Electronic Control Devices: Legal Resources
Legal resources for the legal aspects of electronic control devices (ECDs)

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Electronic Control Devices: Legal Resources

LAAW
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Website tentatively will be fully populated by June 1, 2010.

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Other Excellent Related Reference Websites:

Institute for the Prevention of In-Custody Deaths, Inc. ("IPICD")
- For information on sudden death, agitated delirium, excited delirium, medical/scientific aspects of Electronic Control Devices (ECDs):
- For a large number of TASER® ECD related documents go to the IPICD website (articles page)
- 2009 Institute for the Prevention of In-Custody Deaths Symposium - November 11-13, 2009 - Las Vegas, Nevada.

October 20-22, 2009 (Baltimore, MD) - Forensic Analyst: Excited Delirium, Sudden, In-Custody Deaths Program

November 17-19, 2010 (Las Vegas, NV) - Institute for the Prevention of In-Custody Deaths Fourth Annual Symposium

UOM Excited Delirium Education, Research, and Information
University of Miami, Miami, Florida (Dr. Deborah Mash, Ph.D., Professor of Neurology, Professor of Molecular and Cellular Pharmacology, Director of University of Miami Brain Bank)

AELE - Americans for Effective Law Enforcement,
- Law Enforcement Legal Center
- Excellent resource for law enforcment related legal matters.

Primary TASER® Electronic Control Devices (ECD) White Papers:

(08/28/08) TASER® Electronic Control Devices (ECDs) Review of Safety Literature, Mark W. Kroll, PhD, FACC, FHRS. (Note, this document has been enhanced and published (as Chapter 42: TASER Electronic Control Devices) in Electrical Injuries: Medical and Bioengineering Aspects, Second Edition, Edited by Raymond M. Fish and Leslie A. Geddes, Lawyers & Judges Publishing Company, Inc.)

(11/10/08) Introduction: TASER ECDs, History, Electricity, Electrical Stimulation, Electrical Measurements, & Human Body

(01/14/10) ECD Research Index
(08/19/08) ECD Research Index and Conclusions

(03/17/07) Basic DRAFT Electronic Control Device (ECD) Legal Outline - will be enhanced, corrected, improved.

Basic Use-of-Force Information:

(11/02/09) Brave - Brief ECD Case Force Factors Presentation (PowerPoint)

(03/01/09) Basic Fourth Amendment (4th) "Objective Reasonableness" ("OR") Force Considerations

Use of Force Analysis Charts:

Charts: LAAW International, Inc. Use of Force Analysis Charts.

Chart: Use of Force Recipient Status Matrix.

Basic Arrest-Related Death Information:

(01/02/09 In-Custody Death Research Index
(03/13/09) Excited Delirium Checklist - with references

LAAW International, Inc. Reference Sheets (LRSs) Detail (D):

(06/25/08) TASER Electronic Control Device, Legal Issues Outline: Restraint Cases

TASER Reference Sheets (TRSs) and Other ECD Related Reference Summaries:

(10/12/09) TASER ECD Risk Management Injury Reduction PowerPoint Presentation

(03/19/08) TRS-D 2004: What the Numbers Say (U.S.) - Detail
(02/06/08) TRS What the U.S. Drug Abuse Numbers Say ...
(09/02/08) TRS-D Ventricular Fibrillation (VF) - Detail
(06/10/08) TRS-D Metabolic Acidosis - Detail
(04/24/08) TRS-D Breathing Effect - Detail
(04/25/08) TRS-D Rhabdomyolysis - Detail
(06/10/08) TRS-D TASER Electronic Control Device (ECD) Delivered Energy Basic Analogy Examples

(10/15/09) TASER Training Bulletin 15.0 Medical Research Update and Revised Warnings
(03/01/06) Reason for June 28, 2005, TASER Training Bulletin, regarding multiple TASER electronic control device exposures alleged effects on respiration and pH levels warnings

(02/01/09) TASER M26 Electrical Characteristics
(02/06/09) TASER M26 Specifications Sheet
(02/01/09) TASER X26 Electrical Characteristics
(02/06/09) TASER X26 Specifications Sheet

ECD State Statutes (Summaries):

(US) 2009 State ECD Statute Summary Table

(US) (Older) 2007 State ECD Statute Chart

(12/12/08) Dziekanski (Vancouver, Canada):

Dziekanski, 41, died in the secure arrivals area of Vancouver International Airport on Oct. 14, 2007, moments after he was shot with RCMP stun guns. His death ignited an international debate about the police use of stun guns.

[Attorney General Criminal Justice Branch spokesperson Stan] Lowe said Friday that, after a full examination of the evidence, Crown prosecutors found it fell remarkably short of the test needed to apply criminal charges.

He revealed the officers stunned Dziekanski a total of five times with Tasers, but also said three pathologists concluded that Dziekanski did not die from the electric shocks. Instead the pathologists concluded Dziekanski died from a combination of alcohol withdrawal, a hysterical fear of flying, lack of sleep and restraint by the officers, Lowe said.

The Crown concluded the officers involved were acting with their legal duties to detain and restrain Dziekanski as they did, Lowe said.

British Columbia Criminal Justice Branch Statement and British Columbia Press Release Document

ECD Related Papers:

(01/30/09) Jauchem, PhD, James R., Deaths in custody: Are some due to electronic control devices (including TASER® devices) or excited delirium? Journal of Forensic and Legal Medicine, doi:10.1016/j.jflm.2008.05.011.

(01/19/09) Kroll, Mark W., Physiology and pathology of TASER® electronic control devices, Journal of Forensic and Legal Medicine, doi:10.1016/j.jflm.2008.12.012.

(01/15/09) Bozeman W, II WH, Heck J, Graham D, Martin B, Winslow J., Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officer Against Criminal Suspects. Annals of Emerg Med. 2009, doi:10.1016/j. annemergmed. 2008.11.021.

Conclusion: To our knowledge, these findings represent the first large, independent, multicenter study of conducted electrical weapon injury epidemiology and suggest that more than 99% of (1201) subjects do not experience significant injuries after conducted electrical weapon use.

(12/08) Chris Butler, Staff Sergeant, Calgary Police Service, Christine Hall, MSc MD FRCPC, Principal Investigator, RESTRAINT Study, Department of Emergency Medicine, Vancouver Island Health Authority, Police/Public Interaction: Arrests, Use of Force by Police, and Resulting Injuries to Subjects and Officers—A Description of Risk in One Major Canadian City (Calgary Police Service, Calgary, Alberta, Canada), Law Enforcement Executive Forum • 2008 • 8(6), pgs 139-155.

(Part of Discussion) The commonly held belief that the conducted energy weapon carries a significant risk of injury or death for the population of interest is not supported by the data. Within the force modality framework most commonly available to police officers, the CEW was less injurious than either the baton or empty hand physical control.

Although the study used the intention to treat analysis, when we removed the incidents where the use of the CEW was unsuccessful (n = 14) (thereby requiring subsequent alternative force options—typically physical control), the safety profile of the CEW rose to 88.7% (i.e., no injury or minor injury to subjects only).

(08/28/08) Operational Evaluation of the New Zealand [TASER ECDs] Trial, Police Operations Group and the Evaluation Team at Police National Headquarters, New Zealand Police, dated February 2008.

(06/12/08) RCMP Use of Conducted Energy Weapon (CEW), Final Report, Including Recommendations for Immediate Implementation, Commission for Public Complaints Against the Royal Canadian Mounted Police.

ECD-Related Books Available:

(02/01/09) Electrical Injuries: Medical and Bioengineering Aspects, Second Edition, Edited by Raymond M. Fish and Leslie A. Geddes, Lawyers & Judges Publishing Company, Inc. Chapter 42 is TASER Electronic Control Devices.

(03/26/09) TASER® Electronic Control Devices: Physiology, Pathology, and Law, by Mark W. Kroll (Editor), Jeffrey D. Ho (Editor), (Table of Contents)

TASER® Conducted Electrical Weapons are rapidly replacing the club for law-enforcement control of violent subjects within many countries around the globe. A TASER CEW is a hand-held device that delivers a 400-volt pulse with a duration tuned to control the skeletal muscles without affecting the heart at a distance of up to 6.5 meters over tiny wires. If necessary, it begins with an arcing voltage of 50,000 V to penetrate thick clothing; the 50,000 V is never delivered to the body itself. Due to the widespread usage of these devices and the widespread misconceptions surrounding their operation, this book will have significant utility. This volume is written for cardiologists, emergency physicians, pathologists, law enforcement management, corrections personnel, and attorneys.

(04/27/08) TASER ELECTRONIC CONTROL DEVICES AND SUDDEN IN-CUSTODY DEATH: Separating Evidence from Conjecture, By Howard E. Williams. C C Thomas 2008 . 226 pp.

DESCRIPTION: Negative sentiment regarding ECDs is due largely to a lack of understanding about the technology behind such weapons and a misunderstanding of those weapons’ physiological effects. Media accounts that speculatively associate sudden in-custody deaths with the use of ECDs only add to the confusion. The book documents 310 deaths in the United States proximate to the application of TASER electronic control devices from 1983 through 2006. The study examines the phenomenon of sudden death as it relates to electromuscular disruption technology and TASER ECDs by constructing 213 cases studies, dating from 1983 through 2005, and analyzing information available from news accounts, police reports, and autopsies. After reviewing the available evidence from this extensive case study, the author concludes that these conducted energy weapons are excluded as the cause of death in 182 of the 212 cases. In only two cases did the evidence tend to confirm the weapon was either a cause of death or a significant contributing factor. While arguing that the TASER ECDs are safe less-lethal weapons, the author also cautions that they are not completely effective. He notes that the weapons were not effective in subduing more than 60 percent of violent or aggressive subjects in the 213 case studies, and he documents 131 cases of fatal police shootings and one police fatality following the failure of the weapons. The only way to determine whether the ECDs are responsible for deaths is to separate evidence from conjecture and analyze the facts of each case. This book will be an excellent resource for law enforcement professionals, attorneys, investigators, and criminal justice personnel.

(05/20/08) ECD Information - Deputy Director for Science & Technology, National Institute of Justice

NIJ Sponsored Medical Study - Deaths Following Electro Muscular Disruption.
Study Framework: The study is directed by a steering group with representation from NIJ, the College of American Pathologists, the Centers for Disease Control, and the National Association of Medical Examiners.

To support the study, the steering group appointed a medical panel comprised of physicians, medical examiners and other relevant specialists in cardiology, emergency medicine, epidemiology, pathology, and toxicology.

"While exposure to CED is not risk-free, there is no conclusive medical evidence within the state of current research that indicates a high risk of serious injury or death from the direct effects of CED exposure. Field experience with CED use indicates that exposure is safe in the vast majority of cases. Therefore, law enforcement need not refrain from deploying CED’s, provided the devices are used in accordance with accepted national guidelines such as the model policy of the International Association of Chiefs of Police."

John Morgan, Deputy Director for Science & Technology, National Institute of Justice, May 20, 2008, Less Lethal and Critical Incident Technologies.

(10/08) Medical Panel Issues Interim Findings on Stun Gun Safety, by John Morgan, Ph.D., NIJ Journal, National Institute of Justice, Office of Justice Programs, U.S. Department of Justice, Issue No. 261, pages 20-23, October 2008.

NOBLE:

(07/27/07) National Organization of Black Law Enforcement Executives (NOBLE) Resolution in Support of the Use of Electronic Control Devices and Less Lethal Devices by Law Enforcement Officers in Use of Force Situations, Adopted at the 31st Annual Conference, on July 27, 2007, in Ft. Lauderdale, FL.

(03/24/08) Minimal Force Less Lethal Report:

(03/24/08) Report of the Fifth International Law Enforcement Forum for Minimal Force Options and Less-Lethal Technologie, Washington & Fairfax - November 2006, International Law Enforcement Forum.

Page 23: There was general consensus that officers were using conducted energy devices (CEDs), primarily the TASER® [ECD], as the first option.

Page 37: Deployment of conducted energy devices (CEDs), primarily TASER [ECD], within many jurisdictions has affected the consideration and deployment of other tactical options and less-lethal weapons. There was general consensus that officers were using TASER [ECD] as the first option. This was, perhaps, borne out of growing confidence in the system over time and a reduced likelihood of injury to both fficers and subjects (actual and perceived) - as well as the accompanying potential to reduce the likelihood of complaint and post- incident investigation.

Page 38: It is important to note that TASER lnternational [,Inc.] is the leader in the development and manufacture of CEDs. The ILEF recognizes that this vendor has invested in and conducted exhaustive research in order to increase device effectiveness as a tool for law enforcement while minimizing injury to subjects. Additionally, they have cooperated with and supported both government and independent researchers to continue to grow the body of knowledge on these systems. The ILEF views this open and responsible approach to research and testing as a model for other manufacturers to emulate.

Page 39: The psychological impact of CEDs on subjects has been illuminating. Subjects often become defiant when an officer presents a lethal weapon. They do not believe an officer will fire. When an officer presents a CEO, however, often that is enough to gain compliance, since these subjects believe officers are very willing to actually fire the device. Some in the group related experiences where merely pointing the device, orienting the laser dot, or verbally warning,"stop or I will taze you" was enough to gain compliance.

Page 39: Of note also was the sense from many of the group members that police use of CEDs to gain compliance of subjects who are suffering from mental health problems (e.g., schizophrenia) has found broad support among mental health groups (The Schizophrenic Society in Canada, The Schizophrenic Association in the UK, and the National Institute of Mental Health in the US were all mentioned).

A Few Recent VERY Important Cases of Interest:

(01/12/10) Mattos v. Agarano, --- F.3d ----, 2010 WL 92478 (C.A.9 (Hawai‘i) 2010)

(12/28/09) Bryan v. McPherson, --- F.3d ----, 2009 WL 5064477 (C.A.9 (Cal.) 2009)
- Brief synopsis of (CA) Bryan v. McPherson

(12/24/09) Orsak v. Metropolitan Airports Com'n Airport Police Dept., --- F.Supp.2d ----, 2009 WL 5030776 (D.Minn. 2009)

(12/02/09) Mann v. Taser Intern., Inc., --- F.3d ----, 2009 WL 4279713 (C.A.11 (Ga.) 2009)

(10/26/09) Oliver v. Fiorino, 586 F.3d 898 (C.A.11 (Fla.) 2009)

(07/22/09) Brown v. City of Golden Valley, 574 F.3d 491 (C.A.8 (Minn.) 2009)

(07/21/09) Sanders v. City of Fresno, Slip Copy, 2009 WL 2157152 (C.A.9 (Cal.) 2009)

A Few Recent ECD Cases of Interest:

(05/19/09) Defense verdict for all law enforcement defendants on all claims. Bud Lee, et. al. v. Metropolitan Government of Nashville and Davidson County, et. al., United States District Court for the Middle District of Tennessee (Nashville Division), Case Number 3:06-0108 (Judge Trauger).

(01/26/09) Bud Lee, et. al. v. Metropolitan Government of Nashville and Davidson County, et. al., 2009 WL 211051, United States District Court for the Middle District of Tennessee (Nashville Division), Case Number 3:06-0108 (Judge Trauger).

Pg. 45, FN 23: The Court found "as a matter of law, that the Taser device is not defective or unreasonably dangerous is appropriate."

Pg 45: "For the reasons discussed above, Taser is entitled to summary judgment. The plaintiffs have failed to raise a fact issue as to whether the Taser device is unreasonably dangerous or whether the Taser device has a defect."

(12/16/08) Wilson v. TASER International, Inc., 2008 WL 5215991 (11th Cir.(Ga.) Dec. 16, 2008). Eleventh Circuit Court of Appeals Affirmed District Court's grant of Summary Judgment to TASER International, Inc. in an officer injury training case in Georgia.

(11/24 & 25/08) Ruby Mann, et. al. v. TASER International, et. al., United States District Court for the Northern District of Georgia, Rome Division, Civil Action File No. 4:05-CV-0273-HLM. The Court granted TASER International, Inc.'s motion for summary judgment (MSJ) on November 24, 2008, and the law enforcement defendants' MSJ on November 25, 2008. The Court's Orders are not published or linked by Order of the Court. The 11th Circuit's decision is published: (12/02/09) Mann v. Taser Intern., Inc., --- F.3d ----, 2009 WL 4279713 (C.A.11 (Ga.) 2009).

(09/09/08) Buckley v. Haddock, 292 Fed.Appx. 791, 2008 WL 4140297 (11th Cir.(Fla.) Sep 09, 2008) (Not selected for publication in the Federal Reporter, NO. 07-10988). (06/18/09) Cert. Denied, Buckley v. Rackard, --- S.Ct. ----, 2009 WL 273218, 77 USLW 3449 (U.S. May 18, 2009) (NO. 08-996).

[Note: This case is interesting. The three judge panel had three different opinions as to the constitutionality of the deputy's use of force (three ECD drive-stun applications on the handcuffed emotionally-distraught (crying) arrestee). I suggest reading all three judges' opinions. I also suggest reading the underlying district court denial of summary judgment (Buckley v. Haddock, 2007 WL 710169, 20 Fla. L. Weekly Fed. D 616 (N.D.Fla. Mar 06, 2007) (NO. 5:06CV53-RS)).] [Buckley Incident video on YouTube].

Conclusion: Plaintiff resisted arrest [by physically dropping to the ground, repeatedly refused to comply with the deputy's reasonable orders (even after being warned that a TASER ECD would be used), and made no effort to stand when the deputy attempted on two occasions physically to lift Plaintiff to his feet.]. Given this circumstance in the context of all the other facts, Deputy Rackard's gradual use of force, culminating with his repeated (but limited) use of a [TASER ECD], to move Plaintiff to the patrol car was not unconstitutionally excessive. In addition, even if Plaintiff could establish that some of the deputy's use of force violated the Fourth Amendment, the deputy still would be entitled to qualified immunity because the applicable law at the time did not clearly establish that the deputy's conduct-given the circumstances-was unconstitutional. Accordingly, the district court erred in denying Deputy Rackard's motion for summary judgment.

(09/02/08) Neal-Lomax, et al v. Las Vegas Metropolitan Police Department, et al, Case Number: 2:05-cv-1464, United States District Court for the District of Nevada.

LVMPD MSJ Order - The Court ruled that the Las Vegas (NV) Metropolitan Police Department (LVMPD) Officer used objectively reasonable force in his use of the TASER X26 on William Lomax. Neal-Lomax ex rel. Lomax v. Las Vegas Metropolitan Police Dept., 574 F.Supp.2d 1193 (D.Nev. Sep 02, 2008) (NO. 2:05CV-01464-PMP-RJJ).

TASER MSJ Order - As to TASER International (TI), the Court ruled that: Neal-Lomax ex rel. Lomax v. Las Vegas Metropolitan Police Dept., 574 F.Supp.2d 1170 (D.Nev. Sep 02, 2008) (NO. 2:05CV-01464-PMP-RJJ).

"Plaintiffs have failed to produce any admissible evidence stating to a reasonable degree of medical certainty that the [TASER electronic control device] caused or contributed to Lomax’s death. Plaintiffs therefore have not raised a genuine issue of material fact as to causation, and the Court will grant Defendant [TASER International’s] motion for summary judgment."

The Court also ruled to exclude or limit Plaintiff's principle causation experts. The Court found in part that an expert lacks any objective medical source linking the eyewitness testimony and his opinions as to what caused Lomax’s death. Absent any medical or scientific basis to support his opinion the expert's opinions are not based on reliable medical or scientific methodology.

(05/05/08) Torres v. TASER Intern., Inc., 277 Fed.Appx. 684 (C.A.9 (Cal.) May 5, 2008). Ninth Circuit Court of Appeals ruling on case of weapons confusion - officer drawing and discharging firearm when intended to draw TASER device.

(05/02/08) TASER International, Inc. and City of Akron (OH) v. Chief Medical Examiner of Summit County, Ohio a/k/a Dr. Lisa Kohler, M.D., In the Court of Common Pleas, Summit County, Ohio, Case No. CV 2006-11-7421, Judge Ted Schneiderman. This case was upheld (as to TASER) by the Court of Appeals of Ohio, 9th Circuit in their March 31, 2009 decision (2009 WL 826416 (Ohio App. 9 Dist.))). On August 26, 2009, the Ohio Supreme Court (case no. 2009-0868) denied the Medical Examiner's appeal of the appellate decision. (TASER International, Inc. v. Kohler, 912 N.E.2d 108, 2009 WL 2605742 (Ohio).)

In a 4 day bench trial that started on April 21, 2008, TASER International, Inc. (TASER), joined by the City of Akron (OH), went to court (in OH) to have the court determine whether the use of TASER electronic control devices that were listed in 3 autopsy reports by 3 medical examiners (MEs) as contributors to death should be removed. The Court’s Order, dated May 2, 2008, finds for TASER and orders the MEs to change the cause of death determinations. Note, that in (OH) McCullaugh 5 sheriff’s deputies have been criminally charged with various crimes, including one deputy on a murder charge.

Here are some of the highlights from the Court’s Order:

“There is simply no medical, scientific, or electrical evidence to support the conclusion that the TASER X26 had anything to do with the death of Dennis S. Hyde, Richard Holcomb, or Mark D. McCullaugh. The Medical Examiner failed to present any evidence on the use and effect of TASER Devices.”

“Even though the Medical Examiner's conclusions are entitled to much weight, and assuming a nonbinding presumption in favor of the Medical Examiner, the Plaintiffs have proven their claims for changing the reports of autopsy and death certificates on the three individuals by more than a preponderance of the evidence. The multiple number of experts offered by the Plaintiffs in the area of sudden and unexpected death while law enforcement attempted to obtain custody, provided overwhelming credible medical and scientific evidence to support their positions.”

“The experts provided evidence that Dennis S.Hyde and Richard Holcomb probably died as a result of a fatal cardiac arrhythmia due to acute illicit drug intoxication creating crazed states consistent with "Excited Delirium Syndrome," also known as "Agitated Delirium." Also, with Hyde, blood loss by arterial injury was a contributory cause. The TASER Devices had nothing to do with their deaths.”

“As it relates to the death of Mark D. McCullaugh, the testimony and the exhibits presented by the Plaintiffs' experts demonstrated that the TASER Devices did not cause, nor did they contribute to asphyxia as found by the Medical Examiner. More likely the death was due to a fatal cardiac arrhythmia brought on by severe heart disease, his schizophrenia, the struggle, and possibly the Geodon injection. There was no expert evidence to indicate that TASER Devices impaired respiration.”

“IT IS ORDERED AND ADJUDGED that Judgment is GRANTED in favor of Plaintiff, TASER International, Inc., and Intervening Plaintiff City of Akron, Ohio.”

“IT IS ORDERED, ADJUDGED AND DECREED that as provided in Ohio Revised Code Section 313.19, Dr. Lisa Kohler as Chief Medical Examiner of Summit County, Ohio is directed to change the reports of autopsy and death certificates of Dennis S. Hyde, Richard Holcomb, and Mark D. McCullaugh as follows:”

“Dennis S. Hyde: The death shall be ruled "Accidental" and any reference to "Homicide" or contributing factor of electrical pulse incapacitation shall be deleted from both the Death Certificate and Report of Autopsy.”

“Richard Holcomb: The death shall be ruled "Accidental" and any reference to "Homicide" or contributing factor of electrical pulse incapacitation shall be deleted from both the Death Certificate and Report of Autopsy.”

“Mark D. McCullaugh: The death shall be ruled "Undetermined" and any reference to death by "Asphyxia due to the combined effects of chemical, mechanical and electrical restraint," as well as any reference to "Homicide" due to "multiple restraint mechanisms with beating and anal penetration" shall be deleted from both the Death Certificate and the Report of Autopsy.”

“IT IS FURTHER ORDERED that the Court retain jurisdiction to ensure that the Summit County Medical Examiner makes the changes to the death determinations on the three individuals as directed herein.”

(04/23/08) Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir.(Fla.) Apr 23, 2008) (NO. 07-11903). Officer's use of a TASER ECD on handcuffed suspect was objectively reasonable. Officer did not use excessive force by employing TASER ECD twice against handcuffed suspect whom officer was leading and had probable cause to arrest for resisting officer with violence, and whom officer reasonably believed was intentionally spraying blood toward officer through broken nose.

(04/03/08) (See 9th CIrcuit decision: (07/21/09) Sanders v. City of Fresno, Slip Copy, 2009 WL 2157152 (C.A.9 (Cal.) 2009). Sanders v. City of Fresno, 551 F.Supp.2d 1149 (E.D.Cal. Apr 03, 2008) (NO. CIV.F050469AWISMS). Order Granting Defendant City of Fresno's Motion for Summary Judgment, See attached 41 page ORDER. Court found that:

1. Officer Herring’s the 1st, 2nd and 3rd use of the TASER device were not excessive force
2. Officer Escareno’s 2 uses of the TASER device were not excessive force
3. Officer Brown’s 5 drive stuns were also not excessive force
4. Qualified immunity was proper for all the officers
5. No negligence by the officers for the care of decedent after he was fully restrained
6. No municipal liability because there were no constitutional violations and plaintiff made no showing that the training was inadequate
7. State law claims were also dismissed (battery, wrongful death, intentional infliction of emotional distress, negligence, false imprisonment, & vicarious liability).

The City and all officers are now out of the case TASER is now the lone defendant. Some quotes from the Court's Order (emphasis added):

p. 19 – “case law indicates that Tasers are generally considered non-lethal or less lethal force. See Ewolski v. City of Brunswick, 287 F.3d 492, 508 (6th Cir. 2002); Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2 (7th Cir. 1990); Montgomery v. Morgan County, 2008 U.S. Dist. LEXIS 15846, *32 (S.D. Ind. 2008); Fuller v. Cuyahoga Metro. Hous. Auth., 2008 U.S. Dist. LEXIS 8730, *57 n.25 (N.D. Ohio 2008); McDonald v. Pon, 2007 U.S. Dist. LEXIS 92356, *6-*7 (W.D. Wash. 2007); see also San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8 (9th Cir. 2005); cf. Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). . . . Further, one court has noted that pain is a necessary byproduct of the Taser, pain is not the primary motivator, the Taser is considered to inflict considerably less pain than other forms of force, and the effects of the Taser are generally temporary. See Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1142-43 (W.D. Wash. 2007).”

p. 19-20 – “No evidence has been presented that Tasers constitute force that creates a substantial risk of death. It is true that Michael died following a struggle in which multiple Taser applications were used, but Michael clearly did not die immediately, he was able to breathe and converse with the officers and Henrickson, and the coroner’s report indicates that he died due to complications associated with cocaine ingestion. The Court will view the use of a Taser as an intermediate or medium, though not insignificant, quantum of force that causes temporary painand immobilization.”

p. 21-22 – “it seems that a strike from a solid baton can be at least equally forceful, if not more so, than a Taser . . .”

p. 39-40 – “With respect to the 42 U.S.C. § 1983 claim, Plaintiff has not presented evidence that shows Michael’s constitutional rights were violated. Herring’s use of the Taser was an objectively reasonable means of trying to keep Michael and Lavette separated, given the totality of the circumstances and particularly Michael’s paranoia and agitation, Lavette’s appearance and conduct, and Michael’s statements that the officers were not going to take Lavette from him. All further uses of the Taser by Herring, Escareno and Brown were also objectively reasonable due to the totality of the circumstances, particularly Michael’s resistance of the officers and the inability of multiple officers to physically control Michael. Alternatively, the law was not so clearly developed that a reasonable officer in the Defendants’ position would know that their conduct was unlawful.

Additionally, the post-struggle conduct of the officers did not violate Michael’s rights. Paramedics had been summoned before the struggle ended; Michael was breathing and able to talk with the officers after the struggle; when Michael fell over and said that he could not breathe, the officers propped Michael back up and there is no indication that he continued to complain; when the paramedics arrived Michael was breathing, communicated, and had a pulse; the officers assisted the paramedics with placing Michael on the gurney and Michael was only on his stomach a brief period of time during this process; when Michael was observed in distress by Escareno, he informed the paramedics who examined Michael and said he was okay; and Escareno and Burger helped with CPR and driving to the hospital. The officers’ conduct was reasonable.”

Brown v. City of Golden Valley, 534 F.Supp.2d 984 (D.Minn. Feb 14, 2008) (NO. CIV.06-3141MJD/AJB). Court denied summary judgment to Officer and found that (under plaintiff's version of facts) use of ECD was unreasonable and denied Officer qualified immunity. See 8th Circuit decision:(07/22/09) Brown v. City of Golden Valley, 574 F.3d 491 (C.A.8 (Minn.) 2009).

Officer asserts that his use of the ECD was reasonable. He argues that from his point of view at the time of the incident, he knew Richard Brown's vehicle (plaintiff's husband, plaintiff was the passenger) had failed to stop for officers and Brown had not complied with officer commands. Officer notes that fleeing from an officer in a motor vehicle is a felony. Plaintiff admits she did not comply with Officer's commands to get off of the telephone. Officer believed Plaintiff was intoxicated because he smelled alcohol and there were two glasses appearing to contain alcohol at Plaintiff’s feet. Officer believed that Plaintiff threatened officer safety by scooting herself away from the officers, drawing her knees towards her chest, and acting as if she were going to kick them. Officer was also concerned about getting Plaintiff away from the glasses to prevent her from destroying evidence or using them as a weapon. Officer asserts that he warned Plaintiff before using ECD on her (in drive-stun to her arm for 2-3 seconds), but asserts that even if, as Plaintiff asserts, he did not warn her, he is entitled to qualified immunity.

Here, viewing the facts in the light most favorable to Plaintiff, Plaintiff gave no indication of violence and made no attempt to flee; Officer did not warn her that he would use the ECD or attempt to use any other type of force; and Officer was one of 4 officers on the scene and Plaintiff’s husband was already safely in the squad car. The only crime Officer suspected Plaintiff of committing was a violation of the open container statute, a minor crime, particularly since Plaintiff was the passenger in the car. Although there were tumblers at Plaintiff’s feet, any object could be used as a weapon and there is no allegation that Plaintiff made any indication to reach for the tumblers, dispose of the tumblers, or use them as a weapon.

Officer did not order Plaintiff to get out of the car or remove her seatbelt. He only told Plaintiff to hang up the telephone. Accepting Plaintiff’s version of the facts, Officer knew that she was on the telephone with a 9-1-1 operator and was very frightened ("scared to death"), yet after the second time she failed to heed his command to get off of the telephone, without warning, he used the TASER ECD on her.

The Court concluded, that viewing the evidence in the light most favorable to Plaintiff, Officer’s actions were unreasonable. The court also refused to give the Officer qualified immunity.

Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.(Colo.) Dec. 10, 2007). In Casey, plaintiff went to a courthouse to contest his traffic ticket, and, when he lost, “he walked to the parking lot to retrieve money from his truck to pay the fine, carrying with him the court file. On his way back to the courthouse he was grabbed, tackled, [an ECD was used], and beaten by city police officers.” 509 F.3d at 1279. First, one officer tackled plaintiff, and then a second officer arrived at the scene while the plaintiff and the first officer were struggling, and the second officer used the ECD on plaintiff. Id. at 1280. The Tenth Circuit held that the second officer did use excessive force in using the ECD on the plaintiff and was not entitled to qualified immunity. Id. at 1286. The court reasoned that plaintiff’s conduct of removing a record from the courthouse was only a nonviolent misdemeanor. Plaintiff committed the offense in a particularly innocuous way because he only took the file to the court parking lot and was attempting to bring it back. Id. The second officer used the ECD on the plaintiff although the alleged crime was minor, plaintiff was not fighting back against the first officer or fleeing, the second officer had just arrived at the scene, and the second officer gave the plaintiff no warning that she was going to use the ECD on him. Id. at 1285. The court concluded that the second officer violated a clearly established right because there was no circuit opinion upholding “the use of a [TASER ECD] immediately and without warning against a misdemeanant.” Id. at 1286.

Beaver v. City of Federal Way, 507 F.Supp.2d 1137 (D.Wash. Aug. 31, 2007). Holding: Federal court in Seattle found that only the first 3 of 5 electronic control device (ECD) discharges were objectively reasonable. Each ECD use lasted 5 seconds, and all 5 ECD uses took place within an 85-second time period.

First 3 ECD discharges, officer was chasing (drugged residential burglar) alone and subject was fleeing and then trying to get up. Last 2 ECD discharges, a second officer had arrived, subject was not attempting to flee and was not an “immediate” threat,” and was not “capable” of following officers’ conflicting commands.

Parker v. City of South Portland, 2007 WL 1468658 (D.Me. May 18, 2007) (NO. CIV 06-129-P-S) (unpublished) (gathering cases in which district courts held use of TASER ECD was not entitled to qualified immunity and holding that use of ECD on unarmed, intoxicated motorist, who did not physically threaten officers or attempt to flee and who was surrounded by three officers, was not entitled to qualified immunity.

Schumacher v. Halverson, 467 F.Supp. 2d 939 (D.Minn. Dec. 15, 2006) (upholding single use of ECD on intoxicated motorist after officer warned him 3 times that he would use ECD if motorist failed to comply).

AELE Monthy Law Journal ECD Legal Articles:

(04/16/07) Civil Liability for Use of Tasers, stunguns, and other electronic control devices Part III: Use Against Detainees and Disabled or Disturbed Persons. 2007 (5) AELE Mo. L. J. 101.

(03/20/07) Civil Liability for Use of Tasers, stunguns, and other electronic control devices--Part II: Use against juveniles, and inadequate training claims, 2007 (4) AELE Mo. L.J. 101.

(02/20/07) Civil Liability for Use of Tasers, stunguns, and other electronic control devices--Part I: 4th Amendment claims for excessive force, 2007 (3) AELE Mo. L.J. 101.

(04/16/07) Electronic Control Devices: Liability and Training Aspects, by Edmund Zigmund, 2007 (5) AELE Mo. L.J. 501.

Assault and Battery: Stun Guns/TASER ECDs. Americans for Effective Law Enforcement (AELE) Law Library of Case Summaries (Civil Liability of Law Enforcement Agencies & Personnel).

ECD Sample/Model Policies and Related Documents:

(12/18/08) Appleton (WI) Police Department Use-of-Force Policy.
- Appleton (WI) Police Department Supervisory Summary (one page form).

(02/08) New Zealand Standard Operating Procedures Electro Muscular Incapacitation Devices.

(06/13/08) United States Air Force TASER ECD Policy.

(01/10/06) Electronic Control Device, LAAW Sample Policy Set.

(2007) Illinois Law Enforcement Training and Standards Board. Policy Development Guidelines for Deployment of Electro-Muscular Disruption Devices
- (03/21/07) Illinois State Senate Resolution No. 51. A standardized Use of Force Model for utilization of Electro-Muscular Disruption technology and for the training of law enforcement and correctional officers in Illinois in utilizing such devices.

(Summer/07) Less Lethal Weapons: Model Policy and Procedure for Public Safety Officers, RISK, Michigan Municipal Risk Management Authority Law Enforcement Advisory Committee.

(07/15/05) Electronic Control Weapons General Order, Orange County (FL) Sheriff's Office.

(04-05) Directive: D 05-016 - Department Policy Governing Less Lethal Options: The Taser and the Patrol Less Lethal Shotgun with Beanbag Rounds, Seattle (WA) Police Department.

Cincinnati (OH) Police Department Procedure Manual:
- 12.025 Authorized Weapons (includes TASER X26 - only by naming it)
- 12.110 Handling Suspected Mentally Ill Individuals and Potential Suicides
- 12.515 Nonviolent Demonstration Arrest: Mass Arrest Procedure
(04/10/07) - 12.545 Use of Force (includes TASER X26, pages 4-5)

Colorado Springs (CO) Police Department General Orders:
- (12/09/05) Mentally Ill Persons - General Order 540.
- (12/06/03) Use of Force Continuum - General Order 705.
- (08/02/06) Less-Lethal Force - General Order 710 (includes: SOP P1-171. Conducted Energy Devices).

Florida Highway Patrol - Policy Manual -
- Use of Control 10.01.
- Authorized Weapons - Care and Use 10.02.
- Respiratory Protection Program 10.04.

Florida TASER Advisory Group ECD Sample Policy.

(03/09/07) Use of Force - Equipment and Proficiency, General Order 1.4, Olympia (WA) Police Department.

(11/03/07) Miami (FL) Police Department TASER Policy.

(06/24/05) Leon County (FL) Sheriff's Office Use of Force General Order.

(12/06) Tucson (AZ) Police Department General Orders, Volume 2, General Operating Procedures, 2000 Use of Force, Section 2074 TASER (page 19/21).

(11/01/06) Connecticut Law Enforcement Model Policy: Electronic Control Devices (ECD).

(05/19/06) Policy 4.01A Use of Less-Lethal Force, Peoria (AZ) Department Policy and Procedure Manual.

Madison (WI Police Department Policy Manual, 6-200 The Use of Non-Deadly Force (PDF page 138/299), ECD (pages 140-142).

(06/20/05) Electronic Control Weapons in Georgia: Review and Recommendations, Adopted by the Georgia Association of Chiefs of Police Executive Board. Includes sample policy.

(01/05) Town of Madison (WI) Police Department Policy Manual.
- (01/01/05) 022 Conducted Energy Weapon (PDF pages 84-88).

(11/15/04) Las Vegas Metropolitan Police Department, Use of TASER [Device] Procedural Order.

(06/14/04) Arizona Department of Corrections Policy Manual, Chapter 700, Operational Security, Department Order 718: Stun and Stun/Lethal Electrified Fences.

Use of Force Policy, Public Safety OfficePortland State University.

(11/30/04) TASER Use and Deployment Policy, Vallejo (CA) Police Department.

International Association of Chiefs of Police (IACP) ECD Related Information:

IACP Model Policies: Electronic Control Weapons (ECW):

(08/09) IACP Model ECW Policy.

(08/05) IACP Model ECW Policy:

In the IACP's August 2005 Electronic Control Weapons Model Policy Please note the TASER® International, Inc.'s electronic control devices are excluded from this policy based upon the Model Policy's definition of electronic control weapon. For more information about these publications, please visit the IACP.

(01/05) IACP Model ECW Policy:

(08/04) Electronic Control Weapons, Model Policy Draft, IACP National Law Enforcement Policy Center.

(04/96) IACP National Law Enforcement Policy Center, ELECTRONIC RESTRAINT DEVICE: THE TASER® Model Policy.

IACP, National Law Enforcement Policy Center (NLEPC), Concepts and Issues Papers: Electronic Control Weapons:

(08/05) Electronic Control Weapons (ECW), Concepts and Issues Paper, IACP NLEPC.
(01/05) Electronic Control Weapons (ECW), Concepts and Issues Paper, IACP NLEPC.
(05/04) Electronic Control Weapons (ECW), Concepts and Issues Paper, IACP NLEPC.
(02/98) Electronic Restraint Device: The Taser®, Concepts and Issues Paper, IACP NLEPC.
(1996) Electronic Restraint Device: The Taser®, Concepts and Issues Paper, IACP NLEPC.

IACP Publications: EMD & Model Policy:

Electro-Muscular Disruption Technology: A Nine-Step Strategy for Effective Deployment has recently been published by the International Association of Chiefs of Police (IACP), Alexandria, Virginia. If you or your agency is thinking about adopting electronic control devices, make sure you get this 18-page Executive Brief.

IACP ECW Related Training Keys:

(583) (2005) IACP Training Key No. 583, Electronic Control Weapons (ECW): Update 2005.
(575) IACP Training Key No. 575, Electronic Control Weapons: Update.
(567) (2003) IACP Training Key No. 567, The Advanced TASER.
(497) (1988) IACP Training Key No. 497, The TASER.
(581) IACP Training Key No. 581, Suicide (Homicide) Bombers: Part I
(582) IACP Training Key No. 582, Suicide (Homicide) Bombers: Part II

(10/05) IACP Legal Officers' Section 2005 Presentation Materials (Miami, FL).
- Electronic Control Device Legislation: General Themes – Eric Edwards.
- Electronic Control Device State statutes – Eric Edwards [PDF].
- Recommendations for the Use of the Taser – by Fabrice Czarnecki, M.D.

(10/04) IACP Legal Officers' Section 2004 Presentation Materials (Los Angeles, CA).
- The Taser° – a visual aid presentation [PowerPoint], Eric Edwards, Phoenix Police Dept.
- Legal Implications of the Use of Less Lethal Force During a Demonstration [PowerPoint], Mark H. Newbold, Charlotte-Mecklenburg Police Dept., NC.

IACP Use of Force Model Policy and Concepts and Issues Papers:

(02/06) IACP Use of Force Model Policy

(02/06) IACP NLECP Use of Force Concepts and Issues Paper
(02/05) IACP NLECP Use of Force Concepts and Issues Paper
(08/01) IACP NLECP Use of Force Concepts and Issues Paper
(04/99) IACP NLECP Use of Force Concepts and Issues Paper
(10/98) IACP NLECP Use of Force Concepts and Issues Paper
(12/95) IACP NLECP Use of Force Concepts and Issues Paper
(02/89) IACP NLECP Use of Force Concepts and Issues Paper

ECD Deployment and Use Recommendations:

(12/17/09) Report of the Maryland Attorney General's (Douglas F. Gansler's) Task Force on Electronic Weapons.

(10/08/09) Report of the Use of Force Working Group of Allegheny County, Pennsylvania, Convened by Stephen A. Zappala, Jr., District Attorney of Allegheny County,

(09/09) Recommended Guidelines for the Use of Conducted Energy Devices, Municipal Police Training Council, Division of Criminal Justice Services, State of New York.

(09/09) Conducted Energy Device Course, Student Guide, Municipal Police Training Council, Division of Criminal Justice Services, State of New York.

(08/09) Conducted Energy Devices: Use in a Custodial Setting, A Collaborative Study By: Police Executive Research Forum, National Sheriffs' Association, Bureau of Justice Assistance.

(2009) Spriggs, Matthew J., TASE ME BRO!” AN ARGUMENT FOR CLEAR AND EFFECTIVE TASER REGULATION, 70 OHSLJ 487, 70 Ohio St. L.J. 487.

(07/09) (Canada, Alberta) Standards and Audits Unit Law Enforcement Branch. Provincial Guidelines for the Use of
Conducted Energy Weapons. Alberta Solicitor General and Public Security. July 2009.

(07/23/09) (Canada) Braidwood Inquiry. Part I. Executive Summary and Recommendations.

(06/30/09) Smith MR, Kaminski RJ, Alpert GP. A Multi‐Method Evaluation of Police Use of Force Outcomes: Final Report To The National Institute of Justice. University of South Carolina TASER ECD Three‐Year Study. NIJ. June 30, 2009.

(11/08) (Australia) The use of Taser weaapons by New South Wales Police Force, A special report to Parliament under section 31 of the Ombudsman Act 1974.

(08/20/08) (United States) Letter from U.S. Department of Justice (DOJ), Special Litigation Section, to Orange County (FL) Sheriff's Office (OCSO), DOJ Investigation of the OCSO use of Conducted Energy Devices.

(06/19/08) (Canada) Breitkreuz, M.P., G. Chair. Study of the Conductive Energy Weapon–TASER®. Report of the Standing Committee on Public Safety and National Security. House of Commons, Canada, 39th Parliament, 2nd Session.

(06/19/08) (Canada) Kennedy, P. RCMP Use of Conducted Energy Weapon (CEW). Final Report. Including Recommendations for Immediate Implementation. Commission for Public Complaints Against Canadian Mounted Police.

(United States) Police Executive Research Forum (PERF) ECD Information:

(09/09) Comparing safety outcomes in police use-of-force cases for law enforcement agencies that have deployed conducted energy devices and a matched comparison group that have not: A quasi-experimental evaluation. Police Executive Research Forum, National Institute of Justice.

(08/09) Conducted Energy Devices: Use in a Custodial Setting, A Collaborative Study By: Police Executive Research Forum, National Sheriffs' Association, Bureau of Justice Assistance.

(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.

(10/19/05) PERF Conducted Energy Device, Policy and Training Guidelines for Consideration.

(10/19/05) PERF Conducted Energy Device (CED) Glossary of Terms.

ECD Use or Risk/Benefit Analyses Reports:

(10/12/09) TASER ECD Risk Management Injury Reduction PowerPoint Presentation

(09/09) Comparing safety outcomes in police use-of-force cases for law enforcement agencies tha have deployed conducted energy devices and a matched comparison group that have not: A quasi-experimental evaluation. Police Executive Research Forum, National Institute of Justice.

“Overall, the study showed that use of CEDs is associated with a 70-percent reduction in the chances of an officer being injured compared to agencies that do not use CEDs. And the odds of a suspect being injured are reduced by more than 40 percent in CED agencies compared to non-CED agencies.”

“All in all, we found consistently strong effects for CEDs in increasing the safety of officers and suspects,” said Dr. Bruce Taylor, director of research at PERF. “Not only are CED sites associated with greater levels of safety compared to a matched group of non-CED sites, but also within CED agencies, in some cases the actual use of a CED by an officer is associated with a higher level of safety compared to incidents in which officers used other types of less lethal weapons, such as batons.”

(04/09) TASER® Risk Avoidance Program (RAP), Michigan Municipal Risk Management Authority, 2003-2008 (PowerPoint).

(12/08) Green, Saul A., Jerome, Richard B., Independent Monitor's Final Report, City of Cincinnati (Ohio).

[Pg 36] "...The Monitoring Team also noted a significant decline in serious force-related incidents at this time. We attribute much of this decrease to the department-wide deployment of the Taser. Our review of use of force reporting and investigative files showed that the Taser replaced other types of force in the majority of incidents. Moreover, injuries to officers and citizens also declined."

(09/08) Mesloh, C., M. Henych, and R. Wolf, Less Lethal Weapon Effectiveness, Use of Force, and Suspect & Officer Injuries: A Five-Year Analysis. 2008, National Institute of Justice

Conclusion: TASERs play an important role in law enforcement. This research and this report show that electric weapons are deployed more frequently than other less-lethal weapons and tactics, but they also appear to enjoy higher success rates in conflict resolution. This success in bringing officer/suspect confrontations to an end is invaluable as it has the effect of reducing injuries to all persons in the conflict. When officer and suspect confrontations continue into multiple iterations, the result is a much higher injury rate for both suspects and officers. This immediately begets the conclusion that the law enforcement community has a duty to use sufficient levels of less lethal force (and in some cases deadly force), at a legally acceptable level (equal or greater to that of the subject’s level of resistance), quickly and decisively at the onset of a conflict. This may cause concern to some, especially if there is community distrust in the police; however, when properly administered in the hands of a legitimate police organization they may in fact be reducing injuries to all parties.

The fact that TASERs offer society the best “set phasers on stun” solution currently available makes them extremely appealing to police in use-of-force situations. Added to this are the many safeguards implemented by TASER International to identify when and where a TASER has been discharged. These electronic and physical tracking safeguards highly discourage improper use. In a police use of force confrontation, the most humane weapon or tactic would be one in which the resultant injury would be the least severe. While TASERs are not injury free (puncture wounds from dart probes, or skin burns from drive stuns), the alternative (broken bones from batons, burning pain from pepper spray, and potential death from firearm) makes them a preferential choice. Clearly this research has shown that electric weapons are very effective at ending conflict situations quickly, this in turn leads to less injuries to both suspects and officers.

(06/08) Conductive Electrical Devices: A Prospective, Population-Based Study of the Medical Safety of Law Enforcement Use. Eastman, Alexander L. MD; Metzger, Jeffery C. MD; Pepe, Paul E. MD, MPH; Benitez, Fernando L. MD; Decker, James; Rinnert, Kathy J. MD, MPH; Field, Craig A. PhD, MPH; Friese, Randall S. MD. Journal of Trauma-Injury Infection & Critical Care. 64(6):1567-1572, June 2008.

Conclusion: Police were compliant with policy in all cases, and, in addition to avoiding the use of lethal force in a significant number of circumstances, the safety of CED use was demonstrated despite one death subsequently attributed to lethal toxic hyperthermia. Collaborative nationwide research using similar registries is strongly recommended to document compliance and ensure ongoing safety monitoring.

(09/08) Mangus B, Shen L, Helmer S, Maher J, Smith R. Taser and Taser associated injuries:a case series. Am Surg. 2008;74 (9):862-865.

Conclusion: Taser devices were introduced in 1974 and are increasingly used by law enforcement agencies. Taser use theoretically reduces the risk of injury and death by decreasing the use of lethal force. We report a spectrum of injuries sustained by four patients subdued with Taser devices. Injuries identified in our review included: 1) a basilar skull fracture, right subarachnoid hemorrhage, and left-sided epidural hemorrhage necessitating craniotomy; 2) a concussion, facial laceration, comminuted nasal fracture, and orbital floor fracture; 3) penetration of the outer table and cortex of the cranium by a Taser probe with seizure-like activity reported by the officer when the Taser was activated; and 4) a forehead hematoma and laceration. The Taser operator's manual states that these devices are designed to incapacitate a target from a safe distance without causing death or permanent injury. However, individuals may be exposed to the potential for significant injury. These devices represent a new mechanism for potential injury. Trauma surgeons and law enforcement agencies should be aware of the potential danger of significant head injuries as a result of loss of neuromuscular control.

(02/26/08) The Impact of the Taser on Suspect Resistance: Identifying Predictors of Effectiveness, Michael D. White and Justin Ready, Crime Delinquency. published 26 February 2008.

(09/24/08) TASER ECDs Field Data and Risk Management, TASER International, Inc.

(Poster)(10/08/07) ACEP 204. Injury Profile of Electrical Conducted Energy Weapons, Bozeman WP, Wake Forest University, Winston Salem, NC.

Conclusions: In a review of nearly 1,000 cases [962], 99.7 per cent of those subjected to a TASER ECD had mild injuries, such as scrapes and bruises, or none at all. Only three subjects (0.3%) suffered injuries severe enough to need hospital admission. Two had head injuries suffered in falls after TASER ECD use. A third subject was admitted to a hospital two days after arrest with a medical condition of unclear relationship to the TASER ECD. Two subjects died, but autopsy reports indicate that neither death was related to the TASER device. Earlier partial results involving 597 cases were published in the September issue of Annals of Emergency Medicine.

Earlier Published Conclusions: After CEW use, 99.5% of 597 subjects had no injuries or mild injuries only. The observed significant injury rate was 0.5%, and is unlikely to be greater than 1.4%. No deaths related to CEWs occurred. These preliminary data represent the largest independent injury epidemiology study of these weapons to date and support the safety of CEW use. Data collection will continue through summer 2007; final data will be presented at the fall ACEP meeting.

(10/08/07) (Press Release) Nationwide Independent TASER® Study Results Suggest Devices are Safe, Wake Forest University Baptist Medical Center®.

(10/09/07) The impact of conducted energy devices and other types of force and resistance on officer and suspect injuries, Michael R. Smith, Robert J. Kaminski, Jeffrey Rojek, Geoffrey P. Alpert and Jason Mathis, Policing: An International Journal of Police Strategies & Management, Vol. 30 No. 3, 2007, pp. 423-446.

Findings – The use of CEDs was associated with reduced odds of officer and suspect injury and the severity of suspect injury in one agency. In the other agency CED use was unrelated to the odds of injury; however, the use of pepper spray was associated with reduced odds of suspect injury. Among other findings, in both agencies the use of hands-on tactics by police was associated with increased odds of officer and suspect injury, while the use of canines was associated with increased odds of suspect injury.

Pg 437 - "CED use was associated with a 677 percent increase in the odds of suspects not being injured during use-of-force encounters. Thus, whereas hands on tactics significantly increased the risk of injury among both officers and suspects, CEDs significantly decreased the risk of injury to both groups."

"[T]he use of soft-hand tactics,hard-hand tactics, and canines by officers increased the odds of both minor and major injury to suspects, while the use of CEDs significantly decreased the odds of both types of injury."

"The findings from Richland County indicated that the use of OC on suspects was one of the most important variables linked to a reduction in suspect injury, while CED use was not associated with either a decrease or increase in injury."

"The data from the MDPD, whose [438] officers did not have access to OC as an intermediate weapon, showed that the use of CEDs was associated with reductions in injury to both officers and suspects."

Pg 438 - "[T]he analysis of suspect injury severity in the MDPD found that the use of CEDs was associated with reductions of both minor and major injuries, clearly a more desirable outcome than if CEDs were linked to reductions in minor injuries only."

"Why CED use was not associated with a significant reduction in injuries in the RCSD is unclear. However, since the majority of the RCSD deputies had a long history of using OC spray and the introduction of CEDs was relatively recent, the reliance on OC may have mitigated its injury reduction effects. Perhaps, if both sites had a similar history with the same less-lethal weapon options, the findings would have been more comparable."

"Additional research in other settings may shed further light on this, but [439] the results of this study suggest that not every agency’s experience will be the same regarding CED use and injuries. Nonetheless, it is clear that the use of CEDs and OC can have a significant and positive effect on injury reduction."

"To the degree that OC and/or CEDs would be authorized and appropriate for use in such encounters, their deployment in place of soft empty-hand controls may help prevent some injuries, albeit mostly minor ones."

"Although our research did not address specifically the reduction in deadly force,other research and common sense demonstrates that it is probable that the use of CEDs would replace the use of firearms in some limited number of instances where lethal force is justified, and thereby reduce deaths that would occur had a firearm been used (Ho et al., 2006a; Adams, this volume). Further, although rare cases of sudden in-custody death do occur with the use of CEDs, the causal connection remains unclear (Vilke and Chan, this volume) and the number of lives saved appears to far outweigh the number of deaths associated with CED exposure (Ho et al., 2006a). Therefore, given the accumulated evidence to date and the results of the present study, and assuming the existence of appropriate training, policies, restrictions on use and monitoring (Police Executive Research Forum, 2005; ACLU of South California, 1995), it is our conclusion and recommendation that police agencies adopt use-of-force policies and training regimens that permit officers to use CEDs to control threatening or physically resistant suspects. The findings from Miami-Dade and Richland Counties suggest that officers and citizens are at greatest risk for injury when they engage in physical struggles, particularly when the suspect is actively or violently resisting arrest, and that CEDs and OC spray reduce the probability of injury."

Pg 440 - "Given the minor nature of most injuries to officers and suspects, though, the substitution of OC spray or CEDs for hands-on control primarily will result in the prevention of bruises, abrasions, sprains, and the like. Balanced against this injury savings are the pain, irritation, and decontamination requirements associated with OC spray and the minor dart puncture wounds and rare complications associated with CEDs. Nonetheless, every use-of-force encounter carries with it the potential for serious injury and even minor injuries can result in the need for medical treatment or time lost from work. More importantly, the use of less lethal technologies from a stand-off distance may help to prevent the occasional serious injury that might otherwise occur from physical contact between officers and citizens. Consequently, the use of CEDs or OC spray under these conditions makes the control of resistant persons safer for everyone."

(05/19/07) White and Ready, The TASER as a Less Lethal Force Alternative: Findings on Use and Effectiveness in a Large Metropolitan Police Agency, Police Quarterly, 2007, 10 (2), p. 170.

(02/18/07) 2006 Annual Report: Use of TASERs ®, Report from William Blair, Chief of Police, Toronto Police Services Board.

(05/06) Beneficial Impact of Conducted Electrical Weapons In the Mentally Ill Population. Jeffrey D. Ho, MD, Donald M. Dawes, MD, Jenny Thacker, MD, Erik Lundin, Mark Johnson,

CEW use appears to play a signficant role on the types of force that is used by law enforcement in contacts with mentally-ill persons. In the database queried, 45.3% (1,111 or 2,452 reports) of CEW uses were in situations where lethal force would have been justified or in situations where the subject posed an imminent lethal danger to himself.

(02/06) TASER Report, Green Bay (WI) Police Department.

(02/21/06) (2005) Use of Force Report, San Marcos, TX.

(03/05) Use of Force, Civil Litigation, and the Taser One Agency’s Experience, By Steve Hougland, Ph.D., Charlie Mesloh, Ph.D., and Mark Henych, Ph.D. FBI Law Enforcment Bulletin, March 2005, Volume 74, Number 3, Page 24.

(01/05) TASER Report, Madison (WI) Police Department.

2005 Reportable Response Resistance Project, Fresno (CA) Police Department.

Excited Delirium Force Articles:

(07/09) Morgan, Joseph, Allen, Jennifer, M., Use of Force and Excited Delirium Syndrome, pages 95-105, Critical Issues of Use of Force by Law Enforcement (Special Edition), Law Enforcement Executive Forum, Volume 9, Number 3, July 2009.

Force Continuum Articles:

(07/09) Hough, Sr., Richard, M., Tatum, Kimberly M., Examining the Utility of the Use of Force Continuum: TASERs and Potential Liability, pages 37-50, Critical Issues of Use of Force by Law Enforcement (Special Edition), Law Enforcement Executive Forum, Volume 9, Number 3, July 2009.

(03/19/09) Bostain, John, Training without force continuums: Learn to love the law, PoliceOne.com (news).

(2009) Wallentine, Ken, The Risky Continuum: Abandoning the Use of Force Continuum to Enhance Risk Management.

This article was first published by the International Municipal Lawyers Association (IMLA), 7910 Woodmont Ave., Bethesda, MD. 20814, and is reproduced with the permission of IMLA. IMLA is a non-profit, professional organization that has been an advocate and resource for local government attorneys since 1935. IMLA serves more than 2,500 member municipalities and local government entities in the United States and Canada, and is the only international organization devoted exclusively to addressing the needs of local government lawyers. Further information about IMLA is available at IMLA’s website, www.imla.org.

(04/01/08) Florida drops continuum for new state wide curriculum.

(Fall 2006) Use of Force: Are Continuums Still Necessary? by John Bostain, FLETC Journal, Fall 2006, pages 33-37.

(01/02/06) Force Continuums: Are They Still Needed? Police and Security News, January/February 2006, Vol. 22 Issue 1, by John G. Peters, Jr., M.B.A., Ph.D., CLS., and Michael Brave, Esq., M.S., CLS3, CLET.

(01/06) Force Continuums: Three Questions, Police Chief, January 2006. pgs 8-9, by John G. Peters, Jr., M.B.A., Ph.D., CLS., and Michael Brave, Esq., M.S., CLS3, CLET.

(06/02) Williams, George T., Perspective: Force Continuums: A Liability to Law Enforcement, FBI Law Enforcement Bulletin, June 2002, pages 14-18.

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