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TASER Electronic Control Devices (ECDs) -- Legal Update Michael Brave, Esq. , M. S. , C. L. S. 3, C. L. E. T. , C. P. S. , C. S. T. National Litigation Counsel, TASER International, Inc. President, LAAW International, Inc.
Basics n n TASER International does not create, recommend, or endorse policy. Keep up to date – q q n n Information overload www. ecdlaw. info (owned by LAAW International, Inc. ) www. ipicd. com or www. incustodydeath. com Learn the “science” not the “myths” Constitutional standards of force history Understand actual legal standards
ECD Political or Actual Risks? n n n n Media/Special Interest Group Risks? Outcome vs. Process Political correctness risks? Politically motivated risks? Ignorance risks? Perceptual risks? Actual risks (informed – science/logic based)
What the Courts are Saying? n n n n Torture? How restrained is the person? How passive is the person? Member of “special” group? Level of perceived risk from the person? Lawful objective + perceived threat (physical) Warning: lower threat = necessary warning
Elevated ECD Application Risk Factors n n n n n Presence of flammable liquids/fumes or explosive environments Elevated positions Person operating moving vehicle or machinery Person running (fleeing) Pregnant female (fall) Swimming pool or other body of water Intentional ECD application to sensitive areas Frail or infirm individual Perceived risk of repeated ECD applications
Societal perceptions/concerns creating elevated justification factors n n Children Seniors Restrained subjects Passive subjects who are being seized
Important URL Addresses n www. ecdlaw. info q n Electronic Control Devices Legal Resources www. ipicd. com or www. incustodydeath. com q q Institute for the Prevention of In-Custody Deaths Especially the n n Articles page Books page Calendar page IPICD Sudden Death Symposium Nov. 28 -30 Las Vegas
Consider the Consequences? n If “You” made statements, made decisions, or took actions against a person based upon the same level of ignorance (lack of knowledge), speculation, unsupported statements, lack of proof, lack of medical or scientific support, subject to misinterpretation, rumor, bias, innuendo, argument, etc. that some media, special interest groups, and a few medical examiners have recently used in ICD cases? What would happen to “You? ”
Questions n Should agency ECD standards be based on: q q q q Scientifically invalid/unreliable speculation? Media hysteria and mis-reporting? Unsupported special interest group accusations? Studies based on inflated standards? ME findings lacking ECD causation evidence? Illogical statements? Statements exhibiting logical fallacies? Causal oversimplification fallacy?
Good Science on Top of Junk Science? n n 2005 Causation speculations unsupported by scientific validity resulting in ultra-conservative guidelines. Resulted in numerous conservative guidelines: n n n n n June 14, 2005 Office of Police Complaint Commissioner June 28, 2005 - TASER Int’l Training Bulletin/Warnings August 22, 2005 - Canadian Police Research Center August 2005 - IACP Model ECW Policy October 2005 - IACP Conference (Miami, FL) October 18 -19, 2005 -PERF CED Guidelines October 2006 - IACP Conference (Boston, MA) Fall 2006 - FLETC Journal, Volume 4, Issue 2 2007 - Police Quarterly 2007, 10 (2), p. 170 May 2007 – AELE Monthly Law Journal (FLETC)
June 14, 2005 – OPCC (BC) Published TASER Technology Report Respiratory Impairment/p. H Changes in Multiple Applications Depending on probe location in the upper torso, it appears likely that the muscular tetany produced by a TASER deployment could impair a subject's respiration. . [emphasis added]
June 14, 2005 – OPCC (BC) Published TASER Technology Report Training protocols, however, should reflect that multiple applications, particularly continuous cycling of the TASER for periods exceeding 15 -20 seconds, may increase the risk to the subject and should be avoided where practical. OPCC Report, page 31. [Emphasis added. ]
June 14, 2005 – OPCC (BC) Published TASER Technology Report Thus, the OPCC Report used key adjectives including “it appears likely, ” “could, ” and “may. ” These statements were speculative and not based on published objective peer reviewed human medical, scientific, or engineering research.
June 14, 2005 – OPCC (BC) Published TASER Technology Report Also, note that with regard to a person’s experiencing excited delirium on page 31 of the OPCC Report, it states: A single TASER application made before the subject has been exhausted, followed by a restraint technique that does not impair respiration may provide the optimum outcome. OPCC Report, page 32.
TASER Int’l June 28, 2005 Repeated, prolonged, and/or continuous exposure(s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable in order to minimize the potential for over-exertion of the subject or potential impairment of full ability to breathe over a protracted time period.
August 22, 2005 CEDs, Technical Report, TR-01 -02006, Canadian Police Research Centre (“CPRC Report”) The issue related to multiple CED applications and its impact on respiration, p. H levels, and other associated physical effects, offers a plausible theory on the possible connection between deaths, CED use, and people exhibiting the symptoms of excited delirium. CPRC Report, page 4. [Emphasis added. ]
August 22, 2005 CEDs, Technical Report, TR-01 -02006, Canadian Police Research Centre (“CPRC Report”) Definitive research or evidence does not exist that implicates a causal relationship between the use of CEDs and death. Existing studies indicate that the risk of cardiac harm to subjects from a CED is very low. ED, although not a universally recognized medical condition, is gaining increasing acceptance as a main contributor to deaths proximal to CED use.
2007 -2008 Research? NIJ Study of In-Custody Deaths n PERF Study of Agency Policies The question is – If a study is now (2007) being conducted to determine when an agency will allow an ECD to be used (what standard), however, the agencies being studied conservatively inflated the level at which an ECD could be used because of scientifically invalid speculations, then will the current study results be inappropriately based upon the unscientifically inflated standards (2005)? n
Some Basic Realities: n 2005 to present – The hysterical attacks!!!!! q q n Ignorance + phobia + bias + negativity + agenda No scientifically reliable bases for ECD causation (a few) ME and (some) Media Errors: q q Ignorance (lack of knowledge) Lack of (even basic) understandings of: n n n ECDs, electricity, force Scientific method and scientific reliability Standards of certainty Logical analyses and logical fallacies The costs: “Homicide” or “Undetermined”?
To be an Expert? n What do you know? q Breadth and depth of knowledge? n q n n A little knowledge – can be “VERY” dangerous! Ability to explain, put forth concepts? Misperceptions can cost lives, careers … q q n Areas of knowledge and understanding? E. g. “Just below deadly force. ” “ 50, 000 volts!” Intellectual integrity?
Primer/Review – In-Custody Death Prelude to Death – the Actual Causes n n n Hiding drugs by swallowing/ingesting Acute drug abuse Chronic drug abuse q n n Polydrug toxicity Long-term mental health problems q q q n Usually leading to neuro-chemistry changes Neuroleptic drug imbalance Over ingestion of drugs Failure to take prescribed drugs (or abrupt cessation) Self-inflicted injuries or death (e. g. suicide)
Primer/Review – In-Custody Death A “Victim” Emerges n n n Deceased will likely be considered a “Victim” Someone else is always at fault Screams for a “Victim: ” q q n Family (inner circle) Special Interest Groups (incl: those with agendas) Media: q q q Rush to judgment – regardless of the truth or accuracy Sensationalism and hysteria Need for controversial headline Inaccuracies are the norm – not the exception Complex science and concepts – only time for sound bites
Primer/Review – In-Custody Death Post Incident Onslaught n n n Emotion rules over logic Panic self protection Criticism avoidance Anger and rage Knee-jerk (over) reactions (appeasements? ) The importance of deflecting blame
Primer/Review – In-Custody Death Causation n n Often futile search for single mechanism Disbelief, surprise, unexpected, or diversion Ignorance (of numerous knowledge areas) Conspiracies PDPCT (Plaintiffs’ Deep Pocket Causation Theories) q q q He who has the deep pockets caused the death He without deep pocket did not cause the harm The “victim” is blameless
Primer/Review – In-Custody Death Investigative Needs n n n n n Need to understand science/standards Need to understand issues/concepts Need to collect and preserve scene Need to accurately record incident Need to collect all incident information Need to collect medical histories Need to collect drug and rehab histories Need to timely collect deceased samples Need to perform tests and analyses Need to collect criminal histories
Primer/Review – In-Custody Death ME/Coroner – Opinion Taken as Fact Speculation Taken as Scientific Fact n Police/Device “directly caused” the death n P/D was a “direct cause” of the death n P/D was the “contributory cause” of the death n P/D was associated with the death n P/D was temporally tied to the death n P/D was listed as a descriptor to the death n P/D could not be ruled out
(A few) U. S. Medical Examiners Why we are here? Examples: - (IN) Borden - (OH) Holcomb (Summit County ME) - (OH) Hyde (Summit County ME)
Example – (IN) James Borden Investigative Shortcomings Cause of Death Consistent with cardiac dysrhythmia Secondary to hypertrophic cardiomyopathy, pharmacologic intoxication, and electrical shock
Example – (IN) James Borden Excerpt from CBS Evening News with Dan Rather – Eye on America Investigation: Stun Gun Safety which aired on July 26, 2004: Dr Roland M. Kohr: “This is the straw that broke the camel’s back… The application of the TASER, I believe, was the trigger factor or the stressful event which stressed an already damaged heart to the point where it went into cardiac arrest. Wyatt Andrews: “The TASER is what triggered his heart attack…” Dr. Kohr: “Definitely. ”
Example – (IN) James Borden Excerpt from CBS Early Show Report that aired on October 12, 2004: Dr. Roland M. Kohr: "This is the straw that broke the camel's back. . . The application of the TASER, I believe, was the trigger factor or the stressful event that caused an elevation of blood pressure and an elevation in heart rate which stressed an already damaged heart to the point where it went into cardiac arrest. "
Example – (IN) James Borden Kohr’s deposition – March 3, 2005 Page 192 Line 8 to Page 192 Line 15 Q So if someone were to say that the Taser definitely caused, was a contributory cause of Mr. Borden's death, there would be no scientific, medical, or forensic basis to make that strong of an assertion, correct? A Correct. Q That would be a reckless statement? A In my opinion, yes. Page 389 Line 2 to Page 389 Line 5 Q You were asked by CBS News whether Taser was the triggering event that caused Mr. Borden's death, and you answered "Definitely, " correct? A Correct.
Example – (IN) James Borden Legal Consequences & Costs n n n n Deputy David Shaw – 2 Felony Counts Law Enforcement – Intense scrutiny/criticism Society – avalanche of anti-ECD criticism How many officers were injured? How many suspects needlessly injured? How many lives/careers irreparably harmed? TASER Int’l – Borden snowballed into a multiyear litigation avalanche
Example – (OH) Holcomb Cause of Death: Cardiac arrhythmia. Due to: Drug induced psychosis. Due to: (methamphetamine and MDMA/MDA 0 intoxication, acute. Contributory conditions: Electrical pulse incapacitation. Manner of Death: HOMICIDE: Used drugs; Sudden death incurred during restraint.
Example – (OH) Holcomb July 25, 2005 ME's Media Release. . . In summary: Mr. Holcomb died from the effects of methamphetamine and ecstasy which sensitized his heart to the effects of the TASER equipment that was required to subdue him. But for the drug intoxication, the use of the TASER would not have resulted in death. (emphasis added)
Example – (OH) Holcomb July 18, 2006 deposition of Dr. Dorothy Dean Page 106 Q Let me make sure I get the question straight then. You're unable to tell us, to a reasonable degree of medical certainty, the mechanism by which you believe, to some extent, electrical impulse is delivered by the Taser contributed to his death, correct? A That's correct, I cannot tell you.
Example – (OH) Holcomb Page 170 Q And so the temporal proximity is the fact upon which you rely to link the Taser to Mr. Holcomb's death, correct? A Yes.
Example – (OH) Holcomb Page 188 Q You indicated, in response to counsel's question, that you believe the Taser device contributed in some way. I think you've acknowledged that "in some way" could be as low as. 000001 percent? A Yes.
Example – (OH) Holcomb Page 5 Q If an event happens first and then a second event occurs some time after the first event, do you agree that does not necessarily mean that the second event was caused by the first event? A Yes.
(OH) Hyde January 5, 2005 Death of Dennis S. Hyde Summit County (OH) Medical Examiner Cause of Death: Probable cardiac arrhythmia Due to: Acute methamphetamine intoxication and electrical pulse incapacitation. Contributing conditions: Psychiatric disorder with agitated behavior; Blood loss by rterial injury. Manner of Death: HOMICIDE: Sudden death occurred during restraint.
(OH) Hyde June 1, 2007 Deposition of George C. Sterbenz, M. D. Dennis Hyde death case P 168 Q. . . And you do not contend that the TASER application was greater than even one billionth of a percent of the cause of Dennis Hyde's death because it's an indeterminate contribution, correct? A That's correct
(OH) Hyde Pg 170 Q … You've said that the percentage [of TASER ECD contribution to death] could be as little as a billionth of a percent. It could be even smaller than that, true? A True. Q. . . And as you sit here today, do you have an opinion, to a reasonable degree of medical certainty, as to how the TASER device actually contributed in any way to Mr. Hyde's death? A No. I don't.
(OH) Hyde n Inflicted Force vs. Therapeutic Force? Cause of death (to RDMP)? Inflicted Force Contribution to death? Manner of Death: q Homicide, q Accident, or q Undetermined? n What it means to involved officers? n n n
Putting It Into Perspective The Litigation Landscape: Plaintiffs’ attempts to support speculations without scientific basis or support
Plaintiffs’ House of Cards n n n Electricaphobia! -- irrational fear of electricity … All Electricity is the Same! And, its DANGEROUS!!!!! (ball example) Negative Inferences and Innuendo Abbreviated Facts + Negative Spin + Sensationalism Sky is falling - Single Incident Equates to Broad Generality Inappropriate Attempts at Correlations Stretching “Causation” to the Breaking Point Negative Emotion is more important than scientific proof Attempting to force defense to disprove the negative Blame Shifting - Always someone else’s fault (Plaintiff = Victim) Causation by Deep Pocket Analysis q Just because I sued you – you should give me money!!!!!
Scientific Method v. Common Sense n n n n Scientific Method Assessment of relevant existing knowledge of a phenomenon Formulation of concepts and propositions Statement of hypotheses or answer research questions Design research Acquire meaningful empirical data or observation data Analysis & evaluation of data Proposal of explanation of the phenomenon & statement(s) of new problems n n n Common Sense Observation – non-scientific Bias (+ and -) Self interests View – Filtered glasses Circle of Protection q q n n n In Circle – can do no wrong Fault – anyone outside circle No sampling Cause & Effect based upon the observation Erroneous Conclusions q The World is “Flat”
Acquiring Knowledge n Science – A process that combines the principles of rationalism with the process of empiricism, using rationalism to develop theories and empiricism to test theories n n Empiricism – gaining knowledge through observation Rationalism – developing valid ideas using existing ideas and principles of logic (cows are black, this is a cow, this cow is black) n Mystical – knowledge from the gods, prophets, and supernatural authorities n n Authority – accept the idea because it comes from a respected source Intuition – e. g. hunches, gut feelings, accept ideas because they “feel” true n Tenacity – accepting ideas as knowledge because they have been around for a long time
Scientific Method – Sequential Steps Publication n Communication phase – write a report n Interpretation phase – interpret the data n Data analysis phase – analyze the data n Methodology - Procedures designed to test the n hypothesis or answer research questions Problem definition phase n Idea generation phase – (observe & then ask n questions)
Consider -- Where on the scale(s)? Legal Standards - Proof: Beyond Any Doubt --------------------------n 95% Beyond Reasonable Doubt n 75% Clear & Convincing n 51% By a Preponderance Scientific Standards: n q More likely than not 49% Probable Cause n 35% Reasonable Suspicion --------------------------n Mere Suspicion n Hunch n Random n Wishful Thinking n Begging n n n n n (Scientific Certainty) Law Theory Model, Paradigm Constructs (Concept) Inference Observation Idea (Thought) Speculation
Legal Standards of Care: n n n Wilful & Wanton Purposeful Intentional Knowingly Reckless Disregard Deliberately Deliberate Indifference Gross Negligence Carelessly Due Regard Strict Liability
Common Words – Frequency or Foreseeability n n n n n "Absolute" - without exception, law "Always" - at all times “Certain” – a fact that is true or an event that is definitely going to take place "Frequent" - ordinary, common “Probable” – almost certainty, as far as one knows or can tell “Likely” - probable” or “as likely as not probably “Unusual” - not habitually or commonly occurring "Maybe"- perhaps, possibly, perchance "Unlikely" not likely, improbable, has little chance of being the case or coming about “Freak” – a very unusual and unexpected event “Unexpected” - not likely to happen "Rare" - uncommon, infrequent, occurring very infrequently "Could" - may , might, have the possibility "Conceivable" - capable of being imagine or understood "Plausible" - seeming reasonable or probable, appearing to merit belief or acceptance “Conjecture” - an opinion or conclusion based on incomplete information; a guess “Guess” - suppose (something) without sufficient information to be sure of being correct “Speculation” - based on conjecture rather than knowledge "Never" - not ever
TASER X 26 Electrical Characteristics n n n n Waveform Pulse Rate Pulse Duration Voltage - peak open circuit Voltage - peak loaded Current - average Energy Per Pulse - nominal Energy Per Pulse - delivered Main Phase Delivered Charge Power Rating – nominal Power Rating -- delivered Power Source No. of discharges - battery n n n n Complex Shaped Pulse 19 PPS (pulses per second) 100 µs (microseconds) 50, 000 volts 1200 volts 0. 0021 amperes 0. 36 joules 0. 07 joules 100 µC (microcoulombs) 7 watts at main capacitor 1. 3 watts delivered Two three-volt cells 195 five-second discharges
Calculations n n What powers a TASER X 26? Setting the baseline: q q n How many photo flashes from cells? How many digital photos from cells? The TASER X 26: q q How many pulses per second? How many seconds when trigger pulled? How many pulses per 5 second trigger pull? How many 5 second discharges per battery?
Calculations n 10, 000 sheet stack of copy paper q q q Represents one second of time Wall outlet electricity – full 10, 000 sheets TASER X 26 – 100 µs pulse (one piece of paper) n q n 19 pulses (per second) – 19 pieces of paper 5 s = 50, 000 sheets of paper (X 26 – 95 sheets) M 26 – 25, 000 or 100, 000 pieces of paper
TASER International, Inc. ECD Basic Liability Principles
Lawsuits: Product Liability vs. UOF TASER International - Product Liability Issues: 1. Product Defect (defective product) 2. Strict Liability (risk utility analyses) 3. Mis-represenation (lied about product) 4. Failure to Warn (failed to warn of dangers) Law Enforcement - Officer or Agency Issues: 1. Excessive Force (federal and/or state) 2. Supervision, Training, Entrustment, Policy
Lawsuits – TASER International Product Liability Lawsuits In order to prevail, a plaintiff must prove: 1. Product is defective 2. The defect caused the injury or death To date: 1. No court has ruled that a TASER device was defective 2. No court has ruled that a TASER device defect caused a death or injury 3. No court has ruled that TASER International has misrepresented
Are TASER Devices Risk Free? No.
TASER International Litigation Update
TASER Litigation Update 3 Types of Cases: q q q Death following TASER ECD presence Suspect injuries (blamed on TASER ECD) Officers injured during training (exposures) What we are seeing in these cases (Plfs): n Very long complaints based on media q q q Little substance Endless stalling/time extensions Unable to find experts
TASER Litigation Use of Experts
EXPERTS Experts – VERY important!!!! -- Certain subjects can be very complicated – we need to have those best qualified to express opinions reviewing these files/incidents. We have retained some of the premier experts in various scientific fields Call us – we are happy to assist in locating experts.
TASER Litigation Case Strategies
Case Strategies n n n Strong defense Bring out the facts – not the rhetoric Get beyond the rumors, myths, media Over 150, 000 pages of documentation TASER ECDs are well proven
How TASER International Can Help You With Your Cases
How TASER Int’l Can Help You n n n n Information Scientific & Medical Information Department Statistics Disproving Myths, Rumors, & Misinformation Guidance on Defense Experts Information on Plaintiffs’ Experts Simply Answering Your Questions
Basic Legal Concepts Law Enforcement Use of Force
Law Enforcement Liabilities n n n n Third-Party Liability Workers’ Compensation Employment Practices Liabilities Criminal Culpabilities Public Scrutiny Special-Interest Group Scrutiny Numerous Others
Sudden In-Custody Deaths Causes of Action n Officers present q q q Constitutional use-of-force issues Constitutional seizure, detention, incarceration State medical or mental emergency n n n q q “Shall” vs. “May” Degree of certainty required for action? Necessity for prior authorization(s)? Constitutional medical care/attention Liability to intervene for another officer’s actions
Basic Concepts How much force is acceptable? -----The Most Simplistic Answer: “A law enforcement officer may use that amount of force upon a person that the law allows. A law enforcement officer may not use more force upon a person than the law allows. ”
Basic Concepts You must have an acceptable legal basis (justification) for everything that you do that negatively impacts a person and/or his/her property.
Basic Concepts Just because the law allows you to use force, does not automatically mean that using the force is the most prudent course of action.
Basic Concepts There are consequences to adopting use-of-force standards that are more restrictive than the legal standards.
Basic Concepts “[T]he Fourth Amendment addresses ‘misuse of power, ’ not the accidental effects of otherwise lawful conduct. ” Brower v. County of Inyo, 489 U. S. 593, 596 (1989); Milstead v. Kibler, 243 F. 3 d 157 (4 th Cir. 2001).
Basic Concepts “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. ” Graham v. Conner, 490 U. S. 386, 396 (1989).
Basic Concepts “. . . [T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. . . ” Graham v. Conner, 490 U. S. 386, 396 (1989), citing Bell v. Wolfish, 441 U. S. 520, 559 (1979).
Basic Concepts 4 th Amendment – Deadly Force “Almost every use of force, however minute, poses some risk of death. ” Garrett v. Athens-Clarke County, 378 F. 3 d 1274, 1280, n. 12 (11 th Cir. 2004).
Basic Concepts: Distinctions – Force Standards: n Abuse of authority standards n Self defense standards n Risk management analyses
Basic ECD Intro n What happened in 2005? q n Up/Down continuum (speculation, not science) Criminal q q (IN) Borden – Deputy David Shaw (VA) Sgt. Ryan Hood
Police Executive Research Forum - ECD October 18 -19, 2005 (02/24/07) Conducted Energy Devices: Development of Standards for Consistency and Guidance, The Creation of National CED Policy and Training Guidelines, by James M. Cronin and Joshua A. Ederheimer. U. S. Department of Justice, Office of Community Oriented Policing Services.
PERF Guidelines October 18 -19, 2005 “ 1. CEDs should only be used against persons who are actively resisting or exhibiting active aggression, or to prevent individuals from harming themselves or others. CEDs should not be used against a passive suspect. ”
PERF Guidelines October 18 -19, 2005 "Active Aggression - A threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is imminent. " "Actively Resisting - Physically evasive movements to defeat an officer's attempt to control, including bracing, tensing, pushing, or verbally signaling an intention to avoid or prevent being taken into or retained in custody. "
PERF Guidelines October 18 -19, 2005 “ 6. That a subject is fleeing should not be the sole justification for police use of a CED. Severity of offense and other circumstances should be considered before officers’ use of a CED on the fleeing subject. ”
PERF Guidelines October 18 -19, 2005 “ 7. CEDs should not generally be used against pregnant women, elderly persons, young children, and visibly frail persons unless exigent circumstances exist. ”
PERF Guidelines October 18 -19, 2005 “ 8. CEDs should not be used on handcuffed persons unless they are actively resisting or exhibiting active aggression, and/or to prevent individuals from harming themselves or others. ”
TASER CASES Law Enforcement Force Cases
TASER ECD Weapons Confusion Cases - firearm used when ECD intended n n n Henry v. Purnell, 428 F. Supp. 2 d 393 (D. Md. April 21, 2006). Henry v. Purnell, 119 Fed. Appx. 441 (4 th Cir. (Md. ) 2005). Date of incident - October 20, 2003. Christofar Atak v. City of Rochester, et. al. , USDC Minn. , Case No. 04 -2720 DSD/SRN. Torres v. City of Madera, Not Reported in F. Supp. 2 d, 2005 WL 1683736 (E. D. Cal. 2005).
TASER ECD Weapons Confusion Cases - firearm used when ECD intended n n Yount v. City of Sacramento, 35 Cal. Rptr. 3 d 563, Cal. App. 3 Dist. (Nov. 9, 2005) - Arrestee's conviction for obstructing an officer did not bar his federal civil rights lawsuit for excessive force by an officer who shot him in the buttocks with his firearm while the officer intended to draw and fire his TASER device instead. Petition for review granted: Yount v. City of Sacramento, 129 P. 3 d 320, 40 Cal. Rptr. 3 d 118 (Feb 01, 2006). (Thursday) June 22, 2006 -- Kitsap County (WA) Sheriff's Office deputy shot and wounded a man in a tree when she used a gun instead of a TASER device. The man had climbed high up a fig tree and had been there for several hours. Deputies were unsure whether the man was intoxicated, on drugs, or possibly experiencing a psychotic episode. One deputy attempted to discharge a TASER device at the man, but when it did not work asked another deputy to fire a TASER device. Instead of grabbing the TASER device, the deputy grabbed and fired her gun.
Use of firearm when confronted by suspect armed with ECD n n Use of firearm deadly force not unreasonable against handcuffed (in front) person threatening officers with ECD (in drive stun) [very narrow holding]. Henderson v. Inabinett, 2006 WL 2547435 (M. D. Ala. Sep 01, 2006). Daniel Rocha incident in Austin, Texas. Officer believed that Rocha had her TASER ECD and was about to use it on her Sergeant.
Accidental ECD discharge: n n Officer accidentally discharged TASER device on his daughter – Williams v. City of Daytona Beach, Slip Copy, 2006 WL 354635, M. D. Fla. (Feb. 15, 2006). Recent incident of officer accidentally discharging ECD into daughter’s eye.
Threat of ECD device gains compliance n n n Threat of TASER device “on its way” gains compliance. U. S. v. Yandal, Slip Copy, 2006 WL 517608 (W. D. Ky. March 1, 2006) Threat of TASER device - 17 year old burglar comes out of attic. In re J. D. , 275 Ga. App. 147, 619 S. E. 2 d 818 (Ga. App. 2005) “[R]attling of electricity” from TASER device causes fleeing man to surrender. People v. Young, Not Reported in Cal. Rptr. 3 d, 2006 WL 1688992 (Cal. App. 2 Dist. June 21, 2006) Firearm pointing does not gain compliance - TASER device does. U. S. v. Ackerman, Slip Copy, 2006 WL 224028, M. D. Fla. (Jan. 30, 2006) Pointing TASER device gains compliance. In re Francisco B. , 2005 WL 2856335 (Cal. App. 5 Dist. Nov 01, 2005)
Threat of ECD use without submission is not a seizure Drawing and pointing ECD (on 58 year old man who had heart surgery 2 months prior) where suspect did not submit is not a seizure. Policky v. City of Seward (NE), 433 F. Supp. 2 d 1013 (D. Neb. May 25, 2006)
Threat ECD use with submission /compliance is a 4 th Amendment Seizure Threat with TASER device causing compliance is a 4 th Amendment “seizure. ” Pino v. City of Sacramento, Slip Copy, 2006 WL 193181, E. D. Cal. (Jan. 19, 2006)
Passive or Active Resistance Qualified immunity for officer, use of TASER ECD to force man to release grip on basketball pole. Issue of “passive resistance” discussed - “Eighth Circuit law draws no distinction between active or passive resistance in resisting a police officer's requests. ” Schumacher v. Halverson, --F. Supp. 2 d ----, 2006 WL 3740804 (D. Minn. December 15, 2006)
Use of ECD on a belligerent person Use of TASER ECD on belligerent driver appropriate – Draper v. Reynolds, 369 F. 3 d 1270 (11 th Cir. 2004) Summary Judgment Granted to Officers - Car Stop - 3 TASER devices uses on belligerent driver, including 2 while handcuffed – Willkomm v. Mayer (WI Dells), USDC W. D. WI (Slip Copy 2006 WL 582044) March 9, 2006
n TASER device to neck used to remove man from car. Warren v. State of Maryland, 164 Md. App. 153, 882 A. 2 d 934 (Md. App. 2005) n Summary judgment granted on officer’s use of TASER device on man suffering a hypoglycemic (diabetic) attack. Gruver v. Borough of Carlisle, Slip Copy, 2006 WL 1410816 (M. D. Pa. May 19, 2006)
Community Care Taker Function "Community Care Taker" Function [officer's use of TASER ECD on resisting person in medical distress in ambulance - Summary Judgment granted to defendants] - Stanley v. City of Baytown, Texas, Slip Copy, 2005 WL 2757370 (S. D. Tex. ), No. Civ. A. H-04 -2106, U. S. Dist. Ct, S. D. Texas, Houston Division, decided Oct. 25, 2005
Use of ECD to stop fleeing arrestee n Summary judgment granted to defendants on officer’s use of TASER device on fleeing arrestee. U. S. ex rel. Thompson v. Village of Spring Valley, N. Y. , Slip Copy, 2006 WL 1889912 (S. D. N. Y. July 10, 2006) n Summary judgment granted for TASER device use resisted arrest, attempted to flee. Court gave a useof-force risk management analysis (dart to top of head). Wylie v. Overby, Slip Copy, 2006 WL 1007643, E. D. Mich. (April 14, 2006)
ECD use threatening, resisting n TASER device used to control threatening man. People v. Powers, Not Reported in Cal. Rptr. 3 d, 2006 WL 1737353, (Cal. App. 2 Dist. June 27, 2006) n TASER device used to gain control of resisting man. Shouse v. State, 849 N. E. 2 d 650 (Ind. App. June 20, 2006) n TASER device used to capture struggling, resisting escapee. State v. Farrar, 631 S. E. 2 d 48 (N. C. App. June 20, 2006)
n Summary judgment (qualified immunity) granted to defendants when TASER device was used on a 14 year old female fighting on school property. Maiorano ex rel. Maiorano v. Santiago, Slip Copy, 2006 WL 2024951 (M. D. Fla. July 15, 2006) n (Two) TASER device discharges stops fleeing man. U. S. v. Stephens, Slip Copy, 2006 WL 1663351 (E. D. Mo. June 14, 2006
Raise hands: threat or surrender Defendants motion for summary judgment denied due to genuine issues of material fact – (1) raised his hands with his fingers spread apart in a gesture of surrender or raised them in a threatening manner, and (2) TASER probe removal that left scars is controverted de minimis. Fletcher v. Schwend, Slip Copy, 2006 WL 1867890 (N. D. Tex. July 6, 2006)
n Qualified immunity granted to officer’s use of TASER device on kicking handcuffed arrestee. Carroll v. County of Trumbull, Slip Opinion, 2006 WL 1134206 (N. D. Ohio April 25, 2006) n The appellate court held that the use of a stun gun to subdue man who was resisting arrest by kicking and biting was an appropriate use of force. Hinton v. City of Elwood, 997 F. 2 d 774 (10 th Cir. (Kan. ) 1993)
ECD use on knife wielding man when no longer a threat Officer entitled to qualified immunity despite his using TASER ECD multiple times on knife-wielding suspect who was no longer an immediate threat; noting that officer's "actions were intended to avoid having to resort to lethal force. " Russo upheld a Taser use to “avoid having to resort to lethal force” where a lack of training in dealing with mentally ill may have caused shooting death of known paranoid schizophrenic. Russo v. Cincinnati, 953 F. 2 d 1036 (6 th Cir. 1992)
Potentially homicidal individual Use of ECD to subdue a potentially homicidal individual did not transgress clearly established law. The court further held that the use of ECD against an armed and volatile suspect does not constitute excessive force and concluded that the defendant police officers are entitled to qualified immunity on the Plaintiff’s excessive use of force claim. Ewolski v. City of Brunswick, 287 F. 3 d 492 (6 th Cir. (Ohio) 2002)
Use of ECD to avoid use of deadly force n The court affirmed Russo v. Cincinnati which held that the taser, which was deployed in an effort to obviate the need for lethal force, did not violate clearly established law. Nicholson v. Kent County Sheriff's Dept. , 839 F. Supp. 508 (W. D. Mich. 1993)
n TASER device use prevents need to use deadly force. State [of Ohio] v. Gentry, Slip Copy, 2006 WL 1461030 (Ohio App. 2 Dist. May 19, 2006) n TASER device used to stop resisting suspect from reaching for gun on the ground. People v. Villegas, Not Reported in Cal. Rptr. 3 d, 2006 WL 1992407 (Cal. App. 4 Dist. July 18, 2006)
ECD used on suspect with firearm TASER device used to apprehend fleeing suspect armed with firearm. U. S. v. Stephens, Slip Copy, 2006 WL 2009066 (M. D. Ala. July 18, 2006)
Use of an ECD on a juvenile n Threat of TASER device - 17 year old burglar comes out of attic – In re J. D. , 275 Ga. App. 147, 619 S. E. 2 d 818 (Ga. App. 2005) n Pointing TASER device gains compliance – In re Francisco B. , 2005 WL 2856335 (Cal. App. 5 Dist. Nov 01, 2005) (NO. F 048025) n Summary judgment granted to officers who used a ECD on handcuffed, struggling, resisting 14 year old male. Johnson ex rel. Smith v. City of Lincoln Park, 434 F. Supp. 2 d 467 (E. D. Mich. June 8, 2006)
Use of an ECD on a juvenile Summary judgment (qualified immunity) granted to defendants when TASER device was used on a 14 year old female fighting on school property. Maiorano ex rel. Maiorano v. Santiago, Slip Copy, 2006 WL 2024951 (M. D. Fla. July 15, 2006) n Summary judgment granted – Use of TASER device on suicidal 16 year old male juvenile – N. A. ex rel. Ainsworth v. Inabinett, 2006 WL 2709850 (M. D. Ala. Sep 20, 2006) (NO. 2: 05 CV 740 DRB)
Use of an ECD to prevent swallowing drugs n Florida v. Damion Terrell Johnson, In the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, Case No. 482003 -CF-015024 -0, Division 17. Court did not suppress evidence n US v. Jason Malone, United States District Court, Central District of Illinois, Peoria Division, Case No. 05 -10012. Court did not suppress evidence
Use of ECD on a handcuffed person No objectively reasonable officer would have thought that striking, kicking, dragging, choking and repeatedly using a ECD against a non-resisting, fully compliant citizen would constitute either "reasonable force in light of the facts and circumstances" or "a good faith effort to maintain or restore discipline. " Qualified immunity denied officers for excessive force during multi-hour mental health detention transport. Batiste v. City of Beaumont, 421 F. Supp. 2 d 1000 (E. D. Tex. March 10, 2006). Case settled.
Use of ECD on a handcuffed person n Summary judgment granted to officers who used a ECD on handcuffed, struggling, resisting 14 year old male. Johnson ex rel. Smith v. City of Lincoln Park, 434 F. Supp. 2 d 467 (E. D. Mich. June 8, 2006) n Qualified immunity granted to officer’s use of TASER device on kicking handcuffed arrestee. Carroll v. County of Trumbull, Slip Opinion, 2006 WL 1134206 (N. D. Ohio April 25, 2006) n Summary Judgment Granted to Officers - Car Stop - 3 TASER devices uses on belligerent driver, including 2 while handcuffed. Willkomm v. Mayer (WI Dells), USDC W. D. WI (Slip Copy 2006 WL 582044) March 9, 2006 n Summary judgment granted – use of TASER device in drive stun on handcuffed resisting arrestee. Devoe v. Rebant, Slip Copy, 2006 WL 334297, E. D. Mich. (Feb 13, 2006)
ECD on Person in Restraint Chair - Use of TASER Device on Neck - Summary Judgment Granted – Mc. Bride v. Clark, USDC W. D. MO (Slip Copy 2006 WL 581139) March 8, 2006
5 th/14 th Amendment - use of ECD on a pre-trial detainee Summary judgment granted for threat to use TASER device (laser dot compliance). Price v. Busbee, Slip Copy, 2006 WL 435670 (M. D. Ga. February 21, 2006)
8 th Amendment - use of ECD on convicted/incarcerated person n The district court held that taser guns may be reasonably used to quell disorders and to compel obedience, but they cannot be used to punish a prisoner. Hernandez v. Terhume, Not Reported in F. Supp. 2 d, 2000 WL 1847645 (N. D. Cal. 2000) n The only conduct of the plaintiff was his adamant refusal to comply with the order. He did not present any threat of physical violence. The device was used to shock him three times while he was on the ground and obviously incapacitated. Officers’ motion for summary judgment denied. Preston v. Pavlushkin, Slip Copy, 2006 WL 686481 (D. Colo. March 16, 2006)
8 th Amendment - use of ECD on convicted/incarcerated person n The court held that prison officials are entitled to use physical force, including devices such as tasers, to compel obedience by inmates. Drummer v. Luttrell. 75 F. Supp. 2 d 796 (W. D. Tenn. 1999) n Court affirmed Michenfelder v. Sumner where 9 th Circuit held that ECDs are not per se unconstitutional as long as they are "used to enforce compliance with [an order] that had a reasonable security purpose. The legitimate intended result of a shooting is incapacitation of a dangerous person, not the infliction of pain. Parker v. Asher, 701 F. Supp. 192 (D. Nev. 1988)
8 th Amendment - use of ECD on convicted/incarcerated person n The appellate court upheld the holding of the district court which concluded that the correctional officers used taser weapons in a good faith effort to maintain and restore discipline after the inmate refused orders to be handcuffed before being moved from his cell. Jolivet v. Cook, 48 F. 3 d 1232 (Table) (10 th Cir. (Utah) 1995) n The appellate court held that the use ECD was not cruel and unusual punishment and a policy of allowing use of ECDs on an inmate who refuses to submit to a strip search does not constitute cruel and unusual punishment. , 860 F. 2 d 328 (9 th Cir. (Nev. ) 1988)
8 th Amendment - use of ECD on convicted/incarcerated person n Court affirmed Michenfelder v. Sumner where the court held that the threatened use of a taser to enforce compliance with a search had a reasonable security purpose and was not unconstitutional. Walker v. Sumner, 8 F. 3 d 33 (Table) (9 th Cir. (Nev. ) 1993)
ECD Training - Adequacy of Program n The court ruled that a police ECD training program consisting of approximately three (3) to four (4) hours was not inadequate training. Mateyko v. Felix, 924 F. 2 d 824 (9 th Cir. (Cal. ) 1990)