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Legal Report January 2012


TASERS. A federal appeals court has ruled that police officers in two separate incidents engaged in unreasonable force when discharging their Tasers. However, because case law was not established at the time of the incidents, the officers were not necessarily aware of this fact. Therefore, they are protected from liability.

The U.S. Court of Appeals for the Ninth Circuit combined two similar cases, Brooks v. City of Seattle and Mattos v. Agarano, involving police use of Tasers. In one case, a lower court found that the police used excessive force, and in another, a court ruled that questions of fact remained as to whether the police actions were reasonable. Upon appeal, two different courts ruled that the officers in each case were entitled to qualified immunity—a legal theory that protects government employees from liability unless their actions clearly violate statutory or constitutional rights that would have been obvious to a reasonable person.

In Brooks, two Seattle police officers pulled Malaika Brooks over for speeding as she drove her son to elementary school in 2004. Brooks, who was seven months pregnant at the time, denied that she was speeding and refused to sign the speeding citation. The officers threatened to take Brooks to jail if she did not sign the citation, but she continued to refuse. Another officer arrived on the scene. The officers then showed Brooks the Taser and asked if she knew what it was. She said she did not.

Brooks then told the officers that she was pregnant and needed to use the restroom. After learning of the pregnancy, the officers then stood near Brooks’s car and had a discussion about the best place to use the Taser on Brooks. One of the officers crawled into the back seat of the car and pulled Brooks’s arm behind her back. Then, an officer used the Taser on Brooks’s left thigh. Within approximately 60 seconds, the officer followed with Taser shocks on Brooks’s left arm and her neck. After the third shock, Brooks collapsed. Officers pulled her from the car and placed her face down on the street before handcuffing her.

Brooks’s gave birth to a healthy girl two months later. Brooks carries scars from the Taser shocks, but she has no other long-term injuries from the incident. Brooks was later charged with a misdemeanor violation of city code for refusing to sign the traffic violation.

Brooks sued the officers for assault and battery and a Fourth Amendment violation of unreasonable force. The officers claimed qualified immunity under state and federal law. The district court rejected the claim, and the officers appealed the decision.

The incident in Mattos occurred in 2006. Maui police officers arrived at the Mattos’s home in response to a domestic dispute call from Jayzel Mattos. Her husband, Troy Mattos, was outside the home when the officers arrived. Troy, who was over six feet tall and more than 200 pounds, indicated that he had argued with his wife but that the issue had been resolved. Officers asked Troy if they could speak with Jayzel. Troy went inside to get her.

One of the officers followed Troy into the house. When Troy noticed that the officer had entered, he became angry and asked the officer to leave. Meanwhile, another officer entered the house, found Jayzel and asked to speak to her outside. The officers confronted Troy and Jayzel in the living room. After a heated discussion, an officer moved to arrest Troy and accidentally collided with Jayzel. As Jayzel moved her arm in front of her to stop the officer from running into her, the officer became agitated. The officer asked Jayzel “Are you touching an officer?”

Jayzel asked the officers why Troy was being arrested and repeatedly requested that everyone be quiet because her children were sleeping in the next room. Then, without warning, one of the officers discharged his Taser at Jayzel. Both Troy and Jayzel were arrested and charged with harassment, resisting arrest, and obstructing government operations. All of the charges were eventually dropped.

The couple sued the officers for violation of their constitutional rights, including their Fourth Amendment right to be free of unreasonable force. The officers requested summary judgment—a hearing based on the facts of a case, without a trial. A district court refused to grant the summary judgment, finding that a trial was required to determine whether the use of the Taser was constitutionally reasonable.

In both cases, the appeals courts determined that the officers used unreasonable force in discharging their Tasers. In Brooks, the court found that Brooks’s offenses were minor and that she posed no immediate threat to the safety of the officers. Yet, the officers tased the pregnant Brooks three times in less than a minute. In Mattos, the court noted that the officers determined that the tasing was unreasonable given that it was used against “the nonthreatening victim of a domestic dispute whom they had come to protect.”

However, the court found that, at the time of each incident, the case that would establish tasing as unreasonable in certain circumstances (Bryan v. MacPherson, U.S. Court of Appeals for the Ninth Circuit, 2010) had not been decided. Therefore, according to the court, the officers are entitled to qualified immunity because they did not know that their actions were unreasonable. The court wrote that “not every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment.” (Brooks v. City of Seattle, U.S. Court of Appeals for the Ninth Circuit, No. 08-35526, 2011, and Mattos v. Agarano, U.S. Court of Appeals for the Ninth Circuit, No. 08-15567, 2011)


TRAINING. A bill (H.R. 2619) introduced by Rep. Thomas Rooney (R-FL) would require the government to provide active shooter training to security personnel on military bases. The government would also have to establish policies and guidelines for better preparing law enforcement officers and others who would have to provide security in an active shooter situation, such as the one at Fort Hood in 2009.

The bill has one cosponsor and has been referred to the House Veteran’s Affairs Committee’s Subcommittee on Health.

BORDER SECURITY. A bill (H.R. 2124) introduced by Rep. Francisco Canseco (RTX) would establish new reporting methods to help the government track violence along the U.S. border with Mexico. Under the bill, the government would devise metrics for reporting violence and would require that reports based on those metrics be submitted to Congress every 90 days.

Sources of information would include crime reports from local and state law enforcement, reports from local hospitals on wounds obtained during cross-border violence, and incidents reported by federal agencies such as U.S. Customs and Border Protection.

The bill has three cosponsors and has been referred to the House Judiciary Committee and the House Homeland Security Committee’s Subcommittee on Border and Maritime Security.

TRANSPORTATION. A bill (H.R. 3173) introduced by Rep. Steve Scalise (R-LA) would alter the application and distribution process for the Transportation Worker Identification Credential (TWIC). Currently, transportation workers must make at least two trips to a TWIC enrollment center every five years to apply for and then pick up and activate their cards. Sometimes workers travel hundreds of miles to the nearest enrollment center.

Under H.R. 3173, the Department of Homeland Security (DHS) would be required to revise the application process to require that transportation workers make only one trip to an enrollment center to obtain their cards.

The bill has five cosponsors and has been referred to the House Homeland Security Committee’s Subcommittee on Border and Maritime Security.



EMPLOYMENT. A new law (formerly A.B. 22) further limits how California employers can use credit reports to screen job applicants. Under the law, employers may only use credit reports to screen prospective employees in certain circumstances, such as for jobs in management or law enforcement, for example. Employers may also check credit history for those who have access to customer bank or credit card information or where a credit check is required by law.

Under the new provision, employers must notify applicants that they are obtaining a credit report and describe why they are legally allowed to do so.


BIOMETRICS. A new law (formerly H.B. 803) will prohibit the state from using biometric technologies in driver’s licenses or other state-issued ID cards. Biometric technologies include retinal scanning, facial recognition, and fingerprinting.

This column should not be construed as legal or legislative advice.