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 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

 

3
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

4
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

5
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).

6
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

7
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

8
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)

9
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.

10
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.

11
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 (n23), CED use was deemed to have
  clearly prevented the use of lethal force by
  police."

12
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

13
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

14
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)

15
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

16
Where are We Putting Things Into Perspective
17
Where are we?(for all Law Enforcement EMS,
MEs, Coroners, Lawyers)

• 20/20 Hindsight Perfection Standards
• Through Whos 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

18
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

19
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?

20
Where are we today headed?

• Through whos 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 camels back is enough

21
ECD Smart Use Guidelines Putting Things Into
Perspective
22
Force standards paradigms

• Self (or third-party defense) standards
• United Nations Force Standard Minimum force
  necessary to accomplish lawful objectives
  standards
• Risk/benefit standards
• 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. (Scott v.
  Harris, 550 U.S. 372, 383 (2008)).
• Abuse of authority standards
• The Fourth Amendment addresses misuse of
  power, not the accidental effects of otherwise
  lawful conduct. Brower v. County of Inyo, 489
  U.S. 593, 596 (1989) Milstead v. Kibler, 243
  F.3d 157 (4th Cir. 2001).

23
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 officers
  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

24
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.

25
Standards Purposes

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

26
ECD Smart Use Guidelines Basics

• Department
• 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

27
ECD Smart Use Guidelines 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

28
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

29
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

30
ECD Smart Use Guidelines 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

31
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

32
ECD Smart Use Guidelines 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

33
Numbers Putting Things Into Perspective
34
Basic ECD deployment numbers

• (06/30/10) TASER ECDs
• 499,000 worldwide
• 15,500 law enforcement and military agencies
• 6,400 agencies deploy to all patrol officers
• in more than 40 countries
• since 1993, more than 221,000 to the general
  public
• (07/31/10) TASER ECD applications to humans
• 2,177,000 - total ECD human applications
• 1,070,785 2 - field use/suspect applications
• 1,107,033 7 - training/voluntary applications

35
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

36
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

37
Arrest-Related Deaths in the United StatesBureau
of Justice StatisticsDeaths In Custody Reporting
Act (DICRA)
38
(No Transcript)
39
(No Transcript)
40
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

41
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

42
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

43
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

44
More Numbers

• Pepper spray of 600 uses one person dies
• Force involved incident approximately 1 in 600
  will die
• Jails (in-custody deaths) from 2000 through
  2007 (NIJ/BJS Report)
• 8110 have died
• Jail in-custody rate of death
• from 1 in 658 to 1 in 709 (depending on year)
• 152 deaths per 100,000 inmates to 141 per 100,000

45
Physiologically compromised persons - elevated
risks of death
46
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

47
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.

48
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
• Guidelines for LE to capture, control, and
  facilitate and maintain restraint
• Guidelines for EMS to treat
• Guidelines for Medical to treat

49
Basic Legal Concepts
50
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)

51
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)

52
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
53
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)

54
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.

55
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.

56
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 ECD 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!!!!!)

57
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

58
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?)

59
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

60
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)

61
(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?

62
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 (C.A.9 (Wash.) Nov. 25, 2008)
• Fleeing residential burglar (5 ECD uses, first 3
  ok)

63
A few ECD cases to consider

• Brooks v. City of Seattle, 599 F.3d 1018 (C.A.9
  (Wash.), March 26, 2010)
• Pregnant speeder who refused to sign ticket or
  get out of the car.
• ECD used in drive stun.
• Courts analysis of drive stun versus probe ECD
  deployment.

64
Bryan v. MacPherson

• Bryan v. MacPherson, 608 F.3d 614 (9th Cir.(Cal.)
  June 18, 2010), superceding 590 F.3d 767 (9th
  Cir. December 28, 2009)
• Seat belt violation, failed to comply, clenched
  fists, profanities, acting out.
• Probe deployment while standing on pavement.
• Officer granted qualified immunity (Bryan v.
  MacPherson, 608 F.3d 614 (9th Cir. (Cal.) June
  18, 2010)).

65
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.

66
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.

67
A few ECD cases to consider

• (02/25/09) (UR) Releford v. City of Tukwila, Slip
  Copy, 2009 WL 497131 (W.D.Wash.,2009)
• 65, 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)

68
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

69
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)

70
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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Analyzing Fourth Amendment Force
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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))

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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

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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.

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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.

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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

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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

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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)

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ECD Force Must be Justified

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

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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.

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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)

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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)

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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

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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.

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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

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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

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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.

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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.

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Electronic Control Devices Are Not Risk Free.
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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