Tuesday, July 29, 2014         

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Appeals court reviews Taser cases

By Ken Kobayashi


An 11-judge panel of the U.S. 9th Circuit Court of Appeals heard arguments yesterday on the constitutionality of police use of Tasers against a Maui woman shot at her Wailuku home and a pregnant Seattle woman stunned by the electronic gun three times at a traffic stop.

The decision by the larger "en banc" panel is expected to resolve differences among the 9th Circuit judges and could set parameters on the use of the electronic guns in Hawaii, Washington and seven other states in the 9th Circuit.

As is customary, the panel adjourned the hearing in Pasadena, Calif., without issuing any decision or saying when it will rule.

In the Maui case, Jayzel Mattos was shot with a Taser at her Wailuku home in 2006 by police responding to a domestic abuse call.

Maui Deputy Corporation Counsel Moana Lutey told the panel that Maui police shot a "belligerent and noncompliant" Mattos, who was trying to prevent the arrest of her husband. Lutey said no court decisions at the time had established that the use of the Taser under such circumstances would be a violation of constitutional rights.

Honolulu attorney Eric Seitz said Mattos was only trying to calm everyone down and that police had no reason to shoot her with the two dart probes from the gun. Seitz urged the panel to let the case go to trial and allow a judge or jury to resolve factual disputes to determine whether her rights had been violated.

In the Seattle case, arguments included the question of whether the police could have used other means, once Malika Brooks was arrested, to get her out of her car in 2004 without causing more severe injuries.

She was stunned three times by the electronic gun, which was placed against her thigh, shoulder and neck. Brooks later gave birth to a healthy baby.

In both cases, three-judge panels of the 9th Circuit threw out the women's lawsuits before they got to trial. Lawyers for the women, as well as the American Civil Liberties Union, are urging the larger panel to allow the cases to proceed.

Richard Clifton, Hawaii's only appeals judge in the 9th Circuit, is one of the 11 panelists.

The cases could eventually wind up with the U.S. Supreme Court, which has yet to specifically rule on law enforcement's use of Tasers and under what conditions they could constitute a violation of constitutional rights.

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