Metropolitan News-Enterprise


Tuesday, October 18, 2011


Page 1


Ninth Circuit Lays Out Constitutional Limits on Use of Tasers


By a MetNews Staff Writer


The use of tasers to subdue persons suspected of minor offenses is subject to constitutional limits on the use of excessive force, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A sharply divided en banc panel of the court reversed two district court rulings that were argued together and consolidated for decision. The district judge in each instance ruled that the plaintiff had presented sufficient evidence for the case to go forward under 42 U.S.C. Sec. 1983, but the appellate court said the officers in both cases were protected by qualified immunity.

In a case from Seattle, a six-judge majority held that a seven-months pregnant woman tasered three times after a traffic stop had shown a prima facie violation of the Fourth Amendment, but that the law at the time of the 2004 incident was too unsettled for the plaintiff to show a violation of a clearly established right. Four judges said the plaintiff’s bizarre conduct and refusal to follow instructions gave the officers no reasonable alternative to using the amount of force that they did.

The decision was a partial victory for plaintiff Malaika Brooks, however. Because the “clearly established right” analysis does not apply under Washington state law, the court held, she has a viable claim for assault and battery.

Maui Case

In the second case, from Maui, the same seven judges similarly concluded that a woman who allegedly interfered with police as they attempted to arrest her intoxicated husband for attacking her should not have been tasered without warning, but that the officer was entitled to qualified immunity.

Two of the other judges argued that Jayzel Mattos, like Brooks, left the officers devoid of reasonable alternatives to using the electric devices. But two judges who approved of the officer’s conduct in Brooks’ case argued that Mattos was entitled to a trial to determine whether the officer who tasered her in August 2006 breached constitutional standards that were well-established at that time.

The panel that decided the cases consisted of 10 judges, due to the recent death of Judge Pamela Ann Rymer.

Judge Richard A. Paez, writing for the majority, explained that Brooks was cited for speeding in a school zone after dropping off her 11-year-old for class. After refusing to sign the citation, she became involved in a heated argument, apparently because she disbelieved the officer’s explanation that signing meant only that she acknowledged receipt and was not an admission of guilt.

After she reiterated to an arriving sergeant that she would not sign the citation, she was told she was going to jail. After she told the officers she was due to give birth in less than 60 days, and after an officer threatened her with the taser, she testified, an officer opened the driver’s side door and twisted her arm up behind her back, then removed the keys—which dropped to the floor—from her ignition. 

Another officer then applied the taser, in drive-stun mode, to her left thigh.

In drive-stun mode, the taser is applied to the subject’s body; it is a pain-compliance technique and is not intended to incapacitate the subject. In dart-mode, by contrast, the taser fires electrodes capable of incapacitating the subject by interrupting the ability of the brain to control the muscles in the body.

Brooks—who was convicted of failing to sign the ticket, but not of resisting arrest—sought damages for her injuries, including permanent burn scars.  

Domestic Call

In Mattos’ case, the testimony was that police responded to the family residence after the couple’s 14-year-old daughter called 911. Mattos claimed that she was trying to calm the situation, and avoid disturbing a younger child who was sleeping, when Officer Ryan Aikala moved toward her husband with her in the middle.

She claimed that the officer pushed up against her chest, and that she extended her arm to protect her breasts “from being smashed against” the officer’s body. The officer then accused her of touching him, and as she tried to reason with another officer, she claimed, Aikala shot her with the taser in dart-mode.

All charges against Mattos and her husband were ultimately dropped. She and her husband alleged in their complaint that the warrantless entry into their residence and their arrests violated the Fourth, Fifth, and Fourteenth amendments, but all claims except those relating to the use of the taser were dismissed by the district judge.

Paez concluded that in Brooks’ case, viewing the evidence in the light most favorable to the plaintiff, the district judge was correct in concluding that there was sufficient evidence of excessive force.  The violation, he reasoned, was relatively minor;  there was no immediate threat to the safety of the officers or the public, at least not after the keys were removed from the ignition; and Brooks was not actively resisting or attempting to evade arrest.

There was, he added, no reason for the officer to use the taser against Brooks three times within a span of less than a minute.

He also concluded, however, that Brooks is without a federal remedy because at the time, there was no Ninth Circuit law on the use of tasers and federal courts in other circuits had uniformly held that the use of the taser did not constitute a constitutional violation.

With respect to Mattos, Paez noted that the only offense she was accused of was interfering with the officer, that any such interference was—according to her version of the facts—relatively minor, that the officers could not have considered her a threat, and that while the situation was volatile, there was no evidence “that tasing the innocent wife of a large, drunk, angry man when there is no threat that either spouse has a weapon, is a prudent way to defuse a potentially, but not yet, dangerous situation.”

The lack of a warning, he added, “pushes this use of force far beyond the pale.”

But in concluding that Mattos, like Brooks, cannot pierce the police claim of qualified immunity, Paez explained that as of August 2006, there was still no federal appellate case law holding the use of the taser unconstitutional. The Supreme Court, he said, has made it clear that a court cannot find a right to be clearly established without support in Supreme Court or federal appellate precedent.

Paez was joined by Judges Susan P. Graber, M. Margaret McKeown, Raymond C. Fisher, and Johnnie B. Rawlinson.

Judge Mary M. Schroeder concurred separately, emphasizing “the non-threatening nature of the plaintiffs’ conduct,” in contrast with the danger posed by tasering, particularly the risk to Brooks’ child, although the child was ultimately born healthy.

Chief Judge Alex Kozinski, joined by Judge Carlos Bea, argued that the majority failed to appreciate the difficulty of police work and the superiority of the taser to other means of subduing suspects that are more dangerous to both the officer and the suspect.

The officers in Brooks’ case, he wrote, acted in a way that was “entirely reasonable,” “were endlessly patient,” and deserved “commendations for grace under fire.” The plaintiff, he said, “is completely, wholly, 100 percent at fault” because she “risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket.”

Kozinski acknowledged that Mattos’ case was “considerably closer,” but argued that the decision to use the taser was reasonable in the context in which the officer found himself, the need to make a split-second judgment under a difficult and fast-moving situation.

Judge Barry Silverman, joined by Judge Richard Clifton, joined Kozinski’s analysis of the Brooks case, but said the district judge was correct in finding that Mattos had a triable case. “Precedent already on the books in August 2006 provided officers and courts with enough guidance to know that a taser in dart mode is not a toy and presents a level of force on par with other implements ‘used to subdue violent or aggressive persons.’”

Pasadena attorney John Burton authored an amicus brief in support of the plaintiffs.

The cases are Mattos v. Agarano, 08-15567, and Brooks v. Daman,  08-35536.


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