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Originally published May 29, 2012 at 8:37 AM | Page modified May 30, 2012 at 6:04 AM

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Supreme Court won't review SPD use of Taser on pregnant woman

The U.S. Supreme Court won't review the case of Malaika Brooks, who was seven months pregnant when she was repeatedly hit with a Taser by Seattle police during a traffic stop in 2004.

Seattle Times staff reporters

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The U.S. Supreme Court on Tuesday let stand a lower-court ruling that could expose police to liability for the inappropriate use of Tasers that included a 2004 incident in which three Seattle officers used the stun gun on a pregnant woman during a traffic stop.

Some law-enforcement groups had asked the high court to reconsider the sharply divided opinion of an 11-judge panel from the 9th Circuit Court of Appeals.

The Seattle City Attorney's Office had joined the attorney for the woman in the 2004 traffic stop, Malaika Brooks, in asking that the high court not hear the case. A private attorney representing the three officers had asked the justices to reconsider the 9th Circuit's ruling.

"Fortunately, the Court recognized this regrettable but unique case to be inappropriate as a basis for judicial guidance for using Tasers consistently with the Fourth Amendment," City Attorney Pete Holmes said in a written statement Tuesday. "It is important to recognize that the Taser use under the circumstances in Brooks is no longer permitted under SPD policy."

City attorneys argued the appeals-court ruling had addressed the use of Tasers in the "atypical circumstances of this case," and not the "sky is falling" interpretation of the Seattle officers.

Complex case history

Brooks claimed the Seattle officers violated her constitutional rights during the traffic stop. U.S. District Judge Richard Jones allowed her case to continue, declining in June 2008 to grant the officers immunity for performing their official duties. At the same time, Jones said Brooks had posed no threat to anyone and that her rights were clearly violated.

An appeal by the city resulted in 2-1 decision by a three-member panel of the 9th Circuit Court of Appeals to overturn Jones and grant the officers immunity. Brooks sought a rehearing, and the appeals court, in a rare move, withdrew the panel's decision and sent the case to a panel of 11 federal appellate court judges.

In October, that panel found that Brooks' lawsuit could not proceed, despite evidence of unconstitutional use of force by the officers, because the law governing the use of Tasers was unclear in 2004. However, the ruling allowed Brooks to pursue assault claims against the officers in civil court.

Brooks' attorney, Eric Zubel, said that lawsuit likely will proceed in state court.

The appeals court combined the Brooks case with another out of Hawaii and found, for the first time, that the use of a Taser in some circumstances could be considered excessive force and expose officers to lawsuits.

What happened

Brooks was stopped for speeding in a school zone. When she refused to sign the citation, the officers decided to arrest her.

Brooks refused to get out of the car, and resisted officers' attempts to remove her. The appellate court found that while she did resist arrest and had refused to sign the ticket or leave her car, that in itself did not justify the use of a Taser on her thigh, arm and neck in short succession, the opinion says.

"We note that Brooks bears some responsibility for the escalation of this incident," Judge Richard Paez wrote.

However, the judges considered two "overwhelmingly salient" factors that weighed in Brooks' favor: She had told the officers she was within 60 days of delivering her baby, and that after learning of this, the officers took time to discuss how they should proceed and even where they should apply the Taser.

The officers were identified as Juan Ornelas, Donald Jones and Sgt. Steven Daman.

The second significant fact, the judge said, was that Jones applied the 50,000-volt device to Brooks "three times over the course of less than one minute," the opinion said.

"Three tasings in such rapid succession provided no time for Brooks to recover from the extreme pain she experienced, gather herself and reconsider her refusal to comply," the opinion said.

Brooks did not suffer serious injuries, aside from small scars from the Taser. Her child was born healthy.

The city was prepared to accept the appeals-court decision. However, an attorney for the officers, Ted Buck, filed a petition, over the city's objection, seeking a hearing before the U.S. Supreme Court to clarify the lower-court decision. Buck was replaced but the petition remained in place.

Two large police groups, the National Tactical Officers Association and the Los Angeles County Police Chiefs' Association, had filed briefs with the Supreme Court asking that the ruling be struck down.

Seattle police changed their policy after the 2004 incident and no longer require drivers to sign tickets, and state law was similarly changed.

Up until now, the use of a Taser in the so-called "drive-stun" mode — applied directly to the target rather than used to fire darts — has been considered a relatively low-force "pain compliance" tool for officers to use on resisting subjects.

Brooks' attorney, Zubel, said he's satisfied the ruling now becomes precedent in the largest federal judicial circuit in the country, comprising nine Western states and two territories.

"This authority is going to have effect across the country," Zubel said. "I feel we've made a difference."

Brooks declined an interview.

The attorney for the three Seattle officers couldn't be reached Tuesday.

In the Hawaii case, the appeals judges found that Maui police likely used excessive force and violated the rights of Jayzel Mattos, who had called police on her husband during a domestic dispute in 2006. An officer shot her with a Taser in the dart-mode, which not only causes excruciating pain but also causes temporary paralysis.

The court determined that Mattos had not posed a threat nor was she resisting officers when she failed to get out of the way while an officer moved to arrest her husband.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

Information from The Associated Press and Seattle Times archives is included in this report.

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