Vol. 26 No. 26 – Use of Taser Ruled Unconstitutional By Ninth Circuit


On October 17, 2011, the Ninth Circuit U.S. Court of Appeals issued a ruling in two cases,Mattos v. Agarano and Brooks v. City of Seattle, which were combined by the court, involving the use of the Taser.   The court concluded, in an en banc decision, that under the circumstances of those cases, the use of the Taser was excessive and unconstitutional.

Additionally, the court ruled that, even though the use of the Taser was excessive, the officers were entitled to qualified immunity from civil liability since, at the time of the incidents, reasonably trained officers would not have know that such use of the Taser was improper.

Qualified Immunity

The court ruled that, “in determining whether an officer is entitled to qualified immunity, we employ a two-step test: first, we decide whether the officer violated a plaintiff’s constitutional right; if the answer to that inquiry is “yes,” we proceed to determine whether the constitutional right was “clearly established in light of the specific context of the case” at the time of the events in question.”

Use of Force Analysis

The court held that in determining whether the use of force was excessive, the factors set forth in the U.S. Supreme Court decision, Graham v. Connor, 490 U.S. 386 (1989) must be considered.
“We apply Graham by first considering the nature and quality of the alleged intrusion; we then consider the governmental interests at stake by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”

“Ultimately, the “most important“ Graham factor is whether the suspect posed an ‘immediate threat to the safety of the officers or others.’ (Citations.)  When we consider whether there was an immediate threat, a ‘simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern’.”

Once it is determined that a constitutional right had been violated, the analysis then turns to whether the right was clearly established at that time.

“For the second step in the qualified immunity analysis — whether the constitutional right was clearly established at the time of the conduct — we ask whether its contours were “‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’”

Facts in Brooks v. Seattle

In Brooks, said the court, “we proceed to determine whether [officer] Jones’ use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced.”

“According to the facts as alleged by Brooks, the officers pulled her over for speeding and then detained and took her into custody because she refused to sign a traffic citation.”

Brooks was driving her young son to school and he was in the car when she was stopped for driving 32 miles per hour in a 20 mile an hour zone.  “(W)e have no difficulty deciding that failing to sign a traffic citation and driving 32 miles per hour in a 20–mile–per–hour zone are not serious offenses.”

“We next consider whether Brooks “posed an immediate threat to the safety of the officers or others. When the encounter began, Brooks was compliant: she pulled over when signaled to do so, gave her driver’s license to [officer] Ornelas when asked, and waited in her car while Ornelas checked her information.”

Brooks was informed that she was going to be cited for speeding;  she became upset and refused to sign the citation, but said she would accept it without signing it.  A Sergeant was called to the scene and, after speaking with Brooks, told the officers to book her.  When she refused to get out of the car, they showed her a Taser.

“After Jones and Ornelas discussed where to tase Brooks, Ornelas opened the driver’s side door and twisted Brooks’ arm up behind her back. Brooks stiffened her body and clutched the steering wheel to frustrate the officers’ efforts to remove her from the car.”

“ . . . (W)ith Ornelas still holding her arm behind her back, Jones applied the taser to Brooks’ left thigh in drive-stun mode. Brooks began to cry and started honking her car horn. Thirty-six seconds later, Jones applied the taser to Brooks’ left arm. Six seconds later, Jones applied the taser to Brooks’ neck as she continued to cry out and honk her car horn. After this third tase, Brooks fell over in her car and the officers dragged her out, laying her face down on the street and handcuffing her hands behind her back.”  She was taken to jail and, ultimately, charged with two misdemeanors.

Facts in Mattos v. Agarano

Maui police officers responded to a 911 call regarding a domestic dispute between Jayzel Mattos and her husband, Troy. “Troy is six feet three inches tall, approximately 200 pounds, and he smelled of alcohol when the officers arrived,” Troy was sitting outside the house and when the officers asked to speak to his wife, Troy entered the house to get her.

“When Troy went inside to get Jayzel, Agarano stepped inside the residence behind him. Troy returned with Jayzel and became angry when he saw Agarano inside his residence.”  Since Troy was upset, “Agarano asked Jayzel if he could speak to her outside. Jayzel agreed to go outside, but before she could comply with Agarano’s request, [officer] Aikala entered the residence and stood in the middle of the living room.”

Aikala announced that Troy was under arrest.  Jayzel was standing between the officers and her husband.  When officer Aikala moved forward, he pushed against Jayzel, “at which point she “extended [her] arm to stop [her] breasts from being smashed against Aikala’s body.”

She was also talking to Agarano, trying to calm down the situation, and asking everyone to step outside the house to avoid waking her children. “Then, without warning, Aikala shot his taser at Jayzel in dart-mode.”

They were then taken into custody and Troy was charged with harassment and resisting arrest.  Jayzel was charged with harassment and obstructing government operations.  All charges were ultimately dismissed.

Court’s Decision in Brooks

First, the court of appeal discussed the use of force.  In the case of Brooks, the court ruled that the use of the Taser constituted an unconstitutional and excessive use of force.

“(W)e proceed to determine whether Jones’s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced.”  The court then evaluated the severity of the crime, which it concluded was “not serious.”

As to the question of whether she posed an immediate threat, the court held that “at most, the officers may have found her uncooperative and her agitated behavior to be potentially threatening while Brooks’ keys remained in the ignition of her car. In theory, she could have attempted to drive away rapidly and recklessly, threatening the safety of bystanders or the officers. But at some point after Ornelas grabbed Brooks’ arm and before Jones applied the taser to her, Ornelas removed the keys from Brooks’ car ignition and the keys dropped to the car’s floor. Thus, at the time Jones applied the taser to Brooks, she no longer posed even apotential threat to the officers’ or others’ safety, much less an ‘immediate threat.’  We reiterate that this is the ‘most important single element’ of the governmental interests at stake.”

The court then concluded that Brooks did, in fact, resist arrest.  However, “Brooks’ resistance did not involve any violent actions towards the officers. In addition, Brooks did not attempt to flee, and there were no other exigent circumstances at the time.”

Finally, said the court, “we must examine the totality of the circumstances and consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed inGraham’.”  The court held that, although Brooks contributed to the situation, “(t)here are, however, two other specific factors in this case that we find overwhelmingly salient.”

The fact that the officers knew that she was seven months pregnant and that “Jones tased Brooks three times over the course of less than one minute.”  As such, said the court, “(a) reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers’ use of force was unreasonable and therefore constitutionally excessive.”

Court’s Decision in Mattos

“Determining whether the force used against Jayzel Mattos was constitutionally excessive, we begin again by considering the nature and quality of the force used. Here, the taser was employed in dart-mode, which we have held “constitute[s] an intermediate, significant level of force.”

“Taking the evidence in the light most favorable to Jayzel, and resolving all conflicts in her favor, the most that can be said about her actions is that, while standing between Troy and Aikala, she attempted to prevent Aikala from pressing up against her breasts. While this may have momentarily deterred Aikala’s immediate access to Troy, it did not rise to the level of obstruction. Thus, under Graham, the severity of the crime, if any, was minimal.”

As to whether Jayzel posed an immediate threat to the officers, “there were no objective reasons to believe that she was armed, she did not verbally threaten the officers, and her only physical contact with Aikala resulted from her defensively raising her hands to prevent him from pressing his body against hers after he came into contact with her.”

The court then held that she was not actively resisting arrest.  “(W)hen Aikala stated that Troy was under arrest, Jayzel did not immediately move out of the way to facilitate the arrest. For the purposes of this Graham factor, however, we draw a distinction between a failure to facilitate an arrest and active resistance to arrest.”

However, the court noted, “we must also consider the danger that the overall situation posed to the officers’ safety and what effect that has on the reasonableness of the officers’ actions.”

“When they arrived they encountered Troy, who was sitting by himself outside the residence, hostile, seemingly intoxicated, six feet three inches tall and approximately 200 pounds. We have observed that ‘[t]he volatility of situations involving domestic violence’ makes them particularly dangerous.”

“Here, though, the alleged Fourth Amendment violation is the excessive use of force against the potential non-threatening victim of the domestic dispute whom the officers ostensibly came to protect.”

“(W)e are unable to identify any reasonableness in the conclusion—whether made in a split-second or after careful deliberation—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.”

“Finally, the fact that Aikala gave no warning to Jayzel before tasing her pushes this use of force far beyond the pale. We have previously concluded that an officer’s failure to warn, when it is plausible to do so, weighs in favor of finding a constitutional violation.” (Emphasis added.)


The court concluded 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. Accordingly, we reverse the district courts’ denial of summary judgment on qualified immunity grounds on Plaintiffs’ § 1983 excessive force claims.”

The granting of qualified immunity was important for the officers involved, but that was based on the finding that no court decisions had clearly addressed this issue at that time.  It is important to understand that, with the publication of these cases, that defense will not be available in the future in cases involving similar circumstances.

There have now been a series of decisions involving the use of Tasers and reviews of when and under what circumstances its use is appropriate.

On December 28, 2009, a unanimous Ninth Circuit U.S. Court of Appeals restricted when and under what circumstances Electronic Control Devices (ECD) can be used.  In the case of Bryan v. McPherson; Coronado Police Department; City of Coronado, the Court ruled that in order to deploy an ECD, the “objective facts must indicate that the suspect poses animmediate threat to the officer or a member of the public.”

The decisions in the cases of Brooks and Mattos also focus on the need to justify the use of the ECD, with the immediate threat to the officer or others, being a key factor to be considered.  In a Client Alert Memo addressing the Bryan case, we emphasized the need for training and we reiterate that once again.  (See Vol. 24, No. 28, 12/29/09.)

As always, it is imperative that you receive advice and guidance on legal issues from your agency’s attorney.  If you wish to discuss this matter in greater detail, please feel free to contact me at 714 – 446-1400 or via e-mail at mjm@jones-mayer.com.
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