{"id":1029,"date":"2011-10-24T09:24:30","date_gmt":"2011-10-24T13:24:30","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1029"},"modified":"2015-10-02T15:26:22","modified_gmt":"2015-10-02T15:26:22","slug":"ninth-circuit-stretches-objective-reasonableness-standard","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/10\/24\/ninth-circuit-stretches-objective-reasonableness-standard\/","title":{"rendered":"Ninth Circuit stretches objective reasonableness standard"},"content":{"rendered":"

Jessica Jackson\u00a0<\/span><\/em><\/p>\n

When Officer Ornelas pulled over Malaika Brooks, seven months pregnant at the time, for speeding in November of 2004, neither of them had any idea that the next hour of their lives would eventually be scrutinized by half the judges of the\u00a0Ninth Circuit<\/a>. Ms. Brooks, who denied having sped and believed that Ornelas had clocked the car in front of her, declined to sign the speeding citation he presented to her. The situation escalated when Ornelas announced that Ms. Brooks was under arrest and called for backup. When Ms. Brooks refused to exit her car, the officers discussed possible measures to remove her forcibly.<\/p>\n

According to Chief Judge Kozinski and Judge Bea\u2019s partial concurrence and partial dissent, the officers came to the conclusion that in order to cause the least amount of harm to the fetus, they should tase Ms. Brooks.\u00a0<\/span>After wrenching her arm behind her back to render her unable to protect herself, the officers\u00a0proceeded to tase her a total of three times, delivering jolts to her thigh, arm, and neck. Ms. Brooks was then dragged out of the car and placed in handcuffs.<\/p>\n

Last week the Ninth Circuit addressed whether the police officers involved\u00a0could invoke the protection of qualified immunity in defense to Ms. Brooks\u2019s 42 U.S.C. \u00a7 1983 excessive force suit. Unfortunately for Ms. Brooks, the Ninth Circuit reversed the district court and held that the officers were protected by qualified immunity since the law at the time was unclear as to whether tasing a person three times who has not demonstrated a threat of violence qualifies as excessive force.\u00a0 Stating that \u201call Fourth Amendment claims are analyzed under the\u00a0objective reasonableness standard<\/a>\u201d the court found that an officer under those circumstances, and without guidance of law\u00a0to the contrary, was not objectively unreasonable.<\/p>\n

This conclusion causes one to wonder whether qualified immunity encourages judges to ignore too many of the facts before them. Ms. Brooks was seven months pregnant, a circumstance which would have made evading the police or committing any violent acts against them difficult to perform. Her keys were already on the floorboard of her car, making an escape virtually impossible. Any person (or judge) should realize that the officer\u2019s actions presented a great risk to Ms. Brooks\u2019s unborn child, whose organs were still developing.<\/p>\n

As any mother\u00a0knows, most\u00a0doctors advise avoiding caffeine<\/a>\u00a0during pregnancy, to say nothing of electric currents.<\/p>\n

More shocking and disappointing than the majority\u2019s holding was the\u00a0language of\u00a0the Kozinski\/Bea opinion, which stated that\u00a0 the officers \u201cdeserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.\u201d A medal for tasing a woman who was seventh months pregnant, posed no threat of violence, and had complied in giving her name and address despite not signing the citation? This conclusion is not merely offensive; it risks setting an extremely dangerous precedent if adopted by the Supreme Court.<\/p>\n","protected":false},"excerpt":{"rendered":"

Jessica Jackson\u00a0 When Officer Ornelas pulled over Malaika Brooks, seven months pregnant at the time, for speeding in November of […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1029","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-gB","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1029","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1029"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1029\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1029"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1029"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1029"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}