Cops Who Used Taser on Pregnant Woman Seek U.S. Supreme Court Appeal

A Ticket, 3 Taser Jolts and, Perhaps, a Trip to the Supreme Court 
The New York Times by Adam Liptak

WASHINGTON, D.C — There have been many hundreds of varied rulings in the lower courts on when the use of Taser stun guns by the police amounts to excessive force, and sooner or later the Supreme Court will have to bring order to this area of the law. Next week, the justices are scheduled to decide whether to hear an appeal from three Seattle police officers who say they are worried about the future of what they call “a useful pain technique.” The case involves Malaika Brooks, who was seven months pregnant and driving her 11-year-old son to school in Seattle when she was pulled over for speeding. The police say she was going 32 miles per hour in a school zone; the speed limit was 20. Ms. Brooks said she would accept a ticket but drew the line at signing it, which state law required at the time. Ms. Brooks thought, wrongly, that signing was an acknowledgment of guilt. Refusing to sign was a crime, and the two officers on the scene summoned a sergeant, who instructed them to arrest Ms. Brooks. She would not get out of her car. The situation plainly called for bold action, and Officer Juan M. Ornelas met the challenge by brandishing a Taser and asking Ms. Brooks if she knew what it was. She did not, but she told Officer Ornelas what she did know. “I have to go to the bathroom,” she said. “I am pregnant. I’m less than 60 days from having my baby.” The three men assessed the situation and conferred. “Well, don’t do it in her stomach,” one said. “Do it in her thigh.” Officer Ornelas twisted Ms. Brooks’s arm behind her back. A colleague, Officer Donald M. Jones, applied the Taser to Ms. Brooks’s left thigh, causing her to cry out and honk the car’s horn. A half-minute later, Officer Jones applied the Taser again, now to Ms. Brooks’s left arm. He waited six seconds before pressing it into her neck. Ms. Brooks fell over, and the officers dragged her into the street, laying her face down and cuffing her hands behind her back. In the months that followed, Ms. Brooks gave birth to a healthy baby girl; was convicted of refusing to sign the ticket, a misdemeanor, but not of resisting arrest; and sued the officers who three times caused her intense pain and left her with permanent scars. The officers won a split decision in October from a 10-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco. The majority said the officers had used excessive force but nonetheless could not be sued because the law on the question was not clear in 2004, when the incident took place. While the ruling left the three officers in the clear, it did put them and their colleagues on notice that some future uses of Tasers would cross a constitutional line and amount to excessive force.

Chief Judge Alex Kozinski dissented on the first point, saying Ms. Brooks had been “defiant” and “deaf to reason” and so had brought the incident upon herself. As for the officers, he said: “They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.” Another dissenter, Judge Barry G. Silverman, said “tasing was a humane way to force Brooks out of her car.” “There are only so many ways a person can be extracted from a vehicle against her will, and none of them is pretty,” he explained. “Fists, batons, chokeholds, tear gas and chemical spray all carry their own risks to suspects and officers alike.” The bottom line, in any event, was that the officers had won. They have nonetheless appealed to the Supreme Court, in an effort to clear their names and preserve the freewheeling use of “a useful pain technique.” Their employer, the City of Seattle, seems to think they have gone rogue. In a separate Supreme Court filing, Seattle disavowed what it called the officers’ “ ‘sky is falling’ interpretation” of the Ninth Circuit’s decision, which said only, as the city put it, that “three applications of a Taser in drive-stun mode in less than a minute on a pregnant woman who does not pose a safety threat” may give rise to a lawsuit for a jury to sort out. Seattle, which said it was liable for any damages in the case, urged the justices not to hear the officers’ appeal. So did Ms. Brooks, who lost in the Ninth Circuit but is still pursuing claims under state law. But several police groups, including the Los Angeles County Police Chiefs’ Association, asked the Supreme Court to hear the officers’ appeal because the Ninth Circuit’s decision “damages the rule of law.” “It won’t be long,” their brief said, “before the word spreads throughout society’s criminal underground that the Ninth Circuit hasn’t simply given them a ‘get out of jail free’ card, but a ‘never have to go to jail in the first place’ card.” Michael F. Williams, a lawyer at Kirkland & Ellis, which represents Ms. Brooks, said the criminal justice system would endure even if the police were barred from delivering thousands of volts of electricity into the body of a pregnant woman who refused to sign a piece of paper. “The officers are trying to defend inexcusable conduct,” he said. “They inflicted enormous pain on a woman who was especially vulnerable over what was essentially a traffic violation.”