TASER

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/International Litigation Counsel, TASER
  International, Inc.
• President, LAAW International, Inc.
• Email brave_at_laaw.com
• Telephone [phone]
• E-fax [phone]
• ECD Legal Resources Website www.ecdlaw.info
• ICD Resources www.incustodydeath.com

2
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 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 bases)
• 2005 to present ECD hysteria not scientifically
  based

 

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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.

4
Standards Purposes

• Constitutional rights purpose
• Department policy purpose
• Smart Use purpose

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ECD Smart Use Basics

• Department
• Clearly delineate (understand) force standards
• Delineate accountability standards and should
• Support officers force decisions
• Train Smart Use Force Basics
• Train force alternatives and options
• Monitor force and remedial training
• Provide optimal equipment and training

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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

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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
• Drive stun is not necessarily less force than
  probe
• Avoid drive stun (less probability of
  effectiveness)
• Especially avoid cartridge removed drive-stun
• Greater injury probability/potential

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ECD Smart Use Basics

• Force in Presence of Imminent threat
• Force to Restrain or Control
• Force to Restrain or Capture
• Force to Prevent/Stop Fleeing
• Coercive Force to Overcome Obstruction
• Distraction Device for Community Caretaker

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ECD Smart Use Basics

• Force in Presence of Imminent threat
• Imminent threat of deadly force
• Imminent threat of serious injury
• Imminent threat of injury
• Force to Restrain or Capture
• Force to control intentionally assaultive
• Person resisting/struggling against control

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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

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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

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Numbers Putting Things Into Perspective
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Some TASER Numbers

• Over 600,000 TASER ECDs fielded
• Over 1,500,000 TASER ECD exposures
• Over 14,000 US LEAs w/ECDs (out of 18,400)
• Over 5,200 LEAs with full ECD deployment
• TASER ECDs in 45 countries
• TASER (manufacturer) litigation
• TASER has been sued approx. 132 times
• Of those, TASERs record is 931
• The one is being challenged and appealed
• Civilian over 189,000 ECDs (no lawsuits)

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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

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Arrest-Related Deaths in the United StatesBureau
of Justice StatisticsDeaths In Custody Reporting
Act (DICRA)
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(No Transcript)
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(No Transcript)
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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

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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

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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

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2004 ME/C Numbers(the Governments 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

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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 partys stated
  facts (Scott v. Harris, USSC)

23
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

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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
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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 LEOs
  perspective)

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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.

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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.

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Dominos Falling Enhancers

• Departments policies and training standards
• Setting inappropriately escalated force standards
• He said/she said (recording incident from
  officers perspective)
• Death case - medical examiner errors
• ECD experts sufficiently knowledgeable experts?
• TASER Instructor ? Knowledgeable Expert
• Courts 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!!!!!)

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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

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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)

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(Usually) Not a Problem

• If a LEO is justified in using force and the
  person is an 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?

32
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
• (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
  2008 WL 5065620 (Nov. 25, 2008 C.A.9 (Wash.))
• Fleeing residential burglar (5 ECD uses, first 3
  ok)

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A few ECD cases to consider

• Brooks v. City of Seattle, 2008 WL 2433717 (W.D.
  Wash. 2008)
• Pregnant speeder who refused to sign ticket or
  get out of the car.
• Bryan v. McPherson, 2008 WL 904906 (S.D. Cal.
  2008, April 03, 2008)
• Traffic ticket, failed to comply, clenched fists,
  profanities at officer.

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A few ECD cases to consider

• Brown v. City of Golden Valley, 534 F.Supp.2d 984
  (D.Minn. Feb 14, 2008)
• Female car passenger, beer tankards at feet,
  husband (driver) arrested for OMVWI.
• (UR) Releford v. City of Tukwila, CASE NO.
  C07-2009-RSM (W.D.Wash. 2008)
• 65, 280 pounds, simultaneous ECD discharge, and
  simultaneous ECD discharge while on ground.
  Arrested on warrant, not on recently committed
  crime.

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A few ECD cases to consider

• 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)

36
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

37
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 officers conduct constituted
  excessive force. (at 383)
• Thus, in judging whether officers actions
  were reasonable, we must consider the risk of
  bodily harm that officers actions posed to
  suspect in light of the threat to the public
  that officer was trying to eliminate. (at 383)

38
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

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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

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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))

41
Clarifying the Graham Factors(Immediate threat
to safety of officers or others)

• Grahams 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

42
Clarifying the Graham Factors(Immediate threat
to safety of officers or others)

• Grahams 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.

43
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 plaintiffs
  behavior active resistance. Indeed, his
  behavior suggests at least a partial willingness
  to comply.

44
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

45
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

46
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)

47
ECD Force Must be Justified

• Beaver
• ECD use involves the application of force.
• each ECD application involves an additional use
  of force.

48
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.

49
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)

50
Officers 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)

51
Officers Force Decision Report?(especially
where person is not active threat or attempting
to flee)

• Consideration of suspects 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

52
Officers 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.

53
Officers 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

54
Officers 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

55
Where Some Courts Are Going

• Releford
• Brooks and Bryan suggest that where, as here (in
  Releford), where there is no immediate threat to
  anyones 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.

56
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.

57
Electronic Control Devices Are Not Risk Free.
58
Watch For

• Two new books electrical, physiological, legal
  aspects of ECDs (February 2009)
• TASER ECD Involved Litigation Program (continuing
  legal education program)
• Tentatively (FL) Orlando November 6, 2009
• Check information websites often
• www.ecdlaw.info
• www.ipicd.com