Supreme Court of the United States

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1 NO. IN THE Supreme Court of the United States TROY MATTOS; JAYZEL MATTOS v. DARREN AGARANO, ET AL., On Petition For A Writ of Certiorari To The Supreme Court of Hawaii PETITION FOR A WRIT OF CERTIORARI PATRICK K. WONG 5878 Corporation Counsel MOANA M. LUTEY 6385 Deputy Corporation Counsel County of Maui 200 S. High Street Wailuku, Hawaii Phone: (808) moana.lutey@co.maui.hi.us Counsel for Petitioners

2 i QUESTIONS PRESENTED Whether the officers use of a taser on Jayzel Mattos was excessive force under the Fourth Amendment to the U.S. Constitution?

3 ii LIST OF PARTIES Petitioners are the Darren Agarano, Ryan Aikala, Stuart Kunioka and Halayudha MacKnight. Respondents are Jayzel Mattos and Troy Mattos.

4 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i ORDERS AND OPINIONS BELOW STATEMENT OF JURISDICTION CONSTITUTIONAL PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE BASIS FOR CERTIORARI... 6

5 CASES iv TABLE OF AUTHORITIES Page Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011)... 7 Draper v. Reynolds, 369 F.3d 1270, (11th Cir. 2004) Hinton v. City of Elwood, Kan., 997 F.2d 774, (10th Cir. 1993) U.S. v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)... 7 CONSTITUTION AND STATUTUES 28 U.S.C. 1254(1) U.S.C United States Constitution, Amendment IV RULES Rule 10(c) of the U.S. Supreme Court Rules

6 1 PETITION FOR A WRIT OF CERTIORARI ORDERS AND OPINIONS BELOW The Order of the Ninth Circuit Court of Appeals granting the officers qualified immunity was filed on October 17, 2011 in United States Court of Appeals for the Ninth Circuit No , which was published. 1. A true copy of this order is attached in Appendix STATEMENT OF JURISDICTION This Court s jurisdiction is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment IV The right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated. STATEMENT OF THE CASE At approximately 11:20 p.m. on Wednesday, August 23, 2006, Cheynice Ruidas ("Cheynice") heard

7 2 her mother, Jayzel Mattos ("Jayzel"), scream "Troy, don t whack me!" and heard someone hitting another person. Cheynice then heard her mother say "call the police!" and heard several items being thrown within the residence. Cheynice called 911 and stated she was 14 years old, her parents were in a physical fight, and she could hear things being thrown around. During the 911 call, Cheynice sounded very scared. Officers Darren Agarano, Halayudha MacKnight, and Stuart Kunioka arrived at the residence approximately eight minutes after the call. Officer Stuart Kunioka ("Kunioka") was the first to approach the residence and observed Troy standing near the doorway. Troy is a soldier who had recently returned from Iraq. He is an imposing 6'3" tall and weighs approximately two hundred pounds. As Kunioka approached, Troy sat down on the top of the stairs. There were two bottles of Moosehead

8 3 beer near Troy, one appeared to be full and the other empty. Troy admitted that he had been drinking for four or five hours prior to the police arriving and was feeling the effects of the alcohol. Kunioka asked Troy what was going on and he stated "nothing." Troy smelled of alcohol, his eyes were red and watery, and he appeared intoxicated. Troy appeared irritated, uncooperative, agitated, and his voice became louder. Kunioka informed Troy that a 911 call indicated there was a physical altercation. Troy responded "who called, those guys over there?" while pointing to the adjacent apartments. Troy was told the call came from a 14-year old. Troy finally admitted he had an argument with his wife about "personal things" but would not elaborate further. Troy denied that the argument was physical when asked by Kunioka. Troy was asked where his wife was and he replied "in the shower." Troy was informed the police needed to talk with his wife to make sure she was alright and confirm

9 4 his story. Troy called out to his wife twice, but there was no response. It appeared Troy did not want to get his wife. Based upon Troy s behavior, Kunioka believed he was being untruthful and hiding something. Officer Darren Agarano ("Agarano") told Troy the police could not leave until they talked to his wife. Troy entered the residence and closed the door behind him stating "wait right here." Agarano became concerned because of Troy s evasive answers, his behavior, and because this was a domestic abuse call. Concerned for the welfare of the individuals within the residence as well as officer safety, Agarano opened the door and stepped into the doorway. Shortly after Agarano opened the door, Troy walked out of the hallway with his wife behind him. Jayzel was completely dry and fully clothed. There was no indication that she had been in the shower, as her husband had claimed.

10 5 Upon observing Agarano in the doorway, Troy began screaming "Get the fuck out of my house! You have no right to be in my house!" and "what is your probable cause?" Troy also stated "But I never invite you guys in!" Agarano attempted to calm Troy and stated the police had the right to enter the residence and offered to talk to his wife outside. Troy continued screaming "Get the fuck out of my house!" and "Fuck you! Fuck you guys!" While screaming at the Officers, Troy walked towards Agarano with his arms in the air. At that point, Agarano informed Troy he was under arrest. Jayzel immediately moved in front of her husband and attempted to prevent his arrest. She stated "you not going to take my husband." Jayzel was repeatedly asked to move out of the way, but she refused stating "you not going to take my husband." Aikala pulled his Taser out and repeatedly told Jayzel to move away or he would tase her. Each time she defiantly responded "go ahead and tase me!"

11 6 Aikala then transferred his Taser to his left hand and attempted to pull her away. As he approached, Jayzel shoved Aikala in the chest. Aikala then deployed his Taser for five seconds in dart mode. Jayzel slowly fell to the ground. Jayzel insisted Aikala remove the prongs to the Taser. Aikala refused and advised her that an ambulance was on the way. Jayzel stated that she did not need the medics and pulled the prongs out herself. The basis for federal jurisdiction is Plaintiffs federal claim under 42 U.S.C BASIS FOR CERTIORARI Rule 10(c) of the U.S. Supreme Court Rules allows certiorari where "... an important question of federal law has not been, but should be, settled by this Court..." The en banc panel issued its opinion finding that the officers use of the Taser was unconstitutional but that the law at the time was not clearly established. In issuing its opinion, the en banc panel failed to

12 7 determine the level of force Taser use represents. As a result, the opinion has left a void which makes it impossible for police officers to determine when Taser use is appropriate. In Camreta v. Greene, 131 S. Ct. 2020, 179 L.Ed.2d 1118 (2011), this Court held that a party that prevails on qualified immunity may still appeal an adverse constitutional ruling. Officials are allowed to appeal these types of rulings because of the prospective effect such a ruling may have. This is the type of case that Camreta specifically addresses. Although the officers prevailed on qualified immunity, the en banc panel found that their use of a Taser was unconstitutional. The officers were 1 responding to a domestic abuse call. Their attempts to arrest Troy Mattos, a large, intoxicated and angry 1 More officers are killed or injured responding to domestic violence calls than any other call. U.S. v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005).

13 8 individual, were actively hindered by his wife, Jayzel Mattos. Jayzel placed herself between her husband and the officers, refusing their orders to move out of the way. When an officer attempted to grab Jayzel s arm to physically move her out of the way, Jayzel pushed him. The Taser was then deployed once on Jayzel. This incident took place in a small, confined area. In the absence of a clear ruling on when Taser deployment would be appropriate, police officers are left with no guidance. In addition, the lack of any decision on what level of force a Taser represents makes it impossible for officers to determine when Taser use would be legal. This matter was initially heard by a Ninth Circuit Court of Appeals three judge panel. Their order, issued under 590 F.3d 1082 (2010), determined that the Taser was an intermediate level of force. This decision gave officers guidance as to

14 9 when Taser use was appropriate. Unfortunately, the en banc panel failed to address this issue. Other circuits have found Taser use, under similar circumstances, constitutional. See Draper v. Reynolds, 369 F.3d 1270, (11th Cir. 2004)(Taser on belligerent and uncooperative individual is constitutionally permitted) and Hinton v. City of Elwood, Kan., 997 F.2d 774, (10th Cir. 1993)(stun gun on resisting individual is not unconstitutional). By reaching the opposite conclusion on similar facts, the Ninth Circuit s ruling has made it extremely difficult for officers to know when Tasers can be used constitutionally.

15 10 Accordingly, Petitioner respectfully requests that certiorari be granted. January 10, 2011 Respectfully submitted, PATRICK K. WONG Corporation Counsel MOANA M. LUTEY County of Maui 200 S. High Street Wailuku, Hawaii (808) Attorneys for Petitioners I