Eric Daigle, Attorney, Daigle Law Group LLC, Southington, Connecticut; and John G. Peters Jr., PhD, Certified Litigation Specialist, Henderson, Nevada
onducted energy weapons (CEWs) are being used by thousands of law enforcement agencies around the world. While the effectiveness of CEWs is quite impressive, there is growing concern about when and upon whom individuals should use these devices. Many courts have provided guidance on the issue of when to use CEWs,1 and this body of knowledge is growing. Of growing concern are recent manufacturer product-use warnings about categories of individuals upon whom the device should be used as a last resort or not used at all. Law enforcement administrators must carefully read product-use warnings and incorporate them into agency policy and training to minimize risk-management issues.
In September 2009, one major CEW manufacturer issued product-use warnings.2 These warnings identified higher risk populations and physiologically or metabolically compromised persons and cautioned against using CEWs on several categories of people because such use could increase the risk of death or serious bodily harm. These categories included pregnant women, the infirm, the elderly, small children, and individuals with low body-mass indexes (BMI).3 The manufacturer also warned governmental entities and CEW users that its CEW had not been scientifically tested on these at-risk populations. Agency CEW or use-of-force policies and training will need to be updated to parallel these warnings, but it will not be a quick fix.
For example, what will an agency’s CEW policy and training define as a “small child”? Will “small” be based on age, height, weight, or something else? What standard forms the basis for the definition? Is it a dictionary, a website, the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), or did the policy writer or trainer simply make up the definition? The “small child” definition may become a focal point during litigation; therefore, the basis for it may become important.
Similarly, what is an “elderly person”? A rudimentary search of this term yields several definitions, including people who are retired. Using this definition, anyone who is retired would be classified as elderly, even if the person is thirty years old. The definition of the term “elderly” must be determined by agency policy writers prior to litigation to not only manage, but also minimize potential risk. Although the CEW manufacturer may have met its legal duty to communicate the risks associated with using its CEW, the legal concern remains that it is now the responsibility of agencies and government entities to incorporate these warnings into policy and training.
The definition of “pregnant” and the question of when an officer is permitted to deploy a CEW on a pregnant woman are not only problematic for the policy writers, but also for the legal defense team that may need to defend the governmental entity and the officer. If the definition of “pregnant” is too general (for example, the terminology “CEWs are not to be used on pregnant women”), then a woman who is in an early stage of pregnancy could sue the governmental entity and the officer based upon the restrictive policy. One option may be for the agency policy writers and trainers to direct officers to limit the use of CEWs on “visibly pregnant” women, unless exigent circumstances will justify a CEW deployment. Consider, for example, that a visibly pregnant woman aggressively moves toward and threatens officers with a small garden rake. A CEW deployment may be reasonable under the circumstances pursuant to the Graham v. Conner “objectively reasonable” standard, but because of the strict definition given in the agency’s policy, the action will be found as a policy violation and may support a liability claim.
To minimize agency liability, it is beneficial to rewrite agency CEW policy with consideration of manufacturer CEW product warnings and the IACP model policy on electronic control weapons.4 Define terms such as “pregnant,” “infirm,” and “elderly,” and ensure that these definitions have a basis from an organization, dictionary, or legal treatise. Remember that product manufacturers have a legal duty to warn product end users about foreseeable risks, including injuries; however, law enforcement agencies may deviate from these warnings. For example, a firearms manufacturer warns never to point a firearm at an individual, but law enforcement officers may need to ignore this warning to save their lives or that of a third party. Under the appropriate circumstances, this is a reasonable use of force under the Fourth Amendment.
After revising and vetting the CEW policy, agency executives must distribute the document to all personnel who carry or use CEWs. Everyone must receive a copy and confirm receipt with a signature.
It is imperative to conduct training on the revised CEW policy. Law enforcement managers must ensure that CEW instructors and users follow all recommendations and make sure personnel are trained and tested on these changes and recommendations. To unlearn and then relearn is difficult, so conducting frequent and repetitious training may be necessary.
Finally, make sure agency administrators, policy writers, CEW instructors, and CEW users are provided with CEW manufacturer product warnings and training updates. Writing policies is a process, not a one-time project. CEW manufacturers update their warnings and training information on a regular basis, in part, to meet their legal responsibilities. Law enforcement agencies, too, must continually update their policies and training so as not to lag in meeting their legal responsibilities. ■
1Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004); Beaver v. The City of Federal Way, 507 F. Supp.2d 1137 (W.D. Wash. 2007); Beaver v. The City of Federal Way, 301 Fed. Appx. 704 (9th Cir. 2008) (qualified immunity upheld); Casey v. The City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007); Brown v. City of Golden Valley, 534 F. Supp.2d 984 (D. Minn. 2008) affirmed 2009 U.S. App.LEXIS 16071 (8th Cir. 2009); Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008); Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009), U.S. App. Lexis 28413.
2Melinda Rogers, “Taser Warning: Stun-gun Maker Suggests Avoiding Chest Shots,” Salt Lake Tribune, October 22, 2009, http://www.sltrib.com/news/ci_13614146 (accessed June 14, 2010).
3TASER, TASER X3, X26, and M26 ECD Warnings, Instructions, and Information: Law Enforcement, May 2010, http://www.taser.com/legal/Documents/Law-Enforcement-Warnings.pdf (accessed October 18, 2010).
4For more information on up-to-date model policies, and their related papers, please contact the National Law Enforcement Policy Center by e-mail at firstname.lastname@example.org or visit the website at http://www.theiacp.org/policycenter.
Please cite as:
Eric Daigle and John G. Peters Jr., "Legal Training and Concerns for Conducted Energy Weapons" Chief’s Counsel,The Police Chief 77 (November 2010): 12,
http://www.nxtbook.com/nxtbooks/naylor/CPIM1110/#/12 (insert access date).