WASHINGTON Malaika Brooks was seven months pregnant when a Seattle police officer stunned her with a Taser. Hawaii resident Jayzel Mattos was at home when she, too, got zapped by police.
Now, the Supreme Court is being asked to consider for the first time police use of Tasers. With more than 11,000 agencies nationwide arming officers with the stun guns, the time may be getting ripe for settling questions about when electrical force becomes excessive.
"One could argue that the use of painful, permanently scarring weaponry on non-threatening individuals who were not trying to escape, should have been known to be excessive by any informed police officer," Appellate Judge Mary Schroeder noted, before cautioning that "there is no good case law" to clarify decision-making.
Schroeder and the 9th U.S. Circuit Court of Appeals confronted the complicated Taser questions last year. The majority's conclusion that stunning a nonviolent individual could be considered excessive force will be reviewed by Supreme Court justices in a private conference this month.
Already, the Los Angeles County Police Chiefs' Association is urging the high court to take up the Taser cases. Some appellate judges, too, are warning about dire consequences if Taser use is restricted.
"My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries," 9th Circuit Judge Alex Kozinski cautioned.
The Taser cases will be among many considered by the Supreme Court's nine justices at their May 24 conference. If at least four justices agree, the combined cases will be added to the docket for the upcoming 2012 term.
While these particular Taser cases may not make the cut, in time others almost certainly will, as the proliferating technology keeps getting dragged into court.
In Woodland, for instance, the family of a man who died after being shocked several times won a $300,000 settlement in 2009. The next year, a Chowchilla resident was awarded $330,000 after police shocked him at home.
Some are product liability cases challenging the manufacturer, Arizona-based Taser International, as when the family of a Salinas man in 2008 was awarded $6.2 million after he was shocked and went into cardiac arrest.
The cases now being considered by the Supreme Court are different. They challenge the police officers who fired the Tasers. The issue is excessive force.
"When you get to the use of a new weapon, that's the issue that will get up to the Supreme Court eventually," Woodland Hills-based attorney Peter Williamson predicted Friday. "It's taken years for these cases to filter up."
Williamson and his co-counsel, John Burton, have won some high-profile Taser cases, including a $10 million judgment awarded last year to the family of a 17-year-old Charlotte, N.C., boy who died in 2008 after being shocked. A judge later reduced that to $4.3 million.
"Taser has been successful in winning voluntary dismissals or judgments for dismissal in 18 product liability lawsuits," the company stated in a release.
The Malaika Brooks case dates to November 2004, when police pulled Brooks over for driving 32 mph in a school zone. She told police officers she would neither sign the ticket nor leave the car.
"I have to go to the bathroom, I am pregnant, I'm less than 60 days from having my baby," Brooks said, according to court records.
After repeatedly warning her, police shocked her three times and dragged her from the car.
Two years later, Mattos was shocked by a stun gun after police in Maui, Hawaii, came to her home during a domestic dispute. When she was shocked, the 9th Circuit Court reported, Mattos was "attempting to defuse the situation."
In their subsequent lawsuits, both Brooks and Mattos claimed police violated the Fourth Amendment's prohibition against "unreasonable searches and seizures," which the Supreme Court has ruled includes excessive force.
The 9th Circuit ruled the shocking of Brooks with 1,200 volts could reasonably be considered excessive force. However, the court also ruled that police enjoyed immunity from the lawsuit because "the law was not sufficiently clear" concerning Taser use. The court reached a similar conclusion with Mattos.