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.comTelephone – (651) 248-2809E-fax – (480) 275-3291ECD Legal Resources Website – www.ecdlaw.infoICD Resources – www.incustodydeath.com

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• 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):• 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)

• 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 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 200 years

• ECDs specifically have been widely studied in over 200 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:

• Every other force option uses pain/discomfort volitional compliance or traumatic injury to facilitate 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:

• 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 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 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:

• 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 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:

• 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.

• No better training program for any other force option– Training program updated and improved

• Providing greater levels of accountability features

• Encouraging "Smart Use" Force Guidelines

Where are We:Putting Things Into

Perspective

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?

• 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 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?• 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

ECD Smart Use Guidelines:

Putting Things Into Perspective

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 paradigms:Smart Use Guidelines (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” Guidelines Basics

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

ECD “Smart Use” Guidelines 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

• Constitutional rights purpose• State statutes purpose• Recommendations purposes• Department policy purpose• “Smart Use” Guidelines purpose

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

ECD “Smart Use” Guidelines BasicsOfficer: • 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” Guidelines 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” Guidelines 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” Guidelines BasicsForce 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” Guidelines 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” Guidelines BasicsForce to Overcome Objective Obstruction:• Coercive force• Force on passive personDistraction 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

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”

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

• 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 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 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• 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)

Electronic Control Devices Are Not Risk Free.