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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/International Litigation Counsel, TASER International, Inc. President, LAAW International, Inc. Email – brave@laaw.com Telephone – (651) 248-2809

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taser electronic control devices ecds legal update

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/International Litigation Counsel, TASER International, Inc.

President, LAAW International, Inc.

Email – brave@laaw.com

Telephone – (651) 248-2809

E-fax – (480) 275-3291

ECD Legal Resources Website – www.ecdlaw.info

ICD Resources – www.incustodydeath.com

basics
Basics
  • TASER International, Inc. (TASER) does not create, recommend, or endorse policy or set standards of care.
  • Importance of keeping up to date:
    • Era of information and mis-information overload:
      • Importance of ignorance eradication
      • Learn the “science” and “medicine” not the “myths”
      • Need to put everything into perspective (risk/benefit)
      • Need to understand the basics and foundations
      • Reference Sheets and Reference Packets
      • www.ecdlaw.info(owned by LAAW International, Inc.)
      • www.ipicd.com or www.incustodydeath.com
  • Understand actual legal standards (and their bases)
  • 2005 to present ECD hysteria not scientifically based
electronic control devices
Electronic Control Devices
  • Basics (of force)
  • Basic ECD deployment numbers
  • Basic selected death numbers (US)
  • Physiologically compromised persons - elevated risks of death
  • Force standards paradigms
  • ECD basic concepts
  • ECDs studied more than other force options
  • ECDs usually more effective than other force options
  • ECDs usually safer than other force options
  • ECDs more accountability features than other force options
  • ECDs only force options maintaining effectiveness while increasing safety margins
basics of force
Basics (of force):

(US) Societal problems influencing force response increases):

  • Drug abuse increasing annually:
    • (2004) 19,100,000 current illicit drug abusers (7.9% of population)
    • (2006) 20,357,000 current illicit drug abusers
    • (2004) 1,997,993 drug caused emergency room visits
  • People in serious psychological distress (SPD) increasing annually (2004) 21,400,000 SPD (9.9% of adults)
  • Alcohol abuse - (2004) 10,200,000 operating vehicles under the influence
  • Criminals resisting seizure attempts increasing
  • Criminals fleeing apprehension increasing
basics of force5
Basics (of force):
  • Any force option can be abused
  • It is the person who abuses the force option - not the force option
  • “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).
  • “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).
ecd basic concepts general statements peer reviewed medical and or scientific research
ECD basic concepts:(General Statements; Peer-Reviewed Medical and/or Scientific Research)
  • No evidence that other law enforcement force option is safer than a normal use of an ECD
  • ECDs are more effective in facilitating capture, control, and restraint than other force options
  • ECDs are generally safe per se and are usually safer than other force options
  • Courts have held that ECDs are not excessive force per se
  • ECDs are saving lives, reducing injuries to officers and suspects, and reducing excessive force claims
ecds studied more than other force options
ECDs studied more thanother force options:
  • ECD delivers a small electrical charge to accomplish neuro-muscular incapacitation (NMI) objective
  • Delivery of electrical charge to humans has been widely studied for over 300 years
  • ECDs specifically have been widely studied in over 100 studies (many human studies)
  • No other force option has even 1/10th the peer-reviewed published studies of ECDs
ecds usually more effective than other force options
ECDs usually more effective than other force options:
  • Every other force option uses pain/discomfort volitional compliance or traumatic injury to faciliate capture, control, or restraint
  • ECD is designed to induce motor-nerve mediated NMI to facilitate capture, control, and restraint
  • No other force option is as effective at deterrent presence of ECDs (LASER painting or arcing gains volitional compliance in from 1 to 4 out of 5 uses)
ecds usually safer than other force options
ECDs usually safer than other force options:
  • Peer-reviewed literature generally finds ECDs safer than other force options
  • Peer-reviewed literature finding that ECDs are less injurious to suspects and officers:
    • (2009) MacDonald:
      • "Given the findings from this study, as well as those from previously published research, law enforcement agencies should encourage the use of OC spray or CEDs in place of impact weapons and should consider authorizing their use as a replacement for hands-on force tactics against physically resistant suspects."
      • "Injuries from police use-of-force incidents continue to be a public health problem affecting tens of thousands of civilians and police officers in the United States each year. Our findings suggest that the incidence of these injuries can be reduced substantially when police officers use CEDs and OC spray responsibly and in lieu of physical force to control physically resistant suspects…. a replacement for hands-on force tactics against physically resistant suspects.”
ecds usually safer than other force options10
ECDs usually safer than other force options:

Peer-reviewed literature finding that ECDs are less injurious to suspects and officers: control physically resistant suspects… a replacement for hands-on force tactics against physically resistant suspects."

  • (2009) Bozeman:
    • "Conducted electrical weapons were used against 1,201 subjects during 36 months. One thousand one hundred twenty-five subjects (94%) were men; the median age was 30 years (range 13 to 80 years). Mild or no injuries were observed after conducted electrical weapon use in 1,198 subjects (99.75%; 95% confidence interval 99.3% to 99.9%). Of mild injuries, 83% were superficial puncture wounds from conducted electrical weapon probes. Significant injuries occurred in 3 subjects (0.25%; 95% confidence interval 0.07% to 0.7%), including 2 intracranial injuries from falls and 1 case of rhabdomyolysis. Two subjects died in police custody; medical examiners did not find conducted electrical weapon use to be causal or contributory in either case."
    • In a "combined experience of 4,058 consecutively monitored conducted electrical weapon uses with an electrical shock delivered.2-4 Serious injuries are clearly rare, and there are no cases in any of the reports suggesting sudden cardiac death related to the [TASER ECD].”
ecds usually safer than other force options11
ECDs usually safer than other force options:

Peer-reviewed literature finding that ECDs can reduce use of deadly force:

  • (2008) Eastman - "In 5.4% [23 of 426] of deployments (n=23), CED use was deemed to have clearly prevented the use of lethal force by police."
ecds have more accountability features than other force options
ECDs have more accountability features than other force options:
  • 1999 (M26 ECD) - Number of 5 second ECD discharges (not delivered) with time stamp (has clock drift)
  • 2003 (X26 ECD):
    • Number of seconds of ECD discharges (cannot determine whether charge was delivered)
    • Time of discharge (has clock drift)
    • Internal ECD temperature and calculated percentage of battery life remaining
  • 2005 (TASER Cam™) - black/white ECD incorporated incident audio/video recording
ecds have more accountability features than other force options13
ECDs have more accountability features than other force options:
  • 2009 (X3™ ECD) - Trilogy Logs:
    • Records every safety activation, trigger pull, arc, etc.
    • Pulse-by-pulse determination of electrical discharges (distinguishing drive stun and probe) delivered
    • Accurate to the second - synced to world atomic clock through EVIDENCE.com
  • 2010 (AXON):
    • On-officer DVD quality video/audio digital recording from officer's perspective
    • Highly secure evidence capture, upload, retrieval, and audit systems
ecds increasing safety margins
ECDs increasing safety margins:
  • No other force option is increasing safety margin while working to maintain effectiveness
  • Other force options increase pain or injury potential to increase effectiveness:
    • Pepper sprays have increased Scoville heat unit ratings.
    • Batons have gone from primarily wood to polymer and metal.
    • (Firearms) Bullets have increased to cause greater traumatic injuries.
  • ECD waveform, force strategies, etc. refined to maintain (or increase) effectiveness while lowering risk of serious injury or death (increasing safety margins)
taser international inc
TASER International, Inc.
  • No better training program for any other force option
    • Training program updated and improved
  • Providing greater levels of accountability features
  • Encouraging "Smart Use" (of force)
slide16

Where are We:

Putting Things Into Perspective

where are we for all law enforcement ems mes coroners lawyers
Where are we?(for all – Law Enforcement EMS, MEs, Coroners, Lawyers)

20/20 Hindsight Perfection Standards

  • Through Who’s Perceptual Lens?
  • Perfectly informed (on all issues/possibilities)
  • Perfect decisions (in 20/20 hindsight)
  • Perfect investigations (need knowledge)
  • Perfect (complete, accurate, unassailable) reporting
  • Perfect oversight analyses and decisions
  • Perfect judicial action defense
costs of failing to be perfect
Costs of Failing to be Perfect?
  • Federal criminal prosecution
  • State criminal prosecution
  • Career destruction
  • Civil lawsuits (increased risk of loss)
  • Negative community relations
  • Loss of tools, resources, money
what level of risk will you accept
What level of risk will you accept?
  • What are your objectives?
  • What will you accept?
  • What level of criticism will you accept?
  • What will you do to make a difference?
  • What is your definition of professionalism?
  • What do you want of your department?
  • How much training is enough?
  • How close to “perfection” is your agency?
where are we today headed
Where are we today – headed?
  • Through who’s perceptual lens?
  • What are outsiders’ expectations of us?
    • Perfection standards
    • Absolute fore knowledge
    • Guarantor of “perfect” outcome
    • Force recipient is the “victim”
    • Perfect, exhaustive, complete, accurate investigation of every incident
  • “Straw that broke the camel’s back” is enough
slide21

ECD Smart Use:

Putting Things Into Perspective

force standards paradigms
Force standards paradigms:
  • Self (or third-party defense) standards
  • United Nations Force Standard: Minimum force necessary to accomplish lawful objectives standards
  • Risk/benefit standards:

“[I]n judging whether [officer’s] actions were reasonable, we must consider the risk of bodily harm that [officer’s] actions posed to [suspect] in light of the threat to the public that [officer] was trying to eliminate.” (Scott v. Harris, 550 U.S. 372, 383 (2008)).

  • Abuse of authority standards:

“[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.3d 157 (4th Cir. 2001).

force standards paradigms23
Force standards paradigms:

Smart use (of force):

  • Changing initial officer default focus from all people being perceived as an intentional immediate threat to officer
  • Minimizing force by making better (more informed) decisions
    • Appropriately gauge risk/benefit and need for haste
  • Maximizing accountability evidentiary audio/video recording of the full incident from the officer’s perspective
  • Maximizing unassailable evidence availability, collection, storage, retrieval
  • Preparing better force reports/incident documentation
  • Performing better force/death investigations
  • Accurately analyzing force use to appropriate standards of care
ecd smart use basics
ECD “Smart Use” Basics

ECD “Smart Use” is NOT a Constitutional or legal force standard.

ECD “Smart Use” are ECD force considerations presented for discussion in an effort to maintain officer safety while minimizing ECD force and negative consequences of ECD force.

standards purposes
Standards Purposes
  • Constitutional rights purpose
  • State statutes purpose
  • Recommendations purposes
  • Department policy purpose
  • “Smart Use” purpose
ecd smart use basics26
ECD “Smart Use” Basics

Department:

  • Clearly delineate (understand) force standards
  • Delineate accountability standards and should
  • Support officers’ appropriate force decisions
  • Train “Smart Use” Force Basics
  • Train force alternatives and options
  • Monitor force and remedial training
  • Provide optimal equipment and training
ecd smart use basics27
ECD “Smart Use” Basics

Officer:

  • Make good decisions:
    • Risk management approach to force
    • Force minimization
  • Write excellent reports
    • Bolded timeline paragraph headers
  • Record incident – avoid he said/she said
  • Appropriately gauge risk and need for haste
  • Listen
ecd smart use basics28
ECD “Smart Use” Basics
  • Use no more force than necessary to accomplish lawful objectives
    • the minimum (least amount of) force goal
  • Use lowest possible number of applications
  • Use probe rather than drive-stun (DS)
    • DS is not necessarily less force than probe
    • Avoid DS (less probability of effectiveness)
    • Especially avoid cartridge removed or X3 DS
      • Greater injury probability/potential
ecd smart use basics29
ECD “Smart Use” Basics
  • Force in Presence of Immediate Threat
  • Force to Restrain or Control
  • Force to Restrain or Capture
  • Force to Prevent/Stop Fleeing
  • Coercive Force to Overcome Obstruction
  • Distraction Force for Community Caretaker
  • Beware force when no force is necessary:
    • Listen
    • Patience, alternatives
ecd smart use basics30
ECD “Smart Use” Basics

Force in Presence of Immediate threat:

  • Immediate threat of deadly force
  • Immediate threat of serious injury
  • Immediate threat of injury

Force to Restrain or Capture :

  • Force to control intentionally assaultive
  • Person resisting/struggling against control
ecd smart use basics31
ECD “Smart Use” Basics

Force to Restrain or Capture:

  • Force to facilitate restraint
  • Force to capture (not fleeing)

Force to Prevent/Stop Fleeing:

  • Tackling justified
  • Tackling not justified
ecd smart use basics32
ECD “Smart Use” Basics

Force to Overcome Objective Obstruction:

  • Coercive force
  • Force on passive person

Distraction Device for Community Caretaker

  • Use least risk force alternative
  • Reasonable warning of impending force
  • Reasonably gauge health, mental condition, frailties
  • Reasonably gauge ability to comply
  • Reasonableness of warning and ability to comply
slide33

Numbers:

Putting Things Into Perspective

basic ecd deployment numbers
Basic ECD deployment numbers:
  • (03/31/10) 485,000 TASER® brand electronic control devices (ECDs) worldwide to more than 15,300 law enforcement and military agencies. More than 6,250 agencies deploy TASER ECDs to all members of their patrol officers. TASER ECDs sold to in more than 40 countries.
  • (03/31/10) Since 1993, more than 217,502 TASER brand ECDs have been sold to the general public.
  • (04/30/10) ECD applications to humans:
    • 2 million+ - total ECD human applications
      • 999,637 ± 2% - field use/suspect applications
      • 1,064,106 ± 7% - training/voluntary applications
basic selected death numbers us
Basic selected death numbers (US):
  • From January 1, 2000 through 2009 - over 1,300,000 people in US died from drugs, suicide, firearms, or alcohol
    • These deaths increasing annually
  • (2006) 124,665 people died from drugs, suicide, firearms, or alcohol
    • (2005) 118,506 people died from drugs, suicide, firearms, or alcohol
    • (2000) 97,376 people died from drugs, suicide, firearms, or alcohol
  • (2006) For every 19 people who died 1 of those 19 died from drugs, suicide, firearms, or alcohol
  • (2006) For every 63 people who died 1 of those 63 died from drugs
some taser numbers
Some TASER Numbers:
  • Over 702,502 TASER ECDs fielded
  • Over 2,000,000 TASER ECD exposures
  • Over 15,300 US LEAs w/ECDs (out of 18,400)
  • Over 6,250 LEAs with full ECD deployment
  • TASER ECDs in 44 countries
  • TASER (manufacturer) litigation:
    • TASER has been sued approx. 155 times
      • Of those, TASER’s record is 116:1
        • The one is being challenged and appealed
  • Civilian – over 217,502 ECDs (no lawsuits)
slide37
Arrest-Related Deaths in the United StatesBureau of Justice StatisticsDeaths In Custody Reporting Act (DICRA)

Arrest-Related Deaths

(all causes)

  • 2006 – 710 deaths
  • 2005 – 679 deaths
  • 2004 – 670 deaths
  • 2003 – 627 deaths

CED (temporal)

(not causal)

  • 2006 not reported
  • 2005 – 24 deaths
  • 2004 – 9 deaths
  • 2003 – 3 deaths
slide38
Arrest-Related Deaths in the United StatesBureau of Justice StatisticsDeaths In Custody Reporting Act (DICRA)
united states today putting the numbers into perspective
United States TodayPutting the Numbers Into Perspective
  • Since 01/01/2000: 1,000,000+ US Deaths From 4 Causes:
    • Drugs (38,396 in 2006) (33,541 in 2005) (19,720 in 2000)
    • Suicide (33,300 in 2006) (32,637 in 2005) (29,350 in 2000)
    • Firearms (30,896 in 2006) (30,694 in 2005) (28,663 in 2000)
    • Alcohol (22,073 in 2006) (21,634 in 2005) (19,643 in 2000)
    • Totals            124,665 (2006) 118, 506 (2005)  97,376 (2000)
  • 2006 US numbers show odds of dying from drugs, suicide, alcohol, or firearm):
    • 1 in 2,393 – from general US population
    • 1 in 19 – of those who died
    • 1 in 63 – of those who died - died from drugs
united states today putting the numbers into perspective42
United States TodayPutting the Numbers Into Perspective
  • More Year “2004” Numbers (Law enforcement problems?):
    • 21,400,000 Serious Psychological Distress (9.9% of adults)
    • 19,100,000 Current Illicit Drug Users (7.9% of population)
      • 20,357,000 (2006) current U.S. illicit drug abusers
    • 10,200,000 Operating Vehicles Under the Influence
    • 1,997,993 Drug Caused ER Visit
more nos 1999 through 2006
More Nos – 1999 through 2006
  • 459,206+ LEOs Assaulted
    • 129,265 + LEOs Assaulted with Injuries
  • 1,026 LEOs Killed
      • 431 LEOs Feloniously Killed
      • 595 LEOs Accidentally Killed
2004 me c numbers the government s numbers
2004 ME/C Numbers(the Government’s Numbers)

2,000 Medical Examiner/Coroner offices in U.S.:

  • 7,320 ME/C full-time equivalent employees
  • $718,500,000.00 total annual budgets

2,398,000 human deaths:

  • 956,000 deaths referred to ME/C offices
    • 487,000 deaths accepted for investigation
      • 677 Arrest Related Deaths (“ARDs”) (all causes)
        • 9 ARDs involving use of CEDs
physiologically compromised persons elevated risks of death
Physiologically compromised persons - elevated risks of death:
  • In approximately every 600 force uses 1 person will die (serious uses of force and rough statistics)
  • Root causes of most physiologically compromised persons’ condition are drugs, mental illness, serious psychological distress
physiologically compromised persons elevated risks of death47
Physiologically compromised persons - elevated risks of death:

There is a risk of serious injury or death from any law enforcement (LE) incident with a physiologically compromised person no matter how the encounter is handled, even the person continuing his exertion.

  • LE incidents with physiologically compromised persons should be treated as medical emergencies. Focus should be getting these persons captured, controlled, and restrained as quickly and safely as possible in order to prevent further injury and to expedite medical care.
  • ECDs are a safer means to capture, control, or restrain physiologically compromised persons since biggest threat to life is the self destructive exertion and ECD has less negative physiologic impact and is more effective in capturing, controlling, and facilitating restraint, and shortening this period of continued self-destructive exertion.
physiologically compromised persons elevated risks of death48
Physiologically compromised persons - elevated risks of death:

LE and emergency medical services (EMS) need better guidance on safest, most effective methods to handle these incidents and avoid bad force-option choices

  • Best practices for LE to capture, control, and facilitate and maintain restraint
  • Best practices for EMS to treat
  • Best practices for Medical to treat
basic legal concepts
Basic Legal Concepts
  • Plaintiffs can allege (almost) anything
  • Burden of proof in a civil case:
    • by a preponderance of the evidence
    • more likely than not
  • Summary judgment motion (MSJ):
    • court “MUST” take the facts as offered by the MSJ opposing party
    • UNLESS incident recording trumps party’s stated facts (Scott v. Harris, USSC)
basic legal concepts51
Basic Legal Concepts
  • Constitutional standard purpose – do not intentionally abuse your government endowed authority
  • Qualified immunity
    • Protection from suit
    • Two part test:
      • Constitutional right was violated
      • Law had put officer on notice that what he did was in violation of the constitution (excellent example is Bryan v. MacPherson (June 18, 2010)
slide52

Do “NOT” confuse or substitute Constitutional force threshold standards with selected usually more restrictive judicial case extracted force considerations or policy restrictions!!!!!

- “Shall” versus “Should”

force standards do not confuse legal force thresholds with perfection practices
Force Standards(Do NOT confuse legal force thresholds with “perfection” practices)
  • Federal Constitutional Standards:
    • Do not intentionally misuse government endowed authority (4th, 5th, 8th, 14th Amendments, state law, etc.)
  • Restrictive force court case considerations:
    • Minimum application of force to reasonably safely accomplish lawful objectives
    • Coupled with well written accurate descriptive force reporting and documentation

(preferably video/audio from the LEO’s perspective)

what is your force management objective
What is Your Force Management Objective?

Consider encouraging/training – “perfection standards” full knowledge possible minimum injury force practices? (Not to be confused with, or substituted for, Constitutional force standards or threshold(s).)

Some legal case based “perfection standards” considerations likely do not reflect federal Constitutional force standards or thresholds in numerous jurisdictions.

Meaning, these “perfection” considerations are (in many circumstances) considerably more restrictive than applicable federal Constitutional rights standards.

And, be cautious to NOT create elevated force standards above the Constitutional force standards thresholds.

what is your force management objective55
What is Your Force Management Objective?

Consider if officers actions could be perfectly scripted in the 20/20 vision of hindsight – the “Perfection Standard” … which is a “should” paradigm – NOT a Constitutional standard.

How would you use it? (if at all ….?)

Force Decisions and Reporting:

Court Decisions Lessons Learned

Approaching the Hollywood Scripted 20/20 Hindsight –

“Perfection Standard” in training and guidance.

dominos falling enhancers
Dominos Falling Enhancers
  • Department’s policies and training standards
    • Setting inappropriately escalated force standards
  • He said/she said (recording incident from officer’s perspective)
  • Death case - medical examiner errors
  • ECD experts – sufficiently knowledgeable experts?
    • “TASER ECD Instructor” ≠ “Knowledgeable Expert”
  • Court’s Mis-Understandings:
    • (OH) Michaels – “drive stun” ≠ “NMI”
    • (FL) Buckley (dissent) -- “drive stun” ≠ ‘”NMI”
    • (MI) Keiser (6th Circuit (10/21/08)) – “drive stun ≠ ‘”NMI”
    • Misunderstood - “50,000 Volts!!!!!!” (Oh My God!!!!!)
medical examiners
Medical Examiners
  • Mis-perceived statements
  • Mis-perceived standards of proof
  • Failure to explain and eliminate ambiguities
  • Do not undertstand:
    • Basic important incident concepts
    • Mechanisms of injury
    • The research (cannot be expected to)
  • Refuse assistance – appearance of influence
medical examiners58
Medical Examiners
  • Logical fallacies
    • Causation:
      • Temporal ≠ Causal
      • Association ≠ Causation
      • Correlation ≠ Causation
    • Causal oversimplification
  • Poor choices of words
  • Failure to put statements into perspective
  • Chicken or the egg (which came first?)
dominos falling enhancers59
Dominos Falling Enhancers
  • P.D.P.C.T. (fallacy) (outcome vs. process)
  • Incident:
    • Officer misperceives threat level
    • Officer uses more than least intrusive force
    • Officer does not consider alternatives
    • Officer does not have sufficient tolerance/respect
    • Officer “Tases to Submission”
    • Lawful but awful force
    • Bad reporting (Crayon® reports or absence of change audit trail)
    • Incomplete investigation
basic force considerations
Basic Force Considerations
  • What is your force management objective?
  • What is starting, or significantly enhancing, the dominos falling?
  • Which force standard to comply with? Where the courts are (sometimes) headed?
    • Intentional misuse of govt endowed authority?
    • Tolerance for non-intentionally-violent offenders?
    • The “force avoidance” standard?
    • The “thou shalt be nice” (or at least “respect”) standard?
    • Expeditious medical care? (when in doubt summon)
usually not a problem
(Usually) Not a Problem …

If a LEO is justified in using force and the person is an objectively perceived immediate threat to LEOs or others or the person is trying to flee (and the LEO would be justified in tackling the person), then reasonably limited ECD use is almost always legally justified.

The question is: how to make the best force decisions coupled with excellent reporting?

a few ecd cases to consider
A few ECD cases to consider:
  • Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.(Colo.) Dec. 10, 2007)
    • Convicted speeder bringing court file back into courthouse (settled for $85,000)
  • (Cert. denied 05/18/09)Buckley v. Haddock, 292 Fed.Appx. 791 (11th Cir.(Fla.) Sep 09, 2008)
    • Sobbing speeder failed to sign speeding ticket
  • Beaver v. City of Federal Way, 507 F.Supp.2d 1137 (W.D.Wash. 2007); (qualified immunity upheld by 301 Fed.Appx. 704 (Nov. 25, 2008 C.A.9 (Wash.))
    • Fleeing residential burglar (5 ECD uses, first 3 ok)
a few ecd cases to consider63
A few ECD cases to consider:
  • Brooks v. City of Seattle, 2010 WL 1135776 (March 26, 2010, 9th Cir.(Wash.)); 2008 WL 2433717 (W.D. Wash. 2008)
    • Pregnant speeder who refused to sign ticket or get out of the car.
    • ECD used in drive stun.
    • Court’s analysis of drive stun versus probe ECD deployment.
bryan v macpherson
Bryan v. MacPherson
  • Bryan v. MacPherson, 590 F.3d 767 (C.A.9 2009)
    • Seat belt violation, failed to comply, clenched fists, profanities, acting out.
    • Officer granted qualified immunity (Bryan v. MacPherson, --- F.3d ----, 2010 WL 2431482 (June 18, 2010)).
bryan v macpherson65
Bryan v. MacPherson

“We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by “ ‘a strong government interest [that] compels the employment of such force.’ ”

a few ecd cases to consider66
A few ECD cases to consider:
  • Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.(Minn) Jul 22, 2009)
    • Female car passenger, beer tankards at feet, husband (driver) arrested for OMVWI.
    • Settled for $200,000.
  • Stych v. City of Muscatine, Iowa, 655 F.Supp.2d 928 (S.D. Iowa Sept. 18, 2009)
    • Fn 12 - “Plaintiff has presented testimony from two witnesses attesting to how important it is for police officers to listen.”
a few ecd cases to consider67
A few ECD cases to consider:
  • (02/25/09) (UR) Releford v. City of Tukwila, Slip Copy, 2009 WL 497131 (W.D.Wash.,2009)
    • 6’5”, 280 pounds, simultaneous ECD discharge, and simultaneous ECD discharge while on ground. Arrested on warrant, not on recently committed crime.
  • Parker v. Gerrish, 547 F.3d 1 (1st Cir. (Me.) Nov. 5, 2008)
    • Parker v. City of South Portland, 2007 WL 1468658 (D.Me. May 18, 2007)
slide68
Buckley v. Haddock, 292 Fed.Appx. 7912008 WL 4140297 (11th Cir.(Fla.) Sep 09, 2008)(US Supreme Court Cert. denied on May 18, 2009)

Officers are supposed to know if force is ok?

  • District Court (unpublished decision) – not objectively reasonable, no officer would, no qualified immunity (QI)
  • Circuit Court (unpublished decision):
    • Chief Judge: Objectively reasonable (OR) plus QI
    • Appellate Judge – 2 uses OR, 3rd use not OR, QI
    • District Judge – not OR, no officer would, no QI
scott v harris 550 u s 372 2008
Scott v. Harris, 550 U.S. 372 (2008)
  • While these are the most common considerations, they are not “a magical on/off switch that triggers rigid preconditions” to determine whether an officer’s conduct constituted excessive force. (at 383)
  • “Thus, in judging whether [officer’s] actions were reasonable, we must consider the risk of bodily harm that [officer’s] actions posed to [suspect] in light of the threat to the public that [officer] was trying to eliminate.” (at 383)
basic 4 th amendment force key graham factors
Basic 4th Amendment Force(Key Graham Factors)
  • the severity of the crime at issue
  • whether the suspect poses an immediate threat to the safety of the officers or others
  • whether suspect is actively resisting arrest or attempting to evade arrest by flight
  • split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about amount of force necessary in particular situation
graham factors as ranked by chew order of importance potential for injury risk importance
Graham Factors as Ranked by ChewOrder of Importance – Potential for Injury Risk Importance
  • Immediate threat to safety of officers/others
  • Actively resisting
  • Circumstances tense, uncertain, rapidly evolving (“pace” of events)
  • Severity of the crime at issue
  • Attempting to evade seizure by flight
additional force factors
Additional Force Factors
  • Court may also consider "the availability of alternative methods of capturing or subduing a suspect.” (Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005))
  • Court may also consider what officers knew about the suspect's health, mental condition, or other relevant frailties. (Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001); Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994))
clarifying the graham factors immediate threat to safety of officers or others
Clarifying the Graham Factors:(Immediate threat to safety of officers or others)

Graham’s “immediate” vs. “possible” threat:

  • “[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” (Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001))
  • Beaver – “possibly” had a weapon under him
  • Brooks – could have fled in car
  • Brown – beer “tankards” used as weapons
clarifying the graham factors immediate threat to safety of officers or others75
Clarifying the Graham Factors:(Immediate threat to safety of officers or others)

Graham’s “immediate” vs. “possible” threat

  • “Releford – 2 friends, confusing commands, questioned arrest (delaying tactic? – no evidence)
    • weighed against the minimal need for force, the simultaneous double-tasing of plaintiff was clearly excessive. Once plaintiff fell to the ground and rolled onto his stomach, the need for force diminished even more and hence, the second double-tasing was also clearly excessive.
clarifying the graham factors actively resisting
Clarifying the Graham Factors:(Actively Resisting)

Releford:

  • Fact that Releford stopped and raised his hands over his head, asked legitimate questions about why he was being arrested, and was likely confused by the officers’ conflicting commands to turn around – the Court cannot term plaintiff’s behavior “active resistance.” Indeed, his behavior suggests at least a partial willingness to comply.
clarifying the graham factors seriousness of the offense
Clarifying the Graham Factors:(Seriousness of the Offense)
  • Buckley – failed to sign speeding ticket
  • Brooks – failed to sign speeding ticket
  • Bryan – traffic ticket
  • Brown – open intoxicant M/V passenger
  • Casey – took court file to parking lot
  • Releford – not suspected of having just committed a crime (warrant arrest)
  • Beaver – fleeing residential burglar
clarifying the graham factors pacing tense uncertain rapidly evolving
Clarifying the Graham Factors:(Pacing – Tense, Uncertain, Rapidly Evolving)
  • Brooks – slow pacing
  • Brown – 4 officers present, husband in handcuffs in back of patrol car
  • Buckley (dissent) – should have waited for backup
less intrusive alternative methods
Less Intrusive Alternative Methods?
  • Releford:
    • Officers did not explain why options less intrusive than ECDs could not have been used.
    • Officers did not state that they even considered less intrusive options.
  • Brooks:
    • Alternative methods (to get her out of car)
  • Buckley (dissent):
    • Alternative methods (waiting for backup)
ecd force must be justified
ECD Force Must be Justified

Beaver:

  • ECD use involves the application of force.
  • each ECD application involves an additional use of force.
ecd force that must be justified multiple ecd applications
ECD Force that Must be Justified(Multiple ECD Applications)

Multiple ECD Applications:

  • Is suspect an immediate threat?
  • Is suspect about to flee?
  • Suspect fails to comply with command?
    • Multiple ECD applications cannot be justified solely on the grounds suspect fails to comply with command, absent other indications: about to flee or poses immediate threat to officer
        • particularly true when more than one officer present to assist in controlling situation.
ecd force that must be justified multiple ecd applications82
ECD Force that Must be Justified(Multiple ECD Applications)

Multiple ECD Applications:

  • Is the suspect capable of complying with command?
    • any decision to apply multiple ECD applications must consider whether suspect is capable of complying with commands.
      • Physically? (Beaver)
      • Mentally (intoxication, schizophrenic, etc.)?
      • Emotionally? (Buckley, Brown)
      • Conflicting commands? (Beaver, Releford)
officer s force decision report especially where person is not active threat or attempting to flee
Officer’s Force Decision & Report?(especially where person is not active threat or attempting to flee)
  • Graham factors – as modified by Chew
  • Justification(s) for each use of force
    • Beware “possible” vs. “immediate” threat
    • Each application of force justified
  • Presence or absence of other officer(s)
  • Any factor used to justify escalated force must be explained
    • Releford – 2 persons (not explained why threat concern)
officer s force decision report especially where person is not active threat or attempting to flee84
Officer’s Force Decision & Report?(especially where person is not active threat or attempting to flee)
  • Consideration of suspect’s ability to comply with commands
    • Conflicting commands
    • Ability to comprehend commands
    • Physically able to comply with commands
    • Emotionally able to comply with commands
    • Mentally able to comply with commands
    • Inability to comply due to trauma
  • Absence of conflicting commands
officer s force decision report especially where person is not active threat or attempting to flee85
Officer’s Force Decision & Report?(especially where person is not active threat or attempting to flee)
  • Availability of alternative methods of capturing or subduing suspect.
    • Consideration of alternatives
  • What officers knew about the suspect's:
    • Health,
    • mental condition, or
    • other relevant frailties.
officer s force decision report especially where person is not active threat or attempting to flee86
Officer’s Force Decision & Report?(especially where person is not active threat or attempting to flee)
  • Warning of force to gain compliance
    • Giving warning(s) before force is used
    • Consider whether warning will be comprehended
  • Time between force applications to give time for voluntary compliance (tolerance factors)
    • Concern of too short a time between applications
officer s force decision report especially where person is not active threat or attempting to flee87
Officer’s Force Decision & Report?(especially where person is not active threat or attempting to flee)
  • If pain is going to be used to gain compliance
    • consideration whether person will perceive the pain and be able to comply with command(s)
    • Option – use of ECD as discomfort/pain to cause distraction to attempt to capture, control, restrain, and/or other lawful force objective
      • E.g. Lomax v. Las Vegas Metro Police Department
where some courts are going
Where Some Courts Are Going:

Releford:

  • Brooks and Bryan suggest that where, as here (in Releford), where there is no immediate threat to anyone’s safety, clearly-established law prohibits the use of an ECD to gain compliance.

This is contrary to numerous other court cases – including some ECD use while restrained cases.

icd where the courts are going
ICD - Where the Courts are Going
  • Known risk factors (Richman v. Sheaham, 512 F.3d 876 (7th Cir.(IL) Jan. 7, 2008) - 489 lb man – “a reasonably trained police officer would know that compressing the lungs of a morbidly obese person can kill the person”
  • Necessity of haste – (Id.)So the deputies had to use care in removing him from the courtroom, unless there was some compelling need for haste. But there was not. Court was over for the day. From the effort of the first 2 deputies to seize Richman to his death, only 7 minutes elapsed.

There was no reason to endanger his life in order to remove him with such haste. A reasonable jury could find that the deputies used excessive force.

watch for
Watch For
  • Two recent books – electrical, physiological, legal aspects of ECDs
  • TASER ECD Involved Litigation Program (continuing legal education program)
  • Check information websites often
    • www.ecdlaw.info
    • www.ipicd.com