POSTED: 1:30 a.m. HST, Nov 21, 2010
Jayzel Mattos felt a pinch on the back of her right hand, then excruciating pain.
She couldn't move or open her eyes, yet she could hear her own screams. She crumpled to the floor of her Wailuku home.
Mattos, 5 feet 3 and 120 pounds at the time, recalled the moments after being shot by a Taser electronic gun by one of four Maui police officers who responded to a domestic disturbance report. Maui police maintain that Mattos was defiant and trying to prevent the arrest of her husband, but she said she was only trying to calm everyone down.
Mattos, a 39-year-old mother who likened the pain to giving birth, said police use of the electronic gun is proper in some situations, but wasn't in her case.
"Any one of them could have pulled me away," she said last week.
Mattos' lawsuit alleging that shooting her with a Taser constituted excessive force in violation of her constitutional rights could help establish standards over the increasing use of the electronic gun by law enforcement here and in other states.
A three-judge panel of the 9th U.S. Circuit Court of Appeals held that Mattos' rights weren't violated, but in a rare move will rehear her case and another involving a Seattle woman who was seven months pregnant when she was stunned by the electronic gun during a traffic stop.
Law enforcement officials maintain the Taser is a safe way to subdue unruly and potentially violent suspects and helps reduce injuries to officers and suspects.
But civil rights groups believe the weapon is potentially lethal and should be limited to only the most extreme circumstances.
The hearing, says University of Hawaii law school constitutional law professor Jon Van Dyke, is "extremely important" because the decision will establish "when the use of Tasers will be legitimate, and when it will not be legitimate."
The appeals court will hear the cases on Dec. 14 in Pasadena, Calif., and later render a ruling.
In the 1970s, an early version of the electronic gun was developed by electrical engineer Jack Cover, who named it "TASER," an acronym based on a 1911 novel, "Tom Swift's Electric Rifle."
The current 50,000-volt gun fires dart probes attached to it by wire. The probes can penetrate clothing, inflict pain and immobilize a person. Tasers also can be placed against the body in the "drive-stun" mode to inflict intense pain.
Today, more than 14,000 law enforcement agencies in 40 countries and 29 of the largest 33 cities in the U.S. use the electronic guns, according to Taser International, which sells them.
Tasers were first used by Honolulu police in 2002. Honolulu and neighbor island police have nearly 1,400 Tasers, which are used dozens of times a year, according to the police departments.
TASER USAGE IN HAWAII
Source: Honolulu, Maui, Kauai and Hawaii County police.
Until recently, state law had banned possession of the guns by anyone other than police officers. This year, the state Legislature amended the statute to authorize use by deputy sheriffs and other law enforcement officers of the Department of Public Safety and Department of Land and Natural Resources. But neither department said they would be able to immediately obtain them.
THE AMERICAN CIVIL Liberties Union of Hawaii and Amnesty International have long raised concerns over Tasers. "Our fears about Tasers are that they are being used in situations where that level of force is not justified," said Daniel Gluck, senior staff attorney for the ACLU in Hawaii.
Tasers can reduce the use of firearms by police, but the electronic guns should be used only as an alternative to "lethal force," he said.
Amnesty International reported that from 2001 to 2008, 334 people in the U.S. died after being stunned by Tasers. The report acknowledges that deaths were attributed to other factors, such as drug intoxication, but it said medical examiners and coroners found the Taser shocks caused or contributed to at least 50 deaths.
In Hawaii, no deaths or serious injuries have been linked to Tasers.
All four police departments restrict the use of the electronic gun.
Honolulu police policy, for example, permits the firing of the probe when the suspect is "potentially violent or engaged in active resistance," which is defined as behavior that "physically counteracts" an officer's control and creates a risk of injury to the officer, suspect or any other person.
Unless there are "exceptional circumstances" such as preventing greater injuries, the gun's use is prohibited in cases that include a woman known to be pregnant or a person fleeing from custody, engaging in peaceful civil disobedience, or driving a car.
Neighbor Island police report that no officer has been disciplined for improper use of the gun. One Honolulu officer was disciplined in 2009 for not abiding by the electric gun policy, according to annual police disciplinary reports submitted to the state Legislature.
The officer was suspended for a day, but the circumstances and the officer's name were not disclosed.
Police Capt. Clyde Ho of the Honolulu department's professional standards office said the Taser is an alternative to physical confrontation.
"Nobody really gets hurt," he said. "I don't get punched. You don't get punched. I don't use a baton or anything to control you."
Ronald Becker, head of the criminal justice program at Chaminade University, said the last thing he wanted to do when he was a Montana deputy sheriff was grapple with a resisting suspect.
"It's going to take all the abilities that I have for both of us to get out of this safely," he said.
He said the increasing use of the Tasers among law enforcement agencies shows that it is an appropriate use of "intermediate force" when properly deployed. "Nobody's suggesting it be used in a cavalier fashion," he said.
Ho said the department methodically reviewed the use of Tasers when they were first obtained and tested in 2002 under a law enforcement grant.
Most of the officers who have been trained on the use of Tasers agreed to be stunned by the gun to help them understand the effects, he said.
The feedback from the officers is that displaying the gun also deters suspects from resisting police.
"The officers love it," he said. "Ideally, we would like every officer out in the field to have one."
THE ONLY TWO known lawsuits in Hawaii over the use of Tasers are against Maui police officers. Honolulu civil rights attorney Eric Seitz filed both of them.
Seitz acknowledged the police department has regulations on the use of Tasers, but said he believes the officers use their Tasers more times than necessary.
"The prevailing view is that we can't shoot people with our side arms, so let's use our Tasers instead, rather than going through an analysis and assessment on whether that level of lethal force is warranted," he said.
In one of the suits, Julio Ramos was shot with a Taser by Maui officer John Bowker at Baldwin Beach Park in Paia after it was closed the night of April 7, 2007. Ramos and Tiare Lee told the officer they were fishing and refused to leave.
Harassment and disorderly conduct charges against Ramos were later dismissed.
Without admitting any wrongdoing, Maui County last month settled the case for $15,000.
Maui Deputy Corporation Counsel Moana Lutey said the settlement was "beneficial to both sides."
Seitz also represents Mattos, the mother of seven children, including a stepchild.
Police, Seitz said, ended up shooting the woman they went to the Wailuku home to protect.
The lawsuit was filed after harassment and obstructing government operations charges against Mattos were dismissed.
The pinch she felt on her right hand was from one probe. The other struck her in the chest.
Maui county sought a ruling throwing out the suit, arguing that the use of the Taser wasn't excessive force in view of the potentially dangerous circumstances. More police officers are injured or killed in responding to domestic abuse calls than any other type of call, the county said.
U. S. District Judge David Ezra denied Maui county's request.
The decision enabled the case to proceed to trial so as to sort out conflicting claims, including Maui police officers' claim that Mattos challenged them to "Tase me." Mattos denies making that remark.
In January, a three-judge panel of the 9th Circuit U.S. Court of Appeals reversed Ezra. The panel called the issue a "close one," but held that even by Mattos' account, police did not use excessive force.
The panel said the officers went to the home late Aug. 23, 2006, and met Mattos' 6-foot-3, 200-pound husband Troy, who was outside the home with a couple of beer bottles lying near him.
When they asked to see his wife to make sure she was safe, the husband went inside to get her but became upset when officer Darren Agarano stepped inside the doorway.
Mattos tried to calm down her husband and the officers so they wouldn't awaken her sleeping children, the panel said in outlining Mattos' account of the incident.
When officer Ryan Aikala moved to arrest the husband, he bumped Mattos, who put up her hands against Aikala's chest when he pressed against her, according to the panel.
Aikala stepped back, asked whether she was touching an officer and shot Mattos with the Taser, the panel said.
Maui County presented evidence that the Taser has proved to be "extremely safe" and that the voltage applied to the body uses less electricity than for a single bulb on a string of Christmas tree lights, the panel said.
The panel said the county's assertion suggests that rather than showing that the Taser is harmless, "we (ought to) be more careful with our Christmas tree lights."
The panel, however, said Mattos was trying to prevent the arrest of her husband in a potentially "explosive situation." Police are not obligated to use the least amount of force, the panel said.
"In this heated situation, Aikala's deployment of a Taser did not violate Jayzel's constitutional rights," the panel said.
Last month, the appeals court ordered the rehearing, which is reserved for cases that will help resolve differences among the circuit's panels or include "a question of exceptional importance."
The ACLU chapters of Seattle and Hawaii, the National Police Accountability Project and the Human Rights Defense Center submitted papers urging the judges to allow the case to proceed to trial to determine whether the electronic guns violated the constitutional rights of Mattos and the Seattle woman.
The cases could have even more significance if the losing side seeks a review of the 9th Circuit's ruling by the U.S. Supreme Court, which has yet to rule on the use of Tasers and would issue a decision that would apply throughout the country.
Police use of Tasers has divided the judges of the 9th U.S. Circuit Court of Appeals along the lines of the political party of the president who appointed them.
Of the nine judges who sat on three separate panels in three cases, five who were appointed by Republican presidents found in favor of the police. The other four appointees of Democratic presidents ruled that the use of the electronic gun could be violations of constitutional rights.
The names of the 11 judges who will rehear the Malaika Brooks and Jayzel Mattos cases on Dec. 14 have not yet been announced by the court.
The three cases and the judges:
Officer Brian McPherson shot Carl Bryan from 20 to 25 feet away after a traffic stop in Coronado, Colo., for a seat belt violation. Bryan, who wore only boxer shorts and tennis shoes, was agitated and yelling gibberish, but did not orally threaten the officer. The officer claimed Bryan took a step toward him. Bryan fell, fracturing four teeth and suffering bruises on his face.
Appeals judges Harry Pregerson and Stephen Reinhardt, President Carter appointees, and Kim McLane Wardlaw, a President Clinton appointee, refused to throw out Bryan's lawsuit. They ruled that he could proceed to press claims that the Taser use was unconstitutionally excessive.
During a traffic stop, Malaika Brooks, who was seven months pregnant, refused to sign a notice of speeding in a school zone. Three officers tried to arrest her, but she refused to get out of the car. Officer Donald Jones placed the Taser against her thigh and fired in the "drive-stun" mode. He did it twice more to her shoulder and neck. She was medically treated. Two months later, she delivered a healthy baby.
Appeals judges Cynthia Hall and Diarmuid O'Scannlain, President Reagan appointees, ruled that police did not use excessive force.
They found that "this case presents a less-than-intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to the officers."
Appeals Judge Marsha Berzon, a Clinton appointee, dissented. "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."
Jayzel Mattos was shot by a Taser gun by one of four Maui police officers who went to her Wailuku home after a domestic disturbance was reported. When officer Ryan Aikala moved to arrest the husband, he bumped against Mattos. She held up her hands and touched Aikala's chest. He stepped back and shot her with the Taser.
Chief Judge Alex Kozinski, a Reagan appointee, and judges Jay Bybee and Consuelo Callahan, President George W. Bush appointees, found no constitutional violation.