Investigative Lessons Learned
from Temporal Deaths Associated
with 4th Amendment Seizures
Michael Brave, Esq., M.S., B.S.
National/International Litigation Counsel, TASER International, Inc.
Member/Manager, LAAW International, LLC
Email – brave@laaw.com
Telephone – (651) 248-2809
E-fax – (480) 275-3291
ECD Legal Resources Website – www.ecdlaw.info
ICD Resources – www.incustodydeath.com
www.ecdlaw.info
• I am not picking on anyone.
• I have never seen what I consider even a very
good such death investigation.
• They are so rare we have to learn from what
others have done, or failed to do, in the past.
• Since the early 1990s I have looked at
hundreds of such incidents or cases.
• < 1 per career
CHANGING PRESENTATION GEARS
(DR. MASH)
Changing Presentation Gears
as Dr. Mash said – there will
be more CEW electrical
effect on heart deaths – due
to the literature – why?????
Zipes’ “Case Series” May 22, 2012
Logical Fallacies:
• Aggrandizement:
(Zipes 2012) “It is clear from the information cited
above that an ECD shock to the chest can produce
cardiac electrical capture at rapid rates in animals
and humans.” (emphasis added)
• Circular Reasoning:
(Zipes, 2012) "Although it is possible that body size
might influence cardiac capture and development of
VF, clearly big people can still develop VF from an
ECD shock (see the Table).“ (largest 220 pounds)
What does this mean?
CIRCULAR JUNK SCIENCE EXAMPLE
Circular Junk Science Example:
(Zipes 2012)
"The concept of cardiac capture by transthoracic
electrical impulses in humans was pioneered by
Zoll,8 replicated by many others subsequently,9
and is now a standard part of resuscitative
equipment. The threshold for transthoracic
cardiac electrical capture is 100
microcoulombs,10 which is the output of the
TASER model X26.1
Circular Junk Science Example:
(Zipes 2012)
1. The concept of cardiac capture by
transthoracic electrical impulses in humans
was pioneered by Zoll,8
2. replicated by many others subsequently,9 and
3. is now a standard part of resuscitative
equipment.
4. The threshold for transthoracic cardiac
electrical capture is 100 microcoulombs,10
5. which is the output of the TASER X26.1
Perceptions from Zipes Case Series:
• Is “cardiac capture” dangerous?
• What is the electrical charge necessary for
transthoracic cardiac capture?
• What is the electrical charge delivered by a
TASER X26 CEW?
• Thus, does scientific literature establish that
an X26 CEW causes cardiac capture?
• Thus, does this establish that an X26 CEW
causes death by direct electrical stimulation of
the heart?
Myerburg Editorial May 22, 2013
Circular Junk Science Example:
(Myerburg Editorial (Zipes 2012)
"Both clinical concepts and experimental data
support this and are well summarized in Zipes’
discussion.2 The most salient points are that the
energy delivered by the device is sufficient to
achieve transthoracic capture when delivered to
the anterior chest, analogous to clinical
transthoracic pacing,7 in combination with a rate
of stimulation that is sufficient to induce
ventricular fibrillation."
Circular Junk Science Example:
(Myerburg Editorial (Zipes 2012)
1. Both clinical concepts and experimental data
support this and are well summarized in
Zipes’ discussion.2
2. The most salient points are that the energy
delivered by the device is sufficient to
achieve transthoracic capture when
delivered to the anterior chest, analogous to
clinical transthoracic pacing,7
3. in combination with a rate of stimulation that
is sufficient to induce ventricular fibrillation.
Perceptions from Zipes/Myerburg:
• Is “cardiac capture” dangerous?
• What is the electrical charge necessary for
transthoracic cardiac capture?
• What is the electrical charge delivered by a
TASER X26 CEW?
• Thus, does scientific literature establish that
an X26 CEW causes cardiac capture?
• Thus, does this establish that an X26 CEW
causes death by direct electrical stimulation of
the heart?
Circular Junk Science Example:
(Zipes 2012)
1. The concept of cardiac capture by
transthoracic electrical impulses in humans
was pioneered by Zoll,8
EN 8 - Falk RH, Zoll PM, Zoll RH. Safety and efficacy
of noninvasive cardiac pacing: a preliminary report.
N Engl J Med. 1983;309:1166 –1168.
Circular Junk Science Example:
(Zipes 2012)
2. replicated by many others subsequently,9
EN 9 - Klein LS, Miles WM, Heger JJ, Zipes DP.
Transcutaneous pacing: patient tolerance, strengthinterval relations, and feasibility for programmed
electrical stimulation. Am J Cardiol. 1988;62:1126 –
1129.
Circular Junk Science Example:
(Zipes 2012)
EN 9 – Klein LS … Zipes DP 1988
Also, the 1988 Klein paper (their Fig. 2) showed that it took
another 20 mA (milliamperes) (= 800 µC) to get more rapid
pacing similar to that attainable with an internal pacemaker.
And, this was at a pacing rate still far slower than the rate
required or necessary to induce ventricular fibrillation (VF).
Circular Junk Science Example:
(Zipes 2012)
3. is now a standard part of resuscitative
equipment.
Circular Junk Science Example:
(Zipes 2012)
4. The threshold for transthoracic cardiac
electrical capture is 100 microcoulombs,10
EN 10 - Grimnes S, Martinsen OG. Clinical
applications of bioelectricity. In: Biomedical
Engineering Desk Reference. 1st ed. New York, NY:
Elsevier; 2009:241–382.
Circular Junk Science Example:
(Zipes 2012)
EN 10 – Grimnes
In the 1964 Zoll paper, cited in the Grimnes treatise,
statement that the researchers used “long
subcutaneous precordial needles” (emphasis added)
references endnote 4 (of the 1964 Zoll paper).
Endnote 4 is: Zoll, P. M., H.A, Frankl,. R.N. Zarskya, J.
Linenthal & A.H. Belgard. 1961. Long-term electric
stimulation of the heart for Stokes-Adam disease.
Ann. Surg. 154: 330.
Circular Junk Science Example:
(Zipes 2012)
5. which is the output of the TASER X26.1
EN 1 - Test results for the Model X26 conducted
energy weapon (CEW) in accordance with TASER
International device specifications. April 22, 2009.
Report A85R9006/9031/9059B1.
Circular Junk Science Example:
(Myerburg Editorial (Zipes 2012)
The mot salient points are that the energy
delivered by the device is sufficient to achieve
transthoracic capture when delivered to the
anterior chest, analogous to clinical
transthoracic pacing,7
EN 7 - Falk RH, Zoll PM, Zoll RH. Safety and efficacy
of noninvasive cardiac pacing. A preliminary report.
N Engl J Med Sci. 1983;309:1166 –1168.
Circular Junk Science Example:
Zipes:
EN 8 - Falk (1983)
EN 9 – Klein, Zipes (1988)
- for higher capture rate
EN 10 – Grimnes (Zoll)
EN 1 – TASER X26
Myerburg:
EN 8 – Falk (1983)
MINIMUM Pacing Tresholds
1,680-3,200 µC
1,800-4,000 µC
+ 800 µC
“long precordial needles”
100 µC
1,680-3,200 µC
Perceptions from Zipes/Myerburg:
• Is “cardiac capture” dangerous?
• What is the electrical charge necessary for
transthoracic cardiac capture?
• What is the electrical charge delivered by a
TASER X26 CEW?
• Thus, does scientific literature establish that
an X26 CEW causes cardiac capture?
• Thus, does this establish that an X26 CEW
causes death by direct electrical stimulation of
the heart?
Circular Junk Science Example:
Falk (1983), Klein/Zipes (1988), Grimnes/Zoll:
- MINIMUM “HARMLESS” capture thresholds
- NO dangerous capture rates
- NO VF or cardiac arrest (NO one died)
Pediatric transthoracic capture threshold:
- 1,160–3,920 µC - 53 of 56 patients (ages 0.9–17.9
years) resulted in successful capture
Transcutaneous Cardiac Capture to VF Safety Margins:
- 12.6 ± 2.9 times or 1,260 %
PYRAMID OF SCIENCE
“CASE SERIES”
Circular Junk Science Example:
(Zipes 2012)
1. Zipes 2012 “case series”
In no death incident did the medical examiner (ME)
determine that the cause of death was direct CEW
electrical stimulation of the heart.
2. Inappropriately aggrandize “case series” to
methodologically reliable science
3. Some MEs now use Zipes’ case series as their
support for concluding CEW electrically
induced cardiac arrest
Case Series Not Reliable for Causation
(the Pyramid of Science)
Case Series Not Reliable for Causation
“Case series generally provide weak evidence of
causality because they are particularly prone to
bias and confounding.”
In the hierarchy of scientific evidence, a case
series has very important weaknesses, including:
"[l]ack of comparison group markedly limits
conclusions about causality" and "[r]isk,
incidence, prevalence cannot be ascertained"
SHOW HUMAN PDF
CEW DTH Distance ≤ 16.7 mm
May 24, 2012 Zipes’ deposition (pgs 159-160)
24 Q … can you state to a reasonable degree of
25
certainty that any dart-to-heart distance greater
1
that 16.7 millimeters can cause low rate cardiac
2
capture in humans?
3 A I have no data. I can't state one way or another.
First Need Cardiac Capture
May 24, 2012 Zipes deposition (pgs 164-165)
21 Q When we left, we were talking about cardiac capture.
22
Just to be clear, the first element or factor
23
necessary in order to have cardiac effect on a human
24
being from the stimulation by a TASER electronic
25
control device is cardiac capture, correct?
165
1 A Yes.
Logical Fallacies:
• Inappropriate Analytical Leaps
"In 1 example, intravenous epinephrine in an
anesthetized pig, infused at a concentration that
increased the spontaneous sinus rate 50% to
replicate the clinical “fight or flight” situation,
improved the TASER model X26 electrical capture
ratio from 3:1 to 2:1 and resulted in VF induction.12“
[Zipes, D.P. 1975. Electrophysiological Mechanisms Involved in
Ventricular Fibrillation. Supplement III to Circulation, Vols. 51
and 52, December, 1975, pages III-120 - III-300.]
- (Epinephrine initially decreased VFT, then increased VFT. )
SHOW 220 POUND SUBJECT PDF
Temporal Deaths Associated
with 4th Amendment Seizures:
How Much Risk is Acceptable?
What probability of risk is acceptable?
• Criminal prosecution
• Justified civil lawsuit
• Money
• Political
• Community
What is the definition of “zero?”
How much effort, time, resources, money will be
put into the death investigation?
INVESTIGATIVE REALITIES
Investigation Realities:
• Frequency: < 1 per career
• Cannot identify issues
• Do not access literature
– Mis-assumes all literature is equally reliable
• Do not know what to look for
• Investigative bias/fallacies
• Do not know importance of capturing certain
information/evidence
• Failure to capture, maintain evidence
• False evidence
Investigation Realities:
• Evidence errors (ambiguous, vague,
transcription, bad questions)
• Failure to clear conflicting evidence
• Do not know the universe of possibilities
• Does not understand/clearly state certainty
• Do not know how to filter in/out specific
possibilities
• Do not know the literature
• Do not know the underlying scientific
principles, foundational concepts
Start With a Couple Key Points
•
•
•
•
Once in a career, or less
Understand the risks faced today (including CRM/DOJ)
Use radio to clearly time stamp key events
Understand that without clear video/audio
recordings courts are usually required to view facts
from subject’s perspective
• Understand that some judges will interpret facts of
case through their eyes, not yours
• Understand importance of reporting, investigation,
documentation, and spoliation of evidence
• Understand differences between “possible,”
“potential,” and “probable”(4th Amendment force justification)
Investigation Basics:
•
•
•
•
•
•
Purpose of Investigation?
Who will investigate?
Who will be involved/included in investigated?
Who is the investigation for?
What should the investigation do/allow?
Who will make decisions based upon the
investigation?
WHAT ARE THE NUMBERS
Estimates: Law Enforcement
Encounters, Arrests, Force, Deaths
Event (estimates)
US Population (2010)
Total Number
Ratio
Rate
308,745,538
1:1
100%
39,914,000
1:6
16.9%
Force Used or Threatened on those FTF Contacts (2008)
776,000
1:51
1.4%
Force Used Against Them Felt Force Excessive (2008)
447,000
1:1.74
74.3%
61,249
1:7.3
13.7
308,745,538
1:1
100%
13,122,000
1:23.5
4.2%
196,830
1.5–2:100
600
1:328
Police-Public Face-to-Face (FTF) Contacts (total) (2008)
Force, Person Believed Excessive Filed Complaint
Arrest – Force – Death Numbers (estimates)
US Population 2010
Arrests (2010) (BJS FBI statistics and definitions)
Force Used Per Arrests (calculated 1.5%)
Deaths Per BJS/FBI Arrests (estimated)
[1]
Snyder, H.N., Arrest in the United States, 1990-2010. Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice. October 2012, NCJ 239423.
0.003%
Law Enforcement Officer (LEO) Temporal
Related Deaths Per Category Summary Table
Category of deaths (mortality)
Deaths per temporal factor
LEOs use of weapons deaths
Pepper spray deaths per uses
Jail inmates deaths per year
LEOs deaths per year
Arrests deaths per arrests
1 death per 323 arrests using weapons
1 death per 600 uses of pepper spray
1 death per 658–709 jail inmates
1 death per year for every 5,521 LEOs
1 death per 15,384.6 arrests
Deaths per 100,000 of
specific incident
150 per 100,000 inmates
18 per 100,000 LEOs
6.5 per 100,000 arrests
Estimates: Temporal Arrest–Related Deaths
per Uses of Force
2013 Hall
2012 Hall
2010 Strote
2009 Bozeman
2008 Eastman
2003 Koehler
[1]
(all uses of force)
(all uses of force)
(CEW study)
(CEW study)
(CEW study)
(all uses of force)
# Uses of Force
4,992
1,269
1,101
1,201
426
Deaths
Ratio
7
1
0
2
1
1:713
1:1,269
0:1,101
1:600
1:426
Rate (%)
0.14
0.07
0.00
0.01
0.02
Hall, C. 2013. RESTRAINT . Canadian Police Research Centre, Canadian Safety and Security Program, Government of Canada. October 2013.
Hall, C.A., McHale, A., Kader, A.S., Stewart, L.C., MacCarthy, C.S., Fick, G.H. 2012. Incidence and outcome of prone positioning following police use of force in a prospective, consecutive cohort
of subjects. Journal of Forensic and Legal Medicine xxx (2012) 1–7.
[3] Strote J, Walsh M, Angelidis M, Basta A, Hutson HR., Conducted electrical weapon use by law enforcement: an evaluation of safety and injury, J Trauma. May 2010; 68(5):1239–1246.
[4] Bozeman, W.P., Hauda, W.E., Heck, J.J., Graham, D.D., Martin B.P., Winslow, J.E. 2009. Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officers Against
Criminal Suspects. Annals of Emergency Medicine. Volume 53, Issue 4, Pages 480-489, April 2009.
[5] Eastman, A.L., et al., Conductive electrical deces: a prospective, population-based study of the medical safety of law enforcement use, J Trauma, 2008, 64(6): p. 1567–72.
[6] Steven A. Koehler, MPH, PhD, et. al., Deaths Among Criminal Suspects, Law Enforcement Officers, Civilians, and Prison Inmates: A Coroner-Based Study, The American Journal of Forensic
Medicine and Pathology, pages 334–338, Volume 24, Number 4, December 2003.
[2]
2013
Basic Numbers
Importance of putting
issues and outcomes into
perspective
Some Basic Numbers (Law Enforcement)
(percentage of populations (approximate numbers with different years of analyses))
Who law enforcement encounters (population %):
• 4.3 % (1:23) DUI illicit drugs (of age 16+ population)
• 8.7 % (1:11.5) Current Illicit Drug Users (of age 12+ population)
• 8.9 % (1:11.2) Classified with substance dependence or
abuse in past year based on DSM-IV criteria
• 10.9 % (1:9.2) In Serious Psychological Distress (“SPD”)
Law enforcement numbers (percentages):
• 17.0 % of U.S. population had LEO Face-to-Face (“FtF”) encounters
(annually)
• 1.4 % of LEO FtF encounters involved LEO threaten/use force
• 2.1 % of LEO arrests involved LEO’s use of weapon
• 19.0 % of LEO force recipients reported injuries
• 75.0 % of force recipients felt LEO’s force was excessive
Some Basic Numbers (Deaths)
•
•
•
•
•
•
•
1.6 deaths per 100 hospital ER admissions (weekdays)
1.8 deaths per 100 hospital ER admissions (weekends)
1 death per 126 people in U.S. population (annually 2009)
1 death per 323 LEOs’ uses of weapons
1 death per 600 LEOs’ uses of pepper spray
1 death per 700 persons jailed
1 Sudden Cardiac Death (“SCD”) per year:
– 1,282 NCAA basketball black male athletes
– 3,126 NCAA basketball all Division I male athletes
• 1 death per 5,521 LEOs (annually)
• 1 death per 7,692 Military recruit-years (non-traumatic)
• 1 death per 15,385 arrests
Some Basic Numbers
(of deaths annually (2009))
2009 - US Population Death/Mortality Numbers:
• 1 death per 126 people in the population
– 2009: 307,006,550 people ÷ 2,436,682 deaths = 125.9937
2009 - Of those 2,436,682 deaths:
• 1 death for every 18.81 people who died was
caused by drugs, suicide, firearms, or alcohol
• 1 death for every 65 people who died was
caused by drugs (37,485 drug deaths)
Basics Numbers: US Drug Deaths
Basics Numbers: Specific Deaths
STARTING AT THE END
Starting at the End
•
•
•
•
•
Clearly identify ALL issues
Fully research ALL issues
Acquire relevant literature
Share literature, outlines with others
Accumulate ALL relevant:
– Policies (including historical)
– Training records
– Daily records/logs
• Create clear tables, charts, synopses
• PREPARE witnesses for testimony
Starting at the End
• Consider: Testimony and decisions made 5+
years from incident?
• Start with clear (annotated) timeline
• Create reference tables, lists, outlines
• Use optimal recording devices:
– Video
– Audio
– Digital
– Transcripts (VERIFIED accurate)
– Copies (including color)
Starting at the End
Complete unambiguous documentation of
events/evidence?
• Bad documentation (first person or other?)
– E.g. ER records – presenting: asystole, PEA, VT, VF
• Eliminating as many facts issues as possible
– Word definitions
• E.g. “puncture” (probe or drive stun?)
– Actions
• “Shocked” or “Gave shock”?
• Resolving fact issues and conflicts
• Clear, precise terms, definitions, phrases
Starting at the End
• Complete annotated appendices (30 second)
– Bankers boxes
– Chronological pages
– Same issue in multiple locations
– Often 1,000 pages
– Well organized (Bates stamped)
– Consider reviewers, decision makers
• Is all evidence admissible at trial - regardless
of availability of witnesses?
– E.g. officers unavailable
– Confirmed by records custodians
PLAINTIFFS’ / CRITICS’ OBJECTIVES
What Are Plaintiffs'/Critics' Objectives?
• Use or create fact issues to get to a jury
• Litigate case based on emotion
• Do not put the case into context or
perspective
• Litigate case founded on logical fallacies
• 10,000 gallons of crap against the wall
• Accumulate 42 USC 1988 attorneys' fees
(Attorneys' Fees Award Act of 1976)
INVESTIGATION BASICS
Basics
• At scene incident documentation
– POV recordings
– Motorola memory
– Prevent loss/destruction of evidence
• Identify all potential issues
– Have to know what the issues are
• Research all issues (and underpinnings)
• Identify all potential evidence
– Avoid loss or spoliation of evidence
– Identify time sensitive evidence
– Clearly delegate (in writing) evidence collection
Basics
• Investigation
• Investigation documentation
– Efficient organization
– Bates stamping
• Report creation
– Complete annotated appendices
• Locate any information within 30 seconds
• Formulating conclusions
• Decisions made based upon conclusions
provided
Realities of (4th Amendment) Seizure
Temporal Death and Investigation:
• Language - word meaning - differences
– Words mean different things to different groups
• Levels of certainty
• Failure to determine degree of medical,
scientific, forensic certainty
• Supported by literature
• Underpinnings of conclusions supported by
literature
• Logical Fallacies
LOGICAL FALLACIES
(EXAMPLE)
Examples of Logical Fallacies:
•
•
•
•
•
•
•
•
•
•
Causal over simplification
Post hoc ergo propter hoc (temporality fallacy)
Confirmation bias
Argument from ignorance
Quote mining
Fallacy of quoting out of context
Circular reasoning
Correlation proves causation
Appeal to authority fallacy
Proof by verbosity
INVESTIGATION KEY PARTICIPANTS
Investigation Key Participants:
(1) Incident Scene:
(a) Dispatch supervisor
(b) Dispatcher
(c)
Officers
(d) On-Scene Supervisors
Investigation Key Participants:
(2)
Post-Incident Medical Care:
(a) Fire/EMS Personnel (including dispatcher)
(b) Ambulance Personnel
(c)
ACLS/Paramedics
(d) Hospital Personnel (ER, Nurses, Doctors)
Investigation Key Participants:
(3)
Law Enforcement Supervisors/Trainers/Execs:
(a)
(b)
(c)
(d)
Field Supervisors
Trainers
Middle-Level Supervisors
Decision Makers
Investigation Key Participants:
(4)
(5)
(6)
Elected/Government Interference
Special Oversight Person, Groups
Incident Investigators:
(a) Investigators
(b) Coroner/Medical Examiner Investigator
(c) Special investigators (FBI, CRD (DoJ))
(7)
(8)
Medical Examiner, Coroner, Forensic Pathologist
Specialty Pathologist, Toxicologist, Researcher
Investigation Key Participants:
(9)
(10)
(11)
Media
Family Members and Friends
Special Interest Groups/Critics
BASICS OVERVIEW
Basic Concepts Overview:
•
•
•
•
•
•
Junk Science Circle
Degrees of Certainty
Mechanism of Effect
General - Specific Causation
Scientific Reliability
Investigation Realities:
Basic Legal
Concepts
Basic Legal Concepts
• Plaintiffs can allege (almost) anything
• Plaintiffs’ primary goals:
– To get attorneys’ fees (42 USC § 1988)
– To get in front of a jury
•
•
•
•
Law can be extremely flexible (discretion standard)
Know some judges will not follow the law
Know some judges are anti-law enforcement
Know some judges/juries emotion over law or logic
– To extort a settlement
– Beware the anti-law enforcement crusader
Basic Legal Concepts
• Burden of proof in a civil case:
– by a preponderance of the evidence
– more likely than not
– 50.1 percent
• Summary judgment motion (MSJ):
– court “MUST” take the facts as offered by the MSJ
opposing party
• UNLESS incident recording trumps party’s stated facts
(Scott v. Harris, USSC)
Basic Legal Concepts
• 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 (November 30, 2010)
• Money:
– Unlimited damages (for practical purposes)
– 42 USC § 1988 attorneys fees (since 1976)
Clearly Record the Incident
• If available, use on-officer point of view (“POV”)
incident recording equipment
• When safe, use radio to establish record of
significant events with dispatch time logs (call in):
– Immediately at end of CEW use
– Immediately upon subject being handcuffed
– Person’s perceived medical status and condition
(pulse (where taken), breathing, eyes open, alert,
flailing, leaning, lying on left side, medical distress,
etc.)
Evidence Gathering*
Capture all relevant evidence, including:
• CEW probes and wires
• do not allow items to be placed into
biohazard container or destroyed.
• Collect the clothing where CEW was applied
• Photograph injuries and lack of injuries
• Collect all relevant videos, audios, dispatch
• Expeditiously download CEW firing data
A “Few” Basic Numbers
Person Deaths:
(Involving Law Enforcement Officers (LEOs)):
~ 1 death per 15,385 arrests
~ 1 death per 700 people going to jail
~ 1 death per 600 uses of pepper spray
~ 1 death per 323 arrests using weapons
Death Rate in Jails
• (2000-2007) Local Jails (in-custody deaths):
– 8,110 deaths in local jails from 2000 through 2007
– 1 death per 658-709 inmates (depending on year)
• Rates of jail in-custody deaths:
– Local Jails: 141-152 deaths per 100,000 inmates
– Nevada: 247 deaths per 100,000 inmates
– National average: 250 deaths per 100,000 inmates
– Western states: 219 deaths per 100,000 inmates
• Ontario: 211.5 deaths per 100,000 inmates