Three Seattle police officers who repeatedly tased a pregnant woman during a 2004 traffic stop cannot be sued in federal court, despite evidence they used excessive force, because the law governing Taser use was unclear at the time, the 9th U.S. Circuit Court of Appeals ruled Monday.

The judges, however, said that Malaika Brooks could still sue them in state court on assault and battery claims.

The appellate court's ruling combined two Taser-related cases — the Brooks case and another from Hawaii — and set out to clarify when use of the devices can be deemed excessive force.

In both cases, the court's majority concluded the officers' use of the Tasers was improper and could be a violation of the victims' civil rights.

But they also found that case law governing the use of Tasers was unclear at that time, and as a result the officers in both incidents were immune from federal lawsuit.

Writing for the majority, Judge Richard Paez said the circumstances in both the Seattle and Hawaii cases were such that a jury could find the officers overstepped constitutional bounds.

In the Brooks case, Paez and the majority concluded that Brooks' traffic violation was not serious and that she never posed a serious threat to the officers. Brooks was stopped for speeding in a school zone.

When she refused to sign the citation, the officers decided to arrest her.

While she did resist arrest and refused to sign the ticket or leave her car, that in itself did not justify the use of a Taser on her thigh, arm and neck in short succession, the opinion says.

"We note that Brooks bears some responsibility for the escalation of this incident," Paez wrote.

However, the judges considered two "overwhelmingly salient" factors that weighed in Brooks' favor: She had told the officers she was within 60 days of delivering her baby, and that after learning of this, the officers took time to discuss how they should proceed and even where they should apply the Taser.

The officers were identified as Sgt. Steven Daman, Officer Juan Ornelas and Officer Donald Jones.

"The second overwhelmingly salient factor is that [Officer Jones] tased Brooks three times over the course of less than one minute," the opinion said.

"Three tasings in such rapid succession provided no time for Brooks to recover from the extreme pain she experienced, gather herself and reconsider her refusal to comply."

Brooks' Seattle attorney, Eric Zubel, said he was disappointed that "we're not going to be able to put those officers in front of a federal jury."

He said he has not consulted with her about pursuing the case in state court, where she could win damages but would not be able to collect attorneys fees, which can be won in a federal civil-rights case.

Brooks did not suffer serious injuries, aside from small scars from the Taser. Her child was born healthy, the opinion notes.

Ted Buck, the officers' attorney, said the ruling could create problems for officers.

Up until now, the use of a Taser in the so-called "drive-stun" mode — when it is applied directly to the target rather than used to fire darts — has been considered a relatively low-force "pain compliance" tool for officers to use on resisting subjects.

The ruling raises concerns that officers will be reluctant to use it now, and will resort to other methods, such as arm-holds, batons or pepper-spray, Buck said.

In the Hawaii case, the judges found that Maui police likely used excessive force and violated the rights of Jayzel Mattos, who had called police on her husband during a domestic dispute in 2006. An officer shot her with a Taser in the dart-mode, which not only causes excruciating pain but also short-circuits the central nervous system, causing temporary paralysis.

The court determined Mattos did not pose a threat nor was resisting the officers when she failed to get out of the way while an officer moved to arrest her husband.

According to the opinion, she was urging calm and trying to get everyone out of the house so as not to disturb her sleeping children when an officer pushed her and tased her without warning.

"The fact that [the officer] gave no warning to Jayzel before tasing her pushes this use of force far beyond the pale," Paez wrote.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com