To Tase or Not to Tase - Police Questioned Over Increased Taser Use After Lawsuits Mount

I received the following comment tonight from Beta_Test_Victim which echoes my sentiments exactly:

"The government has an interest in arrests being completed efficiently and without waste of limited resources," wrote Chief Judge J.L. Edmondson

"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

My good friggn god. What have we come to? I am scared to death at the fact this is being set as a precedent for cops to follow. What is wrong with this picture? Uuuuh, the fact that there are a whole lot of cases like this working their way through the "Legal System" makes me just sick. On top of that, the police have no reason to worry about being held accountable. What is happening to our world? Where are we going here??!!

May 30, 2009
By WARREN RICHEY, ABC NEWS

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 Loathe 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."

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."

Supreme Court could decide the future of Tasers

February 27, 2009
BY DAVID SMILEY, Miami Herald

With a Washington County deputy struggling to force him to his feet, Jesse Buckley didn't kick, flail his cuffed hands or try to run.

He wept.

That was enough for Buckley, arrested after refusing to sign a speeding citation, to receive three, 50,000-volt shocks from Deputy Jonathan Rackard's Taser as he screamed and rolled around on the ground.

Recorded by a camera from inside Rackard's police cruiser, the 2004 North Florida incident has been seen by more than 25,000 on YouTube.com and could become an integral part of the controversial debate over the increased use of shock devices.

The clip is evidence in the case of Buckley v. Haddock, a complaint submitted to the U.S. Supreme Court that could lead to the high court's first ruling on Tasers.

Should the high court decide to hear the case, Florida will find itself back in the forefront in the ongoing debate over the use of stun guns, which temporarily paralyze their victims. Police say the weapon is the safest way to quash a tense situation or bring down an unruly subject. But medical experts debate its health hazards or lack-there-of and judicial panels continue to issue rulings on cases involving alleged abuse of the weapon.

Miami was the city Taser International, the largest manufacturer of stun guns, chose to launch its civilian push in 2005.

Likening Rackard's use of the weapon to a cattle prod, the American Civil Liberties Union of Florida filed the petition earlier this month after an 11th Judicial Circuit panel last year ruled the use of the Taser against Buckley was not excessive.

Maria Kayanan, associate legal director of ACLU of Florida, said that as it stands, the ruling could sanction abuse of the weapon by Florida's law enforcement.

But just as important, attorneys say, is that a Supreme Court ruling on the case could affect Taser use by law enforcement throughout the country.

''Any ruling by the Supreme Court on use of a Taser would have significant nationwide implications,'' Kayanan said.

It was in Gainesville where Andrew Meyer made ''Don't Tase me, Bro'' a catch phrase after a clip of University of Florida police shocking him with a Taser during a John Kerry Q&A made it onto YouTube.com.

And last December, Miami-Dade and Broward counties received the dubious notoriety of making an Amnesty International list of the top-10 counties where the most Taser-related deaths occurred over an seven-year period.

The recently released USA: Less than Lethal? report reviewed 334 deaths in the United States involving Tasers between 2001 and 2008. Of those deaths, 52 were in Florida. Six died in Broward and five in Miami-Dade.

Researchers behind the study have called for greater regulation in the use of stun guns and further research.

''It should be considered a potentially lethal weapon and there hasn't been enough research yet,'' said Angela Wright, an Amnesty International researcher. ``There has to be strict control of their use.''

In Broward County alone, there are more than 2,500 Tasers available for law enforcement officers, as every police department has purchased the weapons. Even the quiet village of Key Biscayne purchased an order of the stun guns in January.

Steve Tuttle, spokesman for Taser International, said the comparisons to torture devices and statements that research has been scant are misleading.

Tuttle noted that the Amnesty International study was admittedly unscientific and that of the 334 deaths reviewed in the study, an overwhelming majority were found to have been caused by a high dosage of stimulants or preexisting health disorders.

Tuttle acknowledged that as a law enforcement tool, a Taser can be abused just like a baton or pepper spray, but he also said if a Taser is used in an improper way, it is difficult for law enforcement to hide the truth.

''No other product has a chip that records the time, rate and duration of an application,'' Tuttle said. ``We put that in there as a law enforcement tool. It's an audit that's a double-edged sword. If an officer is lying, he's going to get caught.''

And even as some studies question the use of Tasers, independent research done by universities such as Florida Gulf Coast University and Wake Forest University suggest the weapon not only is safe for use, but also saves officers and suspects from injuries.

''Right now, it does seem to be the best tool for the job and success rates are pretty high,'' said Charlie Mesloh, director of the Weapons and Equipment Research Institute at Florida Gulf Coast University.

Mesloh reviewed Taser deployments among Orlando police and Orange County sheriff's deputies during a three-year period and said he found that an officer would have been justified in using a gun during 500 out of 4,303 cases in which a Taser was used.

Even critics agree that the Tasers can serve a useful role, often leaving the debate to focus on how and when the device should be used and on whom.

''That is the critical question because the Taser can produce benefits and has potential for detrimental outcomes,'' said Lorie Fridell, a board member of the ACLU of Florida and a criminology professor at the University of South Florida.

But weighing the pros and cons is difficult because there is no way to quantify how many lives the device has saved.

''It's so much easier to measure the number of people who have died after Taser use than it is to measure and document lives that were saved because a Taser was used,'' Fridell said.

To tase or not to tase - ACLU asks U.S. Supreme Court to answer the question for first time

February 6th, 2009

MIAMI – In a petition submitted to the United States Supreme Court on Tuesday, the American Civil Liberties Union of Florida asked the nine Supreme Court Justices to rule that a law enforcement officer’s excessive use of force with a Taser is unconstitutional. The case offers the Supreme Court its first opportunity to address Taser abuse in an incident captured by a videocamera mounted on the patrol car dashboard of the Washington County, Florida Sheriff’s Deputy, Jonathan Rackard.

Deputy Rackard administered three five-second-long 50,000 volt discharges of a Taser to Jesse Buckley with the Taser in “drive-stun” mode, which means that the device was pressed directly against the skin instead of from a distance. The ACLU lawsuit alleges that the deputy’s actions violate the Fourth Amendment, since his only purpose was to inflict pain upon an already-handcuffed arrestee to make him stand up.

Buckley’s lawyer, James V. Cook of Tallahassee, Florida, posted the video on YouTube at the suggestion of the dissenting member of the Eleventh Circuit panel, Judge Beverly Martin. You can view the video of Jesse Buckley being actively tased by Deputy Rackard at: http://www.youtube.com/watch?v=SWC7iSGCk-s

“The Eleventh Circuit’s ruling licenses police officers to use Tasers as cattle prods to inflict gratuitous pain on a nonviolent handcuffed arrestee, simply to herd him towards a police car. The repeated and excruciatingly painful application of 50,000 volts of electricity was once the exclusive province of the agents and implements of torture, and cannot be condoned in a civilized society,” said Maria Kayanan, ACLU of Florida Associate Legal Director.

On March 17, 2004, Mr. Buckley was arrested after refusing to sign a traffic citation during a routine traffic stop. He was handcuffed and voluntarily exited his vehicle, obviously in emotional distress, then fell to the ground. The arresting officer was under no apparent threat, as documented by the police car-mounted camera, yet “tased” Mr. Buckley three separate times. Each tase lasted five seconds, leaving 16 burn marks on his skin, some severe enough to produce keloid scars. Although Mr. Buckley never once actively resisted arrest nor attempted to flee, the officer continued to tase him solely to cause pain.

The federal district court held that the officer was not entitled to qualified immunity, but by a split decision, the 11th Circuit Court of Appeals panel reversed that opinion. The 11th Circuit denied rehearing the case before the entire Circuit Court of Appeals, and upon denial the petition to move to the Supreme Court was made.

“The 11th Circuit opinion in Buckley v. Haddock represents a step backwards in police professionalism,” said Mr. Buckley’s trial court attorney, James Cook. “It takes us back several decades to a time when some law enforcement agencies gave officers permission to use old-fashioned electric cattle prods, along with dogs and fire hoses, to control people who were not being violent. We hope the U.S. Supreme Court will have the wisdom to revoke that permission.”

The ACLU of Florida and James Cook are confident that the Justices will recognize the egregious harm to Mr. Buckley and the insult to the Fourth Amendment.

A PDF of the petition can be downloaded at: http://www.aclufl.org/pdfs/BuckleyCert-final.pdf

The ACLU of Florida filed the petition in the U.S Supreme Court on Tuesday. Counsel for Jesse Daniel Buckley is Michael R. Masinter, ACLU Board Member and Professor of Law at Nova Southeastern University Shepard Broad Law Center; James V. Cook; Randall Marshall, ACLU of Florida Legal Director; and Maria Kayanan, ACLU of Florida Associate Legal Director.