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Ninth Circuit: Tasering Pregnant Woman is Excessive Force

By Robyn Hagan Cain | Last updated on

Can police taser a person who doesn’t pose a threat of harm?

The Ninth Circuit Court of Appeals ruled on Monday that police used excessive force and violated plaintiffs’ Fourth Amendment rights in two separate tasering incidents, but then neutered that opinion by extending qualified immunity to the officers.

We think the Ninth Circuit erred in granting qualified immunity, but you can decide for yourself if it was warranted.

The first plaintiff, Malaika Brooks, was seven months pregnant when Seattle police cited her for speeding in a school zone. Brooks repeatedly refused to sign the speeding citation.

After explaining to Brooks that she would be arrested if she didn't sign the citation, one of the three police officers at the scene pulled out a Taser and asked Brooks if she knew what it was. Brooks responded that she didn't, and told the police that she was "less than 60 days away" from having a baby and needed to go to the bathroom. The officers then began to discuss where to taser Brooks, agreeing that it should not be on her stomach since she was pregnant. (At least chivalry is not dead on the Seattle police force.)

The officers eventually entered Brooks' car, and tasered her three times before dragging her out of the car and off to jail.

The second plaintiff, Jayzel Mattos, called police to her home to her home in Maui to intervene in a domestic dispute. When one of the responding officers tried to arrest her husband, Troy, Jayzel stepped in between the officer and husband to try to diffuse the situation.

As the officer moved in to arrest Troy, he pushed up against Jayzel's chest, at which point she "extended her arm to stop her breasts from being smashed against [the officer]." Because Jayzel touched the officer and asked everyone to calm down, the officer tasered Jayzel without warning.

The common factor in these cases? Neither plaintiff presented a threat to the officers.

The Ninth Circuit evaluates qualified immunity claims through a two-part test. First, judges decide whether the officer violated a plaintiff's constitutional right; if the answer to that inquiry is "yes," they 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.

Here, the court found that the officers in both cases violated the plaintiffs' Fourth Amendment rights, but that the constitutional right to be free of tasering was not clearly established in the context of the cases. Thus the court found that the officers were entitled to qualified immunity in the excessive force claims.

The good news in this case? While the police won qualified immunity against these excessive force claims, the Ninth Circuit Court of Appeals has now established that it considers tasering a non-threatening suspect to be excessive force in violation of Fourth Amendment rights. Officers who taser non-threatening persons in the future are unlikely to receive qualified immunity.

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