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Brief of the Week: Taser Case Evokes a Personal Response

Kirkland & Ellis attorney Michael Williams was expecting his eighth child when he read a ruling that sided with police officers who repeatedly used a Taser on a pregnant woman at a routine traffic stop.

"It really struck me on a personal level," Williams said of the case, Brooks v. Daman, so he offered to work pro bono on a petition for certiorari. The U.S. Court of Appeals for the Ninth Circuit had found in October 2011 that, while three policemen used excessive force when they used the Taser on Malaika Brooks, they could not be sued because they did not violate clearly established law.

In the petition, Williams asked the Court to find that the policemen should not get qualified immunity because a "reasonable official" would have understood that the cops used excessive force in violation of the Fourth Amendment.

Brooks was driving her son to school in Seattle in 2004 when the police stopped her for allegedly going above the 20 mile-per-hour speed limit. Brooks, who told the cops that she was seven-months pregnant and needed to use the bathroom, said she would take the ticket but refused to sign it because she thought doing so would hurt her chances of contesting the charge.

The officers then grabbed Brooks' arm, took her keys out of the ignition and Tased her three times. Brooks was not threatening the police or attempting to flee, Williams wrote in the petition, which he filed in February.

Williams said that, while the case raises questions about standards for proving qualified immunity, he primarily took it to seek justice for Brooks. He acknowledged that Kirkland & Ellis, once home to former special prosecutor and appellate judge Kenneth Starr, has a conservative reputation. But he said his colleagues supported his work on the petition as a "matter of conscience" and "fundamental fairness."

"Once I described the case to some of the associates here, within 30 seconds I had five lawyers who were clamoring to work on it," Williams said. He added that Kirkland & Ellis has a robust pro-bono practice, under which attorneys get the same billing credit for those assignments as they do for representing paying clients.

The Ninth Circuit, citing the 2011 decision Ashcroft v. al-Kidd, reasoned that it is difficult to prove that officials violated clearly established law when there are no factually analogous cases. That threshold was not passed in Brooks, so the officers got qualified immunity.

Williams argues that the cops had fair warning because, in light of the facts, it was "obvious" that they used excessive force. He also wrote that the Ninth Circuit's "cramped application of Ashcroft" conflicts with the Court's 2002 decision Hope v. Pelzer. There, the Court found that, even in "novel factual circumstances," officials could have notice their conduct was unconstitutional.

Moreover, unlike Brooks, Ashcroft is about a national officeholder who could encounter legal rules that vary by jurisdiction and, consequently, may need more deference in qualified-immunity decisions, Williams wrote.

Williams' petition is grouped with three other briefs that the Court will review together.

Both parties in Mattos v. Agarano, another case in which the Ninth Circuit ruled as it did in Brooks, filed petitions for certiorari. In Mattos, police in Hawaii were attempting to arrest a man on harassment charges, and Tased his wife after she asked questions and did not immediately move out of the way.

Prior to Williams' submission, attorneys for the police officers in Brooks asked the Supreme Court to decide whether their clients' actions amounted to excessive force.

They argue that the Ninth Circuit's finding that their actions violated the Fourth Amendment will curtail cops from using pain-compliance techniques on people who are resisting arrest.

Williams said he is sensitive about law-enforcement officials' need to protect themselves: his stepfather was a policeman who got shot in the hand and chest while on duty.

"I understand that police officers need flexibility and I tend to be very conservative on these issues, but the Tasing of a pregnant woman is beyond the pale and transcends political labels," said Williams, who is now the father of nine.