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Wednesday, January 23, 2008

An inconvenient death - the ethics of force

January 23, 2008
MICHAEL QUINN, Ethics Contributor

An unexpected death in a use of force encounter is always a bad deal, for the cops and the family of the victim. We just had another one of those deaths here in Minnesota. State Troopers tased an individual when he refused to comply at the scene of an accident and he died. Nationwide there have been somewhere between 70 to 290 deaths since 2001 attributed to the use of the Taser ®, depending on whose statistics you believe. Lots of people would have law enforcement get rid of the Taser ®. The law enforcement community is equally adamant about the need for the Taser® in our arsenal of weapons. Agencies often quote the reduced number of injuries to officers, and the associated monetary savings, when the Taser® is an option to engaging in hand to hand combat. They argue that by using the Taser® they reduce the risk of injuries to the officer, and statistically that seems to be true. Until 1985, law enforcement used a similar line of reasoning to justify shooting at fleeing felons. Then came the Supreme Court Case of TENNESSEE V. GARNER, 471 U. S. 1 (1985).

Memphis, Tennessee, 1974; burglar Edward Garner is shot and killed by Officer Elton Hymon who believes that there is a risk of Garner escaping if he does not shoot him. Officer Hymon is within department policy and Tennessee State Statute because at that time they both allow for the use of deadly force against fleeing felons.

In 1985 The Supreme Court rules that "The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect."

That ended legally shooting at fleeing felons who did not present a threat to officers or others. I remember thinking "Now what? What are we supposed to do? Ask them real nice to stop?" The answer was that we were expected to take the risks we signed on for and catch them any way we could.

If the threat of death or great bodily harm became immediate we could always resort to deadly force. I, and many others, saw the immediate problem, "I'm in shape and could, in most cases, chase and apprehend most suspects. On the other hand, I've got a partner that won't be able to keep up; and even if they did I'd probably be calling the ambulance for them before it was over." In even worse scenarios you could be assigned to someone who was not only in poor physical condition but who also had lousy arrest and control skills, so you were screwed when it came time to make that decision to chase on foot or not.

Things haven't changed much since then. Most departments still don't require officers to maintain the skills they had when they started the job and many officers don't do a sufficient job of staying in good physical condition. So, it's easier and safer to tase than to fight. Can't argue with that! But we better start thinking about when and why we are tasing instead of fighting.

The FBI UCR reports indicate that between 2002 and 2006 law enforcement personnel intentionally killed 1,804 people. There is no way to know how many times deadly force was used that it did not result in a death and I don't believe the accidental deaths from Tasers are included in that total. I do believe that a certain percentage of people are going to die when they are "tased." Whether the number is 70 or 700 doesn't matter. Nobody seems to know for sure why, but the fact of the matter is: people are dying following the use of the Taser ® and at some point I have to believe the Supreme Court is going to get involved again.

The question left for law enforcement is this: How are going to keep our right to use the Taser ®? Because if people are going to continue to die from being tased, and there is no reason to believe they won't, the courts are eventually going to put some limitations on us. This is not a question of technology. New technology may make the issue moot; then again it might not. We still don’t have a better weapon than the bullet, and people have been working a long time to find one.

This is also not a question of "If." It is just a question of "When?" I like the idea of being able to control people without getting hurt. I like the fact that the Taser® is available as a weapon. But I think we are making a huge mistake when we use that weapon as a replacement for a decent level of fitness and maintaining our arrest and control skills. I don't want cops to lose the Taser® as an option, but we have to face the fact that use of the Taser® can and will mean death in some cases. It doesn't matter how. The placement of the Taser® on the force continuum needs to be in line with the fact that occasionally it can and will kill.

Bottom line: If we don't control the use of the Taser® ourselves, the courts will. You made a choice to take this job, risks and all. You can't abdicate that responsibility to an inanimate weapon.

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