In responding to violence against women, feminist legal scholars have frequently debated how the law can best balance viewing women as victims and encouraging female autonomy.(1) Recently, in Mattos v. Agarano, (2) the Ninth Circuit, sitting en banc, held that female plaintiffs in two consolidated cases alleged valid excessive force violations arising from tasings by police officers. (3) Analyses in several of the resulting opinions reveal competing assumptions about women. These assumptions transpose the feminist debate over the appropriate legal response to violence against women from domestic violence law to excessive force law. By edging toward unequal treatment of male and female plaintiffs in excessive force suits, the court's analysis has lent urgency to the efforts of those who oppose protectionist treatment of women.
On November 23, 2004, Seattle Police Department Officer Juan Ornelas pulled over Malaika Brooks for speeding and issued a notice of traffic infraction, which Brooks refused to sign.(4) Officer Donald Jones joined Ornelas, and as Brooks became agitated, (5) the officers ordered her to leave her car so that they might arrest her."
Brooks refused to exit her car, Jones showed her his taser, and Brooks responded that she was seven months pregnant.(7) The officers discussed how to safely tase Brooks, after which Ornelas opened the car door, removed the keys from the ignition, and dropped them on the floor.(8) Jones then discharged his taser on Brooks's thigh, shoulder, and neck, all within approximately one minute.(9) Finally, Jones and Ornelas removed Brooks from her car and arrested her.10 Brooks filed suit against the officers in the U.S. District Court for the Western District of Washington, alleging that the tasing violated her Fourth Amendment right to be free from excessive force.11 District Judge Jones denied the officers' summary judgment motion, finding that they could not invoke qualified immunity because their actions were "objectively unreasonable" and because Brooks's right to be free from such force was clearly established. "
A similar chain of events began on August 23, 2006, when four Maui police officers, including Darren Agarano and Ryan Aikala, responded to a domestic dispute between Jayzel Mattos and her husband Troy. (13) After the officers arrived, Troy became agitated, and Agarano asked to speak with Jayzel outside. Jayzel agreed, asking everyone to calm down because her children were sleeping. (14) Before she could move outside, however, Aikala announced that Troy was under arrest, at which point Jayzel stood between Troy and Aikala. (15) When Aikala moved to arrest Troy, he pressed against Jayzel's chest, and she responded by raising her hands and touching him in the process. (16) After asking whether Jayzel was touching an officer, Aikala deployed his taser, which locked Jayzel's joints and caused her to fall." The officers then arrested both Troy and Jayzel."
The Mattoses filed suit against the officers in the U.S. District Court for the District of Hawaii for violating their Fourth Amendment right to be free from excessive force. (19) The officers moved for summary judgment, (20) and District Judge Ezra found triable issues of fact regarding whether the tasing constituted excessive force. (21) As such, the court denied summary judgment."
The officers in both cases filed interlocutory appeals to the Ninth Circuit. (23) In each case, a three-judge panel found no Fourth Amendment violation. (24) The Ninth Circuit granted rehearing en banc, vacated both three-judge panel opinions," and combined Brooks and Mattos for consolidated argument and disposition."
Writing for the panel, Judge Paez (27) held that both Brooks and Mattos alleged valid Fourth Amendment violations, but that the officers in both cases were entitled to qualified immunity. (28) In determining, first, whether the plaintiffs presented valid excessive force claims, the court applied the reasonableness test established by the Supreme Court in Graham v. …