THE LEGAL REALITY
As pointed out by TASER™ International in Training Bulletin #15, it is virtually impossible to replicate a study reflecting the impact of TASER™ ECD on the type of person law enforcement may come into contact with on the street. Obviously, finding study subjects who are in the midst of crisis, high on drugs, flooded with alcohol, or in the midst of an excited delirium event is not likely to occur in the laboratory setting. Thus, most of the study subjects are not identical to the people that law enforcement deals with on the street. This is the scientific difficulty in defending cases where it is alleged that the person died as a result of the TASER™ electrical discharge.
It should be noted that one thing made clear by the studies involving TASER™ ECDs, the likelihood of a death following a deployment is unlikely, however, as acknowledged by TASER™, researchers have indicated that probe placement to the chest may decrease the safety margins of the TASER™ ECD.i Simply stated, although it is unlikely that a deployment of a TASER™ ECD to the chest will cause a cardiac event, it is even less likely if the chest is avoided.
Law Enforcement Liability under §1983
In looking at what this means from a legal perspective one must start by looking at it from the law enforcement perspective as a use of force under the Fourth Amendment. It should be recognized that there has not been a finding against any law enforcement agency or officer that the proper use of a TASER™ ECD is deadly force. In fact, many cases have recognized that electronic control devices generally, and TASER™ ECD specifically, are a low to moderate level use of force.ii Therefore, from a constitutional perspective, TASER™ ECD has not been found to be deadly force. This makes sense in light of standard definitions on deadly force which indicate that deadly force is force which creates a substantial risk of death or serious bodily injury.iii Since the overwhelming majority of TASER™ ECD deployments have not created a “substantial risk of serious bodily harm or death” the current definition of deadly force as adopted by our federal courts does not apply to the deployment of a TASER™ ECD.
Draper v. Reynolds,iv which involved the use of a TASER™ ECD, exemplifies how a court will review this type of force. Stacy Draper filed a lawsuit against Deputy Clinton Reynolds alleging a civil rights violation arising out of a motor vehicle stop and his arrest, during which Deputy Reynolds used a TASER™ ECD on Draper. The reason for the initial stop was an improperly illuminated registration plate light.
In his lawsuit Draper alleged that Reynolds shined a flashlight in his eyes during a traffic stop and he politely asked Reynolds to refrain from doing so. The initial contact between Reynolds and Draper took place at the side of Draper’s truck and could not be seen on the police cruiser’s video recorder. Their initial conversation could not be heard on Reynolds’s audio recorder either. Draper alleged that Deputy Reynolds used harsh language in this initial contact at the side of the truck.
Deputy Reynolds then ordered Draper to come to the back of his truck. At that point all activity and all audio were recorded by the police vehicle’s equipment. The tape showed an uncooperative and belligerent Draper who refused to comply with several polite commands by Deputy Reynolds to produce paperwork from the truck. As many as five times Draper would start toward the truck to retrieve the paperwork, but then would turn and return toward Deputy Reynolds in what Reynolds described as a “threatening” manner which put Reynolds on “the defensive.” On the fifth occasion, with Draper yelling and returning toward Reynolds, the deputy discharged his TASER™ ECD at Draper’s chest. Draper fell to the ground, was handcuffed and taken into custody. In his allegation of excessive force, Draper alleged that if Deputy Reynolds had simply informed him that he was under arrest he would have complied, thus there was no need to employ the TASER™ ECD.
In rejecting Draper’s claim of excessive force the court held: “Reynolds’s use of the TASER™ gun to effectuate the arrest of Draper was reasonably proportionate to the difficult, tense and uncertain situation that Reynolds faced in this traffic stop, and did not constitute excessive force. From the time Draper met Reynolds at the back of the truck, Draper was hostile, belligerent, and uncooperative…Draper used profanity, moved around and paced in agitation, and repeatedly yelled at Reynolds.” The court noted that a verbal arrest command and attempt to handcuff such a hostile individual as Draper may have escalated the situation into a “serious physical struggle” which was avoided by the use of the TASER™.
In Buckley v. Haddock,v the United States Court of Appeals for the 11th Circuit reviewed a denial of qualified immunity for an officer who faced a lawsuit based on his use of a TASER™ ECD.
The court outlined the facts as follows:
The plaintiff, Buckley was stopped for traffic violations and refused to sign the traffic citation, a violation of Florida law which allows for a custodial arrest. The court noted that [Buckley] pleaded no contest to one count of refusal to sign a speeding ticket and one count of resisting arrest without violence.
“As the deputy started to walk with [Buckley] to the patrol car, [Buckley]—a 23 year-old young man who weighed 180 pounds and was 6 feet, 2 inches tall—dropped to the ground behind his car, crossed his legs, and continued to sob. Deputy Rackard cautioned [Buckley] about the danger of getting hit by traffic on the nearby road. [Buckley] responded, ‘My life would be better if I was dead.’
CITATIONS: (PAGE 2)
i See: “Studies of Death Following Electro Muscular Disruption-Interim Report” National Institute of Justice, June 2008: www.ncjrs.gov/pdffiles1/nij/222981.pdf : There is currently no medical evidence that CEDs pose a significant risk for induced cardiac dysrhythmia when deployed reasonably. Research suggests that factors such as thin stature and dart placement in the chest may lower the safety margin for cardiac dysrhythmia. There is no medical evidence to suggest that exposure to a CED produces sufficient metabolic or physiologic effects to produce abnormal cardiac rhythms in normal, healthy adults. (emphasis added)
ii See, Buckley v. Haddock, 292 Fed. Appx. 791 (11th Cir. 2008) “Accordingly, we regard the deputy’s use of the TASER in this particular case as — at most — moderate, non-lethal force. See also Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D. Cal. 2008) (viewing “the use of a TASER as an intermediate or medium, though not insignificant, quantum of force”).
iii See, e.g., Smith v. City of Hemet 394 F.3d 689 (9th Cir. 2005);Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (deadly force “creates a substantial risk of death or serious bodily injury”); Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (same); In re City of Philadelphia Litigation, 49 F.3d 945, 966 (3rd Cir. 1995) (adopting the Model Penal Code definition); Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987)(same); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (same); Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985) (same); Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8th Cir. 1976) (en banc), vacated as moot sub nom., Ashcroft v. Mattis, 431 U.S. 171, 52 L. Ed. 2d 219, 97 S. Ct. 1739 (1977) (same).
iv Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).
v Buckley v. Haddock, 292 Fed. Appx. 791 (11th Cir. 2008
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