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Electronic Control Devices: Legal Aspects Overview
Elizabeth Fitterman, Research Attorney

Introduction
A report by the U.S. Government Accountability Office (GAO) released in 2005 reported the use of TASER® electronic control devices by over 140,000 police officers in the field representing 7,000 of the 18,000 law enforcement agencies across the country. Recently, TASER International, Inc., the same source referenced in the GAO’s report, estimated that the number of agencies deploying the use of their electronic control devices (ECDs) had increased substantially to include more than 11,500 agencies, or about 70 percent of all law enforcement agencies in the United States. Further, possession and use of some type of ECD is lawful by both public agencies and private citizens in nearly all jurisdictions. The trend favoring the use of ECDs inevitably calls to mind the legal implications associated with ECD usage for which this article presents an overview.

Electronic control devices are intended to instantly but temporarily incapacitate an individual by delivering an electric shock either through a wire tethered to barbed projectiles fired from up to 21 feet away or by holding the weapon directly against the person. “Tasers” or “stun guns” are the terms most commonly associated with the weapons. However, the seemingly ubiquitous term “taser” is actually an acronym for “Thomas A. Swift’s Electric Rifle,” and a trademark brand name appropriately reserved only for the types of ECDs marketed by TASER International, the company that dominates the ECD market. Similar devices and their terms and acronyms include electro-muscular disruption device (EMD), conducted energy device (CED), dart-firing stun gun, STINGER®, a four-dart stun gun introduced by Stinger Systems, Inc., and the LEA Stun Pistol® by Law Enforcement Associates, Inc. All TASER devices are promoted by the company as “non-lethal” as defined by the Joint Concept for Non-lethal Weapons (U.S. Marine Corps), and other manufacturers also claim non-lethal status for their devices through independent testing and studies. Courts have generally held that the use of TASER devices, ECDs and EMDs is a form of less-lethal or non-deadly use of force.1

Despite their non-lethal status, more than 150 deaths have occurred after exposure to an ECD, with many cases highly publicized. Widely varying reports from numerous sources attempt to attribute or absolve the EMD device exposure as the cause of death in the cases. Amnesty International examined 72 mortality cases and reported that in no case was the use of an ECD indicated or implicated as the specific cause of death although use of the device could not be ruled out absolutely as a possible factor contributing to death. Other contributing factors, however, were identified including pre-existing morbidity like heart disease, and additional significant factors such as recent and excessive drug ingestion and the application of more traditional forms of physical force (for example, use of a baton or restraints).

Indeed, the majority opinion across diverse public and private international, national and local associations, organizations and agencies tend to conclude that electronic control devices represent a “tremendous benefit and tool for use by law enforcement” in which “injuries (both sides) and a reduction in the use of deadly force have occurred.”2 However, when the use of an ECD is alleged to cause an injury or death, law enforcement and other government agencies are subject to civil lawsuits for damages. Further, individual government agents, specifically law enforcement officers, may face both civil liability and criminal prosecution. Most lawsuits against law enforcement agencies or officers alleging an ECD-related injury claim that the injury occurred because the officer involved used the ECD in a manner or under circumstances that violated the suspect or individual’s constitutional rights under the Fourth (4th) or Eight (8th) Amendment of the United States Constitution. If a violation has occurred, the officers or agency may lose their protection from liable ordinarily afforded by the doctrine of qualified immunity.

4th Amendment Application
Each ECD deployment is a “use of force” issue potentially subject to legal scrutiny under the 4th Amendment (Search and Seizure). The right to make an arrest or investigatory stop and “some degree of physical coercion or threat” to effect the stop is detailed in a landmark Supreme Court case, Graham v. Connor3. The measure of “some degree” of force is analyzed under a “test of reasonableness” also detailed in Graham, in which the Court stated that reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”4 Further, Graham provided four circumstances that an officer may face in which the use of force is reasonable, any one of which will suffice to meet the test.5 Conversely, use of force determined excessive or unreasonable, including excessive or unreasonable use of an ECD, is misuse and unlawful conduct that violates the 4th Amendment. A second Supreme Court use of force case underscored the important distinction between misuse and lawful use when it noted that the 4th Amendment “addresses ‘misuse of power,’ not the accidental effects of otherwise lawful conduct.”6

Since Graham, lower courts have defined additional factors to determine whether an officer’s use of force is objectively reasonable including:
  • whether the force applied resulted in injury
  • the number of officers compared to the number of suspects involved, or the age or physical condition of the officers and suspects
  • whether the suspect had a violent history with the officer or a violent history known to the officer
  • the suspect’s mental history if known to the officer or the apparent use of alcohol or drug use by the suspect
  • the presence of innocent parties who could be harmed without the intervention of force

    Courts have allowed reasonable use of ECDs to compel compliance with an officer’s commands, noting that pointing with a firearm does not gain compliance but pointing with a TASER device usually does. For example, an officer’s use of a TASER device to accomplish the arrest of a belligerent and confrontational driver was found reasonable under the totality of the circumstances after a verbal command failed to obtain compliance and an attempt to handcuff the suspect might have escalated into a serious physical struggle. By contrast, use of an ECD to compel a crying, handcuffed suspect off the ground and into a patrol car after a traffic stop was disproportionate, unreasonable and therefore unlawful.

    8th Amendment Application
    Claims of ECD misuse under the 8th Amendment apply only to the use of the devices on convicted and incarcerated persons. Generally, the use of ECDs on inmates to quell disturbances or to compel obedience to orders, including orders to be handcuffed or searched, must have a nexus with a reasonable security purpose or the use of the device violates the 8th Amendment. ECDs cannot be used to punish prisoners. Unjustified shocking of shackled prisoners has been termed by courts as “maliciously and sadistically” applied force.7 Similarly, a deputy used unlawful force when he deployed a TASER device on a pretrial detainee for adamantly, but without any threat of physical violence, refusing to comply with the deputy’s order. No security purpose existed because the other inmates were closed in their cells and the detainee was not physically violent.

    Qualified Immunity Under 41 U.S.C. § 1983
    Under the doctrine of qualified immunity, a government officer, employee or agency, such as a law enforcement officer or police department, is shielded from lawsuits and liability for injuries or death that might occur in the line of duty. The importance of this shield to law enforcement officers and agencies cannot be understated. In the absence of qualified immunity, a government agency, officer or employee may be personally financially liable for damages including the plaintiff’s attorneys’ fees and punitive damages assessed to further punish the wrongdoer. In addition to catastrophic financial liability, an individual defendant such as a police officer may also be subject to disciplinary actions and criminal prosecution.

    Qualified immunity can be lost if the government agency or officer violates an individual’s constitutional rights. In cases alleging injury from the use of an ECD, the claims are generally that the officer used excessive force in violation of a suspect’s 4th Amendment right or used an ECD to punish an incarcerated individual in violation of the inmate’s 8th Amendment right.

    To determine whether the protection of qualified immunity should apply, courts use a two step test articulated by the Supreme Court that largely favors the officer or agency involved. For example, in a case alleging excessive force associated with the use of an ECD, a court must first address whether the officer’s conduct violated a constitutional right analyzed under the 4th Amendment’s objective reasonableness standard discussed above, that is, whether the officer acted reasonably under the circumstances at the moment, not in 20/20 hindsight. Only if the court finds that the officer in fact violated the suspect’s 4th Amendment right does the court move to the second step of the analysis which seeks to determine whether immunity should still operate to shield the officer from liability. Under the second step, to ultimately deny the officer qualified immunity, the court must find that it was clear to the officer that his conduct was unlawful. Thus, the doctrine of qualified immunity is broad in scope and serves to protect all “except the plainly incompetent or those who knowingly violate the law.”8

    Mitigating ECD Liability
    The number of injuries and deaths occurring in conjunction with the use of an electronic control device prompted law and policy makers at all levels to seek input from local citizens, advisory groups and special studies regarding the implementation and continued use of ECDs particularly by law enforcement agencies. As a result, many insights into the development of sound policies, procedures, and training curricula for the use of ECDs have evolved and warrant consideration by all agencies as methodologies to promote sound and safe practices in the use of ECDs, but also as measures to prevent or dissuade litigation alleging ECD related injuries.

    Comprehensive and documented training programs and procedures are key defenses against qualified immunity challenges and civil liability aimed at agencies. An officer well-trained in how and when to use an ECD is less likely to run afoul of a suspect’s constitutional rights. Policy makers are advised to seek opportunities to educate the public regarding the use of ECDs and promote their agency’s commitment to the safe and prudent use of the devices. Medical experts have articulated recommendations for consideration such as limiting the number of ECD “doses,” avoiding usage against high-risk individuals like the elderly, young and pregnant women and implementing training to help law enforcement officers identify and manage high-risk individuals.

    Individuals diagnosed as suffering from “excited delirium” have been identified as particularly high-risk individuals. Policies and training directing law enforcement officers to immediately contact EMS if an ECD is used on a high-risk person have proven effective in preventing subsequent injury or death. For example, in October 2006, Miami-Dade Fire Rescue implemented a pilot program implementing an “electronic control device protocol” to provide special medical attention to people under the effect of drug-induced “excited delirium” or subjects exhibiting signs of a stimulant overdose when shot by electronic stun guns. Medical treatment might include administration of a fast-acting sedative spray to calm the subject if still agitated before injecting iced saline solution to lower body temperatures—often as high as 108º—an effect of the ingested drug, not the EMD device, and sodium bicarbonate to counteract acids released by tensed muscles. Since implementation through June 2007, the protocol has been used at least 17 times with no resulting deaths.

    Additionally, law enforcement agencies should utilize the substantial experience of numerous organizations and benefit from the experience of other agencies. By example, the International Association of Chiefs of Police (IACP) in collaboration with the Montgomery County Maryland Police Department and with grant support from the National Institute of Justice, has developed “Electro-Muscular Disruption Technology: A Nine-Step Strategy For Effective Deployment,” a brief that includes assistance to law enforcement in developing policies, procedures, and training curricula for EMD device use. Similarly, the Less Lethal Working Group (LLWG) maintains a website created to assist local, state and federal law enforcement agencies in developing, implementing and enhancing the use of all less lethal technologies. Sound policies and programs detailing the appropriate and proper use of electronic control devices protect law enforcement agencies and officers and the public they serve.

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    FOOTNOTES
    1See Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002); Russo v. Cincinnati, 953 F.2d 1036; Parker v. City of South Portland, NO. CIV 06-129-P-S, 2007 U.S. Dist. WL 1468658, at *21 (D.Me. May 18, 2007).
    2“TASERS: Deadly Force?” Final Report of the Miami-Dade County Grand Jury, February 2, 2006, available at http://www.miamisao.com/publications/grand_jury/2000s/gj2005s.pdf, last viewed June 10, 2007.
    3Graham v. Conner, 490 U.S. 386, 396 (1989).
    4Graham, 490 U.S. at 396.
    5“the test of reasonableness . . . requires careful attention to the facts and circumstances of each particular case, including: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; (3) whether he is actively resisting arrest; or (4) whether he is attempting to evade arrest by flight.” Graham, 590 U.S. at 396 (emphasis added)
    6Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (emphasis added).
    7Shelton v. Angelone, 183 F.Supp. 2d 830 (W.D. Va. 2002)
    8Couden v. Duffy, 446 F.3d 483, 501 (3d Cir.2006) (Weis, J., dissenting) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

    REFERENCES
    Government Accountability Office (GAO), “Taser Weapons: Use of Tasers by Selected Law Enforcement Agencies,” June 27, 2005, available at: http://www.gao.gov/htext/d05464.html, last viewed July 10, 2007.
    Paulette H. Simms, Florida Department of Law Enforcement, “An Overview of Electronic Control Devices and Their Use in Florida,” available at: http://www.fdle.state.fl.us/cjst/Publications/ECDoverviewAndFLuse.pdf, last viewed July 10, 2007.
    TASER International, Inc., available at: http://www2.taser.com/Pages/default.aspx, last viewed July 10, 2007.
    International Association of Chiefs of Police, “Electro-Muscular Disruption Technology: A Nine-Step Strategy for Effective Deployment,” available at: www.iacp.org/research/rcdcuttingedgetech.htm, last viewed July 10, 2007.
    Less-Lethal Working Group, available at: http://less-lethal.org/web/home.-aspx, last viewed July 10, 2007.
    “TASERS: Deadly Force?” Final Report of the Miami-Dade County Grand Jury, February 2, 2006, available at: http://www.miamisao.com/publications/grand_jury/2000s/gj2005s.pdf, last viewed June 10, 2007.
    Richard Willing, “Stun Gun Salve in Miami Cuts Risk of Death,” May 17, 2007, available at: http://www.usatoday.com/news/nation/2007-05-17-stun-gun-miami_N.htm, last viewed July 10, 2007.
    Eric Edwards, “Electronic Control Device Legislation-General Themes,” 2005, available at: http://www.aele.org/ecdlegislation2005.html, last viewed July 10, 2007.

    CASES
    Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).
    Hernandez v. Terhume, not reported in F.Supp.2d, 2000 WL 1847645 (N.D. Cal. 2000).
    Williams v. Schueler, No. 04-C-65, 2006 WL 3469597 (E.D. Wis. Nov. 29, 2006).
    Preston v. Pavlushkin, slip copy, 2006 WL 686481 (D. Colo. March 16, 2006).
    Bazan v. Hidalgo County, 246 F.3d 481 (Cal. Ct. App. 2001).
    Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002).
    Russo v. Cincinnati, 953 F.2d 1036 (Ct. App. 6 1992).
    Parker v. City of South Portland, NO. CIV 06-129-P-S, 2007 U.S. Dist. WL 1468658, at *21 (D.Me. May 18, 2007).
    Sharrar v.Felsing, 128 F.3d 810 (3d Cir. 1997).
    Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988).
    Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001).
    Krueger v. Fuhr, 991 F.2d 435 (8th Cir.).
    Dean v. Worcester, 924 F.2d 364 (1st Cir. 1991).
    Pino v. City of Sacramento, No. Civ.S-052080WBSDAD, slip op. 2006 U.S. Dist. WL 193181 (E.D. Cal. Jan. 19, 2006).
    U.S. v. Ackerman, No. 8:05-CR-144-T-27TGW, slip op. 2006 U. S. Dist. WL 224028 (M.D. Fla. Jan. 30, 2006). Buckley v. Haddock, No. 5:06cv53-RS slip op. 2007 U.S. Dist. WL 710169 (N.D. Fla. March 6, 2007).
    Carswell v. Borough of Homestead, 381 F.3d 235 (3rd Cir. 2004).
    Sheehan v. United States, 822 F. Supp. 13 (D.C. Cir. 1993).