Law Enforcement Agencies and Taser Usage
1.0 Introduction
The use of tasers by law enforcement agencies in general, and by police officers in
particular, has become one of the most controversial issues in the area of criminal
justice policy. This is in part because the issues are at the same time extremely
straightforward (in that the only real question is the extent to which the use of
tasers is and should be authorized) and uncomfortably complex (in that this
question is by no means an easy one to answer).There are a number of premises
upon which all interested parties should be able to agree. First, it is preferable to
incapacitate a violent individual than to kill that individual. Second, the use of
tasers should be permitted to the extent that such use is necessary to protect officer
safety while minimizing the risk of physical injury to suspects. Third, police
officers should have some understanding of the effects that using a weapon is
likely to have upon a suspect before deploying the weapon in question.
Unfortunately, however, agreeing on the validity of these premises does not lead
anyone to any obvious conclusions regarding the legitimate use of tasers by police
officers.
2.0 Objectives
This unit is directed solely to the question of when, and under what
circumstances, police officers should be authorized (and perhaps required) to use a
taser on a suspect.
3.0 Main body
3.1 THE EFFECTS OF TASER USE ON THE HUMAN BODY
The vast majority of tasers purchased and used by law enforcement agencies are
manufactured by Taser International (www.taser.com), which makes essentially
two models of tasers, the M26 and the X26. Both models can be used in one of two
modes, which produce different effects on the body. When used in firing mode,
both the M26 and the X26 fire two probes up to a distance of 21 feet. They are
programmed to deploy five-second bursts of electricity, although the charge can be
prolonged indefinitely if the operator’s finger remains on the trigger. The probes
are attached to copper wires, which remain connected to the weapon. The shock
can be repeated countless times, so long as both probes remain attached to the
subject. Both models contain a cartridge of compressed nitrogen that fire the
probes, and which must be reloaded every time the officer wants to fire. Both
models have laser sights for accurate targeting and a built-in memory to record the
time and date of each firing. Both models operate on 26 watts of electric output.
Both deliver a 50,000-volt shock, which is designed to override the subject’s
central nervous system, causing uncontrollable contraction of the muscle tissue
and instant collapse. The primary difference between the two models appears to be
in design (the X26 is 60% smaller than the M26), although Taser International
reports that the X26 has an incapacitating effect that is 5% greater than the M26.
When used in “drive-stun” mode (at point blank range), the taser attacks the
sensory nervous system. Rather than causing a complete override of the central
nervous system, the weapon is essentially used as a pain-compliance technique. In
this mode, the taser is used without the air cartridge. It applies shocks directly to
the subject’s body, skin, or clothing. The duration is the same as when the taser is
used in firing mode (five seconds unless the officer keeps his hand on the trigger
for longer). The clear consensus of the research is that a one-time five-second
shock does not seriously or permanently injure a healthy and sober young adult
who is not pregnant. However, the few studies that have been conducted, as well
as the anecdotal evidence, suggest that there are some serious health risks involved
when individuals not falling within that category are tasered.
Taser International includes the following product warnings on its website:
1. The TASER device can cause strong muscle contractions that may cause
physical exertion or athletic-type injuries to some people. These muscle
contractions can result in strain-type injuries such as hernias, ruptures, or
other injuries to soft tissue, organs, muscles, tendons, ligaments, nerves,
joints, and stress/compression fractures to bones, including vertebrae.
People with pre-existing injuries or conditions such as osteoporosis,
osteopenia, spinal injuries, diverticulitis, or previous muscle, disc, ligament,
or tendon damage may be more susceptible to these types of injuries.
2. These strong muscle contractions usually render a subject temporarily
unable to control his or her movements and may result in secondary
injuries. Under certain circumstances, this loss of control can elevate the
risk(s) of serious injury or death. These circumstances may include, but are
not limited to, use of the TASER device on a person who is physically
infirm or pregnant, or a person on an elevated or unstable platform,
operating a vehicle or machinery, running or in water where the inability to
move may result in drowning.
3. When practicable, avoid prolonged or continuous exposure(s) to the
TASER device electrical discharge. The stress and exertion of extensive
repeated, prolonged, or continuous application(s) of the TASER device may
contribute to cumulative exhaustion, stress, and associated medical risk(s).
Severe exhaustion and/or over-exertion from physical struggle, drug
intoxication, use of restraint devices, etc. may result in serious injury or
death. The TASER device causes strong muscle contractions, usually
rendering a subject temporarily unable to control his or her movements.
Under certain circumstances, these contractions may impair a subject’s
ability to breathe. If a person’s syste m is already compromised by
overexertion, drug intoxication, stress, pre-existing medical or
psychological condition(s), etc., any physical exertion, including the use of
a TASER device, may have an additive effect in contributing to cumulative
exhaustion, stress, cardiovascular conditions, and associated medical
risk(s).
4. TASER probes can cause significant injury if deployed into sensitive areas
of the body such as the eyes, throat, or genitals. If a TASER probe becomes
embedded in an eye, it could result in permanent loss of vision. Repetitive
electrical stimuli can induce seizures in some individuals.
5. In most areas of the body, wounds caused by TASER probes will be minor.
TASER probes have small barbs.
6. Use of a TASER device in drive (or touch) stun mode can cause marks,
friction abrasions, and/or scarring that may be permanent depending on
individual susceptibilities or circumstances surrounding TASER device use
and exposure.
There are several things worth noting about these warnings. First, in most
instances, an officer will find it nearly impossible to anticipate whether a subject
suffers from any of the conditions listed. For example, except where pregnancy is
fairly advanced, an officer is not likely to know a woman is pregnant. No officer
would likely be able to discern that an individual suffers from a pre-existing injury
or condition such as osteoporosis, osteopenia,, spinal injuries, diverticulitis, or
previous muscle, disc, ligament, or tendon damage. An officer is unlikely to know
whether a subject suffers from a respiratory impairment such as asthma, or from a
pre-existing cardiovascular condition. Moreover, with respect to pregnancy, Taser
International warns against use of a taser on a pregnant woman because of the risk
that she would suffer from involuntary muscle contractions, thereby increasing the
risk that she will fall and damage the fetus. The warnings listed above do not
include any mention of risk to the fetus of the electrical shock itself. Nevertheless,
there have been cases in which women have miscarried after being tasered. In the
City of Chula Vista, Cindy Grippi was six-months pregnant when she was tasered
and she miscarried twelve hours after being shot. The autopsy report did not
conclude that the electro-shock was the cause of death; nonetheless, some studies
have suggested a link between electro-chock and miscarriage and the city was
sufficiently concerned about these studies that it paid her $675,000 to settle her
lawsuit.
There are three overarching scenarios that cause concern regarding the possibility
of a taser delivering a fatal shock. One is the possibility that a shock could occur
during the “vulnerable period” of a hea rt beat cycle. Essentially, this means that
there is a section of a heart beat cycle (specifically, three percent of the cycle)
during which an electro-shock is highly likely to cause ventricular fibrillation, “a
state in which the hea rt muscles spasm uncontrollably, disrupting the heart’s
pumping function and causing death.” Second, certain individuals, such as
children, the elderly, people with pre-existing cardiovascular problems, drug users,
and individuals who take certain psychiatric medications, are naturally more
susceptible to ventricular fibrillation than healthy young adults. Third, multiple
and/or prolonged applications of a taser can increase the risk of cardiac arrest
either by simply increasing the chances that a charge will shock the heart during
the vulnerable period or by increasing the level of acid in the blood, which, in turn,
decreases respiration and increases the risk of ventricular fibrillation.
Finally, there have been several reported fatalities in the state of California that
have involved the use of tasers, most often in cases in which the subject was under
the influence of drugs. Andrew Washington died in Vallejo in September 2004
after being tasered seventeen times. The cause of death was reported as “cardiac
arrest associated with excitement during t he police chase and cocaine and alcohol
intoxication, occurring shortly after Tasering.” Gregory Saulsbury died in Pacifica
in January 2005, after being tasered eleven times. He had been using cocaine.
Carlos Casillas Fernandez died in Santa Rosa in July 2005 after being tasered six
times. He had been using methamphetamine. In sum, tasers pose some grave risks
that warrant significant research and study. Not enough is known about the risks of
taser use to children, the elderly, pregnant women, or those under the influence of
drugs. From what little scientific research exists, it appears that prolonged and/or
multiple use of a taser dramatically increases the risk of ventricular fibrillation and
consequent cardiac arrest, even in healthy adults. In addition, there appears to be a
risk of vision impairment if a subjected is tasered in the eye, and of seizure if a
subject is tasered in the head. It is unclear whether there are medical risks
associated with the barbs that are left in a subject’s body once the probes are
removed. There also appear to be permanent, if not fatal, dermatological
impairments associated with the use of a taser in stun mode.
LEGAL ISSUES
Taser International has published a Memorandum of Law citing and purporting to
explain the legal relevance of several state and federal court opinions. Presumably,
in writing this memo Taser International intended to provide municipalities with
arguments that they can raise in their defense of actions brought on behalf of
individuals injured or killed by a taser. However, Taser International’s legal
analysis is substantially flawed, and we conclude that no municipality can safely
rely on its conclusions to avoid liability in such an action.
The U.S. Court of Appeals for the Sixth Circuit made one of the earliest legal
rulings addressing the use of tasers in 1992. In that case, Russo v. City of
Cincinnati, members of the Thomas Bubenhofer estate sued the city of Cincinnati
after Mr. Bubenhofer was shot to death by Cincinnati police officers. Mr.
Bubenhofer had shut himself up in his apartment after being released by his mental
health facility on a day pass and the family contacted the police. When the police
arrived, Mr. Bubenhofer, a diagnosed paranoid schizophrenic, was in the
apartment armed with two knives. Several times he approached officers,
threatening them with the knives. Mr. Bubenhofer was eventually shot with both a
taser and a firearm and subsequently died. The Sixth Circuit eventually held that
the officers were entitled to “qualified immunity” and ruled that all the claims
must be dis missed. Taser International hails this as a major victory for proponents
of Taser use. But there is little legal basis for such a view, for several reasons.
First, in 1992, the Department of Alcohol, Tobacco, and Firearms classified tasers
as firearms. Therefore, the court was looking at the plaintiff’s claims as a matter of
the justifiable use of firearms in general. The ATF no longer classifies tasers as
firearms, so it is not clear how, if at all, the case would apply to the use of tasers.
Second, the court did not hold that the use of the taser was justified, required,
harmless, or permissible. Rather, in granting qualified immunity, the court simply
held that the officer who fired the taser could not be held liable because the use of
the taser did not violate clearly established law because there simply was no
clearly established law regarding taser use at the time the officer fired one.
In sum, Russo does not in any way protect police officers from liability for injuries
caused by use of a taser. Taser International also cites Ewolski v. City of
Brunswick as legal support for the liberal use of tasers by police officers. In its
memo, Taser International states that the court “held that the defendant police
officer’s use of Taser non-lethal force to subdue a potentially homicidal individual
did not transgress clearly established law” and that the court “further held that the
use of Taser non-lethal force 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.”
These statements are at best misleadi ng and at worst entirely false. The officers
involved in the Ewolski case did not even use tasers. In that case, the court held
that the officers in question were entitled to qualified immunity for their use of a
battering ram and tear gas in a hostage situation involving a man who had been
threatening to shoot any officer who entered his home and who had, in fact,
already shot one officer. The court does quote language from the Russo case
addressing the standard to be applied in evaluating a defense of qualified
immunity. However, to state that the court upheld Russo and concluded that a use
of a taser was justified is a mischaracterization of both the facts of the case and the
relevance of its legal conclusions. No municipality should rely on Taser
International’s analysis of this case in defending an excessive force claim
regarding the use of tasers. The other cases addressed by Taser International are
Lifton v. City of Vacaville, 2003 U.S. App. LEXIS 16286 (9th Cir. 2003),
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988), Jolivet v. Cook, 1995 U.S.
App. LEXIS 3950 (10th Cir. 1995), Walker v. Sumner, 1993 U.S. App. LEXIS
26517 (9th Cir. 1993), Caldwell v. Moore, 968 F.2d 595 (6th Cir. 1992),
Hernandez v. Terhume, 2000 U.S. Dist. LEXIS 18080 (N.D. Cal. 2000), Hinton v.
City of Elwood, Drummer v. Luttrell, 75 F.Supp.2d 796 (W.D. Tenn. 1999),
Bennett v. Cambra, 1997 U.S. Dist. LEXIS 1584 (N.D. Cal. 1997), Alford v. Osei-
Kwasi, 203 Ga. App. 716 (1992), Nicholson v. Kent County Sheriff’s Dep’t , 839
F.Supp. 508 (W.D. Mich. 1993), and Parker v. Asher, 701 F.Supp. 192 (Nev.
1988). No municipality can safely rely on Taser International’s analysis of these
cases in defending an excessive force claim regarding the use of tasers. Lifton is
unpublished and, therefore, not binding. In its opinion, the court does not set out
any of the underlying facts; therefore, the case provides no guidance on when and
under what circumstances the Ninth Circuit Court of Appeals would consider use
of a taser acceptable. Michenfelder was a 1998 case raising an Eighth Amendment
challenge to prison guards’ use of a taser to compel inmate strip searches and is
therefore inapplicable to the questions presented within the context of this report.
Jolivet is an unpublished (and, therefore, not binding) case holding that the use of
a taser in a prison did not violate the Eighth Amendment. Caldwell v. Moore is a
1992 case holding that the use of a taser in a prison did not violate the Eighth
Amendment because the use was not “maliciously and sadistically to cause harm.”
Hernandez and Bennett are both unpublished federal district court cases that
address Eighth Amendment challenges to the use of tasers in the prison context.
The company’s citation to Hinton is errorenous, since the case cannot be located in
the Westlaw database. Drummer did not even involve a taser; the federal district
court merely cited Caldwell v. Moore for the proposition that the use of a taser in a
prison may, under certain circumstances, not violate the Eighth Amendment. The
remaining cases are similarly unhelpful in guiding a municipality in developing
guidelines for the appropriate use of tasers by law enforcement officers. The City
of Mountain View should also be aware that several municipalities have paid
substantial amounts to settle excessive force actions brought by individuals who
were injured by police use of tasers. The city of Chula Vista, California, paid
$675,000 to settle a claim brought by a woman who lost her baby after being shot
by a taser. The officer involved had tasered the woman in the back, as she was
attempting to enter her house. She had not been engaged in criminal activity and
was not armed. The city of Portland, Oregon, paid $145,000 to settle an action
brought by a 71-year-old woman who had been tasered. The woman had refused to
obey orders that she not enter a trailer, so the officers involved hit her in the head
with a taser, knocking her to the ground, and then shot her three times with the
taser.
A note on international standards: This report focuses on American (federal and
state) legal rules that might apply to tasers. But we also we note that tasers have
also received attention from the perspective of broader human rights commentary,
as guided by international law or convention. Amnesty International has stated that
that there are three over-arching human rights issues associated with police use of
tasers. One is that because tasers are portable and easy to use, they are particularly
open to abuse by unscrupulous officers. The second is that police officers appear
to be using tasers as a routine force option, rather than as an alternative to lethal
force (there are numerous incidents in which tasers have been used to subdue
people who aren’t posing a serious danger to officers, against unruly
schoolchildren, on unarmed mentally ill and intoxicated people, and on suspects
fleeing minor crime scenes or failing to comply immediately with commands). The
third is that there appears to be a growing number of fatalities associated with
police use of tasers. Amnesty International states that the inappropriate use of
tasers may violate the United Nations Code of Conduct for Law Enforcement
Officers, the Basic Principles on the Use of Force by Law Enforcement Officials,
and the United Nations Convention on the Rights of the Child. It should be noted
that only a small number of specially trained officers are permitted to carry tasers,
and are permitted to use them only under circumstances in which use of a firearm
would also be permitted. Additional information regarding the applicability of
international human rights law to the use of tasers can be found at
RECOMMENDATIONS
1. The Use of Tasers by Police Officers should be limited to circumstances
under which the use of lethal force would also be permitted.
First, here is a snapshot of the established law on the authorized use of force by
police: Police can always use reasonable, non-deadly force to thwart any crime or
to seize anyone the police officer reasonably believes to be fleeing from the
commission of a crime or attempting to evade a lawful arrest. As for deadly or
“lethal” force – usually defined to mean force inte nded to or likely to cause either
death or grievous bodily harm – police can u se this to prevent completion or
commission of a felony only if the felony is one that normally poses serious
physical danger to victims or bystanders (robbery, rape) but not for other, non-
violent felonies. In addition, under the Supreme Court rules established in
Tennessee v. Garner, 471 U.S. 1 (1985), police may only use deadly force to
apprehend or to ensure the arrest of someone fleeing from the commission of a
felony if the office reasonably believes that the fleeing person at the time of flight
poses a threat of death or serious bodily injury to others.
We recommend that all countries adopt a specific policy limiting police use of
tasers to situations in which they would also be permitted to use deadly or lethal
force. Because the health effects of tasers have not been adequately studied, we
contend that the use of a taser in any other situation would constitute excessive
force. Courts that have been confronted with this question have tended to hold that
police officers who injure or kill suspects with a taser are entitled to qualified
immunity. As more becomes known regarding the health effects of tasers,
however, this may change. Moreover, the availability of qualified immunity
holdings does not protect a city from being in the unfortunate position of having to
settle a lawsuit brought by a citizen who has been severely injured by the police
use of a taser. For these reasons, tasers should be considered as a lethal force
option on the use of force continuum. We also recommend, consistent with the
above, that police officers be encouraged to use tasers as an alternative to lethal
force. Tasers should be the preferred method of use of force in life-threatening
situations, and should not be used otherwise. This recommendation represents a
cautious assessment of the costs and benefits of taser use. Assuming that tasers are
efficacious in constraining people from committing or fleeing crimes, tasers are no
less beneficial to police than are firearms. They are less costly to society in that
they will prevent the death or grievous injury that would occur were firearms used
in deadly force situations where something else than death or grievous injury
would be sufficient to achieve the police purpose. Tasers may also be more
beneficial to law enforcement in two senses: First, since some feeling felons try to
seize the guns of police officers and use the guns against the officers or other
innocent people, that risk is reduced if the officer does not take out a gun against
the felon. Second, assuming that within the gray legal zone of permissible use of
deadly force some police officers will be understandably conservative in deciding
whether to shoot, they will be more effective in thwarting or capturing felons if
they are more comfortable in using tasers than guns. Two alternative positions are
conceivable. First, once could take a less cautious view of the current research and
conclude that taser use does not pose much risk, if any, of death or grievous bodily
harm, and therefore should not be treated as “deadly force” under the law. We
think i t very unwise to read the current research that way. Second, one could
argue that because tasers, even if sometimes lethal, surely cause death or grievous
bodily injury less often than do guns, the police ought to be authorized to use them
even in situations where deadly force is not authorized. We believe that given the
current uncertainty about the measurable risk of death or grievous injury posed by
tasers, and given the difficulty, if not impossibility, of police officers on the street
discerning whether the target is an especially vulnerable victim, this is an unwise
and unworkable legal position.
2. Training
Taser International provides training materials to law enforcement agencies and at
least fifty-two law enforcement agencies in the state of California use them as their
sole source of training. At least four agencies in the state of California create and
use their own training materials. This is inappropriate. The city of Mountain View
should solicit assistance and information from law enforcement agencies that have
developed their own materials and not rely on those provided by Taser
International. Taser International’s training materials downplay the risks
associated with taser use, encourage multiple firings in inappropriate
circumstances, and misrepresent the studies that have been done regarding the
health effects of tasers. The city of Mountain View should also require its law
enforcement agencies to follow the recommendations and training protocols set
forth by the International Association of Chiefs of Police. This is a nine-step
policy and training protocol that the IACP developed in response to concerns
raised by the law enforcement community about the use of tasers. The
recommendations are generally sound and are in accord with established legal and
civil rights principles.
3. Tasers should NEVER be used under certain circumstances
There has not been sufficient independent testing on the safety of tasers on
vulnerable populations such as children, pregnant women, the elderly, the mentally
ill, and those under the influence of drugs. Therefore, the city of Mountain View
should strongly consider adopting a policy prohibiting the knowing use of tasers
on such individuals. Clearly, a police officer may not know whether a woman is
pregnant or whether any particular individual is taking psychiatric medications.
Therefore, such a policy need not punish officers who inadvertently injure a
suspect whom he or she did not know was a member of such a vulnerable
population. Nonetheless, a sound policy would advise police officers that the use
of tasers on such individuals may be extremely dangerous and that knowingly
using a taser on such an individual is never appropriate. The purpose of tasers and
other weapons is to subdue violent and dangerous individuals. Therefore, the city
should adopt a policy prohibiting the use of tasers for the purpose of inflicting
punishment or pain. Tasers should be used only on dangerous individuals and
never on individuals who are passively resisting arrest.
Self Assessment Exercise
1. What is Taser? What are the ....to guide against when using a it?
2. What are the advantages as well as the disadvantages in the usage of taser?
4.0 Conclusion
The use of tasers by law enforcement officers is almost entirely unregulated.
Therefore, any municipality or state that endeavors to implement a policy guiding
law enforcement agencies in the appropriate use of tasers should be commended.
5.0 Summary
The first section of this unit gives a brief summary of the effects of taser use on the
human body. The second section provided a summary and analysis of the legal
issues that have arisen in connection with the use of tasers, and of the existing case
law that addresses these legal issues. The final section offer some guidance
regarding the possible appropriate uses of tasers and some recommendations.
4. Recommendations
The San Jose Police Department requires officers to transport subjects hit with
taser barbs to a hospital so that medical personnel can remove the barbs. Many
agencies call EMTs to the scene of a taser use so that they can monitor the subject
and remove the barbs if doing so is appropriate. Mountain View should establish a
specific policy on this issue requiring the intervention of some type of medical
personnel. Permitting officers to remove the barbs is inappropriate. Police officers
should be required to document every use of a taser, including situations in which
a taser is shown or threatened, even if not used. The documentation should include
identifying information regarding the subject such as age, race, physical health,
degree of intoxication if any, and medications taken if any. The documentation
should also include information regarding the circumstances of the taser use itself,
including the actions of the subject, the basis for the use of the taser, whether the
individual was arrested, the number of times the taser was used, and whether it
was used in stun gun mode or shot from a distance. Collecting such information
can only assist municipalities in developing and revising guidelines regarding taser
use.
6.0 Tutor Marked Assignment
Explain the three overarching scenarios that can cause concern regarding the
possibility of a taser delivering a fatal shock.
7.0 References/ Further Reading
IACP Report. http://www.iacp.org/research/CuttingEdge/EMDT9Steps.pdf.
http://www.cpoa.org/forcechart.html for a visual representation of the use of
force continuum
generally followed by law enforcement agencies. See GAO Report for more
information on this issue generally.
http://www.amnestyusa.org/countries/usa/document.do?id=1A01E91E134A32
7080256F190042408D. Amnesty International, “Excessive and Lethal Forc e?
Amnesty International’s Concerns.
Deaths and Ill-treatment Involving Police Use of Tasers,” Vol. 1(7).
http://www.amnestyusa.org/countries/usa/document.do?id=1A01E91E134A32
7080256F190042408D
http://www.taser.com/law/download/memo.htm. (Taser Memo).
ACLU of Northern California, “Stun Gun Fallacy: How the Lack of Taser
Regulation Endangers Lives,” September 2005 (“ACLU Report”), p. 4, citing
Russel Sabin, “Heart Expert Warns About Using Taser s,” San Francisco
Chronicle, January 5, 2005.
Taser International website, Product Warnings for Law Enforcement.
www.taser.com/safety/.
Warnings 6-12. Note, the warnings given to civilian taser owners differ slightly
from the warnings given
