PROBE MODE, SECONDARY IMPACT AND LIABILITY
by Jack Ryan, Attorney
©2011 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Numerous news articles and lawsuits chronicle the issue of “secondary impact” caused by TASER® deployments when the use is in the probe mode. In the probe mode, darts are fired from the TASER® into the subject causing neuromuscular disruption. This disruption of the muscles generally puts the subject into an uncontrolled fall which leads to a secondary impact with the ground, floor, or some other fixed object. It is more likely that a person will suffer an injury as a result of this secondary impact than they will from the electronic impulse itself.
There are numerous cases cited by the news media involving subjects being on the receiving end of a TASER® deployment while positioned in an elevated position. Some of the more memorable cases include the New York City case where a subject was standing on a fire escape approximately ten feet off the ground. The subject died as a result of the fall and the officer who ordered the use of the TASER® committed suicide. [i]
There are also numerous cases where subjects fleeing on foot or on bicycles suffer serious injuries as the result of secondary impact when subjected to a TASER® deployment in the probe mode.
Cockrell v. City of Cincinnati [ii] provides an example of the use of a TASER® in the probe mode while a subject is fleeing. The trial court reported the facts as follows:
“On July 3, 2008, Plaintiff was visiting with his girlfriend, Miranda Jones, at 4010 President Drive, an apartment unit in the Fay Apartment complex in Cincinnati, Ohio. Plaintiff left Ms. Jones' apartment and crossed President Drive to borrow a pair of hair clippers from a friend who resided across the street. Ms. Jones was standing at her doorway and witnessed the events that followed. As Plaintiff approached his friend's door, a police cruiser arrived on the scene. Officer Hall exited the vehicle and began running toward Plaintiff. Plaintiff then fled the scene. Officer Hall chased Plaintiff on foot for some distance, then deployed his taser in "probe" mode, causing Plaintiff to lose control of his body and crash into the pavement face first, unable to break his fall in any way. Officer Hall allegedly suspected Plaintiff of jaywalking, then utilized his taser because of Plaintiff's flight.
Miranda Jones states that officers routinely patrol the Fay Apartment complex, that there is a police substation on the premises, and that many police cruisers arrived on the scene within moments of the use of force by Officer Hall. Plaintiff was not carrying a weapon, and Officer Hall had no reason to suspect that Plaintiff was a threat to him or to anyone else. Plaintiff suffered serious lacerations and abrasions to his face, chest, arms, and elsewhere across his body.”
In analyzing the use of the TASER®, the court looked at the three-part Graham [iii] Test. In assessing the first prong, “seriousness of the offense suspected” the court asserted:
“First, Plaintiff claims that Officer Hall's use of his taser against someone fleeing from a ‘nonviolent, minor pedestrian violation’ constitutes excessive force. Even assuming Officer Hall did have reason to detain Plaintiff, the underlying offense was jaywalking, one of the most minor offenses. Defendant argues that by fleeing from a police officer conducting a lawful investigation, Plaintiff elevated the situation from a nonviolent, minor pedestrian violation to a misdemeanor of the second degree, and that his flight caused Officer Hall to believe that he was guilty of something other than a pedestrian violation, which weighs in favor of the taser deployment. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("Headlong flight--wherever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrong doing, but it is certainly suggestive of such.").
In a recent Sixth Circuit case, the Court held that ‘absent some compelling justification, such as the potential escape of a dangerous criminal or the threat of immediate harm,’ the use of a taser against a non-resistant person may be unreasonable. Kijowski v. City of Niles, 372 Fed. Appx. 595, 600 (6th Cir.2010). In fact, the Ninth Circuit recently held that tasers constitute a ‘greater intrusion than other forms of non-lethal force ... We hold only that the X26 [taser] 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.’ Bryan v. McPherson, 608 F.3d 614, 622 (9th Cir.2010).”
In examining the second part of the Graham test, the court stated: “Second, Plaintiff alleges that he did not possess or display a weapon and did not pose a physical threat toward Officer Hall or any other person. Plaintiff was unarmed, shirtless, and running through a residential area. As Defendants concede, ‘this is not a case in which there was an obvious threat of harm to Officer Hall or others.’ There is no evidence that Officer Hall thought Plaintiff was a dangerous criminal or that he posed a threat of immediate harm. Accordingly, the second factor weighs in Plaintiff's favor.”
The court weighed the final factor in favor of the officer but when balanced against the other two factors, found in favor of the plaintiff concluding: “Defendants claim that the third Graham factor--actively resisting arrest or evading arrest by flight--clearly supports Officer Hall's decision to deploy his taser. Officer Hall maintains that he had three options. First, he could stop Plaintiff from fleeing with a single taser deployment. Alternatively, he could stop Plaintiff by tackling him. Finally, Officer Hall could choose not to pursue Plaintiff, call for backup, and wait to see if Plaintiff was caught or if he would escape. Because there is no question that Plaintiff did flee, this factor weighs in Officer Hall's favor. However, support for this factor is insufficient to outweigh the other two factors. The fact that Plaintiff fled from the minor crime may not well support the use of a taser when reviewed under the totality of the circumstances.”
The plaintiff also challenged the policy and training of the Cincinnati Police Department with respect to use of the TASER®. The court observed:
“While the specifics of the City's training program are not before this Court, it is clear from the express language of the official policy that officers are permitted to use tasers against individuals who are not suspected of a serious crime; who do not pose a threat of harm to anyone else; and who are tased in circumstances creating a heightened risk of serious injury or even death to the suspect. Police departments and other law enforcement agencies across the country have determined that the use of a taser against a non-violent suspect who is fleeing on foot creates a risk of serious injury and recommend that such use be prohibited or discouraged. Taser International, the manufacturer of the device in question, has also warned that the use of the device against individuals who are running can cause serious injury or death.” The court cited numerous instances of secondary impact as well as recommendations related to this issue in a footnote. [iv]
The court concluded:
“The City's training program, as reflected by the official policy, permits officers to deploy the taser in these situations. Plaintiff maintains that the training is inadequate because it does not require the officers to balance the government's interest in seizing a fleeing person against the risk of serious injury as required by the Fourth Amendment. Based on the literature, case law, and even an explicit warning from the taser manufacturer, the high risk of serious injury or death was established and the City knew or should have known of that risk. However, the City continued to advise its officers that the use of the taser on a nonviolent fleeing misdemeanant was permissible. Consequently, Plaintiff has alleged sufficient facts to go forward on his claim that the City's policy, which explicitly permits such deployment, is unconstitutional on its face.
Moreover, Plaintiff maintains that in accordance with the Cincinnati Police Department's taser policy, Officer Hall used a taser against him--an individual with characteristics that made him susceptible to injury. Plaintiff therefore has alleged facts sufficient to go forward on his claim that he suffered from an excessive use of force as a result of a custom of the improper use of tasers.”
Snauer v. City of Springfield, [v] provides another example of how courts are beginning to look at secondary impact cases. The facts in Snauer were reported as follows:
“At approximately 1 AM on October 24, 2007, Springfield police officer Evan Sether was on patrol, alone, in a marked patrol car westbound on Main Street at the intersection of 42nd Street in Springfield when he observed a Honda Civic being driven southbound on 42nd Street without its rear license plate light on. Sether turned left, followed the Honda and activated his overhead lights to stop the driver for the traffic violation of operating a vehicle without an illuminated registration plate.
David Snauer, the driver of the Honda and the plaintiff in this action, did not pull over when Sether activated his lights, but instead turned abruptly into the parking lot of an apartment building and drove quickly to a corner of the lot, where he slowed, jumped out of the vehicle, and began running between two apartment buildings, leaving the driverless Honda to roll into an apartment building.
Sether emerged from his patrol car and gave chase on foot, identifying himself as a police officer and ordering the driver to stop. Snauer refused and kept running. Sether then drew his taser, again yelling for the driver to stop. Snauer continued fleeing, and began climbing over a six or seven foot high wooden fence. When Snauer had reached the top of the fence, Sether fired his taser. When Snauer was hit by the probes, he became temporarily paralyzed, and plunged head-first to the other side unable to break his fall. As a result, Snauer sustained serious bodily injury, i.e. multiple spinal fractures.
In analyzing the case, the court began by defining deadly force. The definition, as defined by all of the United States’ Circuits is “force which creates a substantial likelihood of causing death or serious bodily harm.” [vi] The court then turned to training written by the manufacturer, TASER International. The court reported: ). “Here, Sether was trained in the use of a taser and knew well that a tasered suspect becomes temporarily paralyzed. The type of taser used by Sether deploys dart probes which cause neuromuscular incapacitation, which is different from a stun gun mode which is designed to effect pain compliance. (Taser Operating Manual, p. 24 of Defendant's Ex. 6 to doc # 16). The police are expressly warned by the manufacturer that: ‘Taser-induced strong muscle contractions usually render a suspect temporarily unable to control his or her psychomotor movements. This may result in secondary injuries such as those due to falls. This loss of control, or inability to catch oneself, can in some circumstances increase the risk(s) of serious injury or death.
[P]ersons at higher risk include: those located at elevated or unstable platforms (e.g., trees, roofs, ladders, ledges, cranes, loading docks).’” The court noted that the height of a loading dock is generally 4 feet as compared to the 6 or 7 foot fence that Snauer was on when the TASER® was deployed.
The court discussed training with respect to TASER® and made the following conclusions:
“It does not take a panel of judges to alert a reasonable police officer that causing a paralyzed man to tumble head first onto the ground from a platform six to seven feet above the ground ‘creates a substantial risk of causing death or serious bodily injury.’ Smith, 394 F.3d at 706. I find it illuminating that in the Springfield training material, the instructions specify that volunteers who subject themselves to tasering are to be placed on mats and assisted by two spotters who are instructed to grab hold to support the volunteer both before and during exposure. (P. 48 of Defendant's Ex. 6 to doc # 16). One cannot imagine a training exercise in which a volunteer stands atop a six foot high platform and is tasered without the help of spotters. A law enforcement agency would never subject an officer or other volunteer to such a training exercise--notwithstanding the lack of any case law on the subject-- because they already know such would inevitably result in serious bodily injury and even death. In short, the police do not need judges to explain the obvious to them before they can be held accountable for an unreasonable or excessive use of force. As explained by plaintiff's expert, Josh Foster, a former Texas police officer and trainer on the use of Tasers: ‘Anyone trained to operate and carry a TASER in the field should, by TASER International standards, clearly understand that the application of the TASER to a suspect who is high off the ground would be considered a deadly force application in that the potential result of the particular use of force could cause serious bodily injury or even death.’”
The court denied the officer’s motion for summary judgment and qualified immunity.
DRIVE-STUN Lower on the Hurt Scale
When a TASER® is used in the drive-stun mode, it causes pain but does not cause the uncontrolled fall which occurs in the probe mode. Some recent cases, suggest that while the drive-stun mode is painful, it is a lesser (on the hurt scale) than the probe mode, and thus may be found to be a reasonable use of force in more circumstances than the probe mode.
The following language from the previously cited and detailed Crowell v. Kirkpatrick, [vii] provides an example:
“Finally, Defendants set the taser on "drive stun" mode, which typically causes temporary, if significant, pain and no permanent injury. See Brooks v. City of Seattle, 599 F.3d 1018, 1027 (9th Cir.2010) ("The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury."), rehearing en banc granted, --- F.3d ----, 2010 WL 3896202 (9th Cir. Sept. 30, 2010). Given the totality of those circumstances, it is difficult to see how a rational fact-finder could conclude that the officers' actions were anything other than reasonable.”
Brooks v. Seattle [viii] began with a traffic stop for motor vehicle violations. When the operator, Malaika Brooks refused to sign the violation numerous times, the officer, as well as a supervisor determined that she would be subjected to a custodial arrest. Brooks refused to get out of her vehicle, resisting the officers’ attempts to remove her by hanging on to the steering wheel.
The court reported the encounter as follows:
“Brooks refused to leave her car, remaining in it with the ignition running and her door shut. Officer Jones then showed Brooks his Taser, explaining that it would hurt "extremely bad" if applied. Brooks told them she was pregnant and that she needed to use the restroom. The officers discussed where to tase her, deciding on her thigh. Officer Jones demonstrated the Taser for her. Brooks still remained in the car, so Officer Ornelas opened the door and reached over to take the key out of the ignition, dropping the keys on the floorboard.
Officer Ornelas then employed a pain compliance technique, bringing Brooks's left arm up behind her back, whereon Brooks stiffened her body and clutched the steering wheel in order to frustrate her removal from the car. Officer Jones discharged the Taser against Brooks's thigh, through her sweat pants, which caused Brooks ‘tremendous pain."’She began to yell and honk the car's horn.
Within the next minute, Officer Jones tased her two more times, against her shoulder and neck, the latter being the only area of exposed skin. Brooks was unable to get out of the car herself during this time because her arm was still behind her back. The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car through a combination of pushing and pulling. She was immediately seen by medical professionals, and two months later delivered a healthy baby.”
In reviewing the use of force the court asserted:
“The Taser's use in ‘touch’ or ‘drive-stun’ mode--as the Officers used it here--involves touching the Taser to the body and causes temporary, localized pain only. According to the SPD's Use of Force Training Guideline, this usage was considered a Level 1 tactic, akin to ‘pain compliance applied through the use of distraction, counter-joint holds, hair control holds, [and pepper spray]’ and used to control passively or actively resisting suspects. By contrast, applying a Taser in dart mode (wherein darts are shot at the suspect from some distance) achieves greater distance between the contact nodes which can cause neuro-muscular incapacitation. In dart mode, the Taser's use is a Level 2 tactic to be employed only against aggressive resistance. The district court did not differentiate between the possible modes of use, noting only that the Taser was discharged on Brooks's thigh, shoulder, and neck, causing ‘a level of force (whether once or three times) that hurt 'extremely bad,’ and constituted a ‘quantum leap’ from the previous force employed. These comments suggest the district court thought the force used was severe. We find this to be an overestimation that led the court to err in finding excessive force.”
The court then distinguished the use of the TASER® in the drive-stun mode from the probe mode, concluding:
“The force at issue here is markedly different than the force in Bryan, and, unlike in Mattos, we have the benefit of a fully-developed record on the use of a Taser in drive-stun mode. The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury. Brooks said she sustained burn marks and now has scars on her upper arm and thigh, which is certainly not insignificant, but these injuries are far less serious than those inflicted on Bryan by the X26 Taser--excruciating pain throughout his entire body, temporary paralysis, facial abrasions, shattered teeth, and a sharp barb lodged into his flesh. Thus, the use of the Taser in drive-stun mode--as opposed to dart mode--seems unlike the force used in Bryan or uses of force which this court has previously considered severe.”
Following this analysis the court applied the Graham three-part test and concluded: “In conclusion, then, this case presents a less-than-intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers. In this situation we find, assuming all the facts in Brooks' favor, that the Officers' behavior did not amount to a constitutional violation.”
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[ii] Cockrell v. City of Cincinnati, 2010 WL 4918725 (S.D.Ohio).
[iii] Graham v. Connor, 490 U.S. 386 (1989).
[iv] FN11. (Doc. 1 at 4, ¶ 15). The United States Department of Justice and the Police Executive Research Forum also agree that the use of a taser against someone who is running presents a heightened risk of serious injury or death. See U.S. Dept. of Justice, Civil Rights Division Memo, August 20, 2008; Police Executive Research Forum, PERF CED Policy and Training Considerations, October 25, 2005. For example, in 2008 a 25-year old man in Charlotte, North Carolina fell while running from police after a Taser was deployed. The man spent 4 days in the hospital suffering from a serious head injury. Clay Barbour, Police Use of Tasers on Rise, Charlotte Observer, Thursday, August 21 2008. In Harford County, Maryland, the sheriff's department used a Taser on a prisoner who was being combative. The prisoner fell to the ground, striking his head on the floor. The incident led to his death. See Harford County Sheriff's Office News Release, June 13, 2009. Similarly, a suspect who fell from a fire escape only ten feet from the ground was killed instantly when a Taser was used on him. Kareem Fahim & Christine Hauser, "Taser Use in Man's Death Broke Rules, Police Say," New York Times, Sept. 25, 2008. Included among these are: the Maryland Attorney General's Office, the Police Executive Research Forum, and the United States Department of Justice. Report of the Maryland Attorney General's Task Force on Electronic Weapons, December 2009, available at: http://w ww.oag.state.md.us/reports/ECWReport.pdf; Conducted Energy Device Policy and Training Guidelines, PERF Center on Force & Accountability, October 25, 2005; US Department of Justice Investigation Report, Orange County Sheriff's Office, August 20, 2008, available at: http://www.justice.gov/crt/split/documents/orangecty_ta_ltr.pdf. Also critical of this use are Amnesty International, Stanford University, the Wisconsin Law Enforcement Standards Board, and the Braidwood Commission, appointed by the Canadian Government. Less Than Lethal? The Use of Stun Weapons in U.S. Law Enforcement, Amnesty International, December 16, 2008, available at: http://www.amnesty.org/en/li brary/asset/AMR51/010/2008/en/530be6d6-437e-4c77 -851b-9e581197ccf6/amr510102008en.pdf; Advisory Committee Recommendations for Training for Employment of an Electronic Control Device by Law Enforcement Officers in Wisconsin, Wisconsin Department of Justice Law Enforcement Standards Board, June 7, 2005, available at: https:// wilenet.org/html/taser/TSReport.pdf; Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia, Braidwood Commission Investigative Report, June 2009, available at: http://www.braidwoodinquiry.ca/report/P1Report.php.
[v] Snauer v. City of Springfield, 2010 WL 4875784 (D.Or.)
[vi] See e.g. Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005).
[vii] Crowell v. Kirkpatrick, slip opinion No. 09-4100-cv., (2nd Cir. November 15, 2010).
[viii] Brooks v. City of Seattle, 599 F.3d 1018, rehearing en banc granted 2010 WL 3896202 (9th Cir. September 30, 2010).
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