Academic journal article Washington Law Review

Arriving at Clearly Established: The Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

Academic journal article Washington Law Review

Arriving at Clearly Established: The Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

Article excerpt

INTRODUCTION

In 2006, Jayzel Mattos was tased by a Maui police officer who was responding to a domestic violence call at the Mattos home. 1 Ms. Mattos happened to be standing between her husband and the officer when the officer announced that her husband was under arrest.2 She did not immediately move out of the way, and as the officer moved toward her, she held out her arm to prevent his body from pressing against her chest.3 Ms. Mattos was attempting to defuse the situation by asking everyone to calm down and go outside so that her sleeping children would not be disturbed when, without warning, the officer shot his Taser at her.4

Two years later, a Snohomish County police officer tased Donald Gravelet-Blondin outside of his home.5 The officer was responding to a 911 call placed by the family of Mr. Blondin's neighbor, who was attempting to commit suicide.6 As officers wrestled with the suicidal man, Mr. Blondin emerged from his house to ask them what they were doing to his neighbor.7 The officers ordered him to stop and move back, and when Mr. Blondin did not immediately comply, one of the officers tased him.8

Both Ms. Mattos and Mr. Blondin sued the officers who tased them for using excessive force.9 However, only Mr. Blondin was allowed to proceed with his case: the Ninth Circuit granted qualified immunity to the officer in Mattos v. Agarano10 but denied immunity to the officer in Gravelet-Blondin v. Shelton. 11 Qualified immunity protects government agents from liability for civil damages when their conduct does not violate clearly established constitutional rights.12 Whether a right was clearly established at the time of a particular injury depends on the precedent available at the time of the injury: the Supreme Court has held that existing precedent "must have placed the . . . constitutional question beyond debate."13

Problematically, the Supreme Court has declined to provide lower courts with guidance as to which sources of law may inform a court's clearly established analysis.14 The Mattos court relied only on binding, Taser-related precedent to inform its analysis.15 Finding no pre-2006 Supreme Court or Ninth Circuit case addressing the use of a Taser in a factually similar situation, the court concluded that Ms. Mattos' rights were not clearly established at the time of her injury and that the officer was therefore entitled to qualified immunity from Ms. Mattos' suit.16 In contrast, the Gravelet-Blondin court found that Mr. Blondin's right to be free from excessive force under the Fourth Amendment was clearly established as of 2008, even though no Supreme Court or Ninth Circuit case dealing with Tasers and excessive force had been decided between Ms. Mattos' injury in 2006 and Mr. Blondin's injury two years later.17

If no additional precedent were available by the time of Mr. Blondin's injury, what explains the difference in outcomes in these two cases? This Comment suggests that the divergent approaches to the clearly established analysis taken by different Ninth Circuit courts are to blame. When deciding whether to grant immunity to the officer in Mattos, the Ninth Circuit panel looked only to binding, Taser-related precedent.18 When faced with the same inquiry, the Gravelet-Blondin panel looked to non-Taser cases, cases from other circuits, and unpublished district court orders.19 By looking to a larger body of case law, the Gravelet-Blondin court was able to find the precedent it needed to hold that Mr. Blondin's right was clearly established at the time of the injury. Crucially, the Mattos court could have come to the same conclusion had it also looked to the broader scope used by the Gravelet-Blondin court.20 This example illustrates the need to harmonize the Ninth Circuit's standard regarding what constitutes clearly established law in the qualified immunity context.

This Comment uses the Taser cases discussed above to illuminate the inconsistency in what constitutes clearly established law in the Ninth Circuit. …

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