Constitutional Limits on Taser Use

9th Circuit CourthouseA federal appeals court found excessive force by police use of Tasers to subdue pregnant woman during a minor traffic stop and a second woman during a domestic dispute.  But it may be a pyrrhic victory for the two women.   The 11-judge review also concluded the officers are immune from liability because no appeals court at that time had found use of stun guns to violate the Fourth Amendment.   

 The 9th U.S. Circuit Court of Appeals, in a 7-4, decision clarifies the constitutional boundaries on the use of Tasers to stun people in separate cases from Hawaii and Seattle, Washington.  It puts police on notice they may be held to account if they engage in similar actions in the future.

Malaika Brooks was seven months pregnant when she was stopped for driving 32mph in a 20mph school zone in 2004.  She refused to sign the ticket and was tased three times within one minute by the Seattle police officer.  She was accused of resisting arrest when she stiffened her arms on the steering wheel rather than get out of the car.

In the second case, Jayzel Mattos got between an officer and her drunken husband during a 2006 call to a domestic dispute in Maui.  She said she was trying to calm both men so they would not wake her children sleeping nearby but was tased with the stun gun in dart mode by the officer.

Judge Richard Paez, writing for the majority, said to determine whether the Taser action against Brooks violates an individual’s Fourth Amendment rights requires careful balancing of the nature of the officer’s intrusion on those rights versus the government interest at stake.

Paez said Brooks’ failure to sign a traffic ticket for driving 12mph over the speed limit is  not a serious violation.  Her resistance by clutching the steering wheel was not violence toward officers, he said.

But at the time of the Brooks incident no appeals courts have found stun-gun cases violated the Fourth Amendment, so Paez wrote the officer was immune from liability.

In the Mattos case, Paez wrote that the Maui officer’s failure to warn Mattos before she was hit with the stun gun, and that she was a potential non-threatening victim of the domestic dispute, “pushed this use of force far beyond the pale.”  It too amounted to excessive force in violation of the Constitution.

But in dissent, Chief Judge Alex Kozinski said the Taser is a “safe alternative” to the range of more violent tactics police could employ, such as choke holds, fists and batons.

He warned that the ruling “will cause police to resort to more dangerous methods in the future.  Count me out.”  He was joined by Judge Carlos Bea.

Kozinski argued both women violated the public covenant to cooperate with police.

 Judge Mary Schroeder agreed with the majority, but wrote separately to respond to Kozinski about what she called “some serious misunderstanding of each woman’s situation.”

She pointed out the women were non-threatening and not trying to escape. She took issue with a Kozinski footnote and his “underlying assumption in Mattos, that violence is gender-blind, and concerns for womens’ safety thus ‘chauvinistic,’ overlooks the worldwide struggle to combat violence against women.”

Case: Mattos v. Agarano, No.  08-15567

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