Would repeated Tasering of a suspect be considered an abuse of police power?

May 28, 2009
Steve Lombardi, Attorney
InjuryBoard.com

This case may answer the question in Iowa: Once under control would repeated Tasering of a suspect be considered an abuse of police power?

The Courts define what force is legitimate police power and when the use of force becomes punishment. It is the court's that mete out punishment sanctioned by state law; whereas police enforce the laws. Police are not authorized by the Constitution to punish. It's all about the separation of powers under the United States Constitution.

This Iowa case may answer the question of whether it is justified police action or an unconstitutional abuse of police power to use multiple Tazing of a person under arrest. As you can imagine once a person is under control further Tasering is akin to torture. The police are supposed to enforce the laws, but are not authorized to act as judge and jury as far as punishment goes.

What this case may answer may also demonstrate the difficulty of proving damages in a civil case for the manner in which the Taser was used. If it’s legal to Taser a person at least once, then what pain and suffering does a second, third and fourth Taser event add? If at least one Tasering is legal then you won’t be allowed damages for that first event; only for the 2nd, 3rd and 4th events. But if the Taser makes your nerve pulses ineffective can a person continue to feel painful stimulus? If not how then can you suffer pain? Perhaps the experts will be able to tell us if the Tasered suspect can still feel pain but is simply unable to respond. This damage case will require medical experts on the issue of the Taser and a person’s ability to feel pain after undergoing a Taser event.

I have to wonder how, if the Taser is so effective, can anyone justify multiple Tasering events?

Canadian authorities have been analyzing the use of the Taser by it’s own police forces and seem more concerned than is American law enforcement.

The ACLU of Florida petitioned the SCOTUS to review a case involving multiple Taser events on the same person during an arrest. You can download the 67 page Petition for Review by following the link.

QUESTIONS PRESENTED

1. Whether a deputy sheriff violated the Fourth Amendment by administering three separate five-second-long direct contact “drivestun” Taser shocks, over a two minute period, to a handcuffed, nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

2. Whether a reasonable police officer had fair notice in 2004 sufficient to deprive him of qualified immunity that it violated the Fourth Amendment to administer three separate fivesecond-long direct contact “drive stun” taser shocks, over a two minute period, to a handcuffed nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

PARTIES TO THE PROCEEDING

Petitioner is Jesse Daniel Buckley, plaintiff-appellee below.

Respondent is Jonathan Rackard, Deputy Sheriff of Washington County, Florida, in his individual capacity, defendant-appellant below.

Amnesty International USA covers the use of Tasers multiple shocks in a single arrest. See Canada: Inappropriate and excessive use of tasers.

2.1 Multiple or prolonged taser discharges
Amnesty International's research into deaths following taser use in the USA and Canada indicates that many of those who have died had been subjected to multiple or prolonged shocks. In Canada alone, all six of the deceased in 2005 and 2006 were shocked multiple times with a taser; in one case up to 12 times in three minutes.

Amnesty International believes that repeated shocks should be avoided unless absolutely necessary to avoid serious injury or death and prolonged shocks beyond the five-second discharge cycle should be prohibited.

The Canadian Police Research Centre noted in its 2005 Technical Report that "police officers need to be aware of the adverse effects of multiple, consecutive cycles of a CED on a subject" because "the issue related to multiple CED applications and its impact on respiration, pH levels and other associated physical effects, offers a plausible theory on the possible connection between deaths, CED use and people exhibiting symptoms of CED.(12)

In April 2005, the US Department of Defense released a report which concluded that while available data suggests that healthy adults would not be at significant risk from the taser, "if long periods of uninterrupted EMI [Electromuscular Incapacitation Device] activation did occur, the risk of unintended adverse effects such as cardiac arrhythmia, impairment of respiration or widespread metabolic muscle damage could be severe".(13)

Taser International is the main manufacturer of taser stun guns. In June 2005, in light of a number of lawsuits by relatives of those who died after being shocked by tasers, and the fact that the use of their product was being listed in autopsy reports, the company included a warning that there were potential health risks in the use of its product in a training bulletin.

Taser International on May 3, 2004 issued a Memorandum of Law concerning the Taser Conducted Energy Weapons.

The legal concerns usually raised regarding the TASER conducted energy weapon generally fall into two categories:

1. What are the legal restrictions on the use of a TASER conducted energy weapon; and

2. What is the impact of a TASER conducted energy weapon on legal liability in a use of force incident. The purpose of this Memorandum of Law is to address these issues in the context of U.S. Federal and State regulations and case law.

Is this an exercise of legitimate police power or an abuse of power?



Police Tasers: excessive force or necessary tool?
The Christian Science Monitor
May 28, 2009

Washington - From isolated cases across the country, a debate is emerging over the use of electric stun guns as a "pain compliance" device by law enforcement.

At issue isn't whether police can use the weapon, known as a Taser, to protect themselves from dangerous suspects or to prevent a criminal from escaping. That is its designed purpose. Instead, the question is to what extent police may use a stun gun against someone who is not actively resisting arrest but who is passively refusing to obey a police command.

To some officers, such refusal is a form of resisting arrest and constitutes grounds to shoot 50,000 volts of electricity into that person's body in five-second bursts. When a person is tased, the central nervous system is overridden and the person experiences a seizure accompanied by intense pain.

Such tactics would be unconstitutional in a police interrogation room.

By contrast, during an arrest or roadside traffic stop, there are no clear standards for when police use of a stun gun for "pain compliance" might violate Fourth Amendment protections.

Officials at UCLA recently agreed to pay a student $220,000 to drop a lawsuit against the university in connection with a November 2006 incident in which the student was repeatedly tased after refusing a police order to leave the school library.

Last week, the US Supreme Court declined to take up the case of a handcuffed Florida motorist who was tased three times because he disobeyed a deputy sheriff's command to stand up and walk to a patrol car.

Given the proliferation of police stun guns, the issue is expected come up with increasing frequency across the country, according to civil libertarians.

A controversial alternative to guns

Developed in the 1990s, stun guns have helped reduce injuries to both police officers and suspects by offering officers a safer alternative to a firearm or a night stick.

Today there are more than 375,000 stun guns being used at 13,400 law enforcement and military organizations in 44 countries, according to Taser International, the manufacturer of the leading brand of stun gun.

But stun guns have come under increasing scrutiny. According to Amnesty International, more than 300 individuals have died after stun gun encounters in the US in the past nine years. And even their nonlethal use has been controversial.

Los Angeles police tried to use a stun gun against Rodney King before his arrest degenerated into the now infamous police beating.

In September 2007, campus police at the University of Florida used a stun gun to neutralize a disruptive student at a John Kerry speech. The student's plea, "Don't tase me, bro," became a popular tee shirt slogan.

In the case of the Florida driver, the Supreme Court justices offered no explanation for their decision not to hear his case. The move lets stand a federal appeals court decision that found the deputy's actions reasonable and justified.

"I hope [law enforcement officials] don't see this as open season to tase anyone who doesn't do exactly what they are told," says Tallahassee lawyer John Jolly, who successfully represented the deputy in the Florida case.

"In the end it is all going to come down to a question of reasonableness under the circumstances," Mr. Jolly says. "If a reasonable person would think that use of force is going to accomplish a lawful objective and make it less likely that somebody gets hurt, they can do it."

The tasing of Jesse Buckley

The Florida case involves a motorist named Jesse Buckley who was pulled over for speeding on a remote Florida highway in March 2004.

Mr. Buckley was issued a traffic ticket, but became distraught and refused to sign it. Washington County Deputy Sheriff Jonathan Rackard placed Buckley under arrest, cuffing his hands behind his back. As instructed, the motorist exited his car and headed toward the patrol car.

Before he reached the cruiser, Buckley collapsed to the ground. The encounter was captured on the video camera mounted on the dashboard of Mr. Rackard's cruiser. The video has been posted on the Internet.

The deputy tried to lift Buckley, but he went limp and started sobbing. Buckley was warned that if he didn't get up he would be shocked with a Taser.

"I don't care anymore," Buckley said. "Tase me."

The deputy tased him three times before backup arrived, and the two officers walked Buckley to the patrol car.

Photos of Buckley's body later revealed 16 burn marks.

Buckley filed a lawsuit against the deputy for excessive use of force by a police officer. A federal judge refused to throw out the lawsuit, but a divided panel of the 11th US Circuit Court of Appeals in Atlanta sided with the deputy. The suit was dismissed.

"The government has an interest in arrests being completed efficiently and without waste of limited resources," wrote Chief Judge J.L. Edmondson in the 2-to-1 decision. "Even though [the motorist] was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions – that is, to stand up and to walk to the patrol car."

In a dissent, District Judge Beverly Martin said that "no reasonable officer could have believed that the force used by [the deputy] was necessary in response to the situation at hand."

Judge Martin added: "The question in this case is whether a taser gun may be used repeatedly against a peaceful individual as a pain-compliance device – that is, as an electric prod – to force him to comply with an order to move."

Courts loath to second-guess police

The appeals court decision creates a dangerous legal precedent permitting the use of tasers to force compliance with police orders, says Miami lawyer Michael Masinter, who represented Buckley.

"It isn't hard to envision police officers dealing with anti-abortion protesters or civil rights protesters – pick your political issue," he says. "There is nothing in this decision that forbids police officers from using tasers to break that up."

Jolly views the case differently. He says police officers face an array of dangers during roadside stops and that it is wrong to second-guess split second judgments after the fact.

"This guy could turn from sobbing basket-case into a raging wild man at the snap of a finger. That officer is in a surprisingly difficult situation," Jolly says.

Mr. Masinter disagrees. "Mr. Buckley was no threat to anybody," he says. "There was no active resistance here and therefore no authority to use this kind of force."

Jolly says the courts – including the Supreme Court – are generally reluctant to second-guess a police officer acting alone in a potentially dangerous situation. "In baseball, all ties go to the runner," he says. "In federal civil rights litigation against individual officers, all doubts go to the officer. Close calls are his."