Memorandum

City of Lawrence

Legal Services

 

TO:

Toni Ramirez Wheeler, Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

January 14, 2007

 

RE:

TASER Liability / Risk Analysis Summary

 

The Technology

 

The TASER (an acronym for Thomas A. Swift’s Electric Rifle) was invented by NASA scientist Jack Cover in the 1970s, but its proliferation as a practical force option for law enforcement has only taken place over the last decade.  Currently, according to TASER International, TASER brand technology is used by more than 11,000 of the country’s 18,000 law enforcement agencies.  Many law enforcement agencies in the area use TASERs, including the Douglas County Sheriff’s Office, the Kansas Highway Patrol, the Topeka Police Department, and many agencies in the Kansas City metro area. 

 

TASERs can be used in two ways -- at range through a cartridge deployment or without a cartridge in a touch stun or drive stun mode.  In a cartridge deployment, gas propelled barbs lodge themselves in the skin or clothing of the suspect prior to the initiation of several electrical pulses.  The physiological effects of the TASER application vary significantly based upon how the device is used.  In drive stun mode, the device works through pain compliance, much as do the non-lethal force options currently available to the police.  TASER drive stuns, empty hand techniques, collapsible batons, pepper spray and bean bag rounds from a shotgun all work the same way.  In order for them to be effective, the officer or officers must physically overpower the suspect or overcome his or her will to continue resisting.  TASER cartridge deployments at range, however, work by neuromuscular incapacitation.  They override a person’s coordinated neuromuscular control for the duration of the weapon’s electrical pulse.

 

TASERs also provide enhanced accountability over existing force options because they electronically record every time that they are used and disperse discretely numbered pieces of paper in the area of deployment if a cartridge is fired.

 

From a risk analysis standpoint, there appears to be a consensus that TASERs are beneficial when used by someone with proper training in appropriate circumstances.  The League of Minnesota Cities Insurance Trust has concluded that these weapons “provide police officers with a safe and effective tool for controlling dangerous behavior and overcoming resistance, and using them has resulted in a considerable reduction of arrest-related injuries to both officers and subjects.”[1]  The National League of Cities passed a resolution in December, 2006 calling upon Congress to financially assist local law enforcement agencies with TASER acquisition, finding that the devices are safe and effective tools to deescalate violence and prevent arrestee injury. 

 

Benefits

 

Law enforcement agencies that have deployed TASERs have experienced substantial benefit in three main areas:  avoiding the use of lethal force even when it would be legally authorized, reducing suspect injuries, and decreasing injuries to police officers.  Predicting the precise extent to which TASERs would benefit the City of Lawrence in each of these categories is impossible because there is substantial variability in how different departments introduce and use the technology. 

 

Few people dispute that TASERs have the potential to save suspect lives when they are used in circumstances where deadly force is authorized.  For example, in a recent study[2] of 2452 uses of TASERs against mentally ill subjects during a 72 month period, the authors found that 45.3% of those uses were in situations where lethal force would have been legally justified or where the subject was an imminent threat to his or her own life.  Many cities such as Oklahoma City, Seattle, Charlotte, Phoenix and Dallas experienced major decreases in officer involved shootings or reported a significant number of incidents in which the use of otherwise lawful deadly force was avoided through the TASER.  In some situations, such as encounters with hostile individuals armed with firearms and ready to use them, however, it is too dangerous to attempt to use the TASER.

 

In regards to suspect injuries, many cities have experienced a 40% or greater decrease immediately following the introduction of TASERs.  For example, Phoenix experienced a 67% decrease in these injuries.  Austin, Texas noted an 82% decrease in serious injuries to suspects.  Charlotte – Mecklenburg had suspect injuries decrease 79%.  The Cape Coral (FL) Police Department reported a 68% decrease.  The Topeka Police Department’s introduction of TASERs likely contributed to the 41% decrease in suspect injuries the following year.  Suspect injuries are not of concern solely because the police should avoid injuring members of the public when reasonably possible.  They are also important because even when the use of force was justified, a city may incur expenses based upon its obligation to provide its prisoners medical care.

 

The third area of benefit involves injuries to police officers.  Policing is a high risk profession and police officers regularly sustain on-the-job injuries, often from the struggle of taking a combative suspect into custody.  Beyond the City’s general desire that its employees not be injured in its service, the reduction of injuries to police officers benefits the City in a pair of ways.  It keeps more police officers available to respond to the community’s calls for service and reduces worker’s compensation costs.  Listed below are the decreases in officer injuries that several cities have experienced after TASER adoption.  Please note that the study period varies depending on jurisdiction, and the jurisdictions deployed different amounts of TASERs as a percentage of their police forces so directly comparing the numbers may be difficult.

 

Jurisdiction

Percent of Injury Decrease

Orange County, Florida Sheriff’s Dept.

80% (over two years)

Putnam County Florida Sheriff’s Office

86%

South Bend Police Department

66%

Austin Police Department

50%

Charlotte – Mecklenburg Police Dept.

59%

Cape Coral, Florida Police Dept.

93%

Topeka Police Department

46%

Sarasota Police Department

65%

Omaha Police Department

47%

Cincinnati Police Department

56%

Columbus Police Department

23% (six month field trial)

 

Risks / Criticism

 

TASER International, the device manufacturer, claims that their device is safer and more effective than other extant non-lethal force technologies.  According to the company, it has successfully defended itself from product liability lawsuits, prevailing through dismissal, summary judgment or jury verdict in 61 consecutive cases as of December, 2007.  Even working as intended, however, TASERs create some potential injury risks, such as the risk of injury as a result of falling, barb penetration of sensitive areas, and contact burns from drive stuns.  It is important, however, to recognize that any use of force discussion cannot be held in a vacuum.  The proper comparison is not between the TASER and no force at all, but is instead between the TASER and other existing force options.

 

Amnesty International and the American Civil Liberties Union have called for a moratorium on TASER use in situations where non-lethal force is not authorized and have attempted to draw a link between in-custody deaths and TASER usage.  Individuals have died following TASER application, which is cause for concern as any time electrical current is introduced into the human body the obvious fear is the potential of the current to cause ventricular fibrillation and cardiac arrest.  TASER International cites to a variety of sources to establish that it would take tens of times more electricity than the device outputs to cause those effects, even in vulnerable populations.  A study published last month by the United Kingdom Defense Science and Technology Laboratory in the December 21, 2007 issue of Physics in Medicine and Biology entitled “Electromagnetic modeling of current flow in the heart from TASER devices and the risk of cardiac dysrhythmias” seems to support this conclusion, at least in regards to the normal human population.  Other studies have come to similar conclusions for individuals under the influence of controlled substances such as cocaine as well as for those equipped with pacemakers.     

 

Statistics comparing the number of TASER uses with the number of adverse outcomes are cited by TASER proponents as support for the relative safety of the devices.   TASER operators usually experience being tased at least once during their training process.  Together with actual field use, it is estimated that TASERs have been used safely in excess of 500,000 times.  TASER proponents argue that if the TASER had the potential to induce ventricular fibrillation, it would be obvious by now, especially since when a person is electrocuted the electricity stops the heart almost immediately. 

 

In the absence of another explanation, shouldn’t it be safe to assume that TASERs have some role in the deaths?  While the correlation between TASERs and in-custody deaths deserves continuous study and monitoring, the correlation does not necessarily indicate that there is causation.  There has been at lease one alternative explanation offered for many of the deaths – excited delirium.

 

The existence of excited delirium remains controversial in that it is not a diagnosis recognized by the Diagnostic and Statistical Manual of Mental Disorders, but the National Association of Medical Examiners has recognized its existence for some time.  Researchers in the area contend that that people with the symptoms of excited delirium have been recognized as early as the 1800s.  The mechanism of death in these cases is thought to be one or more of the following:  an uncontrolled increase in body temperature, a change in blood acidity, an electrolyte imbalance, and a breakdown of muscle cells and a leaching of cellular content which makes the body more susceptible to ventricular fibrillation.    

 

Excited delirium was originally used by medical researchers to describe the extreme end of a continuum of drug abuse effects.[3]  It is clear that in-custody deaths were being attributed to excited delirium prior to any substantial field deployment of the TASER technology and there are cases completely unrelated to TASERs.  For example, a December 10, 2003 CBS News report on 60 Minutes II profiled a pair of deaths that were attributed to excited delirium, but no TASERs were involved.

 

Among other symptoms, an individual in a state of excited delirium often has tremendous strength and endurance, is impervious to pain, paranoid and aggressive.[4]  This presents obvious challenges to officers who must use pain compliance techniques or brute force to subdue such an individual.

 

Legal Framework for Use of Force

 

The Fourth Amendment is the constitutional provision used to evaluate the use of force by police and it requires that any use of force by the police be reasonable, as measured from the perspective of a reasonable officer at the scene.  This standard allows for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.

 

There are two types of force under the law – deadly and non-deadly.  Even if, for the sake of argument, a small number of people have died from TASER use, TASERs fall into the category of non-deadly force, as they are not likely to cause death or great bodily harm.  Therefore, they may be used when that use is generally reasonable.  Although courts from other jurisdictions have approved their use against people who were not actively combative with the police, the only published decision on this subject from a court in this jurisdiction, Hinton v. City of Elwood, Kansas, 997 F.2d 774 (10th Cir. 1993), approved their use against individuals actively resisting against the police (fighting against the police rather than merely failing to comply with police commands).  The proposed TASER use policy for the Lawrence Police Department would allow for the use of the TASER against an individual only if that person is actively resisting arrest or in circumstances where deadly force is authorized.  This conservative approach places TASER use roughly on par with a baton strike in terms of when each could be used.

 

Another question that springs to mind in a TASER discussion is whether there is any potential liability for a city that does not deploy TASERs.  This argument has or is being made in at least two cases, but the one court to decide the issue has rejected it.  Carswell v. Borough of Homestead, 381 F.3d 235 (3rd Cir. 2004).  I doubt that courts will impose liability for failure to equip police officers with TASERs, at least in the foreseeable future.  As previously mentioned, the litmus test for a constitutional violation for excessive force is whether the force chosen was reasonable under the circumstances.  Many different types of force may be reasonable in any given circumstance.  The law does not require that police select the lowest level of constitutionally reasonable force.  This area of the law should, however, be monitored for further developments.

 

Recommendation

 

While it is important to recognize that a controversy exists over the use of TASERs, I believe that current research shows they offer many advantages over other force options both to the members of the public and the police officers who serve them.  TASERs are currently used by a majority of law enforcement agencies in the United States.  Recent studies have bolstered their case for their safety, and under any factual view of the technology I believe that they will be categorized as non-lethal force under the Fourth Amendment.

 

If the Lawrence Police Department deploys TASERs I believe we could expect to see an appreciable reduction in officer and suspect injuries, and perhaps in deadly force incidents.  If we have a negative outcome from TASER use, however, we may expect litigation.  Legal precedent supports the reasonableness of TASER use when deadly force is justified or against active resistance.  The proposed policy incorporates this standard and addresses other issues like falling risk and the need for medical attention.

 

If I can provide you with further information of more specific recommendations, please let me know.


[1] Report entitled “Police Use of Conductive Energy Devices (TASERs)” published by the League of Minnesota Cities Insurance Trust (10/2005)

[2] “Impact of conducted electrical weapons in a mentally ill population: a brief report.” By Jeffrey Ho, M.D., Donald Dawes, M.D., et al, American Journal of Emergency Medicine, Volume 25, Issue 7, September 2007, Pages 780-785.

[3] “Excited Delirium: Does it Exist?” by Mary Paquette, Perspectives in Psychiatric Care, July – September 2003.

 

[4] “Overview of Excited Delirium and Law Enforcement Response”, League of Minnesota Cities Insurance Trust Risk Management Information, October 2005.