Metropolitan News-Enterprise
March 29, 2010
The Ninth U.S. Circuit Court of Appeals yesterday ruled that the Seattle Police Department’s use of a Taser on a pregnant woman, three times, to effect her arrest after she was stopped for a traffic violation, was not unconstitutionally excessive force.
A divided panel of the Court of Appeals concluded that Sergeant Steven L. Daman and officers Donald M. Jones and Juan M. Ornelas were entitled to qualified immunity from Malaika Brooks’ claims under 42 U.S.C. § 1983.
In November 2004, Brooks said, she was seven months pregnant when Ornelas stopped her for speeding as she was driving her son to school. The ticket states that she was traveling at 32 miles per hour in a 20 mile per hour school zone.
According to Brooks’ version of events, Ornelas and Jones both asked her to sign a Notice of Infraction, but she refused, insisting that she had not been speeding.
Ornelas then called Daman. When he arrived, he asked Brooks to sign the notice and then instructed the officers to “[b]ook her,” when she again refused.
At this point, Brooks was in her car with the ignition running and her door shut and refused to exit her vehicle. Jones then showed Brooks his Taser, explaining that it would hurt “extremely bad” if applied and demonstrated it for her.
Refusal to ExitBrooks replied that she was pregnant and maintained her refusal to exit her car. Ornelas then opened the door, took the key out of the ignition, dropped the keys to the floorboard, and employed a pain compliance technique to Brooks in an effort to remove her from the vehicle.
After Brooks resisted, Jones discharged the Taser against her thigh, through her sweat pants, and she began to yell and honk the car’s horn. Jones tased her again on her shoulder and the exposed skin on her neck.
The third time the officer used the Taser, Brooks moved to the right, at which point the officers were able to pull her from the car. She was immediately seen by medical professionals, and two months later delivered a healthy baby.
Brooks was charged with violation of Seattle Municipal Code 11.59.090 for refusing to sign the notice and resisting arrest, but was only convicted of the first charge. She later filed suit against the officers for violation of her individual rights as well as assault and battery.
U.S. District Court Judge Richard A. Jones of the Western District of Washington denied the officers’ motion for summary judgment on Brooks’ claims, finding a clearly established constitutional violation of her rights.
Writing for the appellate court, Senior Judge Cynthia Holcomb Hall explained that Brooks’ refusal to sign the notice amounted to a violation of the Seattle Municipal Code, which gave the officers probable cause to detain her until a notice could be issued.
Initial Detention
Brooks’ conduct during this initial detention then gave the officers probable cause to place her under custodial arrest for obstructing an officer in violation of Washington law, Hall continued. Since the officers were acting in the discharge of their official duties in trying to obtain Brooks’ signature, her undisputedly uncooperative behavior interfered with their lawful attempts to carry out that duty, Hall said.
As for the reasonableness of the level of force used by the officers, Hall noted that the Taser had been set in “touch” or “drive-stun” mode, which causes only temporary localized pain, as opposed to the “dart” mode, which causes incapacitating muscle contractions.
She differentiated the case from Bryan v. McPherson, 590 F.3d 767, decided last December—which held the use of a Taser used in “dart” mode against a disoriented man for a seatbelt infraction was excessive—emphasizing that the plaintiff in that case suffered pain through his whole body causing him to fall face-first onto the pavement, shatter four teeth and suffer facial abrasions.
In contrast, Brooks only claimed to have sustained burn marks and to bear scars from the Taser. These injuries, while “certainly not insignificant, were “far less serious” than those inflicted in Bryan, Hall opined.
“This case presents a less-than intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers,” Hall said, concluding that the officers’ use of force was reasonable and so the officers were entitled to qualified immunity.
Judge Diarmuid F. O’Scannlain joined Hall in her opinion, but Judge Marsha S. Berzon dissented.
“I fail utterly to
comprehend how my colleagues are able to conclude that it was objectively
reasonable to use any force against Brooks, let alone three activations
of a Taser, in response to such a trivial offense,” Berzon said. “Obviously,
the sensible reaction to [Brooks’] refusal to acknowledge the ticket in writing
would have been to so note on the ticket and send her on her way.”
