From research to court: Update on conducted electrical weapons
Research studies and courtroom decisions continue to explore what’s practiced, what’s effective, and what’s legal so far as police use of CEWs is concerned. Here’s a roundup of some of the most recent developments.
TASER vs. OC: And the winner is…
In real-life confrontations, TASERs are effective in incapacitating actively resistant suspects over 90% of the time, compared to a success rate of less than 75% for pepper spray, according to a new study by two associate professors in criminal justice.
When a suspect escalates to “higher levels of resistance,” actually assaults police, or is believed to be armed, the results from OC spray are even worse–“48% less likely to be effective,” the researchers report–while “the TASER [CEW] demonstrates a high level of effectiveness regardless of the situations in which it is used.”
In the first study to directly compare the relative incapacitation effects, Dr. Steven Brandl of the University of Wisconsin-Milwaukee and Dr. Meghan Stroshine of Marquette University analyzed 504 uses of force involving a TASER and/or OC on a department with about 1,200 patrol officers. That agency ranks the two “intervention options” at an equal level in terms of force intensity and sanctions their use to “overcome active resistance or its threat.”
Overall, the team found, “the more a subject resisted the police, the less likely OC spray was to be effective…. Either [it] caused additional resistance that had to be overcome with other force, or [it] was not effective in subduing a subject who was already resisting.”
Calling a TASER’s effectiveness “striking,” the researchers write: “In the overwhelming proportion of incidents,…once a TASER was used that incident came to an end…. [I]f incapacitation of subjects is the goal, it appears that TASERs are the tool.”
The study notes: “Decades ago, the baton was the weapon of choice for many officers” in controlling unruly suspects. “Because technology evolved…batons now are seldom used in force situations. The same may hold true for OC spray; it may become less frequently used because of its relative lack of effectiveness….”
The study, “Oleoresin Capsicum Spray and TASERs: A Comparison of Factors Predicting Use and Effectiveness,” appears in the journal Criminal Justice Policy Review. The report can be accessed in full for a fee by clicking here.
CEWs vs. the mentally ill & “passive” resisters: Two courts speak
Federal appellate courts in two circuits have issued use-of-force decisions involving CEW deployments that Michael Brave, national/international litigation counsel for TASER International, Inc., describes as “must-read cases.”
Brave cautions, when reviewing these cases: “With most such cases, appellate courts are legally required to view disputed facts and presumptions ‘in the light most favorable to plaintiffs,’ which may have little, if any, relation to the facts as viewed by law enforcement.
“Also court decisions may deviate from available science, if relevant scientific concepts and data have not been properly presented for the record. And in some instances, medical examiners, unfamiliar with the latest scientific literature, may make speculative statements that are not supported by objective research.”
CASE #1. A mother filed a 1983 action alleging excessive force after her son died following an altercation with an officer and two deputies in an Oklahoma hospital where he was being treated for dehydration and severe pneumonia.
During a seven-hour period after being hospitalized on that fateful day, the subject went from being “pleasant, cooperative, and responsive” to being “confused, anxious, increasingly uncooperative, and aggressive.” As staff attempted to calm him, he yelled, “I am Superman! I am God!” and insisted that nurses were trying to fatally poison him with medication, which he persistently refused to take.
When law enforcement arrived to help, the three responders intercepted him as he was trying to leave the hospital, despite doctors’ warnings that he would die without further medical attention.
As verbal efforts to control him failed, a deputy discharged CEW probes against him, without effect. A struggle ensued and the deputy tried a drive stun, again without subduing him. Finally the cops muscled him onto the floor face down and restrained him while a nurse administered an injection of sedatives.
At that point, the man “went limp, made a grunting sound,” vomited…and died.
The ME ruled that the cause of death was “respiratory insufficiency secondary to pneumonia.” He claimed that the exertion of the physical struggle had “exacerbated” the subject’s medical distress and that the CEW deployments “certainly could” have increased his desperate need for oxygen.
Last winter in a split decision, the 10th Circuit Court of Appeals ruled that the mother’s excessive force claim should proceed to trial, supporting a district judge’s denial of summary judgment in favor of the LEOs. The majority focused particular attention on the use of a CEW, given the subject’s mental state.
The patient, the Court said, “was clearly delusional and mentally disturbed, which weighs against the reasonableness of the officers’ decision to employ such a severe level of force against him…. When faced with a mentally ill individual, a reasonable police officer should make a greater effort to take control of the situation through less intrusive means…. The situation the officers faced in this case called for conflict resolution and de-escalation, not confrontation and [CEWs].”
The subject’s “compromised physical condition” also was a factor, the Court said, noting that “a use of force that might be reasonable against an apparently healthy individual may be unreasonable when employed against an individual whose diminished capacity should be apparent to a reasonable police officer.”
Besides being “gravely ill,” the subject “did not commit any crime, much less a severe crime, and he posed no threat to the police officers or anyone else,” other than himself. “[N]othing suggests [his] resistance was anything more than passive.”
Courts in other jurisdictions have been in agreement, the majority stated: it is “clearly established” that officers may not use CEWs against seriously ill, “non-criminal, non-threatening subjects who primarily exhibit passive resistance.”
Although only one deputy employed a CEW in this case, the other officers could be found equally liable for excessive force, the Court said, because they did not intervene to stop his action.
“This is a must-read case for anyone interested in mental health, serious psychological distress, hospital settings, and use of CEWs or other force options,” Atty. Brave told Force Science News. The case can be downloaded free of charge from the 10th Circuit’s website by clicking here.
CASE #2. Another federal civil rights action, brought in Ohio against four officers and their municipality on behalf of a man who now suffers “greatly impaired” mental functioning caused by oxygen deprivation to his brain during a use-of-force altercation.
Here, the 6th Circuit Court of Appeals reviewed–and affirmed–a district court’s denial of summary judgment for the defendants, with comments on a subject’s “constitutional right not to be tasered” when offering only passive resistance.
The case germinated from a post-midnight noise complaint about a group of arguing drinkers at an apartment building. Their host–shirtless, barefoot, and intoxicated–was “mad” that the cops showed up and, according to a neighbor, threatened to “kill everyone…and the police.” When officers asked him to step outside his unit to talk to them, he angrily refused and retreated back inside.
The officers followed and, “without further instruction or warning,” one fired TASER probes into the suspect’s chest from a distance of about six feet–and loosed an uninterrupted exposure that lasted 21 seconds, so long, the man’s wife said, that it seemed “they were never letting up on it.”
When the convulsing subject failed to comply with officers’ orders to move his hands to a cuffing position, the CEW operator then delivered a drive stun that lasted another five seconds.
Now the suspect was “drooling or foaming from the mouth,” had urinated on himself, and seemed to be unconscious. Soon after paramedics arrived, he stopped breathing “and went into full cardiac arrest.”
He did survive, but he suffers “severe cognitive impairment that greatly affects his memory and executive functioning.” He can’t remember what he has done in a day, has “forgotten significant life events,” needs reminders to use the bathroom, and requires “constant supervision and support.”
Assessing all this in an opinion last March, the three-judge appellate panel unanimously concurred that the officers involved were not entitled to qualified immunity. The jurists noted in a 26-page decision:
- The subject’s “crime was not serious”;
- “[T]here was little basis to believe [he] was a threat to the officers or others;
- His “initial resistance was at most a passive refusal to comply with a single request to leave his residence (noncompliance alone does not indicate active resistance)”;
- “[I]t was objectively apparent that [the suspect’s] failure to present his hands to be cuffed was due to [CEW]-induced involuntary convulsions.”
As to the “atypically long” CEW exposure that totaled 26 seconds, a jury could conclude that this “was gratuitous because it extended far past the point that [the subject] had ceased resisting [and] gratuitous or excessive use of a [CEW] violates a clearly established constitutional right…. [A]pplication of a [CEW] to a suspect who has ceased virtually all resistance constitutes excessive force, even if the suspect had resisted violently earlier in the encounter.”
As in the 10th Circuit decision described in Case #1, the Court called out officers who were present at the scene but “failed to protect [the subject] from excessive force.” The officers, the Court said, neither told the CEW operator to release the trigger during the first application nor attempted to stop him from administering the additional drive stun, despite the “clearly established duty” of reasonable officers to intervene.
Because of the Court’s observations on CEW guidelines and a section of the opinion that deals with the manufacturer’s training recommendations, “I consider this case VERY important,” Atty. Michael Brave told FSN via email.
The decision can be downloaded in full free of charge by clicking here.
Riding the lightning: How long is too long?
A prolific and highly respected researcher with the U.S. Air Force reviewed more than 240 published papers on the effects of CEWs and emerged from the chore just as he began: uncertain about how much exposure to current from an electrical control device is too much.
Dr. James Jauchem of the Bio-Effects Division of the Air Force Research Laboratory at Ft. Sam Houston, TX, set out to evaluate whether enough data exist to define acceptable limits on the length and repetitions of CEW exposures.
In his report, published in the Journal of Forensic Sciences, he summarizes the findings of a wide variety of studies on humans and animals (mostly pigs) that have explored the physiological effects of prolonged and/or multiple CEW applications. These include the impacts on respiration, heart performance, blood components, muscle enzymes, and other physical elements.
In one study, anesthetized pigs survived three minutes of continuous exposure to the TASER X26 CEW and in another, repeated intermittent exposure longer than that–although researchers strongly cautioned that such survival “would not be guaranteed in animals or humans in all situations.”
Jauchem found that to date even “a standard definition of what constitutes a ‘prolonged’ exposure has not been achieved, regarding either number of repeated interrupted applications or continuous duration.”
The number and length of CEW exposures that can be used without serious ill effects “are not unlimited,” Jauchem concludes. For example, “relatively continuous exposure for several minutes may create unacceptable target safety risks.”
However, he says, “it is unknown, at this time, exactly for how long and how many CEW exposures to a subject are acceptable. Not enough data exist” to make that determination.
He adds, though, that with “common short-duration law enforcement usage,” the benefits of CEWs “outweigh the risks.”
To access his full report free of charge, click here.
The mythology of CEWs: Misconceptions arise even in “scientific” reports
In a different journal, Dr. Jauchem takes on another nettlesome CEW problem: misconceptions about these devices that tend to crop up even in scientific literature.
“Although CEW technology has been written about by numerous authors and perceived authoritative bodies in the scientific literature, many have erroneously portrayed how these weapons work and what they are (and more importantly, what they are not) capable of,” Jauchem states in Forensic Science, Medicine, and Pathology.
Such misconceptions “may result in increased apprehension and bias against the devices” and “may result in a lack of public confidence in police and a lack of perceived legitimacy of using CEWs,” he says.
Among the myths that Jauchem cites–and clarifies–are these persistent canards:
Myth 1: CEWs incapacitate subjects by “passing 50,000 volts of electricity” into their body, thereby inflicting the risk of “electrocution from electroshock”;
Myth 2: CEW exposure may “decrease the ability to perform tests of cognitive functioning,” may imbue a subject with “superhuman strength,” may provoke a “thyroid storm,” and may induce hyperthermia such as that seen in excited delirium;
Myth 3: CEWs are used more often for “torture and abuse rather than as a substitute for lethal force”;
Myth 4: CEWs can “cause” death by disrupting normal heart function;
Myth 5: When a death occurs after use of a CEW, “unreasonable or excessive force” can be inferred;
Myth 6: “College students and ‘non-resisting political protestors’ are more ‘vulnerable’ to the effects of CEWs than the general population”;
Myth 7: CEWs are designed for “replacement of firearms.”
These myths are often raised in discussions after controversial exposures to CEWs, Jauchem points out. Countering them with documentation of the truth can be vital during “policymaker decisions, practitioner operations, expert witness testimonies, and court proceedings.”
Going forward, he says, “scientists, medical professionals, legal advisors, and investigators of police tactics should be aware of these misconceptions”–and faithful to the critical task of correcting them.
Jauchem’s heavily footnoted paper, “TASER conducted electrical weapons: misconceptions in the scientific/medical and other literature,” can be accessed without charge by clicking here.
NOTE: Atty. Brave maintains and frequently updates a Brief Outline of Partial Selected CEW Research and Information, which can be accessed without charge by clicking here.