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Sunday, January 10, 2010

Did Court Deal Fatal Blow to Tasers for Police?

January 10, 2010
New America Media, Commentary, Raj Jayadev and Aram James

In what is being heralded as a landmark decision, the United States Court of Appeals for the Ninth Circuit recently declared that police officers could be held liable for using a Taser without proper cause. And in making their determination, the court also set new legal parameters on how law enforcement is to use Tasers, stating, "The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public." The federal finding substantially changes the landscape of Taser usage, and may signal the end of Tasers for law enforcement agencies who are now more vulnerable to civil and criminal action then ever before.

The decision, which has already caused law enforcement agencies to re-evaluate their Taser policies, stems from a case involving a Coronado police officer, Brian McPherson, who tased unarmed 21-year-old Carl Bryan during a traffic stop for a seatbelt infraction in Southern California. After being pulled over, Bryan was standing outside of his vehicle, wearing only boxer shorts and tennis shoes. He was 20 to 25 feet from the officer, and when tased, fell face first to the ground, fractured four teeth, and had to get the Taser prongs removed with a scalpel. Bryan went on to sue the Coronado Police Department, and the federal appellate court was making a determination if McPherson had immunity to the lawsuit as an officer. The court ruled in favor of Bryan.

And while any regulation on Taser use is a move forward from the status quo, which repeatedly has left civilians tased for innocuous circumstances, and the decision acknowledges some of the inherent dangers of the weapon, it falls short in a most critical way. The instruction is based on a false premise that Tasers “fall into the category of non-lethal force” as stated in Judge Wardlaw’s written opinion. By denying the lethality of Tasers, the court mistakenly treats Tasers as an intermediary weapon, like a baton, when it should be treated as a deadly weapon, like a firearm.

According to Amnesty International, there have been more than 350 deaths due to Tasers. In San Jose, which was the first city to arm every one of its officers with the weapon in 2004, there have been six Taser-involved deaths, more than a death a year since its inception. Currently, the city is facing a $20 million lawsuit from the family of one of the more recent victims, Steve Salinas. The unarmed Salinas was tased to death in his motel room in 2007. Like Bryan, Salinas’s ultimate tasing originated from a minor starting point: police were called to the scene due to allegedly loud noises emanating from the room. Salinas, who was naked at the time, died in the room shortly after the police arrived.

The growing body count attributed to Tasers refutes the commonly accepted advertisement from its leading manufacturer, Taser International, that Tasers are a non-lethal option for officers. Furthermore, the unreliability of the weapon to bring down its target makes it dangerous even for officers who may be in a situation requiring deadly force. According to a San Jose Mercury News study of the San Jose Police Department use of Tasers in 2007, Tasers in dart mode are only effective 70 percent of the time in bringing down their target, and in stun mode only 60 percent of the time.

The Taser consequently is left in a state of limbo. Its capacity to unintentionally kill leaves it too dangerous to use in non-lethal circumstances, say when an officer would use an intermediate weapon, such as pepper-spray or a control hold. Yet, due to its unpredictability to subdue a target, using a Taser would not be a gamble an officer would want to bet on if his or her life were in jeopardy.

The Bryan case, where the subject is unarmed and charged with a minor infraction or misdemeanor, is more the rule then the exception according to recent studies. In a Houston Chronicle study of Taser use by the Houston Police Department in a two-year span, officers deployed the weapon more than 1,000 times, but in 95 percent of those cases the subject was unarmed. The study also found that more than 50 percent of the Taser incidents escalated from relatively common police calls, such as traffic stops, disturbance and nuisance complaints. In more than a third of the incidents, no crime was charged or prosecuted.

In October 2009, in a tacit admission of the inherent dangers of Tasers, Taser International began telling police agencies to avoid firing the devices at suspects' chests. In a revision of their usage manual, they write, "Should sudden cardiac arrest occur in a scenario involving a Taser discharge to the chest area, it would place the law enforcement agency, the officer, and Taser International in the difficult situation of trying to ascertain what role, if any, (the device) could have played.”

It was a tactic reminiscent of the tobacco industry putting warning labels on cigarette packs. The action does not change the harm of the product, but rather is intended to create a layer of insulation from civil action.

In June 2008, a jury in the U.S. District Court for the Northern District of California ordered Taser International to pay $6.2 million in damages to the family of Robert C. Heston. Heston, of Salinas, Calif., had died after being hit by Tasers by Salinas police officers. Shortly after the decision, Taser International stocks plummeted, hitting its lowest numbers in a year. The jury, however, did not fault the police department, finding that Taser International did not instruct the officers properly on how to use the weapon. Having lost a major civil action, and knowing that other lawsuits would follow, Taser International scrambled to fend off civil action by deploying a revised usage policy.

But it is impossible to create a safe policy for an inherently unsafe weapon, just as it is impossible for the tobacco industry to create a safe way to smoke cigarettes.

And criticism has even come from the law enforcement community itself. Ray Samuels, former Newark police chief, turned down the offer to bring Tasers into his city in 2005. In explaining his position, which he has gone on to share with other city administrations that are considering the weapon, he wrote, "What scared me about the weapon is that you can deploy it absolutely within the manufacturer's recommendations and there is still the possibility of an unintended reaction. I can't imagine a worse circumstance than to have a death attributed to a Taser in a situation that didn't justify lethal force."

The decision of the Ninth Circuit Court of Appeals should send a clear message to the police and the cities that they work for that civil action is now a reality every time the Taser is drawn.

Raj Jayadev is director of Silicon Valley Debug. Aram James is a retired Santa Clara County public defender and a co-founder of San Jose’s De-Bug Legal Advocacy Clinic.

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