New hearing for mom scarred by Taser in traffic stop

October 2, 2010
Mike Carter, Seattle Times

In a rare move, judges on the 9th U.S. Circuit Court of Appeals will decide whether to revive the lawsuit of a pregnant Seattle woman who three Seattle police officers shot with a Taser after she refused to sign a traffic ticket.

The court on Thursday said the appeal by Malaika Brooks will be heard "en banc," meaning an 11-judge panel will reconsider the case.

The ruling came after a three-judge panel in March split 2-1 and overturned a Seattle federal judge's decision to let Brooks' case go to trial. The majority — Senior Judge Cynthia Holcomb Hall and Judge Diarmuid F. O'Scannlain — found the officers were justified in using their Tasers, set in stun mode, to zap the seven-months pregnant woman three times when she resisted their efforts to pull her from her car after a traffic stop in 2004.

In her dissent, Judge Marsha Berzon called their opinion "off the wall."

Brooks was driving her son to Seattle's African American Academy and was stopped while doing 32 mph in a school zone. She insisted that it was the car in front of her that was speeding, and refused to sign the ticket because she thought she'd be admitting guilt, according to court documents.

Rather than give her the ticket and let her leave, the officers decided to arrest her. One reached in, turned off her car and dropped the keys on the floor. Brooks, according to police reports, stiffened her arms against the steering wheel, told the officers she was pregnant and refused to get out, even after they threatened to stun her.

The officers — Sgt. Steven Daman, Officer Juan Ornelas and Officer Donald Jones — first attempted a manual "pain compliance" hold to force her from the car. When that didn't work, the officers applied a Taser in the painful touch-stun mode three times in rapid succession on her thigh, shoulder and neck. The officers then pulled her out of the car and handcuffed her facedown in the street, according to the reports and her federal lawsuit.

Brooks gave birth to a healthy baby two months later, but has scars from where she was touched by the Tasers, according to her lawsuit.

Brooks claimed the officers violated her constitutional rights, and U.S. District Judge Richard Jones allowed the case to continue. In a June 2008 ruling, Jones declined to grant the officers immunity for performing their official duties and said Brooks posed no threat to anyone and that her rights were clearly violated.

Brooks' attorney, Eric Zubel, couldn't be reached Friday.

The lawyer representing the officers, Ted Buck, said Friday night he suspects the appeals court is going to use the Brooks case and another recent Taser case to "harmonize" the circuit's law on the matter.

"But I don't expect a different outcome," Buck said. "She was under arrest, resisting arrest, and the officers had the right to use force to take her into custody."

In her dissent, in the 9th Circuit's March ruling, Berzon was unconvinced by the majority's opinion that Brooks was obstructing justice. "I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against Brooks, let alone three activations of a Taser, in response to such a trivial offense," she wrote.

Berzon noted that under Washington law, the officers had no authority to take Brooks into custody: Failure to sign a traffic infraction is not an arrestable offense, and it's not illegal to resist an unlawful arrest.

The San Francisco-based 9th Circuit Court, the country's largest federal judicial circuit, encompasses nine states and two Pacific Island jurisdictions, and hears only about 20 such en banc cases per year, those reserved for "legal questions deemed by the court to be of exceptional importance," according to the court's website.