The jury’s finding in Heston raised the issue of TASER™ International’s liability exposure where it is claimed that there was a failure to warn end users of potential dangers:
“With respect to Defendant TASER™, the Jury found that on February 19, 2005, Salinas police officers subjected Robert C. Heston to a prolonged deployment from TASER™s; that Defendant TASER™’s failure to warn of the risks associated with a prolonged deployment was a substantial factor in causing the police officers to administer a prolonged deployment; and that as a consequence of the prolonged deployment, Robert C. Heston suffered acidosis to a degree which caused him to have a cardiac arrest, leading to his death. (See Jury Verdict, Docket Item No. 323.) In sum, the Jury found that reasonably prudent manufacturers of electronic control devices knew or should have known that prolonged administration of electricity from the devices pose a danger, i.e., a risk of acidosis, to a degree which posed a risk of cardiac arrest. The jury found that Defendant TASER™ failed to warn purchasers of those risks.”i
Additionally there are studies indicating “that factors such as thin stature and dart placement in the chest may lower the safety margin for cardiac dysrhythmia.”ii The Braidwood Commission Study on Conducted Energy Weapon Use made several assertions with respect to cardiac events following a TASER™ deployment. “First, the greatest risk of ventricular fibrillation arises when the probes are vectored across the heart. Second, the risk of ventricular fibrillation increases as the tips of the probes get closer to the wall of the heart.”iii It was noted by the author of this report:
“Seventh, while I have concluded that a conducted energy weapon is capable of triggering ventricular capture that may lead to ventricular tachycardia and/or fibrillation, I do not have enough information to quantify that risk with any degree of precision. Further, the risk appears to vary, depending on several factors, which I will discuss later in this part. (emphasis added)
Eighth, in deaths proximate to use of a conducted energy weapon, there is often a lack of physical evidence on autopsy to determine whether arrhythmia was the cause of death, which opens the door to debate about whether the weapon or some preexisting medical condition was responsible. While alcohol or drug intoxication may complicate the pathological analysis in some cases, other explanations must be found in cases where alcohol or drugs were not involved.”iv
Braidwood asserted the following with respect to the lack of any cardiac events in nearly 700,000 training deployments:
“Before moving on to an examination of circumstances in which the risk may increase, I would like to comment on a statistic cited by one of the medical researchers, that there have been over 700,000 conducted energy weapon discharges during the manufacturer’s training classes, with no reported collapses, cardiac arrests, or fatalities. On its face, this is an impressive record of safety. However, I approach this data with caution for the following reason. The information before me points to the capacity of a conducted energy weapon to cause heart arrhythmia even in healthy adults, but the risk varies depending on the existence of several factors, such as the location of the probes (i.e., across the heart), the timing of the discharge (i.e., during the T-wave), the proximity of the tip of the probe to the heart wall, and the duration of the discharge.”
As a result of the combination of the Heston case and studies related to issues raised in studies, TASER™ International is left in the position of warning law enforcement about these issues or face dramatic products liability exposure. Irrespective of whether one agrees with the studies or not, TASER™ International is aware of the warnings issued by these reports and had little choice but to warn law enforcement of the unlikely possibility of a death related to a deployment to the chest.
TASER™ ECDs are NOT Deadly Force for Purposes of Law Enforcement Liability
Presently no court has concluded that an officer’s use of a TASER™ ECD constitutes deadly force. In fact, as previously noted, courts have concluded that the use of TASER™ ECD is a moderate use of force.v The question that must be considered by law enforcement is whether a possibility of death, means that a deployment to the chest constitutes deadly force. While there is no TASER™ case on point with this question there are several cases involving use of canines that deal with the issue of how a court determines whether a particular law enforcement tool is deadly force for Fourth Amendment purposes.
On September 22, 1999, Kuha went out drinking with some friends. On his way home he ran into a curb causing a flat tire. He walked to a friend’s house for help and returned with his friend to change the tire. Kuha continued his trip home at approximately 5:30 a.m. when he passed a police car traveling in the opposite direction. When Kuha failed to dim his headlights for the oncoming patrol car, the officer did a u-turn and pulled Kuha over. As the officer approached Kuha’s vehicle, Kuha bailed out and ran into a swampy area with dense brush, high grass and foliage. The officer waited for the arrival of backup before beginning a search for Kuha.
Officer Anderson responded to the scene along with his canine partner, “Arco.” While searching for Kuha, Officer Anderson had Arco on a leash. After nearly 30 minutes, Arco alerted and bounded into some three foot tall grass. Arco was trained to “bite and hold” until receiving a command to release. When Officer Anderson observed that Kuha was holding Arco’s head, he ordered Kuha several times to release the dog’s head and further instructed that he would not call the dog off until Kuha followed this command. Once Kuha released the dog, Officer Anderson ordered the dog to release. The entire apprehension lasted approximately ten to fifteen seconds. As a result of the bite, Mr. Kuha’s femoral artery was severed and he suffered severe blood loss. He recovered from these injuries and brought a lawsuit alleging excessive force by the officers as well as agency liability with respect to policy and training on the use of canines.
In its review of the claims against the officers, the court began with a straightforward review of use of force as interpreted by the United States Supreme Court in Graham v. Connorvi and Tennessee v. Garnervii. In doing so the court rejected Kuha’s argument that the use of a canine amounted to deadly force. The court cited numerous cases, including cases alleging use of a canine was deadly force and one that ended in the death of a suspect at the mouth of a canine, where sister circuits rejected the idea that canines trained to “bite and hold” were instruments of deadly force.viii
The court asserted:
“Before reviewing Kuha’s specific claims, we briefly address, and reject, Kuha’s contention that a police dog constitutes deadly force. No federal appeals court has held that a properly trained police dog is an instrument of deadly force, and several have expressly concluded otherwise. See, e.g., Vera Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir. 1998ix) (defining “deadly force” as “that force which is reasonably likely to cause death” and finding the possibility of death from a properly trained police dog too remote to constitute deadly force); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (holding that “the use of a properly trained police dog to apprehend a felony suspect does not carry with it a ‘substantial risk of causing death or serious bodily harm'”) (footnote omitted, and quoting definition of “deadly force” from Model Penal Code § 3.11(2)). In Robinette, the only published case where a suspect was actually killed by a police dog, a burglary suspect was hiding beneath a car and the police dog seized the suspect’s exposed neck. Id. at 911. The Robinette court concluded that deadly force was not at issue because there was no showing that the unusual circumstances which resulted in the suspect’s death were foreseeable. Id. at 912 (describing incident as “an extreme aberration from the outcome intended or expected”).”x
The court concluded:
“The mere recognition that a law enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force.” 854 F.2d at 913; see also Vera Cruz, 139 F.3d at 661 (“We do not read Garner as covering all uses of force that might result in death, no matter how remote the possibility.”). We find the likelihood of death from the use of a properly trained police dog to apprehend a suspect sufficiently remote as to preclude its characterization as deadly force. See id. at 663 (assuming “that a properly trained police dog could kill a suspect under highly unusual circumstances,” but concluding that “the prospect of such an aberration doesn’t convert otherwise nondeadly force into deadly force”). Accordingly, review of excessive force claims involving police dogs is properly governed by the general standard established in Graham rather than the deadly force standard of Garner.”
The court’s recognition that where the likelihood of death is sufficiently remote, the court will not view the tool as deadly force is important when dealing with TASER™ ECDs since the likelihood of death in a TASER™ deployment, according to the studies, is remote.xi
CITATIONS: (PAGE 7)
ii “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)
iii “Restoring Public Confidence, Restricting Use of Conducted Energy Weapons in British Columbia”, Braidwood Commission Study on Conducted Energy Weapon Use, Thomas Braidwood June 2009.
v 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”).
vi Graham v. Coonor, 490 U.S. 386 (1989).
vii Tennessee v. Garner, 471 U.S. 1 (1985).
viii See, Robinette v.Barnes, 854 F.2d 909 (6th Cir. 1988) (notwithstanding suspect’s death, court held that use of properly trained police dog to apprehend a felony suspect does not carry with it a ‘substantial risk of causing death or serious bodily harm’; See also, Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1998).
ix Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1998) was overruled by Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir.2005) (en banc) (insofar as the appropriate definition for deadly force. In Smith v. City of Hemet, the court adopted the definition used by other circuits, specifically, force which creates a substantial likelihood of death or serious bodily harm.)
x Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988).
xi 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)
Checklist for TASER®
laminated 8 1/2 x 11, 2 sided
TRC487: Taser (& ECD’s) Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint® and TASER® Legal Update & Best Practices Manual (Electronic copy).
TRC486: Excited Dilirium Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint® and Excited Dilirium Legal Update & Best Practices Manual (Electronic & Print copy)
TRC490: Safe Storage of Firearms Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint®
TRC491: Use of Force, Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint®, Use of Force manual, 2nd ed. (Print copy)