TASER Electronic Control Devices (ECDs) -- Legal Update

1
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.

2
Basics

• TASER International does not create, recommend,
  or endorse policy.
• Keep up to date
• 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

3
ECD Political or Actual Risks?

• Media/Special Interest Group Risks?
• Outcome vs. Process
• Political correctness risks?
• Politically motivated risks?
• Ignorance risks?
• Perceptual risks?
• Actual risks (informed science/logic based)

4
What the Courts are Saying?

• 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

5
Elevated ECD Application Risk Factors

• 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

6
Societal perceptions/concerns creating elevated
justification factors

• Children
• Seniors
• Restrained subjects
• Passive subjects who are being seized

7
Important URL Addresses

• www.ecdlaw.info
• Electronic Control Devices Legal Resources
• www.ipicd.com or www.incustodydeath.com
• Institute for the Prevention of In-Custody Deaths
• Especially the
• Articles page
• Books page
• Calendar page
• IPICD Sudden Death Symposium Nov. 28-30 Las Vegas

8
Consider the Consequences?

• 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?

9
Questions

• Should agency ECD standards be based on
• 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?

10
Good Science on Top of Junk Science?

• 2005 Causation speculations unsupported by
  scientific validity resulting in
  ultra-conservative guidelines.
• Resulted in numerous conservative guidelines
• June 14, 2005 Office of Police Complaint
  Commissioner
• June 28, 2005 - TASER Intl 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, 2007, 10 (2), p.
  170
• May 2007 AELE Monthly Law Journal (FLETC)

11
June 14, 2005 OPCC (BC) Published TASER
Technology Report

• Respiratory Impairment/pH 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

12
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.

13
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.

14
June 14, 2005 OPCC (BC) Published TASER
Technology Report

• Also, note that with regard to a persons
  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.

15
TASER Intl 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.

16
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, pH 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.

17
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.

18
2007-2008 Research?

• NIJ Study of In-Custody Deaths
• 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)?

19
Some Basic Realities

• 2005 to present The hysterical attacks!!!!!
• Ignorance phobia bias negativity agenda
• No scientifically reliable bases for ECD
  causation
• (a few) ME and (some) Media Errors
• Ignorance (lack of knowledge)
• Lack of (even basic) understandings of
• ECDs, electricity, force
• Scientific method and scientific reliability
• Standards of certainty
• Logical analyses and logical fallacies
• The costs Homicide or Undetermined?

20
To be an Expert?

• What do you know?
• Breadth and depth of knowledge?
• Areas of knowledge and understanding?
• A little knowledge can be VERY dangerous!
• Ability to explain, put forth concepts?
• Misperceptions can cost lives, careers
• E.g. Just below deadly force.
• 50,000 volts!
• Intellectual integrity?

21
Primer/Review In-Custody DeathPrelude to Death
the Actual Causes

• Hiding drugs by swallowing/ingesting
• Acute drug abuse
• Chronic drug abuse
• Usually leading to neuro-chemistry changes
• Polydrug toxicity
• Long-term mental health problems
• Neuroleptic drug imbalance
• Over ingestion of drugs
• Failure to take prescribed drugs (or abrupt
  cessation)
• Self-inflicted injuries or death (e.g. suicide)

22
Primer/Review In-Custody Death A Victim
Emerges

• Deceased will likely be considered a Victim
• Someone else is always at fault
• Screams for a Victim
• Family (inner circle)
• Special Interest Groups (incl those with
  agendas)
• Media
• 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

23
Primer/Review In-Custody DeathPost Incident
Onslaught

• Emotion rules over logic
• Panic self protection
• Criticism avoidance
• Anger and rage
• Knee-jerk (over) reactions (appeasements?)
• The importance of deflecting blame

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Primer/Review In-Custody DeathCausation

• Often futile search for single mechanism
• Disbelief, surprise, unexpected, or diversion
• Ignorance (of numerous knowledge areas)
• Conspiracies
• PDPCT (Plaintiffs Deep Pocket Causation
  Theories)
• He who has the deep pockets caused the death
• He without deep pocket did not cause the harm
• The victim is blameless

25
Primer/Review In-Custody DeathInvestigative
Needs

• 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

26
Primer/Review In-Custody DeathME/Coroner
Opinion Taken as Fact

• Speculation Taken as Scientific Fact
• Police/Device directly caused the death
• P/D was a direct cause of the death
• P/D was the contributory cause of the death
• P/D was a contributory cause of the death
• P/D was associated with the death
• P/D was temporally tied to the death
• P/D was listed as a descriptor to the death
• P/D could not be ruled out

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(A few) U.S. Medical Examiners
Why we are here?

• Examples
• - (IN) Borden
• - (OH) Holcomb (Summit County ME)
• - (OH) Hyde (Summit County ME)

28
Example (IN) James BordenInvestigative
Shortcomings

• Cause of Death
• Consistent with cardiac dysrhythmia
• Secondary to hypertrophic cardiomyopathy,
• pharmacologic intoxication,
• and electrical shock

29
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 camels 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.

30
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."

31
Example (IN) James Borden

• Kohrs 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.

32
Example (IN) James BordenLegal Consequences
Costs

• 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 Intl Borden snowballed into a multi-year
  litigation avalanche

33
Example (OH) Holcomb

• Cause of Death Cardiac arrhythmia.
• Due to Drug induced psychosis.
• Due to (methamphetamine and MDMA/MDA0
  intoxication, acute.
• Contributory conditions Electrical pulse
  incapacitation.
• Manner of Death HOMICIDE Used drugs Sudden
  death incurred during restraint.

34
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)

35
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.

36
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.

37
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 that "in some way" could be as
  low as .00000000001 percent?
• A Yes.

38
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 that does not necessarily mean
  that the second event was caused by the first
  event?
• A Yes.

39
(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.

40
(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

41
(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.

42
(OH) Hyde

• Inflicted Force vs. Therapeutic Force?
• Cause of death (to RDMP)?
• Inflicted Force Contribution to death?
• Manner of Death
• Homicide,
• Accident, or
• Undetermined?
• What it means to involved officers?

43
Putting It Into Perspective

• The Litigation Landscape
• Plaintiffs attempts to support speculations
  without scientific basis or support

44
Plaintiffs House of Cards

• 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 elses fault
  (Plaintiff Victim)
• Causation by Deep Pocket Analysis
• Just because I sued you you should give me
  money!!!!!

45
Scientific Method v. Common Sense

• 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

• Common Sense
• Observation non-scientific
• Bias ( and -)
• Self interests
• View Filtered glasses
• Circle of Protection
• In Circle can do no wrong
• Fault anyone outside circle
• No sampling
• Cause Effect based upon the observation
• Erroneous Conclusions
• The World is Flat

46
Acquiring Knowledge

• Science A process that combines the principles
  of rationalism with the process of empiricism,
  using rationalism to develop theories and
  empiricism to test the theories
• 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)
• Mystical knowledge from the gods, prophets, and
  supernatural authorities
• Authority accept the idea because it comes from
  a respected source
• Intuition e.g. hunches, gut feelings, accept
  ideas because they feel true
• Tenacity accepting ideas as knowledge because
  they have been around for a long time

47
Scientific Method Sequential Steps

• Publication
• Communication phase write a report
• Interpretation phase interpret the data
• Data analysis phase analyze the data
• Methodology - Procedures designed to test the
  hypothesis or answer research questions
• Problem definition phase
• Idea generation phase (observe then ask
  questions)

48
Consider -- Where on the scale(s)?

• Scientific Standards
• (Scientific Certainty)
• Law
• Theory
• Model, Paradigm
• Constructs (Concept)
• Inference
• Observation
• Idea (Thought)
• Speculation

• Legal Standards - Proof
• Beyond Any Doubt
• --------------------------------------------------
  --
• 95 Beyond Reasonable Doubt
• 75 Clear Convincing
• 51 By a Preponderance
• More likely than not
• 49 Probable Cause
• 35 Reasonable Suspicion
• --------------------------------------------------
  --
• Mere Suspicion
• Hunch
• Random
• Wishful Thinking
• Begging

49
Legal Standards of Care

• Wilful Wanton
• Purposeful
• Intentional
• Knowingly
• Reckless Disregard
• Deliberately
• Deliberate Indifference
• Gross Negligence
• Negligence
• Carelessly
• Due Regard
• Strict Liability

50
Common Words Frequency or Foreseeability

• "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

51
TASER X26 Electrical Characteristics

• 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

• 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

52
Calculations

• What powers a TASER X26?
• Setting the baseline
• How many photo flashes from cells?
• How many digital photos from cells?
• The TASER X26
• 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?

53
Calculations

• 10,000 sheet stack of copy paper
• Represents one second of time
• Wall outlet electricity full 10,000 sheets
• TASER X26 100 µs pulse (one piece of paper)
• 19 pulses (per second) 19 pieces of paper
• 5 s 50,000 sheets of paper (X26 95 sheets)
• M26 25,000 or 100,000 pieces of paper

54
TASER International, Inc.ECD Basic Liability
Principles
55
Lawsuits Product Liability vs. UOF

• TASER International - Product Liability Issues
• Product Defect (defective product)
• Strict Liability (risk utility analyses)
• Mis-represenation (lied about product)
• Failure to Warn (failed to warn of dangers)
• Law Enforcement - Officer or Agency Issues
• Excessive Force (federal and/or state)
• Supervision, Training, Entrustment, Policy

56
Lawsuits TASER InternationalProduct Liability
Lawsuits

• In order to prevail, a plaintiff must prove
• Product is defective
• The defect caused the injury or death
• To date
• No court has ruled that a TASER device was
  defective
• No court has ruled that a TASER device defect
  caused a death or injury
• No court has ruled that TASER International has
  misrepresented

57
Are TASER Devices Risk Free?No.
58
TASER InternationalLitigation Update
59
TASER Litigation Update

• 3 Types of Cases
• Death following TASER ECD presence
• Suspect injuries (blamed on TASER ECD)
• Officers injured during training (exposures)
• What we are seeing in these cases (Plfs)
• Very long complaints based on media
• Little substance
• Endless stalling/time extensions
• Unable to find experts

60
TASER LitigationUse of Experts
61
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.

62
TASER LitigationCase Strategies
63
Case Strategies

• 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

64
How TASER International Can Help You With Your
Cases
65
How TASER Intl Can Help You

• Information
• Scientific Medical Information
• Department Statistics
• Disproving Myths, Rumors, Misinformation
• Guidance on Defense Experts
• Information on Plaintiffs Experts
• Simply Answering Your Questions

66
Basic Legal ConceptsLaw Enforcement Use of Force
67
Law Enforcement Liabilities

• Third-Party Liability
• Workers Compensation
• Employment Practices Liabilities
• Criminal Culpabilities
• Public Scrutiny
• Special-Interest Group Scrutiny
• Numerous Others

68
Sudden In-Custody DeathsCauses of Action

• Officers present
• Constitutional use-of-force issues
• Constitutional seizure, detention, incarceration
• State medical or mental emergency
• Shall vs. May
• Degree of certainty required for action?
• Necessity for prior authorization(s)?
• Constitutional medical care/attention
• Liability to intervene for another officers
  actions

69
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.

70
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.

71
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.

72
Basic Concepts

• There are consequences to adopting use-of-force
  standards that are more restrictive than the
  legal standards.

73
Basic Concepts

• The 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.3d 157 (4th
  Cir. 2001).

74
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).

75
Basic Concepts

• ... The 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).

76
Basic Concepts4th Amendment Deadly Force

• Almost every use of force, however minute, poses
  some risk of death. Garrett v. Athens-Clarke
  County, 378 F.3d 1274, 1280, n.12 (11th Cir.
  2004).

77
Basic Concepts

• Distinctions Force Standards
• Abuse of authority standards
• Self defense standards
• Risk management analyses

78
Basic ECD Intro

• What happened in 2005?
• Up/Down continuum (speculation, not science)
• Criminal
• (IN) Borden Deputy David Shaw
• (VA) Sgt. Ryan Hood

79
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.

80
PERF GuidelinesOctober 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.

81
PERF GuidelinesOctober 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."

82
PERF GuidelinesOctober 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.

83
PERF GuidelinesOctober 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.

84
PERF GuidelinesOctober 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.

85
TASER CASESLaw Enforcement Force Cases
86
TASER ECD Weapons Confusion Cases - firearm used
when ECD intended

• Henry v. Purnell, 428 F.Supp.2d 393 (D.Md. April
  21, 2006). Henry v. Purnell, 119 Fed.Appx. 441
  (4th 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.2d, 2005 WL 1683736 (E.D.Cal. 2005).

87
TASER ECD Weapons Confusion Cases - firearm used
when ECD intended

• Yount v. City of Sacramento, 35 Cal.Rptr.3d 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.3d 320, 40 Cal.Rptr.3d 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.

88
Use of firearm when confronted by suspect armed
with ECD

• 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.

89
Accidental ECD discharge

• 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 daughters eye.

90
Threat of ECD device gains compliance

• 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.2d 818 (Ga.App. 2005)
• Rattling of electricity from TASER device
  causes fleeing man to surrender. People v. Young,
  Not Reported in Cal.Rptr.3d, 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)

91
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.2d 1013 (D.Neb. May
  25, 2006)

92
Threat ECD use with submission /compliance is a
4th Amendment Seizure

• Threat with TASER device causing compliance is a
  4th Amendment seizure. Pino v. City of
  Sacramento, Slip Copy, 2006 WL 193181, E.D.Cal.
  (Jan. 19, 2006)

93
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.2d ----, 2006 WL 3740804 (D.Minn. December
  15, 2006)

94
Use of ECD on a belligerent person

• Use of TASER ECD on belligerent driver
  appropriate Draper v. Reynolds, 369 F.3d 1270
  (11th 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

95

• TASER device to neck used to remove man from car.
  Warren v. State of Maryland, 164 Md.App. 153, 882
  A.2d 934 (Md.App. 2005)
• Summary judgment granted on officers 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)

96
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

97
Use of ECD to stop fleeing arrestee

• Summary judgment granted to defendants on
  officers 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)
• Summary judgment granted for TASER device use -
  resisted arrest, attempted to flee. Court gave a
  use-of-force risk management analysis (dart to
  top of head). Wylie v. Overby, Slip Copy, 2006 WL
  1007643, E.D.Mich. (April 14, 2006)

98
ECD use threatening, resisting

• TASER device used to control threatening man.
  People v. Powers, Not Reported in Cal.Rptr.3d,
  2006 WL 1737353, (Cal.App. 2 Dist. June 27, 2006)
• TASER device used to gain control of resisting
  man. Shouse v. State, 849 N.E.2d 650 (Ind.App.
  June 20, 2006)
• TASER device used to capture struggling,
  resisting escapee. State v. Farrar, 631 S.E.2d 48
  (N.C.App. June 20, 2006)

99

• 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)
• (Two) TASER device discharges stops fleeing man.
  U.S. v. Stephens, Slip Copy, 2006 WL 1663351
  (E.D.Mo. June 14, 2006

100
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)

101

• Qualified immunity granted to officers use of
  TASER device on kicking handcuffed arrestee.
  Carroll v. County of Trumbull, Slip Opinion, 2006
  WL 1134206 (N.D.Ohio April 25, 2006)
• 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.2d 774
  (10th Cir.(Kan.) 1993)

102
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.2d 1036
  (6th Cir. 1992)

103
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 Plaintiffs excessive
  use of force claim. Ewolski v. City of Brunswick,
  287 F.3d 492 (6th Cir. (Ohio) 2002)

104
Use of ECD to avoid use of deadly force

• 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)

105

• 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)
• TASER device used to stop resisting suspect from
  reaching for gun on the ground. People v.
  Villegas, Not Reported in Cal.Rptr.3d, 2006 WL
  1992407 (Cal.App. 4 Dist. July 18, 2006)

106
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)

107
Use of an ECD on a juvenile

• Threat of TASER device - 17 year old burglar
  comes out of attic In re J.D., 275 Ga.App. 147,
  619 S.E.2d 818 (Ga.App. 2005)
• Pointing TASER device gains compliance In re
  Francisco B., 2005 WL 2856335 (Cal.App. 5 Dist.
  Nov 01, 2005) (NO. F048025)
• 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.2d 467 (E.D.Mich. June
  8, 2006)

108
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)
• 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. 205 CV 740 DRB)

109
Use of an ECD to prevent swallowing drugs

• Florida v. Damion Terrell Johnson, In the Circuit
  Court of the Ninth Judicial Circuit, in and for
  Orange County, Florida, Case No.
  48-2003-CF-015024-0, Division 17. Court did not
  suppress evidence
• US v. Jason Malone, United States District Court,
  Central District of Illinois, Peoria Division,
  Case No. 05-10012. Court did not suppress evidence

110
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.2d 1000 (E.D.Tex. March 10, 2006). Case
  settled.

111
Use of ECD on a handcuffed person

• 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.2d 467 (E.D.Mich. June
  8, 2006)
• Qualified immunity granted to officers use of
  TASER device on kicking handcuffed arrestee.
  Carroll v. County of Trumbull, Slip Opinion, 2006
  WL 1134206 (N.D.Ohio April 25, 2006)
• 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
• 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)

112
ECD on Person in Restraint Chair

• Restraint Chair - Use of TASER Device on Neck -
  Summary Judgment Granted McBride v. Clark, USDC
  W.D. MO (Slip Copy 2006 WL 581139) March 8, 2006

113
5th/14th 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)

114
8th Amendment - use of ECD on convicted/incarcerat
ed person

• 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.2d, 2000 WL 1847645 (N.D.Cal. 2000)
• 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)

115
8th Amendment - use of ECD on convicted/incarcerat
ed person

• 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.2d 796 (W.D.Tenn. 1999)
• Court affirmed Michenfelder v. Sumner where 9th
  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)

116
8th Amendment - use of ECD on convicted/incarcerat
ed person

• 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.3d 1232 (Table) (10th Cir.
  (Utah) 1995)
• 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.2d 328 (9th
  Cir. (Nev.) 1988)

117
8th Amendment - use of ECD on convicted/incarcerat
ed person

• 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.3d 33 (Table) (9th Cir.
  (Nev.) 1993)

118
ECD Training - Adequacy of Program

• 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.2d 824 (9th Cir. (Cal.)
  1990)