Mattos v. Agarano

• Decision Date: 17 October 2011
• Docket Number: 08–35526.,Nos. 08–15567,s. 08–15567
• Citation: 661 F.3d 433,2011 Daily Journal D.A.R. 15288,11 Cal. Daily Op. Serv. 12849
• Parties: Troy MATTOS; Jayzel Mattos, Plaintiffs–Appellees, v. Darren AGARANO; Ryan Aikala; Stuart Kunioka; Halayudha MacKnight, Defendants–Appellants,andMaui County, Defendant.Malaika Brooks, Plaintiff–Appellee, v. City of Seattle, Defendant,andSteven L. Daman, in his capacity as an officer of the Seattle Police Department; Donald M. Jones, in his individual capacity as an officer of the Seattle Police Department; Juan M. Ornelas, in his individual capacity as an officer of the Seattle Police Department, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 12,849
2011 Daily Journal D.A.R. 15,288
661 F.3d 433

Troy MATTOS; Jayzel Mattos, Plaintiffs–Appellees,
v.
Darren AGARANO; Ryan Aikala; Stuart Kunioka; Halayudha MacKnight, Defendants–Appellants,andMaui County, Defendant.Malaika Brooks, Plaintiff–Appellee,
v.
City of Seattle, Defendant,andSteven L. Daman, in his capacity as an officer of the Seattle Police Department; Donald M. Jones, in his individual capacity as an officer of the Seattle Police Department; Juan M. Ornelas, in his individual capacity as an officer of the Seattle Police Department, Defendants–Appellants.

Nos. 08–15567

08–35526.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 14, 2010.Filed Oct. 17, 2011.

[661 F.3d 435]

Brian T. Moto, Corporation Counsel, Laureen L. Martin, Moana M. Lutey, Richard B. Rost, and Cheryl Tipton, Deputies Corporation Counsel, Wailuku, HI, for defendants-appellants Darren Agarano, Ryan Aikala, Stuart Kunioka, and Halayudha MacKnight.

Ted Buck and Karen L. Cobb, Stafford Frey Cooper, Seattle, WA, for defendants-appellants Steven Daman, Juan Ornelas, and Donald Jones.

Eric A. Seitz, Honolulu, HI, for plaintiffs-appellees Troy Mattos and Jayzel Mattos.Eric Zubel, Eric Zubel PC, Seattle, WA, for plaintiff-appellee Malaika R. Brooks.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.Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. 07–CV–00220–DAE.

[661 F.3d 436]

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:06–cv–01681–RAJ.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.

OPINION 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 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 qualified immunity. Two different panels of our court reversed the district courts and held that the officers were entitled to qualified immunity. We granted en banc review. We now hold that, although Plaintiffs in both cases have alleged constitutional violations, the officer Defendants are entitled to qualified immunity on Plaintiffs' § 1983 claims because the law was not clearly established at the time of the incidents. We therefore reverse the district courts' denial of qualified immunity on these claims. In Brooks, however, we affirm the district court's denial of qualified immunity on her state law assault and battery claims against the defendant officers.

I. Brooks Background

On the morning of November 23, 2004, Plaintiff–Appellee Malaika Brooks was driving her 11–year–old son to school in Seattle, Washington. Brooks was 33 years old and seven months pregnant at the time. The street on which Brooks was driving had a 35–mile–per–hour posted speed limit until the school zone began, at which point the speed limit became 20 miles per hour. When Brooks entered the school zone, she was driving 32 miles per hour. Once in the school zone, a Seattle police officer parked on the street measured Brooks's speed with a radar gun, found that she was driving faster than 20 miles per hour, and motioned for her to pull over.

[661 F.3d 437]

Once Brooks pulled over, Seattle Police Office Juan Ornelas approached her car. Ornelas asked Brooks how fast she was driving and then asked her for her driver's license. Brooks gave Ornelas her license and then told her son to get out of the car and walk to school, which was across the street from where Ornelas had pulled her car over. Ornelas left, returning five minutes later to give Brooks her driver's license back and inform her that he was going to cite her for a speeding violation. Brooks insisted that she had not been speeding and that she would not sign the citation. At this, Ornelas left again.

Soon after, Officer Donald Jones approached Brooks in her car and asked her if she was going to sign the speeding citation. Brooks again refused to sign the citation but said that she would accept it without signing it. Jones told Brooks that signing the citation would not constitute an admission of guilt; her signature would simply confirm that she received the citation. Brooks told Jones that he was lying, the two exchanged heated words, and Jones said that if Brooks did not sign the citation he would call his sergeant and she would go to jail.

A few minutes later, Sergeant Steven Daman arrived at the scene and he, too, asked Brooks if she would sign the citation. When Brooks said no, Daman told Ornelas and Jones to “book her.” Ornelas told Brooks to get out of the car, telling her that she was “going to jail” and failing to reply when Brooks asked why. Brooks refused to get out of the car. At this point, Jones pulled out a taser and asked Brooks if she knew what it was. Brooks indicated that she did not know what the taser was and told the officers, “I have to go to the bathroom, I am pregnant, I'm less than 60 days from having my baby.” Jones then asked how pregnant Brooks was. Brooks's car was still running at this point.

After learning that Brooks was pregnant, Jones continued to display the taser and talked to Ornelas about how to proceed. One of them asked “well, where do you want to do it?” Brooks heard the other respond “well, don't do it in her stomach; do it in her thigh.” During this interchange, Jones was standing next to Brooks's driver's side window, Ornelas was standing to Jones' left, and Daman was standing behind them both.

After Jones and Ornelas discussed where to tase Brooks, Ornelas opened the driver's side door and twisted Brooks's arm up behind her back. Brooks stiffened her body and clutched the steering wheel to frustrate the officers' efforts to remove her from the car. While Ornelas held her arm, Jones cycled his taser, showing Brooks what it did. At some point after Ornelas grabbed Brooks's arm but before Jones applied the taser to Brooks, Ornelas was able to remove the keys from Brooks's car ignition; the keys dropped to the floor of the car.

Twenty-seven seconds after Jones cycled his taser, with Ornelas still holding her arm behind her back, Jones applied the taser to Brooks's left thigh in drive-stun mode. Brooks began to cry and started honking her car horn. Thirty-six seconds later, Jones applied the taser to Brooks's left arm. Six seconds later, Jones applied the taser to Brooks's neck as she continued to cry out and honk her car horn. After this third tase, Brooks fell over in her car and the officers dragged her out, laying her face down on the street and handcuffing her hands behind her back.

The officers took Brooks to the police precinct station where fire department paramedics examined her. The same day, Brooks was examined at the Harborview

[661 F.3d 438]

Medical Center by a doctor who confirmed her pregnancy and expressed some concern about Brooks's rapid heartbeat. After this examination, Brooks was taken to the King County Jail.

On December 6, 2004, the City of Seattle filed a misdemeanor criminal complaint against Brooks, charging her with refusal to sign an acknowledgment of a traffic citation, in violation of Seattle Municipal Code 11.59.090, and resisting arrest, in violation of Seattle Municipal Code 12A.16.050. Brooks was tried by a jury beginning on May 4, 2005, and after a two-day trial the jury convicted her of failing to sign the speeding ticket. The jury could not reach a verdict on the resisting arrest charge, and it was dismissed.

Brooks gave birth to her daughter in January 2005. The district court was presented with evidence that Brooks's daughter was born healthy, and Brooks's counsel confirmed at oral argument before this court that her daughter remains healthy now. Brooks herself has not experienced any lasting injuries from the tasing, though she does carry several permanent burn scars from the incident.

Brooks sued Ornelas, Jones, Daman, Seattle Police Department Chief Gil Kerlikowske, and the City of Seattle for excessive force in violation of the Fourth Amendment; Kerlikowske and the City of Seattle for negligence; and Ornelas, Jones, and Daman for assault and battery. The case is before us on interlocutory appeal from the district court's summary judgment ruling that the defendant officers Daman, Jones, and Ornelas are not entitled to qualified immunity. The district court denied the defendants' motion as to Brooks's § 1983 excessive force claim against the officers, concluding that with all the evidence construed in Brooks's favor, she alleged a Fourth...