Monday, October 17, 2011
In an opinion today in the companion cases of Mattos v. Knight & Maui County and Brooks v. City of Seattle, the Ninth Circuit sitting en banc reversed two district judges who denied summary judgment motions by law enforcement officers that they were entitled to qualified immunity as a matter of law.
In both situations, law enforcement officers wielded tasers against a woman who was arguably not threatening. Brooks entered a school zone, dropping her child off at school, and was charged with not adequately reducing her speed. Mattos was the victim of a domestic assault. Both women were tasered: Brooks because she refused to sign the citation and was placed under arrest, Mattos while she was asking why her partner was being arrested and attempting to defuse the situation. Brooks, 7 months pregnant was tasered three times; Mattos was subject without warning to a dart-taser.
The Ninth Circuit held that in each case the law enforcement officers used excessive force. For example, the court summarized its conclusions regarding Brooks:
In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute,
inflicting extreme pain on Brooks.
As Judge Schroeder, concurring, noted, both women's conduct was nonthreatening:
I write separately only to emphasize the non-threatening nature of the plaintiffs’ conduct. Both were women, with children nearby, who were tased after engaging in no threatening conduct. In Mattos, a domestic violence victim wanted the officers outside her home so they would not awaken her children. In Brooks, the police stopped the pregnant plaintiff for speeding in front of her child’s school — when she refused to sign the traffic ticket and exit the vehicle, the police tased her. Her behavior may be difficult to understand, but it certainly posed no immediate threat to the officers.
Yet applying the increasingly stringent requirement after last term's decision in Ashcroft v. al-Kidd that there was a clearly established right at the time of the occurrence, the court found the officers were entitled to qualified immunity. The test, as the court distilled it was that "every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment." (Emphasis added). The court rehearsed several taser cases and concluded that the actions the court found were excessive force were not - - - beyond debate - - - excessive force.
The dissenting and concurring opinion of Kozinski, joined by Bea, is less sympathetic to the women. For Kozinski,
Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders. When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal.
The "traditional tools" such as choke-holds can be "distasteful" according to Kozinski; "The Taser is a safe alternative." It is certainly to be preferred to "pepper-spray," which Kozinski maligns in two separate instances, including rhetorically rejecting "pepper spray or some other noxious chemical, which would be absorbed into her bloodstream and go straight to the fetus" as an alternative to control Brooks.
Kozinski rejects any concern for the women's status as women:
I thought we were long past the point where special pleading on the basis of sex was an acceptable form of argument. Women can, of course, be just as uncooperative and dangerous as men, and I would be most reluctant to adopt a constitutional rule that police must treat people differently because of their sex.
The opinion as a whole, and certainly Kozinski's remarks regarding gender and pepper spray, have special resonance to recent events at the "occupation" of Zuccotti Park near Wall Street. The pepper spraying of a woman protester by a senior law enforcement officer was captured on video and distributed widely.
Chelsea Elliot, the woman in the video being pepper sprayed by an officer identified as Anthony Bologna, is reportedly bringing a civil suit for excessive force. The NYPD is reportedly also investigating Bologna and other senior officers.
For those teaching constitutional litigation, civil rights, and similar courses this semester, the video and the case would make a great pairing for discussion or an individual student project.