By Craig E. Ferrell Jr., Deputy Director, Major Cities Chiefs General Counsel, Chief’s Command/Legal Services, Houston Police Department, Houston, Texas
espite a significant and growing body of research on electronic control devices (ECDs), controversy persists over the effect on humans and the safety of their extensive and expanding use by law enforcement. In fact, statistics from Taser, the manufacturer of a popular ECD, show that as of June 30, 2010, 15,500 law enforcement and military agencies have purchased ECDs. The statistics state that there have been more than 1,070,785 field deployments.
ECD Use in Arrests Involving Suspects in Crisis
Law enforcement officers are frequently called upon to deal with individuals in crisis, who are physiologically compromised1 and are at a heightened risk of serious injury or death, regardless of actions taken by law enforcement. In addition, the restraint and arrest process can introduce additional physiological changes that may worsen a person’s baseline physiology. These changes may include significant acidosis, cardiac arrest, or other medical conditions.
If these individuals are under the influence of drugs or alcohol or are mentally or emotionally disturbed and off their medications, they are often noncompliant with officer commands, irrational, aggressive, impervious to pain, and, sometimes, they display super strength. They can be a danger to themselves and to others. By the time officers arrive at a scene, many suspects are already significantly acidotic from their own struggles and volitional actions—likely with lower pH levels resulting in an increased chance of injury, worsening condition, or possibly death, independent of any action taken by the officers. Potential danger exists in allowing the suspect to continue with agitated or resistive behavior. In other words, something has to be done by the police.
Recent human medical research2 has investigated the physiological health risks associated with physical exertion similar to resisting arrest or fleeing from officers, as well as those risks associated with certain law enforcement control tools. The three law enforcement control tools tested for their effects on causing acidosis were law enforcement canine for capture and restraint, oleoresin capsicum (OC) spray exposure to the face and neck, and ECD exposure for 10 and 15 seconds to the torso. The researchers measured acidosis changes associated with the above physical exertion and police tools and found the following:
- Muscle contractions from ECD exposures for up to 10 and 15 seconds in rested human subjects resulted in minimal increases in acidosis that did not approach a dangerous level and was clinically not noticed by the test subjects.
- Physical activity similar to fighting and resisting or fleeing from law enforcement produced the worst and most clinically significant acidosis. This volitional activity was clearly the most potentially harmful from a physiological standpoint, and the test subjects clinically felt ill following this activity.
- Canine takedown and restraint had the highest increase of acidosis levels of the law enforcement tools tested.
- OC spray had the least increase in acidosis levels of the law enforcement tools tested. This was expected since ECD application stimulates muscles and OC spray does not. The researchers opined that since OC spray does not usually incapacitate a focused person or a person intoxicated on drugs or alcohol, the fight or flight response is likely to continue and may result in worsening acidosis. It is likely that OC spray, while not directly causing acidosis, could indirectly make it worse.
- This recent human medical research also investigated the physiological health risks associated with an ECD discharge on an already acidotic person. This research showed that application of a Taser device for up to 15 seconds to an exerted, already acidotic person did not worsen the acidosis that was already present.
The challenge facing law enforcement is to determine the tactics that are best suited to gain control of resisting suspects as quickly as possible. Pain compliance tools, such as OC spray, are often not effective when dealing with a person who is impervious to pain or focused. Canine or hands-on tactics can lead to struggles, increased resistance, and higher acidosis levels and often result in injury to the officer and the suspect. The research cited above shows that ECD use, as part of an overall capture plan, is a viable option, minimizing the duration of the struggle by incapacitating suspects without relying on pain compliance. The key is using the suspect’s incapacitation as a window of opportunity to get the handcuffs on and gain control of the situation.
If an ECD with a good probe spread is a tool providing quick restraint, then what about the general safety of ECDs? Many headlines condemn deaths after ECD use, but rarely do they announce when an autopsy clears the ECD use. ECD safety is beyond the scope of this article. The following excerpts provide relevant conclusions and suggested courses of action.
- A three-year review of all ECD uses against criminal suspects at six law enforcement agencies found only three significant injuries out of 1,201 criminal suspects subdued by ECDs and reports that 99.75 percent of criminal suspects shocked by one received no injuries or mild injuries only, such as scrapes and bruises.3
“These weapons appear to be very safe, especially when compared to other options police have for subduing violent or combative suspects,” said study author William P. Bozeman, MD, of Wake Forest University in Winston Salem, North Carolina. “That is not to say that injuries and deaths are impossible. Police and medical personnel need to be aware of the potential for serious injury and look for evidence that a person subdued by a Taser has been hurt.”4
- A prospective, population-based,15-month study of the introduction of ECDs at the Dallas, Texas, Police Department; of policy compliance; and of associated medical events following ECD activations was conducted.5
- The University of South Carolina’s Department of Criminology and Criminal Justice examined the impact on officer and suspect injuries of 1,645 ECD deployments between January 2002 and July 2006 from two law enforcement agencies: the Richmond County, South Carolina, Sheriff’s Department and the Miami-Dade County, Florida, Police Department.6
- ECD exposure produced no detectable dysrhythmias and produced a statistically significant increase in heart rate. Overall, ECD exposure appears to be safe and well tolerated from a cardiovascular standpoint in this population (volunteer police officers participating in ECD training and testing). This study increases the cumulative human subject experience of ECD exposure with continuous ECG monitoring and includes 28 full 5-second exposures (24 men and 4 women).7
These research data are consistent with statistics from agencies8 deploying ECDs that show that, although an ECD is not risk free, there are reduced rates of injuries to officers and suspects when an ECD is used, as well as reduced citizen complaints and use-of-force claims. In other words, the ECD is effective and minimizes suspect injuries.
Following are some guidelines you should consider in deploying ECDs:
- Ensure that all ECD users are properly trained and certified by instructors using the latest training materials
- Follow agency standard operating procedures and manufacturer warnings
- Address areas of increased risk in training program:
- Presence of flammable liquids/fumes or explosive environments
- Elevated positions
- Person operating moving vehicle or machinery
- Person running (fleeing)
- Pregnant female, child, frail, or infirm individual
- Swimming pool or other body of water
- Intentional ECD application to sensitive areas
- Perceived risk of repeated ECD applications
- Physiologically/metabolically compromised persons
- Create standard operating procedures that at a minimum contain the following information and ensure a review procedure is included:
- Make sure that ECD use is within agency policy and training recommendations
- Use ECD to accomplish only lawful law enforcement objectives
- Do not use an ECD for punishment
- Use the window of opportunity to restrain (key to any good training program)
- Justify/document every trigger pull/5-second discharge—articulate/document threat/behavior
- Avoid multiple, repeated, prolonged, or continuous exposures unless absolutely necessary to counter reasonably perceived threat(s) and use is justifiable—always document your justification in an offense report of the arrest
- Avoid intentionally targeting sensitive areas when possible
- Know your objectives for using force
- Give a warning
- Give adequate time for voluntary compliance (if possible)
- Verify the person is capable of complying
- Prepare clear, complete, and unambiguous reports
- If at all possible, don’t use an ECD on a person who is an elevated position where he or she can be injured from a fall
- When possible and if circumstances allow, aim for the preferred target zone of lower center mass and back areas
- When dealing with exhausted individuals or persons exhibiting symptoms of distress or agitated/excited delirium, do the following:
- Once officers engage in capture procedures, it is important to minimize the duration of the physical struggle.
- When encountering subjects exhibiting symptoms of exhaustion, distress or agitated/excited delirium, refer to agency guidelines for proper response. These subjects are at significant risk of arrest-related death. Immediate medical attention may reduce this risk and should be obtained at the earliest safe moment.
Notable Cases of Interest Regarding ECDs
Graham v. Connor.9 Many cases involving deployment of an ECD use factors discussed in Graham in their analyses. Those factors are
- the severity of the crime at issue,
- whether the suspect poses an immediate threat to the safety of the officers or others, and
- whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
These factors are not exclusive, however, and courts also examine the totality of the circumstances in an effort to objectively determine the amount of force that is necessary in a particular situation.
Draper v. Reynolds.10 Similarly, in this case dealing specifically with deployment of an ECD, the court considered the additional following factors in determining if the force used was reasonable:
- The need for the application of force
- The relationship between the need and the amount of force used
- The extent of the injury inflicted
Recent Cases Concerning ECDs
Bryan v. McPherson.11 In an action asserting excessive force based on an officer’s ECD use on the plaintiff during a traffic stop for a seatbelt infraction, a denial of summary judgment based on qualified immunity is affirmed in part where, viewing the circumstances in the light most favorable to the plaintiff, the defendant’s use of the ECD was unconstitutionally excessive.
Oliver v. Fiorino.12 The facts, when viewed in a light most favorable to Oliver, show that Oliver was neither accused nor suspected of a crime at the time of the incident; that Officer Fiorino tasered Oliver at least 8 and as many as 11 or 12 times with each shock lasting at least 5 seconds; that the officers made no attempt to handcuff or arrest Oliver at any time during or after any ECD shock cycle; that the officer continued to administer ECD shocks to Oliver while he was lying on the hot pavement, immobilized and clenched up; and, finally, that these ECD shocks resulted in extreme pain and ultimately caused Oliver’s death. The court concluded that the officers were not entitled to qualified immunity on the claim of excessive force.
Brooks v. City of Seattle.13 Arresting officers’ use of an ECD in drive-stun mode three times to effect arrest was not unreasonable and qualified immunity is granted, despite the fact that the suspect’s crimes of refusing to sign notice of infraction regarding traffic offense and obstructing law enforcement officers were not serious offenses. Additionally, the use of the ECD in drive-stun mode inflicted only temporary and localized pain without significant lasting injury, the suspect posed a flight risk and a physical threat to the officers, and she refused to cooperate despite officers’ repeated warnings that an ECD would be used.
Mattos v. Agarano.14 Officers’ use of an ECD did not constitute excessive force where, given the dangerous nature of domestic violence situations, the close quarters in which the officers and plaintifs were contained, and the intoxicated state of the plaintiff’s husband, there was the risk of immediate threat to the safety of the officers. ■
1“Physiologically compromised” include those persons whose lives in rare circumstances may be at risk of arrest-related death due to excited or agitated delirium, acidosis, cardiac arrest, serotonin syndrome, neuroleptic malignant syndrome, sudden unexpected death in epilepsy, catecholamine release or buildup, compromised cardiac or pulmonary conditions, sickle-cell compromise, and drug or alcohol use or withdrawal.
2Jeffery D. Ho et al., “Can Prolonged Taser X26 Exposure or Continued Exertion Contribute to Sudden Cardiac Death through Worsening Acidosis?” (paper presented at CardioRythm, Hong Kong, February 2009), http://www.taser.com/research/Science/Documents/Ho_J_2009_Feb_Acidosis_Cardiorythm.pdf (accessed
November 1, 2010); and Ronald Moscati et al., “Physiologic Effects of Prolonged Conducted Electrical Weapon Discharge on Acidotic Adults,” abstract, Academic Emergency Medicine 14, no. 5 S1 (May 2007): S63–S64, http://onlinelibrary.wiley.com/doi/10.1197/j.aem.2007.03.704/pdf (accessed November 2, 2010).
3William P. Bozeman et al., “Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officer Against Criminal Suspects,” Annals of Emergency Medicine 53, no. 4 (April 2009): 480–489, http://download.journals.elsevierhealth.com/pdfs/journals/0196-0644/PIIS0196064408020611.pdf (accessed November 2, 2010).
4Annals of Emergency Medicine, “Serious Injuries from Taser Are Extremely Rare,” press release, January 15, 2009, http://www.acep.org/pressroom.aspx?id=43742 (accessed November 2, 2010).
5Alexander L. Eastman et al., “Conductive Electrical Devices: A Prospective, Population-Based Study of the Medical Safety of Law Enforcement Use,” The Journal of TRAUMA Injury, Infection, and Critical Care 64, no. 6 (June 2008): 1567–1572.
6 Michael R. Smith et al., “The Impact of Conducted Energy Devices and Other Types of Force and Resistance on Officer and Suspect Injuries,” Policing: An International Journal of Police Strategies and Management 30, no. 3 (2007): 423–446.
7William P. Bozeman et al., “Immediate Cardiovascular Effects of the Taser X26 Conducted Electrical Weapon,” Emergency Medicine Journal 26, no. 8 (August 2009): 567–570.
8Agency statistics received from Taser International, Inc., Cincinnati Police Department Review to Community, Fall 2005, officer injuries reduced 56 percent; suspect injuries reduced 35 percent, use of force reduced 50 percent; citizen complaints reduced 50 percent.
9Graham v. Connor, 490 U.S. 386 (1989).
10Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).
11Bryan v. McPherson, 608 F.3d 614 (9th Cir. 2010).
12Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009).
13Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010).
14Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010).
Please cite as:
Craig E. Ferrell Jr., "What Every Police Chief Should Know About Electronic Control Devices" Chief’s Counsel,The Police Chief 77 (December 2010): 12–15, http://www.nxtbook.com/nxtbooks/naylor/CPIM1210/#/12 (insert access date).