Ninth Circuit stretches objective reasonableness standard

Jessica Jackson 

When Officer Ornelas pulled over Malaika Brooks, seven months pregnant at the time, for speeding in November of 2004, neither of them had any idea that the next hour of their lives would eventually be scrutinized by half the judges of the Ninth Circuit. Ms. Brooks, who denied having sped and believed that Ornelas had clocked the car in front of her, declined to sign the speeding citation he presented to her. The situation escalated when Ornelas announced that Ms. Brooks was under arrest and called for backup. When Ms. Brooks refused to exit her car, the officers discussed possible measures to remove her forcibly.

According to Chief Judge Kozinski and Judge Bea’s partial concurrence and partial dissent, the officers came to the conclusion that in order to cause the least amount of harm to the fetus, they should tase Ms. Brooks. After wrenching her arm behind her back to render her unable to protect herself, the officers proceeded to tase her a total of three times, delivering jolts to her thigh, arm, and neck. Ms. Brooks was then dragged out of the car and placed in handcuffs.

Last week the Ninth Circuit addressed whether the police officers involved could invoke the protection of qualified immunity in defense to Ms. Brooks’s 42 U.S.C. § 1983 excessive force suit. Unfortunately for Ms. Brooks, the Ninth Circuit reversed the district court and held that the officers were protected by qualified immunity since the law at the time was unclear as to whether tasing a person three times who has not demonstrated a threat of violence qualifies as excessive force.  Stating that “all Fourth Amendment claims are analyzed under the objective reasonableness standard” the court found that an officer under those circumstances, and without guidance of law to the contrary, was not objectively unreasonable.

This conclusion causes one to wonder whether qualified immunity encourages judges to ignore too many of the facts before them. Ms. Brooks was seven months pregnant, a circumstance which would have made evading the police or committing any violent acts against them difficult to perform. Her keys were already on the floorboard of her car, making an escape virtually impossible. Any person (or judge) should realize that the officer’s actions presented a great risk to Ms. Brooks’s unborn child, whose organs were still developing.

As any mother knows, most doctors advise avoiding caffeine during pregnancy, to say nothing of electric currents.

More shocking and disappointing than the majority’s holding was the language of the Kozinski/Bea opinion, which stated that  the officers “deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.” A medal for tasing a woman who was seventh months pregnant, posed no threat of violence, and had complied in giving her name and address despite not signing the citation? This conclusion is not merely offensive; it risks setting an extremely dangerous precedent if adopted by the Supreme Court.


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