By Eric P. Daigle, Attorney, Daigle Law Group LLC, Southington, Connecticut
he use of electronic control devices (ECDs) has led to a plethora of litigation and court decisions that police departments must consider when drafting policies, conducting appropriate training, and implementing ECD use. A recent decision from the U.S. Court of Appeals for the Ninth Circuit, Mattos v. Agarano,1 reinforced and clarified applicable standards regarding the permissible use of an ECD. While only agencies located within the ninth circuit are bound by this legal standard, the remainder of U.S. agencies would be wise to consider this influential court’s analysis and rulings as a gauge when examining their current police practices as they relate to ECD use.
The Mattos case consolidates two separate, earlier cases—Mattos v. Agarano and Brooks v. City of Seattle—in which questions arose as to whether the use of an ECD involved an excessive use of force and whether the officers were entitled to qualified immunity even if excessive force was used.2
In Brooks v. City of Seattle, police stopped a woman for driving 32 miles per hour in a 20-mile-per-hour school zone. She was cited for speeding but refused to sign the citation. Another officer arrived and also instructed the woman—Brooks—to sign the citation; again, she refused. Finally, the officers’ supervisor instructed Brooks to sign the citation and, when she refused, told officers Jones and Ornelas to arrest her. Officer Ornelas ordered her to get out of the car, which she also refused to do. When Officer Jones pulled out his Taser, Brooks stated that she was seven months pregnant. He continued to display the Taser. When the officers opened Brooks’s driver’s side door, Officer Ornelas twisted Brooks’s arm behind her back, but she clutched the steering wheel. With Brooks’s arm still clutched, Officer Jones cycled the Taser to show Brooks what it would do. Within 27 seconds of cycling the Taser, Jones applied the Taser to Brooks’s left thigh in drive-stun mode, while Brooks’s arm remained twisted behind her back. Thirty-six seconds later, he applied the Taser to Brooks’s left arm and, six seconds later, her neck. Brooks was then dragged from her vehicle and handcuffed. Brooks sued the city for a violation of her constitutional rights, including a Fourth Amendment claim for excessive force.
In Mattos v. Agarano, the police responded to a domestic dispute call and found Jayzel Mattos’s husband, Troy, sitting on the front stairs. He was large in stature and smelled of alcohol. One officer asked to speak with Jayzel to determine her status. The officer followed Troy into the residence, where Jayzel was located; Troy subsequently became angry and yelled at the officer to get out. The officer asked Jayzel to speak with him outside. Before she could comply, however, another officer told Troy that he was under arrest. Jayzel did not immediately step aside, and, as Jayzel reached for Troy, the officer brushed against Jayzel’s chest, causing her to extend her arms to protect her body. Suddenly, without any warning, the officer shot his Taser at Jayzel in dart mode. Jayzel later alleged that she felt incredible pain, that her joints and muscles locked up, and that she fell hard to the floor. The police charged Jayzel with harassment and obstructing government operations, but all charges were ultimately dropped. Jayzel Mattos sued the officers for violations of her constitutional rights, including a Fourth Amendment claim of excessive force.
In considering these cases, the court began its analysis by stating that “the doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”3 Qualified immunity will shield police officers from liability even if their actions resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”4
Courts use a two-part test to determine whether officers are entitled to qualified immunity. First, the court determines whether the officer violated an individual’s constitutional rights. Second, if the court determines that the officer violated those rights, it considers whether the constitutional rights are “clearly established in light of the specific context of the case” at that time.5
When addressing step one in excessive force cases, courts look to Graham v. Connor6 for guidance. In Graham, the court stated that “[d]etermining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.”7
To determine the governmental interests at stake, courts look at “(1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”8 Courts also may consider additional facts necessary to account for the totality of circumstances in a given case.9
In Mattos, the court applied the three-part test to the facts and circumstances in the Brooks v. City of Seattle matter to determine the reasonableness of Officer Jones’s actions. The court found that (1) driving 32 miles per hour in a 20-mile-per-hour zone is not a serious offense;10 (2) Brooks never verbally threatened the officers, was unarmed, was behind the wheel of the vehicle, and was not physically threatening; and (3) any resistance from Brooks did not involve any violent actions toward the officers.11
The court also looked at the totality of the circumstances and found that (1) Brooks notified the officers that she was pregnant, and the officers considered this information when deciding where to apply the Taser; and (2) the officers applied the Taser to Brooks’s body three times in less than one minute. The court stated that the Taser’s use on Brooks in such a rapid succession allowed no time for her to recover from the pain to reconsider her refusal to comply with the officers’ requests.
The court concluded that the officers’ use of force was unreasonable and therefore constitutionally excessive.12 The court then considered whether, at the time the officer used the Taser on Brooks, the constitutional violation was “sufficiently clear” that a “reasonable official would have understood” that these actions violated that right.13
To do so, courts looked at the most analogous case law that existed at that time. In Mattos, the court found only three relevant opinions from other circuits. These cases, however, were not applicable because they did not present similar facts and circumstances. Therefore, the court looked to Bryan v. MacPherson, wherein the court reasoned that there was no “Supreme Court decision or decision of [the district court] addressing the use of a Taser in dart mode.”14 Therefore, since no guidance from the courts existed, a reasonable officer could have made a reasonable mistake of law regarding the constitutionality of the Taser use.15
In Mattos, the court applied the three-part test to Jayzel Mattos’s facts. The court found that (1) Jayzel’s actions did not rise to the level of obstruction, and, therefore, the severity of the crime, if any, was minimal;16 (2) Jayzel did not pose a threat to the officers because she was not armed and did not verbally threaten the officers, and her only physical contact with the officer was a defensive move to stop her body from being pressed against the officer;17 and (3) Jayzel, at most, only “minimally resisted Troy’s arrest.”18 The court also noted that Jayzel was attempting to comply with the officer’s request when she got caught in the middle between another officer and Troy. Further, the court noted that the officer failed to warn Jayzel before using the Taser. The court concluded that the officer’s use of force on Jayzel was constitutionally excessive in violation of the Fourth Amendment.
The Mattos court makes several points that are important to law enforcement policy.
- The court makes it clear that it does not prohibit the use of ECDs to gain compliance from a suspect who is “actively resisting” arrest. Rather, the court sets forth certain guidelines for the use of such weapons in the field.
- The court also makes it clear that it will look at the totality of the circumstances, not just those factors provided in the three-part test, when deciding the applicability of qualified immunity as provided in Graham.
- As more excessive force cases involving the use of ECDs are decided in the judicial system, and, as the law becomes more clearly defined, the ability of officers to rely on qualified immunity will shrink.
The last point leads us to another very important detail: Officers and departments must be aware of developing case law. To protect itself and its officers, an agency must maintain vigilance and keep current with the rapidly developing body of case law in the area of ECDs and excessive use-of-force claims. As this case law evolves, departments should provide regular bulletin updates and training sessions for their officers, in an effort to provide guidance for the use of ECDs. It is imperative for every agency to continually update its use of force and ECD policies. When reviewing current policies, agencies must make certain that these policies include the following guidelines that were highlighted in the Mattos case:
- Each and every application of an ECD must be legally justified.
- When using an ECD in drive-stun mode to gain compliance from a suspect who is “actively resisting” arrest, the officer must give the suspect reasonable opportunity to comply with the officer’s commands prior to each ECD application. Specifically, as discussed in Mattos, the officer
- must perceive that the suspect is “actively resisting”;
- must be certain that the suspect is capable of compliance with the officer’s commands;
- must give a warning prior to each application of the ECD;
- must give the suspect time to recover from the “extreme pain” experienced during the ECD application;
- must give the suspect a reasonable amount of time to regroup; and
- must give the suspect a reasonable opportunity to consider the consequences of refusal to comply with commands before each ECD application.
- Officers may not use an ECD on a visibly pregnant woman (or one who informs the officer of her pregnancy) unless deadly force is the only other option. These same restrictions would apply to children and the elderly.
- The reporting requirements contained in the policy must provide that an officer is required to include in a report specific information indicating that all of these guidelines were followed prior to the application of an ECD. ■
|Eric P. Daigle is the IACP Legal Officers Section secretary.|
1Mattos v. Agarano, No. 08-15567, No. 08-35526 (9th Cir. 2010), http://www.ca9.uscourts.gov/datastore/opinions/2011/10/17/08-15567.pdf (accessed November 28, 2011).
2Mattos v. Agarano, 625 F.3d 1132 (2010); and Brooks v. City of Seattle, 599 F.3d 1018 (2010).
3Mattos v. Agarano, No. 08-15567, No. 08-35526 (9th Cir. 2010) at 12, citing Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
4Id. at 12–13.
5Id. at 13, citing Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009).
6Graham v. Connor, 490 U.S. 386 (1989).
7Id. at 396, quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985).
8Mattos v. Agarano, No. 08-15567, No. 08-35526 (9th Cir. 2010) at 14, citing Deorle v. Rutherford, 272 F. 3d 1272, 1280 (9th Cir. 2001).
10Id. at 19.
11Id. at 21.
12Id. at 22.
13Id. at 23, citing Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).
14 630 F.3d 805, 833 (9th Cir. 2010).
15Id. at 26.
16Mattos, at 28.
Please cite as:
Eric P. Daigle, "Electronic Control Devices: Where Are We Now?," Chief's Counsel, The Police Chief 79 (January 2012): 12–13.