En Banc Ninth Circuit on When Using a Taser to Subdue A Suspect Counts as “Excessive Force” Under the Fourth Amendment

The Ninth Circuit handed down a divided en banc decision today in the consolidated cases of Brooks v. Seattle and Mattos v. Agarano, which consider the Fourth Amendment limitations on the use of tasers. The Ninth Circuit judges divided 6-4 on whether the use of force was excessive and therefore violated the Fourth Amendment. For a bunch of reasons, the case strikes me as a plausible candidate for Supreme Court review.

Excessive force cases are always fact-specific, but here are the basic facts of the two cases. In the first case, Brooks, the plaintiff was arrested for refusing to sign her speeding ticket. She then refused to get out of the car upon her arrest. The officer told her he would have to tase her if she didn’t get out of the car, but she still refused, and he tased her on a low setting. She still refused to get out of the car, and the officer then tased her on a higher setting. In the second case, Mattos, the police responded to a 911 call about a domestic dispute between a husband and wife. After a brief investigation, the police announced that they were placing the husband under arrest. The wife was physically between the arresting officer and her husband at that time, and she did not move; as the officer approached, she put up her hands to block the officer and apparently said something about the need for them to defuse the situation. The officer responded by tasing the wife.

The majority opinion by Judge Paez concludes that the use of tasers to subdue individuals on those two cases was excessive, but that qualified immunity applies. Judge Kozinski wrote a partial dissent and would have held that the tasering was not excessive force. Kozinski presents tasers as a safer alternative than direct physical force, and concludes:

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

Note that under Camreta v. Greene, the officers could still obtain Supreme Court review of the merits of the Fourth Amendment issue even though they won on immunity grounds in the Ninth Circuit. Thanks to How Appealing for the link.