Mattos

Opinion by Judge PAEZ; Concurrence by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

OPINION

These cases present questions about whether the use of a taser to subdue a suspect resulted in the excessive use of force and whether the officers are entitled to qualified immunity. 1 In Brooks v. City of Seattle, Plaintiff Malaika Brooks was tased; in Mattos v. Agarano, Plaintiff Jayzel Mattos was tased. Both women were tased during an encounter with police officers. They subsequently filed suit under 42 U.S.C. § 1983 seeking damages for the alleged violation of their Fourth Amendment rights. In Brooks’s case, the district court ruled that she alleged a violation of her Fourth Amendment right to be free from the excessive use of force when police officers tased her and that those police officers were not entitled to qualified immunity. In Jayzel and Troy Mattos’s case, the district court ruled that questions of fact existed regarding whether the use of a taser against Jayzel was constitutionally reasonable and, therefore, denied the officers’ motion for summary judgment on the basis of…

concurring:

I agree that in the absence of cases recognizing any specific use of taser weapons as excessive force, the defendants are entitled to qualified immunity under the Supreme Court’s teaching in Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2084 , 179 L.Ed.2d 1149 (2011). I also agree wholeheartedly with the majority opinion by Judge Paez that the use of such force in the cases before us was excessive.

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.

It is the threatening nature of the plaintiffs’ conduct that justified the use of the *453 taser in the eases Judge Kozinski could rely upon. Draper v. Reynolds, 369 F.3d 1270 (11th…

joined by

By asking police to serve and protect us, we citizens agree to comply with their instructions and cooperate with their investigations. Unfortunately, not all of us hold up our end of the bargain. As a result, officers face an ever-present risk that routine police work will suddenly become dangerous. In the last decade, more than half a million police were assaulted in the line of duty. More than 160,000 were injured, and 536 were killed — the vast majority while performing routine law enforcement tasks like conducting traffic stops and responding to domestic disturbance calls. Criminal Justice Info. Servs. Div., Fed. Bureau of Investigation, Law Enforcement Officers Killed & Assaulted, *454 2009 (Oct.2010), http://www2.fbi.gov/ucr/ killed/2009/aboutleoka.html (tables 19 and 70).

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. Traditional tools, such as choke holds, arm locks and other hand-to-hand techniques, can cause permanent injury, even death. The standard issue baton “is a deadly weapon that can…

with whom

Like Chief Judge Kozinski, I concur in the judgment in Brooks. I agree with him *459 that no constitutional violation was shown. Brooks conceded that the police had the right to remove her from the car when she repeatedly refused to step out voluntarily. There are only so many ways that a person can be extracted from a vehicle against her will, and none of them is pretty. Fists, batons, choke holds, dogs, tear gas, and chemical spray all carry their own risks to suspects and officers alike. We see plenty of cases where someone on the business end of these techniques suffers serious injuries, not to mention injuries sustained by police officers who engage in hand-to-hand combat with recalcitrant individuals. In this case, tasing was a humane way to force Brooks out of her car, causing her only fleeting pain and virtually no other harm whatsoever. Because the force employed was not excessive, there was no constitutional violation.

As for Mattos, I agree with the district court that there are disputed issues of material fact on whether, under the law as it existed in August 2006, Mattos’s conduct justified the degree of force employed by Officer Aikala. Clearly…

John Burton, The Law Offices of John Burton, Pasadena, CA, for the amicus curiae.

Daniel Marc Gluck, ACLU of Hawaii, Honolulu, HI, for the amicus curiae.

Nancy Lynn Talner, ACLU of Washington Foundation, Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for the amicus curiae.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET McKEOWN, RAYMOND C. FISHER, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, and CARLOS T. BEA, Circuit Judges. [*]

Opinion by Judge PAEZ; Concurrence by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

PAEZ, Circuit Judge:

These cases present questions about whether the use of a taser to subdue a suspect resulted in the excessive use of force and whether the officers are entitled to qualified immunity. [1] In Brooks v. City of Seattle, Plaintiff Malaika Brooks was tased; in Mattos v. Agarano, Plaintiff Jayzel Mattos was tased. Both women were tased during an encounter with police officers. They subsequently filed suit under 42 U.S.C. § 1983 seeking damages for the alleged violation of…