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 Litigation Counsel, TASER International, Inc.
President, LAAW International, Inc.
Basics
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TASER International does not create,
recommend, or endorse policy.
Keep up to date –
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Information overload
www.ecdlaw.info (owned by LAAW International, Inc.)
www.ipicd.com or www.incustodydeath.com
Learn the “science” not the “myths”
Constitutional standards of force history
Understand actual legal standards
ECD Political or Actual Risks?
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Media/Special Interest Group Risks?
Outcome vs. Process
Political correctness risks?
Politically motivated risks?
Ignorance risks?
Perceptual risks?
Actual risks (informed – science/logic based)
What the Courts are Saying?
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Torture?
How restrained is the person?
How passive is the person?
Member of “special” group?
Level of perceived risk from the person?
Lawful objective + perceived threat (physical)
Warning: lower threat = necessary warning
Elevated ECD Application Risk Factors
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Presence of flammable liquids/fumes or
explosive environments
Elevated positions
Person operating moving vehicle or machinery
Person running (fleeing)
Pregnant female (fall)
Swimming pool or other body of water
Intentional ECD application to sensitive areas
Frail or infirm individual
Perceived risk of repeated ECD applications
Societal perceptions/concerns creating
elevated justification factors
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Children
Seniors
Restrained subjects
Passive subjects who are being seized
Important URL Addresses
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www.ecdlaw.info
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Electronic Control Devices Legal Resources
www.ipicd.com or www.incustodydeath.com
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Institute for the Prevention of In-Custody Deaths
Especially the
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Articles page
Books page
Calendar page
IPICD Sudden Death Symposium Nov. 28-30 Las Vegas
Consider the Consequences?
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If “You” made statements, made decisions,
or took actions against a person based upon
the same level of ignorance (lack of knowledge),
speculation, unsupported statements, lack of
proof, lack of medical or scientific support,
subject to misinterpretation, rumor, bias,
innuendo, argument, etc. that some media,
special interest groups, and a few medical
examiners have recently used in ICD cases?
What would happen to “You?”
Questions
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Should agency ECD standards be based on:
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Scientifically invalid/unreliable speculation?
Media hysteria and mis-reporting?
Unsupported special interest group accusations?
Studies based on inflated standards?
ME findings lacking ECD causation evidence?
Illogical statements?
Statements exhibiting logical fallacies?
Causal oversimplification fallacy?
Good Science on Top of Junk Science?
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2005 Causation speculations unsupported by scientific
validity resulting in ultra-conservative guidelines.
Resulted in numerous conservative guidelines:
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June 14, 2005 Office of Police Complaint Commissioner
June 28, 2005 - TASER Int’l Training Bulletin/Warnings
August 22, 2005 - Canadian Police Research Center
August 2005 - IACP Model ECW Policy
October 2005 - IACP Conference (Miami, FL)
October 18-19, 2005 -PERF CED Guidelines
October 2006 - IACP Conference (Boston, MA)
Fall 2006 - FLETC Journal, Volume 4, Issue 2
2007 - Police Quarterly 2007, 2007, 10 (2), p. 170
May 2007 – AELE Monthly Law Journal (FLETC)
June 14, 2005 – OPCC (BC) Published
TASER Technology Report
Respiratory Impairment/pH Changes in Multiple
Applications Depending on probe location in
the upper torso, it appears likely that the
muscular tetany produced by a TASER
deployment could impair a subject's
respiration. ... [emphasis added]
June 14, 2005 – OPCC (BC) Published
TASER Technology Report
Training protocols, however, should reflect that
multiple applications, particularly continuous
cycling of the TASER for periods exceeding
15-20 seconds, may increase the risk to the
subject and should be avoided where
practical.
OPCC Report, page 31. [Emphasis added.]
June 14, 2005 – OPCC (BC) Published
TASER Technology Report
Thus, the OPCC Report used key adjectives
including “it appears likely,” “could,” and
“may.” These statements were speculative
and not based on published objective peer
reviewed human medical, scientific, or
engineering research.
June 14, 2005 – OPCC (BC) Published
TASER Technology Report
Also, note that with regard to a person’s
experiencing excited delirium on page 31 of
the OPCC Report, it states:
A single TASER application made before the
subject has been exhausted, followed by a
restraint technique that does not impair
respiration may provide the optimum
outcome. OPCC Report, page 32.
TASER Int’l June 28, 2005
Repeated, prolonged, and/or continuous
exposure(s) to the TASER electrical discharge
may cause strong muscle contractions that may
impair breathing and respiration, particularly
when the probes are placed across the chest or
diaphragm. Users should avoid prolonged,
extended, uninterrupted discharges or extensive
multiple discharges whenever practicable in
order to minimize the potential for over-exertion
of the subject or potential impairment of full
ability to breathe over a protracted time period.
August 22, 2005 CEDs, Technical Report, TR-01-02006, Canadian
Police Research Centre (“CPRC Report”)
The issue related to multiple CED applications
and its impact on respiration, pH levels, and
other associated physical effects, offers a
plausible theory on the possible connection
between deaths, CED use, and people
exhibiting the symptoms of excited delirium.
CPRC Report, page 4. [Emphasis added.]
August 22, 2005 CEDs, Technical Report, TR-01-02006, Canadian
Police Research Centre (“CPRC Report”)
Definitive research or evidence does not exist that
implicates a causal relationship between the use
of CEDs and death.
Existing studies indicate that the risk of cardiac
harm to subjects from a CED is very low.
ED, although not a universally recognized medical
condition, is gaining increasing acceptance as a
main contributor to deaths proximal to CED use.
2007-2008 Research?
NIJ Study of In-Custody Deaths
 PERF Study of Agency Policies
The question is – If a study is now (2007) being
conducted to determine when an agency will
allow an ECD to be used (what standard),
however, the agencies being studied
conservatively inflated the level at which an
ECD could be used because of scientifically
invalid speculations, then will the current
study results be inappropriately based upon
the unscientifically inflated standards (2005)?
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Some Basic Realities:
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2005 to present – The hysterical attacks!!!!!
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Ignorance + phobia + bias + negativity + agenda
No scientifically reliable bases for ECD causation
(a few) ME and (some) Media Errors:
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Ignorance (lack of knowledge)
Lack of (even basic) understandings of:
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ECDs, electricity, force
Scientific method and scientific reliability
Standards of certainty
Logical analyses and logical fallacies
The costs: “Homicide” or “Undetermined”?
To be an Expert?
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What do you know?
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Breadth and depth of knowledge?
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A little knowledge – can be “VERY” dangerous!
Ability to explain, put forth concepts?
Misperceptions can cost lives, careers …
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Areas of knowledge and understanding?
E.g. “Just below deadly force.”
“50,000 volts!”
Intellectual integrity?
Primer/Review – In-Custody Death
Prelude to Death – the Actual Causes
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Hiding drugs by swallowing/ingesting
Acute drug abuse
Chronic drug abuse
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Polydrug toxicity
Long-term mental health problems
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Usually leading to neuro-chemistry changes
Neuroleptic drug imbalance
Over ingestion of drugs
Failure to take prescribed drugs (or abrupt cessation)
Self-inflicted injuries or death (e.g. suicide)
Primer/Review – In-Custody Death
A “Victim” Emerges
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Deceased will likely be considered a “Victim”
Someone else is always at fault
Screams for a “Victim:”
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Family (inner circle)
Special Interest Groups (incl: those with agendas)
Media:
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Rush to judgment – regardless of the truth or accuracy
Sensationalism and hysteria
Need for controversial headline
Inaccuracies are the norm – not the exception
Complex science and concepts – only time for sound bites
Primer/Review – In-Custody Death
Post Incident Onslaught
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Emotion rules over logic
Panic self protection
Criticism avoidance
Anger and rage
Knee-jerk (over) reactions (appeasements?)
The importance of deflecting blame
Primer/Review – In-Custody Death
Causation
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Often futile search for single mechanism
Disbelief, surprise, unexpected, or diversion
Ignorance (of numerous knowledge areas)
Conspiracies
PDPCT (Plaintiffs’ Deep Pocket Causation Theories)
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He who has the deep pockets caused the death
He without deep pocket did not cause the harm
The “victim” is blameless
Primer/Review – In-Custody Death
Investigative Needs
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Need to understand science/standards
Need to understand issues/concepts
Need to collect and preserve scene
Need to accurately record incident
Need to collect all incident information
Need to collect medical histories
Need to collect drug and rehab histories
Need to timely collect deceased samples
Need to perform tests and analyses
Need to collect criminal histories
Primer/Review – In-Custody Death
ME/Coroner – Opinion Taken as Fact
Speculation Taken as Scientific Fact
 Police/Device “directly caused” the death
 P/D was a “direct cause” of the death
 P/D was the “contributory cause” of the death
 P/D was a “contributory cause” of the death
 P/D was associated with the death
 P/D was temporally tied to the death
 P/D was listed as a descriptor to the death
 P/D could not be ruled out
(A few) U.S. Medical Examiners
Why we are here?
Examples:
- (IN) Borden
- (OH) Holcomb (Summit County ME)
- (OH) Hyde (Summit County ME)
Example – (IN) James Borden
Investigative Shortcomings
Cause of Death
Consistent with cardiac dysrhythmia
Secondary to hypertrophic cardiomyopathy,
pharmacologic intoxication,
and electrical shock
Example – (IN) James Borden
Excerpt from CBS Evening News with Dan Rather – Eye on America
Investigation: Stun Gun Safety which aired on July 26, 2004:
Dr Roland M. Kohr: “This is the straw that
broke the camel’s back… The application of
the TASER, I believe, was the trigger factor
or the stressful event which stressed an
already damaged heart to the point where it
went into cardiac arrest.
Wyatt Andrews: “The TASER is what triggered
his heart attack…”
Dr. Kohr: “Definitely.”
Example – (IN) James Borden
Excerpt from CBS Early Show Report that aired on October 12, 2004:
Dr. Roland M. Kohr: "This is the straw that
broke the camel's back... The application of
the TASER, I believe, was the trigger factor
or the stressful event that caused an
elevation of blood pressure and an elevation
in heart rate which stressed an already
damaged heart to the point where it went into
cardiac arrest."
Example – (IN) James Borden
Kohr’s deposition – March 3, 2005
Page 192 Line 8 to Page 192 Line 15
Q So if someone were to say that the Taser definitely caused, was a
contributory cause of Mr. Borden's death, there would be no
scientific, medical, or forensic basis to make that strong of an
assertion, correct?
A Correct.
Q That would be a reckless statement?
A In my opinion, yes.
Page 389 Line 2 to Page 389 Line 5
Q You were asked by CBS News whether Taser was the triggering
event that caused Mr. Borden's death, and you answered
"Definitely," correct?
A Correct.
Example – (IN) James Borden
Legal Consequences & Costs
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Deputy David Shaw – 2 Felony Counts
Law Enforcement – Intense scrutiny/criticism
Society – avalanche of anti-ECD criticism
How many officers were injured?
How many suspects needlessly injured?
How many lives/careers irreparably harmed?
TASER Int’l – Borden snowballed into a multiyear litigation avalanche
Example – (OH) Holcomb
Cause of Death: Cardiac arrhythmia.
Due to: Drug induced psychosis.
Due to: (methamphetamine and MDMA/MDA0 intoxication,
acute.
Contributory conditions: Electrical pulse incapacitation.
Manner of Death: HOMICIDE: Used drugs; Sudden death
incurred during restraint.
Example – (OH) Holcomb
July 25, 2005 ME's Media Release
... In summary: Mr. Holcomb died from the
effects of methamphetamine and ecstasy
which sensitized his heart to the effects of the
TASER equipment that was required to
subdue him. But for the drug intoxication, the
use of the TASER would not have resulted
in death.
(emphasis added)
Example – (OH) Holcomb
July 18, 2006 deposition of Dr. Dorothy Dean
Page 106
Q Let me make sure I get the question straight
then. You're unable to tell us, to a reasonable
degree of medical certainty, the mechanism
by which you believe, to some extent,
electrical impulse is delivered by the Taser
contributed to his death, correct?
A That's correct, I cannot tell you.
Example – (OH) Holcomb
Page 170
Q And so the temporal proximity is the fact
upon which you rely to link the Taser to Mr.
Holcomb's death, correct?
A Yes.
Example – (OH) Holcomb
Page 188
Q You indicated, in response to counsel's
question, that you believe the Taser device
contributed in some way. I think you've
acknowledged that that "in some way" could
be as low as .00000000001 percent?
A Yes.
Example – (OH) Holcomb
Page 5
Q If an event happens first and then a second
event occurs some time after the first event,
do you agree that that does not necessarily
mean that the second event was caused by
the first event?
A Yes.
(OH) Hyde
January 5, 2005
Death of Dennis S. Hyde
Summit County (OH) Medical Examiner
Cause of Death: Probable cardiac arrhythmia
Due to: Acute methamphetamine intoxication and electrical
pulse incapacitation.
Contributing conditions: Psychiatric disorder with agitated
behavior; Blood loss by rterial injury.
Manner of Death: HOMICIDE: Sudden death occurred
during restraint.
(OH) Hyde
June 1, 2007
Deposition of George C. Sterbenz, M.D.
Dennis Hyde death case
P 168
Q ...And you do not contend that the TASER application
was greater than even one billionth of a percent of the
cause of Dennis Hyde's death because it's an
indeterminate contribution, correct?
A That's correct
(OH) Hyde
Pg 170
Q … You've said that the percentage [of TASER ECD
contribution to death] could be as little as a billionth of a
percent. It could be even smaller than that, true?
A True.
Q ... And as you sit here today, do you have an opinion, to
a reasonable degree of medical certainty, as to how the
TASER device actually contributed in any way to Mr.
Hyde's death?
A No. I don't.
(OH) Hyde
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Inflicted Force vs. Therapeutic Force?
Cause of death (to RDMP)?
Inflicted Force Contribution to death?
Manner of Death:
 Homicide,
 Accident, or
 Undetermined?
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What it means to involved officers?
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Putting It Into Perspective
The Litigation Landscape:
Plaintiffs’ attempts to support speculations
without scientific basis or support
Plaintiffs’ House of Cards
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Electricaphobia! -- irrational fear of electricity …
All Electricity is the Same! And, its DANGEROUS!!!!! (ball example)
Negative Inferences and Innuendo
Abbreviated Facts + Negative Spin + Sensationalism
Sky is falling - Single Incident Equates to Broad Generality
Inappropriate Attempts at Correlations
Stretching “Causation” to the Breaking Point
Negative Emotion is more important than scientific proof
Attempting to force defense to disprove the negative
Blame Shifting - Always someone else’s fault (Plaintiff = Victim)
Causation by Deep Pocket Analysis
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Just because I sued you – you should give me money!!!!!
Scientific Method v. Common Sense
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Scientific Method
Assessment of relevant
existing knowledge of a
phenomenon
Formulation of concepts
and propositions
Statement of hypotheses or
answer research questions
Design research
Acquire meaningful
empirical data or
observation data
Analysis & evaluation of
data
Proposal of explanation of
the phenomenon &
statement(s) of new
problems
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Common Sense
Observation – non-scientific
Bias (+ and -)
Self interests
View – Filtered glasses
Circle of Protection
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In Circle – can do no wrong
Fault – anyone outside
circle
No sampling
Cause & Effect based upon
the observation
Erroneous Conclusions
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The World is “Flat”
Acquiring Knowledge
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Science – A process that combines the principles of
rationalism with the process of empiricism, using rationalism to
develop theories and empiricism to test the theories
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Empiricism – gaining knowledge through observation
Rationalism – developing valid ideas using existing ideas and
principles of logic (cows are black, this is a cow, this cow is black)
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Mystical – knowledge from the gods, prophets, and supernatural
authorities
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Authority – accept the idea because it comes from a respected source
Intuition – e.g. hunches, gut feelings, accept ideas because they “feel”
true
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Tenacity – accepting ideas as knowledge because they have been
around for a long time
Scientific Method – Sequential Steps
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Publication
Communication phase – write a report
Interpretation phase – interpret the data
Data analysis phase – analyze the data
Methodology - Procedures designed to test the
hypothesis or answer research questions
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Problem definition phase
Idea generation phase – (observe & then
ask questions)
Consider -- Where on the scale(s)?
Legal Standards - Proof:
Beyond Any Doubt
--------------------------------------------------- 95% Beyond Reasonable Doubt
 75% Clear & Convincing
 51% By a Preponderance
Scientific Standards:
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More likely than not
49% Probable Cause
 35% Reasonable Suspicion
--------------------------------------------------- Mere Suspicion
 Hunch
 Random
 Wishful Thinking
 Begging
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(Scientific Certainty)
Law
Theory
Model, Paradigm
Constructs (Concept)
Inference
Observation
Idea (Thought)
Speculation
Legal Standards of Care:
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Wilful & Wanton
Purposeful
Intentional
Knowingly
Reckless Disregard
Deliberately
Deliberate Indifference
Gross Negligence
Negligence
Carelessly
Due Regard
Strict Liability
Common Words – Frequency or Foreseeability
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"Absolute" - without exception, law
"Always" - at all times
“Certain” – a fact that is true or an event that is definitely going to take place
"Frequent" - ordinary, common
“Probable” – almost certainty, as far as one knows or can tell
“Likely” - probable” or “as likely as not probably
“Unusual” - not habitually or commonly occurring
"Maybe"- perhaps, possibly, perchance
"Unlikely" not likely, improbable, has little chance of being the case or coming about
“Freak” – a very unusual and unexpected event
“Unexpected” - not likely to happen
"Rare" - uncommon, infrequent, occurring very infrequently
"Could" - may , might, have the possibility
"Conceivable" - capable of being imagine or understood
"Plausible" - seeming reasonable or probable, appearing to merit belief or acceptance
“Conjecture” - an opinion or conclusion based on incomplete information; a guess
“Guess” - suppose (something) without sufficient information to be sure of being correct
“Speculation” - based on conjecture rather than knowledge
"Never" - not ever
TASER X26 Electrical Characteristics
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Waveform
Pulse Rate
Pulse Duration
Voltage - peak open circuit
Voltage - peak loaded
Current - average
Energy Per Pulse - nominal
Energy Per Pulse - delivered
Main Phase Delivered Charge
Power Rating – nominal
Power Rating -- delivered
Power Source
No. of discharges - battery
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Complex Shaped Pulse
19 PPS (pulses per second)
100 µs (microseconds)
50,000 volts
1200 volts
0.0021 amperes
0.36 joules
0.07 joules
100 µC (microcoulombs)
7 watts at main capacitor
1.3 watts delivered
Two three-volt cells
195 five-second discharges
Calculations
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What powers a TASER X26?
Setting the baseline:
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How many photo flashes from cells?
How many digital photos from cells?
The TASER X26:
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How many pulses per second?
How many seconds when trigger pulled?
How many pulses per 5 second trigger pull?
How many 5 second discharges per battery?
Calculations
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10,000 sheet stack of copy paper
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Represents one second of time
Wall outlet electricity – full 10,000 sheets
TASER X26 – 100 µs pulse (one piece of paper)
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19 pulses (per second) – 19 pieces of paper
5 s = 50,000 sheets of paper (X26 – 95 sheets)
M26 – 25,000 or 100,000 pieces of paper
TASER International, Inc.
ECD Basic Liability Principles
Lawsuits: Product Liability vs. UOF
TASER International - Product Liability Issues:
1. Product Defect (defective product)
2. Strict Liability (risk utility analyses)
3. Mis-represenation (lied about product)
4. Failure to Warn (failed to warn of dangers)
Law Enforcement - Officer or Agency Issues:
1. Excessive Force (federal and/or state)
2. Supervision, Training, Entrustment, Policy
Lawsuits – TASER International
Product Liability Lawsuits
In order to prevail, a plaintiff must prove:
1.
Product is defective
2.
The defect caused the injury or death
To date:
1.
No court has ruled that a TASER device was
defective
2.
No court has ruled that a TASER device defect
caused a death or injury
3.
No court has ruled that TASER International has
misrepresented
Are TASER Devices Risk Free?
No.
TASER International
Litigation Update
TASER Litigation Update
3 Types of Cases:
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Death following TASER ECD presence
Suspect injuries (blamed on TASER ECD)
Officers injured during training (exposures)
What we are seeing in these cases (Plfs):
 Very long complaints based on media
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Little substance
Endless stalling/time extensions
Unable to find experts
TASER Litigation
Use of Experts
EXPERTS
Experts – VERY important!!!!
-- Certain subjects can be very complicated –
we need to have those best qualified to
express opinions reviewing these
files/incidents.
We have retained some of the premier experts
in various scientific fields
Call us – we are happy to assist in locating
experts.
TASER Litigation
Case Strategies
Case Strategies
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Strong defense
Bring out the facts – not the rhetoric
Get beyond the rumors, myths, media
Over 150,000 pages of documentation
TASER ECDs are well proven
How TASER International Can
Help You With Your Cases
How TASER Int’l Can Help You
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Information
Scientific & Medical Information
Department Statistics
Disproving Myths, Rumors, & Misinformation
Guidance on Defense Experts
Information on Plaintiffs’ Experts
Simply Answering Your Questions
Basic Legal Concepts
Law Enforcement Use of Force
Law Enforcement Liabilities
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Third-Party Liability
Workers’ Compensation
Employment Practices Liabilities
Criminal Culpabilities
Public Scrutiny
Special-Interest Group Scrutiny
Numerous Others
Sudden In-Custody Deaths
Causes of Action
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Officers present
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Constitutional use-of-force issues
Constitutional seizure, detention, incarceration
State medical or mental emergency
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“Shall” vs. “May”
Degree of certainty required for action?
Necessity for prior authorization(s)?
Constitutional medical care/attention
Liability to intervene for another officer’s actions
Basic Concepts
How much force is acceptable?
----------The Most Simplistic Answer:
“A law enforcement officer may
use that amount of force upon a
person that the law allows. A
law enforcement officer may not
use more force upon a person
than the law allows.”
Basic Concepts
You must have an acceptable
legal basis (justification) for
everything that you do that
negatively impacts a person
and/or his/her property.
Basic Concepts
Just because the law allows
you to use force, does not
automatically mean that
using the force is the most
prudent course of action.
Basic Concepts
There are consequences to
adopting use-of-force
standards that are more
restrictive than the legal
standards.
Basic Concepts
“[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).
Basic Concepts
“Our 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).
Basic Concepts
“ ... [T]he test of reasonableness under the
Fourth Amendment is not capable of
precise definition or mechanical
application ...”
Graham v. Conner, 490 U.S. 386, 396 (1989), citing Bell v.
Wolfish, 441 U.S. 520, 559 (1979).
Basic Concepts
4th Amendment – Deadly Force
“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).
Basic Concepts:
Distinctions – Force Standards:
 Abuse of authority standards
 Self defense standards
 Risk management analyses
Basic ECD Intro

What happened in 2005?
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
Up/Down continuum (speculation, not science)
Criminal


(IN) Borden – Deputy David Shaw
(VA) Sgt. Ryan Hood
Police Executive Research
Forum - ECD
October 18-19, 2005
(02/24/07) Conducted Energy Devices: Development of Standards for
Consistency and Guidance, The Creation of National CED Policy and Training
Guidelines, by James M. Cronin and Joshua A. Ederheimer. U.S. Department of
Justice, Office of Community Oriented Policing Services.
PERF Guidelines
October 18-19, 2005
“1. CEDs should only be used against
persons who are actively resisting or
exhibiting active aggression, or to
prevent individuals from harming
themselves or others. CEDs should
not be used against a passive
suspect.”
PERF Guidelines
October 18-19, 2005
"Active Aggression - A threat or overt act of an assault
(through physical or verbal means), coupled with the
present ability to carry out the threat or assault, which
reasonably indicates that an assault or injury to any
person is imminent."
"Actively Resisting - Physically evasive movements to
defeat an officer's attempt to control, including bracing,
tensing, pushing, or verbally signaling an intention to
avoid or prevent being taken into or retained in custody."
PERF Guidelines
October 18-19, 2005
“6. That a subject is fleeing should not be the
sole justification for police use of a CED.
Severity of offense and other circumstances
should be considered before officers’ use of a
CED on the fleeing subject.”
PERF Guidelines
October 18-19, 2005
“7. CEDs should not generally be used against
pregnant women, elderly persons, young
children, and visibly frail persons unless
exigent circumstances exist.”
PERF Guidelines
October 18-19, 2005
“8. CEDs should not be used on handcuffed
persons unless they are actively resisting or
exhibiting active aggression, and/or to
prevent individuals from harming themselves
or others.”
TASER CASES
Law Enforcement Force Cases
TASER ECD Weapons Confusion Cases - firearm
used when ECD intended



Henry v. Purnell, 428 F.Supp.2d 393 (D.Md.
April 21, 2006). Henry v. Purnell, 119
Fed.Appx. 441 (4th Cir. (Md.) 2005). Date of
incident - October 20, 2003.
Christofar Atak v. City of Rochester, et. al.,
USDC Minn., Case No. 04-2720 DSD/SRN.
Torres v. City of Madera, Not Reported in
F.Supp.2d, 2005 WL 1683736 (E.D.Cal.
2005).
TASER ECD Weapons Confusion Cases - firearm
used when ECD intended


Yount v. City of Sacramento, 35 Cal.Rptr.3d 563, Cal.App. 3 Dist.
(Nov. 9, 2005) - Arrestee's conviction for obstructing an officer
did not bar his federal civil rights lawsuit for excessive force by
an officer who shot him in the buttocks with his firearm while the
officer intended to draw and fire his TASER device instead.
Petition for review granted: Yount v. City of Sacramento, 129
P.3d 320, 40 Cal.Rptr.3d 118 (Feb 01, 2006).
(Thursday) June 22, 2006 -- Kitsap County (WA) Sheriff's Office deputy shot and wounded a man in a tree when she used a gun
instead of a TASER device. The man had climbed high up a fig
tree and had been there for several hours. Deputies were unsure
whether the man was intoxicated, on drugs, or possibly
experiencing a psychotic episode. One deputy attempted to
discharge a TASER device at the man, but when it did not work
asked another deputy to fire a TASER device. Instead of
grabbing the TASER device, the deputy grabbed and fired her
gun.
Use of firearm when confronted by
suspect armed with ECD


Use of firearm deadly force not unreasonable
against handcuffed (in front) person
threatening officers with ECD (in drive stun)
[very narrow holding]. Henderson v. Inabinett,
2006 WL 2547435 (M.D.Ala. Sep 01, 2006).
Daniel Rocha incident in Austin, Texas.
Officer believed that Rocha had her TASER
ECD and was about to use it on her
Sergeant.
Accidental ECD discharge:


Officer accidentally discharged TASER
device on his daughter – Williams v. City of
Daytona Beach, Slip Copy, 2006 WL 354635,
M.D.Fla. (Feb. 15, 2006).
Recent incident of officer accidentally
discharging ECD into daughter’s eye.
Threat of ECD device gains compliance





Threat of TASER device “on its way” gains compliance. U.S. v.
Yandal, Slip Copy, 2006 WL 517608 (W.D.Ky. March 1, 2006)
Threat of TASER device - 17 year old burglar comes out of attic.
In re J.D., 275 Ga.App. 147, 619 S.E.2d 818 (Ga.App. 2005)
“[R]attling of electricity” from TASER device causes fleeing man
to surrender. People v. Young, Not Reported in Cal.Rptr.3d,
2006 WL 1688992 (Cal.App. 2 Dist. June 21, 2006)
Firearm pointing does not gain compliance - TASER device
does. U.S. v. Ackerman, Slip Copy, 2006 WL 224028, M.D.Fla.
(Jan. 30, 2006)
Pointing TASER device gains compliance. In re Francisco B.,
2005 WL 2856335 (Cal.App. 5 Dist. Nov 01, 2005)
Threat of ECD use without submission is
not a seizure
Drawing and pointing ECD (on 58 year old man
who had heart surgery 2 months prior) where
suspect did not submit is not a seizure.
Policky v. City of Seward (NE), 433
F.Supp.2d 1013 (D.Neb. May 25, 2006)
Threat ECD use with submission /compliance is a
4th Amendment Seizure
Threat with TASER device causing compliance
is a 4th Amendment “seizure.” Pino v. City of
Sacramento, Slip Copy, 2006 WL 193181,
E.D.Cal. (Jan. 19, 2006)
Passive or Active Resistance
Qualified immunity for officer, use of TASER
ECD to force man to release grip on
basketball pole. Issue of “passive resistance”
discussed - “Eighth Circuit law draws no
distinction between active or passive
resistance in resisting a police officer's
requests.” Schumacher v. Halverson, --F.Supp.2d ----, 2006 WL 3740804 (D.Minn.
December 15, 2006)
Use of ECD on a belligerent person
Use of TASER ECD on belligerent driver
appropriate – Draper v. Reynolds, 369 F.3d
1270 (11th Cir. 2004)
Summary Judgment Granted to Officers - Car
Stop - 3 TASER devices uses on belligerent
driver, including 2 while handcuffed –
Willkomm v. Mayer (WI Dells), USDC W.D.
WI (Slip Copy 2006 WL 582044) March 9,
2006

TASER device to neck used to remove man
from car. Warren v. State of Maryland, 164
Md.App. 153, 882 A.2d 934 (Md.App. 2005)

Summary judgment granted on officer’s use
of TASER device on man suffering a
hypoglycemic (diabetic) attack. Gruver v.
Borough of Carlisle, Slip Copy, 2006 WL
1410816 (M.D.Pa. May 19, 2006)
Community Care Taker Function
"Community Care Taker" Function [officer's use
of TASER ECD on resisting person in
medical distress in ambulance - Summary
Judgment granted to defendants] - Stanley v.
City of Baytown, Texas, Slip Copy, 2005 WL
2757370 (S.D.Tex.), No. Civ.A. H-04-2106,
U.S. Dist. Ct, S.D. Texas, Houston Division,
decided Oct. 25, 2005
Use of ECD to stop fleeing arrestee

Summary judgment granted to defendants on
officer’s use of TASER device on fleeing arrestee.
U.S. ex rel. Thompson v. Village of Spring Valley,
N.Y., Slip Copy, 2006 WL 1889912 (S.D.N.Y. July
10, 2006)

Summary judgment granted for TASER device use resisted arrest, attempted to flee. Court gave a useof-force risk management analysis (dart to top of
head). Wylie v. Overby, Slip Copy, 2006 WL
1007643, E.D.Mich. (April 14, 2006)
ECD use threatening, resisting

TASER device used to control threatening man.
People v. Powers, Not Reported in Cal.Rptr.3d,
2006 WL 1737353, (Cal.App. 2 Dist. June 27, 2006)

TASER device used to gain control of resisting man.
Shouse v. State, 849 N.E.2d 650 (Ind.App. June 20,
2006)

TASER device used to capture struggling, resisting
escapee. State v. Farrar, 631 S.E.2d 48 (N.C.App.
June 20, 2006)

Summary judgment (qualified immunity)
granted to defendants when TASER device
was used on a 14 year old female fighting on
school property. Maiorano ex rel. Maiorano
v. Santiago, Slip Copy, 2006 WL 2024951
(M.D.Fla. July 15, 2006)

(Two) TASER device discharges stops
fleeing man. U.S. v. Stephens, Slip Copy,
2006 WL 1663351 (E.D.Mo. June 14, 2006
Raise hands: threat or surrender
Defendants motion for summary judgment
denied due to genuine issues of material fact
– (1) raised his hands with his fingers spread
apart in a gesture of surrender or raised them
in a threatening manner, and (2) TASER
probe removal that left scars is controverted
de minimis. Fletcher v. Schwend, Slip Copy,
2006 WL 1867890 (N.D.Tex. July 6, 2006)

Qualified immunity granted to officer’s use of
TASER device on kicking handcuffed arrestee.
Carroll v. County of Trumbull, Slip Opinion, 2006 WL
1134206 (N.D.Ohio April 25, 2006)

The appellate court held that the use of a stun gun
to subdue man who was resisting arrest by kicking
and biting was an appropriate use of force. Hinton v.
City of Elwood, 997 F.2d 774 (10th Cir.(Kan.) 1993)
ECD use on knife wielding man when no
longer a threat
Officer entitled to qualified immunity despite his using
TASER ECD multiple times on knife-wielding
suspect who was no longer an immediate threat;
noting that officer's "actions were intended to avoid
having to resort to lethal force." Russo upheld a
Taser use to “avoid having to resort to lethal force”
where a lack of training in dealing with mentally ill
may have caused shooting death of known paranoid
schizophrenic. Russo v. Cincinnati, 953 F.2d 1036
(6th Cir. 1992)
Potentially homicidal individual
Use of ECD to subdue a potentially homicidal
individual did not transgress clearly
established law. The court further held that
the use of ECD against an armed and volatile
suspect does not constitute excessive force
and concluded that the defendant police
officers are entitled to qualified immunity on
the Plaintiff’s excessive use of force claim.
Ewolski v. City of Brunswick, 287 F.3d 492
(6th Cir. (Ohio) 2002)
Use of ECD to avoid use of deadly force

The court affirmed Russo v. Cincinnati which
held that the taser, which was deployed in an
effort to obviate the need for lethal force, did
not violate clearly established law. Nicholson
v. Kent County Sheriff's Dept., 839 F.Supp.
508 (W.D.Mich. 1993)

TASER device use prevents need to use
deadly force. State [of Ohio] v. Gentry, Slip
Copy, 2006 WL 1461030 (Ohio App. 2 Dist.
May 19, 2006)

TASER device used to stop resisting suspect
from reaching for gun on the ground. People
v. Villegas, Not Reported in Cal.Rptr.3d, 2006
WL 1992407 (Cal.App. 4 Dist. July 18, 2006)
ECD used on suspect with firearm
TASER device used to apprehend fleeing
suspect armed with firearm. U.S. v.
Stephens, Slip Copy, 2006 WL 2009066
(M.D.Ala. July 18, 2006)
Use of an ECD on a juvenile

Threat of TASER device - 17 year old burglar comes
out of attic – In re J.D., 275 Ga.App. 147, 619
S.E.2d 818 (Ga.App. 2005)

Pointing TASER device gains compliance – In re
Francisco B., 2005 WL 2856335 (Cal.App. 5 Dist.
Nov 01, 2005) (NO. F048025)

Summary judgment granted to officers who used a
ECD on handcuffed, struggling, resisting 14 year old
male. Johnson ex rel. Smith v. City of Lincoln Park,
434 F.Supp.2d 467 (E.D.Mich. June 8, 2006)
Use of an ECD on a juvenile
Summary judgment (qualified immunity) granted to
defendants when TASER device was used on a 14
year old female fighting on school property.
Maiorano ex rel. Maiorano v. Santiago, Slip Copy,
2006 WL 2024951 (M.D.Fla. July 15, 2006)

Summary judgment granted – Use of TASER device
on suicidal 16 year old male juvenile – N.A. ex rel.
Ainsworth v. Inabinett, 2006 WL 2709850 (M.D.Ala.
Sep 20, 2006) (NO. 2:05 CV 740 DRB)
Use of an ECD to prevent swallowing
drugs

Florida v. Damion Terrell Johnson, In the
Circuit Court of the Ninth Judicial Circuit, in
and for Orange County, Florida, Case No. 482003-CF-015024-0, Division 17. Court did not
suppress evidence

US v. Jason Malone, United States District
Court, Central District of Illinois, Peoria
Division, Case No. 05-10012. Court did not
suppress evidence
Use of ECD on a handcuffed person
No objectively reasonable officer would have thought
that striking, kicking, dragging, choking and
repeatedly using a ECD against a non-resisting, fully
compliant citizen would constitute either "reasonable
force in light of the facts and circumstances" or "a
good faith effort to maintain or restore discipline."
Qualified immunity denied officers for excessive
force during multi-hour mental health detention
transport. Batiste v. City of Beaumont, 421
F.Supp.2d 1000 (E.D.Tex. March 10, 2006). Case
settled.
Use of ECD on a handcuffed person

Summary judgment granted to officers who used a ECD on handcuffed,
struggling, resisting 14 year old male. Johnson ex rel. Smith v. City of
Lincoln Park, 434 F.Supp.2d 467 (E.D.Mich. June 8, 2006)

Qualified immunity granted to officer’s use of TASER device on kicking
handcuffed arrestee. Carroll v. County of Trumbull, Slip Opinion, 2006
WL 1134206 (N.D.Ohio April 25, 2006)

Summary Judgment Granted to Officers - Car Stop - 3 TASER devices
uses on belligerent driver, including 2 while handcuffed. Willkomm v.
Mayer (WI Dells), USDC W.D. WI (Slip Copy 2006 WL 582044) March
9, 2006

Summary judgment granted – use of TASER device in drive stun on
handcuffed resisting arrestee. Devoe v. Rebant, Slip Copy, 2006 WL
334297, E.D.Mich. (Feb 13, 2006)
ECD on Person in Restraint Chair
Restraint Chair - Use of TASER Device on
Neck - Summary Judgment Granted –
McBride v. Clark, USDC W.D. MO (Slip Copy
2006 WL 581139) March 8, 2006
5th/14th Amendment - use of ECD on a
pre-trial detainee
Summary judgment granted for threat to use
TASER device (laser dot compliance). Price
v. Busbee, Slip Copy, 2006 WL 435670
(M.D.Ga. February 21, 2006)
8th Amendment - use of ECD on
convicted/incarcerated person

The district court held that taser guns may be reasonably used to
quell disorders and to compel obedience, but they cannot be
used to punish a prisoner. Hernandez v. Terhume, Not Reported
in F.Supp.2d, 2000 WL 1847645 (N.D.Cal. 2000)

The only conduct of the plaintiff was his adamant refusal to
comply with the order. He did not present any threat of physical
violence. The device was used to shock him three times while he
was on the ground and obviously incapacitated. Officers’ motion
for summary judgment denied. Preston v. Pavlushkin, Slip Copy,
2006 WL 686481 (D.Colo. March 16, 2006)
8th Amendment - use of ECD on
convicted/incarcerated person

The court held that prison officials are entitled to use
physical force, including devices such as tasers, to
compel obedience by inmates. Drummer v. Luttrell.
75 F.Supp.2d 796 (W.D.Tenn. 1999)

Court affirmed Michenfelder v. Sumner where 9th
Circuit held that ECDs are not per se
unconstitutional as long as they are "used to enforce
compliance with [an order] that had a reasonable
security purpose. The legitimate intended result of a
shooting is incapacitation of a dangerous person,
not the infliction of pain. Parker v. Asher, 701
F.Supp. 192 (D.Nev. 1988)
8th Amendment - use of ECD on
convicted/incarcerated person

The appellate court upheld the holding of the district court which
concluded that the correctional officers used taser weapons in a
good faith effort to maintain and restore discipline after the
inmate refused orders to be handcuffed before being moved from
his cell. Jolivet v. Cook, 48 F.3d 1232 (Table) (10th Cir. (Utah)
1995)

The appellate court held that the use ECD was not cruel and
unusual punishment and a policy of allowing use of ECDs on an
inmate who refuses to submit to a strip search does not
constitute cruel and unusual punishment., 860 F.2d 328 (9th Cir.
(Nev.) 1988)
8th Amendment - use of ECD on
convicted/incarcerated person

Court affirmed Michenfelder v. Sumner where
the court held that the threatened use of a
taser to enforce compliance with a search
had a reasonable security purpose and was
not unconstitutional. Walker v. Sumner, 8
F.3d 33 (Table) (9th Cir. (Nev.) 1993)
ECD Training - Adequacy of Program

The court ruled that a police ECD training
program consisting of approximately three (3)
to four (4) hours was not inadequate training.
Mateyko v. Felix, 924 F.2d 824 (9th Cir. (Cal.)
1990)