Human Rights

Ruling OK's Tasering Pregnant Woman Three Times

Seven-months-pregnant Malaika Brooks suffered repeated 50,000 volt shocks for refusing to sign a speeding ticket, and a federal court of appeals ruled it justified.

You are a police officer on traffic patrol and you pull over an irate driver who refuses to admit she was doing 32 mph in a 20-mph zone. She won't sign the speeding ticket, not even when you call for backup. Also, she is pregnant. What do you do?

a) Finish writing the ticket, making note of the fact that the driver refused to sign, and send her on her way, perhaps admonishing her in the process.
b) Grab the keys from the ignition, tase her three times, force her out of her car, and arrest her.

In the minds of three Seattle police officers in 2004, the latter was the reasonable course of action when they stopped seven-months-pregnant Malaika Brooks -- and last week, a federal appeals court agreed.

In a 2-1 ruling, Judges Cynthia Holcomb Hall and Diarmuid F. O'Scannlain of the United States Court of Appeals for the Ninth Circuit ruled the officers were justified in their use of force, because of the threat that Brooks might somehow "retrieve the keys and drive off erratically," and because the third tasing allowed the officers to "finally extract her from her car and gain control over her."

"Police officers have to have the ability to compel people to obey their lawful orders," Ted Buck, a lawyer for the police officers, said following the ruling.

The decision was met with outrage -- not the least of which came from the dissenting judge in the case, Judge Marsha Berzon, whose opinion reminded the court that, after Brooks was tased, "the Officers then dragged Brooks from the car, laid her on her stomach in the street, and held her down while they handcuffed her, despite her protestations that she was pregnant and they were hurting her stomach.

"The Taser left burn marks on Brooks's thigh, shoulder, and neck. It also left scars, including a scar on her arm that is probably permanent," she wrote.

"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."

Writing about the case, Digby, who often blogs about Tasers, argued: "What these judges seem to be saying is that there is no lawful reason that an officer cannot taser a citizen as long as he is barking some order and they fail to comply quickly enough.....hat's scary."

'How Pregnant Are You?'

Two days before Thanksgiving, in 2004, Malaika Brooks was rushing to drop off her son at school at the African American Academy in Seattle, when she was pulled over speeding in a school zone. Her son got out of the car and headed for school; meanwhile, Brooks, seven months pregnant and stressed out, told the officer she was not speeding and refused to sign her name to the ticket.

The police officer, Juan Ornelas, was joined by his partner, Ofc. Donald Jones, who threatened Brooks with arrest if she did not sign the ticket. When she still refused, they called for backup; Sergeant Steven Daman pulled up, ordering the officers to arrest her.

According to court documents, "initial attempts to arrest Ms. Brooks were unsuccessful." They tried to forcibly remove her from the car using a "pain compliance hold" -- twisting her arm up behind her back -- but she "stiffened her body and clutched her steering wheel."

"Ofc. Jones then brandished a taser and threatened to use it on Ms. Brooks," according to court documents. "He 'yelled' at her, and asked her if she knew 'how many volts' the taser had."

"I also informed Brooks that the taser was fifty thousand volts and that the taser was going to hurt extremely bad if applied," Jones said in a statement.

Ms. Brooks told Ofc. Jones that she was pregnant, and was two months away from her due date. According to Ms. Brooks, Ofc. Jones asked "How pregnant are you?" Ofc. Jones demonstrated the arcing of electricity between the two contact points of the taser, but this did not persuade Ms. Brooks to leave her car.

After discussing where to tase her -- eventually "deciding on her thigh" -- "Officer Jones discharged the Taser against Brooks's thigh, through her sweat pants, which caused Brooks 'tremendous pain.' She began to yell and honk the car's horn."

Within the next minute, Officer Jones tased her two more times, against her shoulder and neck, the latter being the only area of exposed skin. Brooks was unable to get out of the car herself during this time because her arm was still behind her back. The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car through a combination of pushing and pulling.

Brooks was arrested and charged with failing to obey a police officer, for her refusal to sign the ticket, as well as resisting arrest. (She was also given medical attention "immediately.") Two months later, she delivered a healthy baby girl, named Taria.

Six months after her arrest, the Seattle police "adopted a new policy on Taser use," according to the Seattle Post-Intelligencer, "that guides officers on how to deal with pregnant women, the very young, the very old and the infirm." The new policy emphasized that "the need to stop the behavior should clearly justify the potential for additional risks."

Around the same time, in May 2005, Brooks was convicted of the first charge; the second charge was dropped after the jury could not make a decision. During her criminal trial, Officer Ornelas admitted that Seattle Police Department rules did not actually authorize him to arrest her for refusing to sign the ticket, a fact that would be disputed in subsequent court documents. (In 2006, the Seattle legislature amended the law books to forbid police officers from arresting motorists for failing to sign their tickets.)

Malaika Brooks sued the officers for violating her constitutional rights. In June 2008, U.S. District Judge Richard Jones ruled that the lawsuit could go to trial. "Any reasonable officer would have acknowledged numerous factors limiting the degree of force he could use against Ms. Brooks," he wrote. What's more, "Ms. Brooks did not pose a danger to the public or to the officers, and there was no danger she would flee the scene." (The officers had taken her keys out of the ignition.) "Throughout the standoff between herself and the officers, Ms. Brooks did not use force against the officers or threaten to do so."

"Using a taser to inflict extreme pain to effect the arrest for a minor regulatory offense of a non-violent pregnant woman already under police control is a Fourth Amendment violation," the judge concluded. The Ninth Circuit ruling overturns this conclusion.

Have Cops -- and Courts -- Lost Their Mind?

Malaika Brooks is not the first pregnant woman to be tased, nor is she likely to be the last. Such episodes have been documented with disturbing regularity -- from an Ohio woman who was tased in a police station lobby in 2007, to a backyard picnic in Virginia last year, where the pregnant mother of two boys celebrating their baptism was tased in the back after trying to help a guest who was also tased by police. (She was charged with assaulting a police officer.) As Scott Thill wrote for AlterNet last year, thanks to their classification as "non-lethal weapons," "cops have nearly lost their minds using it on everyone from children, the elderly, and pregnant mothers to the mentally unstable and physically disabled." Just this week, Indiana police officers used a stun gun on an "unruly" 10-year-old child.

The latest ruling in the Brooks case might suggest that the courts, too, have lost their minds when it comes to the appropriate use of such weaponry on civilians. Yet, in December, the U.S. Court of Appeals for the Ninth Circuit -- the court that just ruled in favor of the Seattle police officers -- issued a ruling, heralded as a landmark decision, which held that police officers could be held individually liable for using a Taser on a person without reason. "The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public," the court ruled.

"The federal finding substantially changes the landscape of Taser usage," Raj Jayadev and Aram James wrote for New America Media earlier this year, "and may signal the end of Tasers for law enforcement agencies who are now more vulnerable to civil and criminal action then ever before."

Of course, this can only be true if judges presiding over such actions see Tasers as the potentially lethal torture devices that they are, rather than a natural extension of police power. (Not to mention a finite concept of said power.) "As police officers, they could have hurt me seriously," Brooks told the Seattle Post-Intelligencer in 2005. "They could have hurt my unborn fetus. All because of a traffic ticket. Is this what it's come down to?"

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Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. Follow her on Twitter.