The Taser®: When is Deployment Prudent?
By Jack Ryan
Over the past few years, use of the Taser electronic restraining/compliance device has become more common among law enforcement agencies nationwide. Recent literature from the U.S. Department of Justice indicates that electronic control devices (ECD) are being used by 11,500 agencies, with approximately 260,000 of the devices deployed.
As the use of Tasers becomes more prevalent, law enforcement agencies can expect claims to be made regarding their use. As with any use of force, courts will look at the following three factors in determining if a particular use of force is objectively reasonable:
How serious was the offense?
Did the suspect pose an active threat to the officer or others?
Was the suspect actively resisting or attempting to evade arrest by flight?
Law enforcement officers would be well-advised to consider these three factors in determining whether force should be used and, if so, how much force is appropriate.
Throughout the United States, more law enforcement agencies are adding ECDs to their force options. Law enforcement agencies that use the most common brand of ECDs, Taser, report a dramatic decrease in suspect and officer injuries following the addition of Taser to their force options. At the same time, we see reports in the media that would lead one to believe that every Taser use results in death. In fact, a number of groups have sought legislation that would limit the use of Taser to deadly force situations.
Overall, the number of cases where Taser has been used, and where the arrestee has subsequently died, are limited. And, because of a lack of consensus by the medical community, they have been more of a media phenomenon than a legal one.
In one recent Oregon case, Taser International was found liable by a jury that awarded punitive damages as well as compensatory damages totaling more than six million dollars. What went largely unreported in the main stream media is the fact that the court threw out the punitive damages portion of the award of over five million dollars.
The Ashland, Oregon-based case reportedly involved a subject who was on methamphetamine at the time of his contact with officers and was tased multiple times by three officers. The officers were dismissed from the suit on qualified immunity. The finding of the jury against Taser was based on failure of Taser to warn law enforcement that multiple tasings may be more harmful to an individual. It should be noted that current Taser training and most law enforcement policies now include a provision discouraging multiple deployments on a subject unless necessary to control the individual.
The most recent study being conducted on the relationship between electronic control weapons and death is being conducted by doctors from around the United States under funding by the National Institute of Justice. The study issued an interim report in June of 2008 which concluded the following:
“Although exposure to ECD is not risk free, there is no conclusive medical evidence within the state of current research that indicates a high risk of serious injury or death from the direct effects of ECD exposure. Field experience with ECD use indicates that exposure is safe in the vast majority of cases. Therefore, law enforcement need not refrain from deploying ECDs, provided the devices are used in accordance with accepted national guidelines."
Some of the more problematic issues with respect to Taser deployment involve circumstances where use is unreasonable under the three-part Graham v. Connor case. Another area where future cases should be anticipated is in instances involving the issue of secondary impact as the result of deployment.
There are numerous cases where the arrestee is not injured by the electronic impulse but suffers serious injuries when falling as the result of muscular disruption. Most agencies now warn officers to consider the area of deployment as well as whether the subject is in an elevated position. Since the fall is a foreseeable result of the deployment, injuries can be anticipated where the subject is in area or in a circumstance where a hard impact can be anticipated.
Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), which involved the use of a Taser, exemplifies how a court will review this type of force. Stacy Draper filed a lawsuit against Deputy Clinton Reynolds alleging a civil rights violation arising out of a motor vehicle stop and his arrest, during which Deputy Reynolds used a Taser on Draper. The reason for the initial stop was an improperly illuminated registration plate light.
In his lawsuit, Draper alleged that Reynolds shined a flashlight in his eyes during a traffic stop and he politely asked Reynolds to refrain from doing so. Initial contact between Reynolds and Draper took place at the side of Draper’s truck and could not be seen on the police cruiser’s video recorder. Their initial conversation could not be heard on Reynolds’ audio recorder. Draper alleged that Deputy Reynolds used harsh language in this initial contact at the side of the truck.
Deputy Reynolds then ordered Draper to come to the back of his truck. At that point, all activity and audio were recorded by the police vehicle’s equipment. The tape showed an uncooperative and belligerent Draper who refused to comply with several polite commands by Deputy Reynolds to produce paperwork from the truck. As many as five times, Draper would start toward the truck to retrieve the paperwork but then would turn and return toward Deputy Reynolds in what Reynolds described as a “threatening" manner which put Reynolds on “the defensive." On the fifth occasion, with Draper yelling and returning toward Reynolds, the deputy discharged his Taser at Draper’s chest. Draper fell to the ground, was handcuffed and taken into custody. In his allegation of excessive force, Draper alleged that if Deputy Reynolds had simply informed him that he was under arrest he would have complied, thus there was no need to employ the Taser.
In rejecting Draper’s claim of excessive force, the court held the following opinion:
“Reynolds’s use of the Taser gun to effectuate the arrest of Draper was reasonably proportionate to the difficult, tense and uncertain situation that Reynolds faced in this traffic stop, and did not constitute excessive force. From the time Draper met Reynolds at the back of the truck, Draper was hostile, belligerent, and uncooperative … Draper used profanity, moved around and paced in agitation, and repeatedly yelled at Reynolds."
The court noted that a verbal arrest command and attempt to handcuff such a hostile individual as Draper may have escalated the situation into a “serious physical struggle" which was avoided by the use of the Taser.
Some of the more significant cases involving the Taser involve accidental circumstances. One of the most significant of these accidental cases occurred in Madera, California. An officer, while trying to gain control of a handcuffed suspect who was in the backseat of a police vehicle and kicking at the door, attempted to tase the suspect. Unfortunately, the officer, who was wearing her Taser on the strong side of her body, accidentally pulled out her Glock® pistol and killed the 22- year-old prisoner. A lawsuit against the police officer and department are pending in this case. In addition, the police department is suing Taser International, arguing that the company failed to advise the agency against officers wearing the less lethal weapon cross-draw on the weak side.
It should be noted that training materials from Taser International strongly recommend carrying the Taser tool weak-side but leave the ultimate decision to the agency.
Other accidental cases have occurred where officers have observed an officer pull his or her Taser (M26 model) and, due to its similar appearance to a firearm, have assumed a deadly force situation and responded with deadly force. This type of accidental circumstance is addressed in training plans by requiring officers who are preparing to use the Taser to shout “Taser" to place other officers on notice. In addition, Taser International provides yellow striping for black finish models and also makes the M26 in a yellow finish. Anecdotal responses by agencies that use the yellow finish models indicate that the distinct yellow is highly effective when dealing with suspects because, while they know an officer would not be justified in shooting his or her firearm, they recognize that the officer may use the yellow Taser.
As the law on Taser use continues to develop, law enforcement must stay abreast of current research and case law to determine the reasonableness of its use in particular cases. Some of the additional developing issues include where the Taser fits in the use of force continuum; Taser compatibility with pepper-spray; and what role, if any, the use of a Taser plays in sudden custody death cases. The most recent model policy from the International Association of Chiefs of Police places ECDs on the same level as pepper spray.
A recent study from British Columbia examined most of the current information known to law enforcement on the impact of Taser and the possibility that some persons may suffer serious bodily harm or death following a confrontation with the police in which a Taser is deployed. The study acknowledges that some persons involved in confrontations with law enforcement sometimes die as the result of the fight. The study identifies the reason for many of these deaths as based in the fact that the person fighting with law enforcement is suffering from “excited delirium," which is defined as follows: “A state of mind begetting irrational and often violent behavior in some persons subsequently apprehended by law enforcement officers by use of a Taser."
It is also noted that persons suffering from excited delirium often had been using cocaine, a drug that causes heart arrhythmias, and the fact of cocaine use may be unknown to law enforcement at the time. The study points out that some of the issues raised by excited delirium with Tasers are not just police issues due to the fact that changes in medical protocols for emergency medical services may also assist in avoiding serious bodily harm or death following a deployment.
Recommendations, listed on page 34, for dealing with ECD force continuum/policy-training issues are based upon model policies and studies conducted throughout North America.
Agencies should document all ECD use, including cases where a subject complies once threatened with such a device. By documenting the non-discharge uses, an agency establishes officer judgment and control as well as the deterrent effect of this tool.
Photographs of the effected area should be taken following the removal of darts from the subject to document any injury. Where the push-stun method has been used, photographs are extremely important due to the increased potential for this method to cause scarring.
Supervisory personnel should be notified to review all ECD deployment for consistency with policy and training. Darts/cartridges should be properly stored and maintained as evidence following a discharge. Also, officers must be required to complete a “response to active resistance/ECD discharge form" following use.
Last but not least, policy should require supervisory, agency and training review of all Taser uses. Where there is any indication of lasting injury, claim or complaint, internal data from device should be maintained.
John “Jack" Ryan is a retired police captain and formerly served the Providence Police Department in Providence, Rhode Island for 20 years. He is currently codirector of the Legal and Liability Risk Management Institute in Indianapolis, Indiana and can be contacted by phone at 800.365.0119.
Please understand that this article relates to a rapidly evolving area of the law. Since the drafting of this article, other cases have been heard and decided and, thus, new information may be available on this topic. For this reason, when considering the development of Taser usage policies, be sure to contact your attorney. For subsequent articles by Jack Ryan on this topic, please visit the Legal and Liability Risk Management Institute website.
Recommended ECD Policies
The following recommendations for dealing with ECD force continuum/policy-training issues are based upon model policies and studies conducted throughout North America.
ECD must be worn on officer’s weak-side to encourage use by non-dominant hand. ECD deployment should not be considered for the passively resistant subject—active resistance/active aggression should be required.
Officers must be trained concerning ability of electrical charge to act as an ignition for combustible materials. (Note: Officers have been seriously injured and or killed after deploying an ECD in the presence of open natural gas during suicidal person call.)
Multiple ECD deployments against an individual increase the likelihood of serious injury where the individual is suffering from other symptoms such as cocaine intoxication. Policy and training should encourage officers to minimize the successive number of discharges against an individual where possible.
Agencies should recognize, however, particularly where back-up officers are unavailable, where multiple applications may be necessary.
A contributing factor to serious injury or death is the level of a subject’s exhaustion. Studies recommend that when an officer believes that control of a subject will be necessary and met with resistance, deployment of the ECD should be considered early on in the event so that the person has not reached a level of exhaustion prior to the ECD’s use.
In cases where subject is actively resisting an officer’s attempt to take them into custody but not threatening the officer with an assault, it is recommended that the ECD be used in the “push stun mode."
Officers should avoid firing toward eyes/head/genitals.
The preferred targeting is the center mass of the subject’s back. However, it is recognized that it is not always possible to get behind the subject.
Where back-targeting is not possible, the secondary area is lower center mass and legs. Officers should be discouraged from chest targeting.
Officers should be prohibited from using the device as punitive measure.
A warning prior to discharge is not always necessary for this type of force to be considered reasonable. Model policies as well as courts have noted that giving a subject a warning may enhance the danger to the officer and the subject by giving the subject time to avoid the deployment.
The device should never be used on a handcuffed person to force compliance unless the subject poses a violent threat to the officer through physical conduct and cannot otherwise be controlled.
ECDs are best placed along with pepper-spray in a use of force continuum.
Officers should consider the location and environment of the subject, e.g., is the subject at the top of a stairwell such that, when the subject is incapacitated by the ECD, they fall down the stairs causing a collateral injury?
Officers should be aware that a subject’s heavy clothing may impact the effectiveness of the ECD.
Officers should consider whether the subject has been exposed to combustible elements that may be on their person such as gasoline. The use of an ECD on such persons may cause an ignition and fire.
Officers should consider the particular subject and any vulnerability they may have, e.g., a person who is small in stature will be more dramatically impacted. (Note: Some agencies have been criticized as well as sued for Taser use on pregnant women and the elderly.)
Alternative tactics should be used where the officer has prior information that the subject suffers from a disability which would increase the danger to that person by using the ECD, e.g., when a person at the scene tells an officer that the subject has a heart condition.
Agency policy/training must address removal of darts from a person who is brought under control by deployment. Where there is any difficulty, removal should be conducted by medically trained personnel.
All persons who have been the subject of ECD deployment should be cleared medically or, at the very least, monitored for a period of time with a focus on symptoms of physical distress. (Note: Studies indicate that persons suffering from excited delirium may not be immediately impacted, and the onset of difficulty may occur a period of time after the police control event.)