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Originally published February 21, 2012 at 12:22 PM | Page modified February 27, 2012 at 8:52 AM

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City asks Supreme Court to not hear SPD Taser case

In an unusual step, Seattle city attorneys asked the high court to reject an appeal from three Seattle police officers who repeatedly used a Taser on a pregnant woman.

Seattle Times staff reporter

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Seattle city attorneys urged the U.S. Supreme Court on Tuesday to reject an appeal brought on behalf of three Seattle police officers who tased a pregnant woman, saying the request was filed over the city's objections.

The unusual action comes a month after a private attorney, hired by the city to defend the officers, asked the high court to consider whether they can be sued for assault and battery.

The attorney, Ted Buck, came under intense criticism from the city after he filed the petition. The court has yet to decide whether to take the case.

Buck has since withdrawn from the case. U.S. District Court Judge Richard Jones, who is presiding over the lawsuit, signed an order Friday allowing Seattle attorney Robert Christie to represent the officers, who maintain they acted reasonably when they repeatedly used a Taser on the woman during a 2004 traffic stop.

Kimberly Mills, spokeswoman for the City Attorney's Office, said Tuesday that Buck was asked by the city to withdraw and that her office will not pay him for his work preparing the petition. Mills said her office retained Christie to represent the officers, noting the petition can't be withdrawn.

For now, the city pins its hopes on the friend-of-the court brief it filed Tuesday, known as an amicus action. It argued that a federal appeals-court ruling allowing the officers to be sued was an "unusual, fact-specific decision" that should not be reviewed by the court.

Buck, who provided no explanation to Jones about his decision to withdraw, said in an email Tuesday that he stepped aside "to allow the focus to remain" on the officers' challenge of the appellate ruling.

In a sharply worded Jan. 18 letter, city attorneys had informed Buck that his decision to petition the Supreme Court violated his duty to the city, and that outside legal ethics experts believed he could be subject to a bar complaint.

Matter of ethics

Buck responded at the time that his law firm, Stafford Frey Cooper, was "ethically and sensibly" obliged to seek the review. He said he had no choice but to "protect the officers' interests even if the city disagreed."

"I consulted an outside legal ethics expert who advised me that I had to abide by my duty to the officers, ... " Buck wrote.

His filing stemmed from an October ruling of the 9th U.S. Circuit Court of Appeals, which found that the three officers cannot be sued in federal court, despite evidence that they used excessive force, because the law governing Taser use was unclear at the time.

But in a 6-5 ruling, the court said Malaika Brooks could bring a lawsuit against Sgt. Steven Daman and Officers Juan Ornelas and Donald Jones on a state claim of assault and battery. Brooks, whose baby was born healthy, is pursuing that claim before Judge Jones.

Based on Brooks' version of events, the court concluded the Taser use could be found to be excessive and a violation of her constitutional rights.

After the ruling, the City Attorney's Office concluded a Supreme Court appeal wasn't prudent, as did Mayor Mike McGinn and Police Chief John Diaz.

In their letter to Buck, city attorneys said the facts — directly applying a Taser to a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and exit her car — "unduly risk creating unhelpful Supreme Court precedent on taser use."

In addition, Seattle police changed their policy after the incident to no longer require drivers to sign tickets, and state law was subsequently changed along the same lines.

Wait for guidance

City attorneys determined the best course was to await Supreme Court guidance on other pending Taser cases.

Buck's petition to the Supreme Court faulted the 9th Circuit ruling, saying the majority found that Brooks had "stated a claim of excessive force but did so without an explanation as to why, and without any mention or analysis of what would have been an appropriate alternative response."

Buck wrote that the ruling conflicts with Supreme Court decisions that "law enforcement officers' have the right to use force to effect an arrest."

In Tuesday's brief, city attorneys said the ruling addressed the use of Tasers "in the particular, atypical circumstances of this case," not the "sky is falling" interpretation of the officers.

Stafford Frey once held an exclusive contract with the city, but City Attorney Pete Holmes ended the 40-year relationship last year. Stafford Frey remained as one of three private firms that could be hired.

Mills said Tuesday's filing represented an effort to reclaim control of Seattle police litigation after the decades of Stafford Frey control. "The city sets use-of-force policies, not individual officers," Mills said.

Meanwhile, Brooks' attorneys filed briefs with the Supreme Court on Tuesday, including a request to deny the officers' petition. But if the court decides to hear the officers' case, Brooks asked that the court to also review the 9th Circuit's finding that she can't sue the officers in federal court.

Information from Seattle Times archives is included in this story.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

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