Taser Case Fails to Stun Full Panel of 9th Circuit

(CN) - Police officers in Washington evaded federal excessive-force claims from a pregnant woman whom they stunned three times with a Taser for refusing to sign a speeding ticket, but they may be liable for assault and battery in state court, the full 9th Circuit ruled Monday.

Deciding two excessive-force cases involving Tasers, the en banc panel likewise ruled that officers in Hawaii are immune from the Fourth Amendment claims of a woman who they Tased during the arrest of her husband for a domestic disturbance.

The 10-judge panel in Pasadena was sharply divided, however, as to whether the two incidents amounted to excessive force. The majority found that they did, while Chief Judge Alex Kozinski argued that the Taser is a safe alternative to old-school police tools like the baton and the choke hold, and that both defendants had "breached the covenant of cooperation by refusing to comply with police orders."

The en banc panel found that the police officers in both cases have qualified immunity because the law governing the use of Tasers was not clearly established at the time.

In 2004, Seattle police officers deployed their Tasers three times on Malaika Brooks and dragged her from her car after she refused to sign a speeding ticket. She was seven months pregnant at the time. Prosecutors charged her with resisting arrest, but a jury was unable to reach a verdict and the charge was dismissed.

Jayzel Mattos got in the way of the Maui police officers arresting her intoxicated husband in 2006 after a domestic dispute. An officer used the Taser on Mattos once and arrested her for harassment and obstructing government operations. The charges were later dropped.

Both women filed Fourth Amendment excessive-force claims, and both enjoyed an initial victory at the trial court level.

In Seattle, U.S. District Judge Richard Jones denied qualified immunity to the officers who had Tased Brooks, finding that she had alleged a viable Fourth Amendment excessive-force claim. The District Court also refused to dismiss Brooks' state-law assault and battery claims against the officers. U.S. District Judge David Ezra in Honolulu also ruled against the cops in Mattos case

Two separate three-judge 9th Circuit panels reversed both District Courts last year, and a full panel of the appellate court agreed to take another look in each case. The en banc panel consolidated the appeals and agreed with the previous panels that the trial judges got it wrong.

While agreeing with the lower courts that the women had shown evidence of excessive force, the panel nonetheless found that, at the time of both incidents, "there were no circuit Taser cases finding a Fourth Amendment violation."

"We conclude that Brooks and the Mattoses have alleged constitutional violations, but that not every reasonable officer at the time of the respective incidents would have known - beyond debate - that such conduct violates the Fourth Amendment," Judge Richard Paez wrote for the court. "In Brooks, however, we affirm the District Court's denial of qualified immunity on Brooks's state law assault and battery claims."

In a partial dissent, Chief Judge Kozinski argued against the majority's conclusion that the cops had used excessive force and should stand trial for Brooks' state-law claims.

"By asking police to serve and protect us, we citizens agree to comply with their instructions and cooperate with their investigations," he wrote. "Unfortunately, not all of us hold up our end of the bargain. As a result, officers face an ever-present risk that routine police work will suddenly become dangerous."

Kozinski added that "Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders."

"When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal," Kozinski wrote. "Traditional tools, such as choke holds, arm locks and other hand-to-hand techniques, can cause permanent injury, even death."

He called the Taser a "safe" alternative to such methods and suggested that the officers in the Brooks case should be awarded the "commendations for grace under fire."

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