The Growing Legal Implications of Tasers: A primer on the development, uses, and consequences of TasersBy Maureen Moran, Published on August 18, 2011
"Don't Tase me, bro!" These words, spoken in 2007 by a man who was shocked with a Taser by campus security officers at the University of Florida, became a pop-culture catchphrase after videos of the incident went viral. To some, the phrase is cause for amusement, a plea for attention by an incoherent man who did not want to relinquish a microphone at a question-and-answer session following a speech by Senator John Kerry; to others, it's an indication that the security state has gotten out of hand.
Debate raged about whether the man, Andrew Meyer, a known prankster, was acting like an idiot and deserved what he got, or whether the police vastly overreacted to a simple situation and violated his constitutional and civil rights. Or, for that matter, whether it could be true both that he was a troublemaker and that the police violated his rights.
In Widespread Use
According to the National Institute of Justice, part of the U.S. Department of Justice's Office of Justice Programs, as of June 2008, approximately 11,500 law enforcement agencies had acquired CEDs, or conducted energy devices, for use as a "less-lethal" weapon. CEDs (also known as ECDs, or electronic control devices) work by using a high-voltage, low-power electrical charge to produce incapacitation by inducing involuntary muscular contractions, or electro-muscular disruption (EMD).
The prevailing model of CED is the Taser X26 used by law enforcement, introduced in 2003 and manufactured by TASER International. TASER also manufactures the older M26 as well as the C26, which is a consumer model. They have recently released both the X2 and X3 models. Other models of CED are also in use by law enforcement, including stun guns and shields manufactured by other companies. Though "Taser" is a trademark, it has become a term referring generically to CEDs used by law enforcement, and "Tasing" has become a commonly used verb to describe the use of such devices.
According to TASER's website, the 50,000 volts of electricity delivered by a Taser is less lethal than the 110 volts in a household wall outlet because it is the amperage, not the voltage, that carries danger when dealing with electricity; the Taser uses a low-amperage pulsed current to mimic the electrical impulses from the brain to the muscles, rather than the continuous, higher-amp current delivered by a wall outlet to consistently power appliances.
The Rodney King Incident
Tasers have been around for decades, the device first having been developed in 1967. Law enforcement agencies began adopting the devices extensively in the 1990s as they searched for a less-lethal alternative to firearms as a means of subduing violent or escaping persons, as well as a means of reducing injuries sustained by officers when attempting to physically control suspects. Indeed, in the incident that sparked the 1992 Los Angeles riots, Los Angeles Police Department officers used Tasers to subdue Rodney King during a traffic stop. During the subsequent criminal trial of the officers, their attorney argued that the fact that King tried to get up after having 50,000 volts of electricity shot into his body gave the officers reasonable cause to believe that King was high on PCP and therefore dangerous; prosecutors argued that the videotape of the incident clearly showed that King was in pain from the electrical shock and was not in any position or condition to be any danger to officers.
What most sparked public outrage in the Rodney King incident was the beating that the LAPD officers gave him as he lay on the ground; officers kicked him repeatedly and hit him with their nightsticks even as he offered no resistance. Whether because the videotape had not captured the administration of the Tasers or because they were not as well known or understood at the time as kicks and nightstick blows, few reports of the beating singled out the Taser use as part of the excessive force used against King.
But as Taser use becomes more and more widespread among law enforcement agencies and the rationale for their use has changed from providing an alternative to lethal force to providing a means of controlling recalcitrant members of the public, legal challenges to their use by law enforcement--among other things--have been mounted. Where there are legal challenges, research must be done. And where research must be done, law librarians can help patrons make sense of the thicket of information on this topic.
How Tasers Work
Tasers are the most common electronic control device used by law enforcement today. TASER International has taken a very aggressive, methodical approach to putting them in the hands of law enforcement officers and the military. The company offers training at its "TASER Training Academy" and support to police departments, and has marketed the devices as a way for officers to prevent harm to themselves while subduing or controlling suspects. TASER International offers training not just in the use of Tasers for law enforcement but also for legal advisors, risk mitigation officials, expert witnesses, and medical advisors.
A Taser works by shooting two or more probes from the device, which become attached to a target's skin or clothing. The probes are attached to the device by thin wires, which transmit 50,000 volts of electricity in a pulsed, low-amperage current. As TASER International explains on its website, "The probes deployed from a TASER ECD carry fine wires that connect to the target and deliver the TASER into his neural network. These pulses delivered by the TASER ECD overwhelm the normal nerve traffic, causing involuntary muscle contractions and impairment of motor skills."
The electrical current renders the target unable to control his or her muscles, and the usual result is incapacitation and immobilization, to say nothing of a great deal of pain. TASER likens the effect to static on a telephone wire, which interferes with the ability to communicate; in this case, the interference is to the brain's ability to communicate to the muscles. When the current stops, says TASER, the interference stops.
Inherent Dangers and Excited Delirium
However, the electricity administered by a Taser has the potential not just to incapacitate, but also to kill. There have been several high-profile incidents in which a suspect who was Tasered by law enforcement has died as a result, including an incident in 2007 at the Vancouver airport. Royal Canadian Mounted Police officers approached a man, and Tased him within two minutes of first confronting him, after he failed to follow their instructions. The man, Robert Dziekanski, was disoriented after 15 hours of travel to what was to be his new home country. His English was limited, and he was frantic because he had been in the airport for hours and could not find his mother, who was to meet him at the airport and could not get to him through security. Within four minutes of his first encounter with the RCMP, Dziekanski lay dead.
Amnesty International estimates that, since 2001, there have been 351 in-custody deaths in the United States related to Taser and other ECD use. Further, according to "Overview of Tasers," an article that can be found on the Amnesty International website.
Amnesty International has found that in most of the cases where individuals died after being shocked, they had been subjected to multiple and/or prolonged shocks (the standard shock with the most common model of the weapon is 5 seconds). The National Institute of Justice (NIJ), part of the U.S. Department of Justice, has similarly noted in its interim report on Tasers (June 2008) that many of the deaths are associated with prolonged or repeated discharges; it found research in this area to be limited, and called on law enforcement officers to exercise caution in using multiple activations.
Taser International has maintained that the people who have died after being Tasered died as a result of "excited delirium," a controversial cause of death. As stated by the Eleventh Circuit in Mann v. Taser Intern., Inc. (533 F.3d 1291, 1299 & n.4 (11th Cir. 2009)):
Although not a validated diagnostic entity in either the International Classification of Diseases or the Diagnostic and Statistical Manual of Mental Disorders, "excited delirium" is a widely accepted entity in forensic pathology and is cited by medical examiners to explain the sudden in-custody deaths of individuals who are combative and in a highly agitated state. "Excited delirium" is broadly defined as a state of agitation, excitability, paranoia, aggression, and apparent immunity to pain, often associated with stimulant use and certain psychiatric disorders. The signs and symptoms typically ascribed to "excited delirium" include bizarre or violent behavior, hyperactivity, hyperthermia, confusion, great strength, sweating and removal of clothing, and imperviousness to pain. Speculation about triggering factors include sudden and intense activation of the sympathetic nervous system, with hyperthermia, and/or acidosis, which could trigger life-threatening arrhythmia in susceptible individuals.
TASER International and Its Critics
TASER International has successfully sued a medical examiner in Ohio to change the cause of death listed on the death certificates of three men who died in custody after being Tasered. The medical examiner had listed the causes of death as homicide and in each case had indicated on the death certificate that the use of a Taser had contributed to the death. In a decision that some commenters viewed as having a chilling effect on medical examiners, the Ohio appeals court upheld the trial court's order that all references to TASER or electrical pulse incapacitation as a contributing factor be removed from the death certificates and autopsy reports, and that the cause of death be changed from homicide to accidental.
Critics of TASER and of Taser use by law enforcement have noted that much of the research done on the effects of Tasers has either been conducted by or influenced by TASER International; in addition, much of the training received by law enforcement agencies in the use of the devices has been provided by the company rather than by independent agencies. As part of the settlement between the family of Robert Dziekanski and the Royal Canadian Mounted Police, the RCMP has committed to restricting the use of Tasers to situations in which there is a threat to officers or public safety, and to participate in independent research on the effects of Tasers.
Critics, such as Amnesty International, have also pointed out that even though Tasers were originally justified as a less-lethal alternative to firearms to subdue dangerous or violent individuals, law enforcement agencies have permitted their use where there is no threat to the officer or public safety; officers have used ECDs on children, the elderly, pregnant women, and individuals who refuse to comply with a verbal order, or who talk back to officers. In one incident in Niagara Falls, New York, officers Tased a man who refused to provide a second cheek swab for a DNA test after the police lost the first one (in this case, the officer used his Taser on the individual and swabbed his cheek while he was unconscious. The individual then sought to have the evidence suppressed in his criminal trial). Moreover, even though the devices do not generally cause lasting injury in healthy adults, being shocked is painful, and there is a debate over whether such pain constitutes excessive force or a disproportionate police response.
Civil Rights Implications
Because Tasers are used primarily by law enforcement officers, most of the legal literature that has been produced about them focuses on the civil rights issues raised by their use on suspects--for example, whether the use of a Taser against an unresisting person constitutes excessive force, or whether a police officer who uses a Taser on a suspect and causes injury is entitled to qualified immunity from suit.
There is a wealth of material on the civil rights implications of Taser use, whether the device is employed by police officers affecting an arrest or controlling a recalcitrant passerby, or by corrections officers subduing a prisoner. Law librarians can assist patrons researching such constitutional issues by locating law journal articles, case law, news and opinion, statutes, regulations, and proposed legislation, both nationally and internationally. Moreover, government agencies such as the National Institute of Justice and nongovernmental organizations such as Amnesty International have prepared extensive reports on Tasers and other ECDs, which may be very helpful to patrons seeking to understand the policy ramifications of the devices.
But Tasers and other ECDs are not just used by law enforcement; consumer models, such as the Taser C2 or the SABRE 200,000V Stun Gun, are available through retailers such as Amazon. The product description on Amazon for the Taser C2 notes that "These Tasers are illegal in many states, please make sure you are allowed to carry one in the state you live in." Indeed, many states classify Tasers, stun guns, and other ECDs as firearms or lethal weapons and make possession of such weapons by the public a crime. However, there is some debate over whether the Supreme Court's recent decision in District of Columbia v. Heller will mean that states can no longer prohibit possession and use of Tasers by the public. Law librarians can assist patrons in sorting through current and proposed legislation and regulations.
Other Legal Considerations
Beyond the civil rights context, Tasers and ECDs touch on a wide range of legal issues. For example, Taser has brought a number of claims to enforce its intellectual property rights against competitors who seek to market similar devices. In addition, TASER has been involved in products liability litigation for defective products, including one case in which a police officer undergoing training was shocked with a device that malfunctioned. In addition, many of the relatives of people who have died in custody after being Tased by law enforcement officers have brought wrongful-death suits against the company.
The Librarian's Role
Librarians can also take an interdisciplinary approach and search the scientific literature for articles and reports on the health effects of electrical shock, the workings of ECDs, the implications of using ECDs in psychiatric and hospital settings, and medical opinions on "excited delirium" as a cause of death.
As Tasers and other ECDs become more and more extensively used by law enforcement agencies as a less-lethal alternative to firearms, and as challenges to their use and abuse continue to be mounted, the law in this rapidly emerging area of law will continue to grow. Law librarians are uniquely positioned to assist patrons in keeping ahead of the developments.
This article first published in AALL Spectrum