew what it was. Brooks said she did not. Brooks then told the three officers present that she was pregnant, less than 60 days from giving birth, and needed to go to the bathroom. Brooks also continued to refuse to sign the speeding citation. After discussing whether Brooks should not be tasered on her stomach, the officers tasered the pregnant woman three times and dragged her out of her car.

In Maui, the police responded to a domestic dispute call. When the officers tried to arrest the husband, the wife stepped in front of her husband. When the wife’s breasts pushed up against the officer, the officer tasered the wife without warning.

Both ladies sued their respective police departments for excessive force.

In determining whether police officers are immune from suit, the Ninth Circuit applies the “immunity test.” The judges first determine whether an officer violated a plaintiff’s constitutional right. Then, if a violation is found, the judges then determine whether the constitutional right was “clearly established in light of the specific context of the case” at the time of the events in question.

In both cases, the Ninth Circuit found that the plaintiffs’ Fourth Amendment rights were violated as neither of the women posed any threat to the safety of the officers.

However, since the constitutional right to not be tasered was not clearly established in the context of the cases, and the law was not clear regarding tasering at the time of the incidents, the officers were entitled to qualified immunity in the excessive force claims.

This holding could now expose police offers, which use stun guns when there is no imminent threat of harm, to civil liability.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.