TASER ® Electronic Control Devices (ECDs) -- Legal Update

1. TASER® Electronic Control Devices (ECDs) -- Legal Update Michael Brave, Esq., M.S., C.L.S.3, C.L.E.T., C.P.S., C.S.T. National/International Litigation Counsel, TASER International, Inc. President, LAAW International, Inc. Email – brave@laaw.com Telephone – (651) 248-2809 E-fax – (480) 275-3291 ECD Legal Resources Website – www.ecdlaw.info ICD Resources – www.incustodydeath.com

2. Basics • TASER International, Inc. (TASER) does not create, recommend, or endorse policy or set standards of care. • Importance of keeping up to date: • Era of information and mis-information overload: • Importance of ignorance eradication • Learn the “science” and “medicine” not the “myths” • Need to put everything into perspective (risk/benefit) • Need to understand the basics and foundations • Reference Sheets and Reference Packets • www.ecdlaw.info(owned by LAAW International, Inc.) • www.ipicd.com or www.incustodydeath.com • Understand actual legal standards (and their bases) • 2005 to present ECD hysteria not scientifically based

3. Electronic Control Devices • Basics (of force) • Basic ECD deployment numbers • Basic selected death numbers (US) • Physiologically compromised persons - elevated risks of death • Force standards paradigms • ECD basic concepts • ECDs studied more than other force options • ECDs usually more effective than other force options • ECDs usually safer than other force options • ECDs more accountability features than other force options • ECDs only force options maintaining effectiveness while increasing safety margins

4. Basics (of force): (US) Societal problems influencing force response increases): • Drug abuse increasing annually: • (2004) 19,100,000 current illicit drug abusers (7.9% of population) • (2006) 20,357,000 current illicit drug abusers • (2004) 1,997,993 drug caused emergency room visits • People in serious psychological distress (SPD) increasing annually (2004) 21,400,000 SPD (9.9% of adults) • Alcohol abuse - (2004) 10,200,000 operating vehicles under the influence • Criminals resisting seizure attempts increasing • Criminals fleeing apprehension increasing

5. Basics (of force): • Any force option can be abused • It is the person who abuses the force option - not the force option • “Almost every use of force, however minute, poses some risk of death.” Garrett v. Athens-Clarke County, 378 F.3d 1274, 1280, n.12 (11th Cir. 2004). • “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Conner, 490 U.S. 386, 396 (1989).

6. ECD basic concepts:(General Statements; Peer-Reviewed Medical and/or Scientific Research) • No evidence that other law enforcement force option is safer than a normal use of an ECD • ECDs are more effective in facilitating capture, control, and restraint than other force options • ECDs are generally safe per se and are usually safer than other force options • Courts have held that ECDs are not excessive force per se • ECDs are saving lives, reducing injuries to officers and suspects, and reducing excessive force claims

7. ECDs studied more thanother force options: • ECD delivers a small electrical charge to accomplish neuro-muscular incapacitation (NMI) objective • Delivery of electrical charge to humans has been widely studied for over 300 years • ECDs specifically have been widely studied in over 100 studies (many human studies) • No other force option has even 1/10th the peer-reviewed published studies of ECDs

8. ECDs usually more effective than other force options: • Every other force option uses pain/discomfort volitional compliance or traumatic injury to faciliate capture, control, or restraint • ECD is designed to induce motor-nerve mediated NMI to facilitate capture, control, and restraint • No other force option is as effective at deterrent presence of ECDs (LASER painting or arcing gains volitional compliance in from 1 to 4 out of 5 uses)

9. ECDs usually safer than other force options: • Peer-reviewed literature generally finds ECDs safer than other force options • Peer-reviewed literature finding that ECDs are less injurious to suspects and officers: • (2009) MacDonald: • "Given the findings from this study, as well as those from previously published research, law enforcement agencies should encourage the use of OC spray or CEDs in place of impact weapons and should consider authorizing their use as a replacement for hands-on force tactics against physically resistant suspects." • "Injuries from police use-of-force incidents continue to be a public health problem affecting tens of thousands of civilians and police officers in the United States each year. Our findings suggest that the incidence of these injuries can be reduced substantially when police officers use CEDs and OC spray responsibly and in lieu of physical force to control physically resistant suspects…. a replacement for hands-on force tactics against physically resistant suspects.”

10. ECDs usually safer than other force options: Peer-reviewed literature finding that ECDs are less injurious to suspects and officers: control physically resistant suspects… a replacement for hands-on force tactics against physically resistant suspects." • (2009) Bozeman: • "Conducted electrical weapons were used against 1,201 subjects during 36 months. One thousand one hundred twenty-five subjects (94%) were men; the median age was 30 years (range 13 to 80 years). Mild or no injuries were observed after conducted electrical weapon use in 1,198 subjects (99.75%; 95% confidence interval 99.3% to 99.9%). Of mild injuries, 83% were superficial puncture wounds from conducted electrical weapon probes. Significant injuries occurred in 3 subjects (0.25%; 95% confidence interval 0.07% to 0.7%), including 2 intracranial injuries from falls and 1 case of rhabdomyolysis. Two subjects died in police custody; medical examiners did not find conducted electrical weapon use to be causal or contributory in either case." • In a "combined experience of 4,058 consecutively monitored conducted electrical weapon uses with an electrical shock delivered.2-4 Serious injuries are clearly rare, and there are no cases in any of the reports suggesting sudden cardiac death related to the [TASER ECD].”

11. ECDs usually safer than other force options: Peer-reviewed literature finding that ECDs can reduce use of deadly force: • (2008) Eastman - "In 5.4% [23 of 426] of deployments (n=23), CED use was deemed to have clearly prevented the use of lethal force by police."

12. ECDs have more accountability features than other force options: • 1999 (M26 ECD) - Number of 5 second ECD discharges (not delivered) with time stamp (has clock drift) • 2003 (X26 ECD): • Number of seconds of ECD discharges (cannot determine whether charge was delivered) • Time of discharge (has clock drift) • Internal ECD temperature and calculated percentage of battery life remaining • 2005 (TASER Cam™) - black/white ECD incorporated incident audio/video recording

13. ECDs have more accountability features than other force options: • 2009 (X3™ ECD) - Trilogy Logs: • Records every safety activation, trigger pull, arc, etc. • Pulse-by-pulse determination of electrical discharges (distinguishing drive stun and probe) delivered • Accurate to the second - synced to world atomic clock through EVIDENCE.com • 2010 (AXON): • On-officer DVD quality video/audio digital recording from officer's perspective • Highly secure evidence capture, upload, retrieval, and audit systems

14. ECDs increasing safety margins: • No other force option is increasing safety margin while working to maintain effectiveness • Other force options increase pain or injury potential to increase effectiveness: • Pepper sprays have increased Scoville heat unit ratings. • Batons have gone from primarily wood to polymer and metal. • (Firearms) Bullets have increased to cause greater traumatic injuries. • ECD waveform, force strategies, etc. refined to maintain (or increase) effectiveness while lowering risk of serious injury or death (increasing safety margins)

15. TASER International, Inc. • No better training program for any other force option • Training program updated and improved • Providing greater levels of accountability features • Encouraging "Smart Use" (of force)

16. Where are We: Putting Things Into Perspective

17. Where are we?(for all – Law Enforcement EMS, MEs, Coroners, Lawyers) 20/20 Hindsight Perfection Standards • Through Who’s Perceptual Lens? • Perfectly informed (on all issues/possibilities) • Perfect decisions (in 20/20 hindsight) • Perfect investigations (need knowledge) • Perfect (complete, accurate, unassailable) reporting • Perfect oversight analyses and decisions • Perfect judicial action defense

18. Costs of Failing to be Perfect? • Federal criminal prosecution • State criminal prosecution • Career destruction • Civil lawsuits (increased risk of loss) • Negative community relations • Loss of tools, resources, money

19. What level of risk will you accept? • What are your objectives? • What will you accept? • What level of criticism will you accept? • What will you do to make a difference? • What is your definition of professionalism? • What do you want of your department? • How much training is enough? • How close to “perfection” is your agency?

20. Where are we today – headed? • Through who’s perceptual lens? • What are outsiders’ expectations of us? • Perfection standards • Absolute fore knowledge • Guarantor of “perfect” outcome • Force recipient is the “victim” • Perfect, exhaustive, complete, accurate investigation of every incident • “Straw that broke the camel’s back” is enough

21. ECD Smart Use: Putting Things Into Perspective

22. Force standards paradigms: • Self (or third-party defense) standards • United Nations Force Standard: Minimum force necessary to accomplish lawful objectives standards • Risk/benefit standards: “[I]n judging whether [officer’s] actions were reasonable, we must consider the risk of bodily harm that [officer’s] actions posed to [suspect] in light of the threat to the public that [officer] was trying to eliminate.” (Scott v. Harris, 550 U.S. 372, 383 (2008)). • Abuse of authority standards: “[T]he Fourth Amendment addresses ‘misuse of power,’ not the accidental effects of otherwise lawful conduct.” Brower v. County of Inyo, 489 U.S. 593, 596 (1989); Milstead v. Kibler, 243 F.3d 157 (4th Cir. 2001).

23. Force standards paradigms: Smart use (of force): • Changing initial officer default focus from all people being perceived as an intentional immediate threat to officer • Minimizing force by making better (more informed) decisions • Appropriately gauge risk/benefit and need for haste • Maximizing accountability evidentiary audio/video recording of the full incident from the officer’s perspective • Maximizing unassailable evidence availability, collection, storage, retrieval • Preparing better force reports/incident documentation • Performing better force/death investigations • Accurately analyzing force use to appropriate standards of care

24. ECD “Smart Use” Basics ECD “Smart Use” is NOT a Constitutional or legal force standard. ECD “Smart Use” are ECD force considerations presented for discussion in an effort to maintain officer safety while minimizing ECD force and negative consequences of ECD force.

25. Standards Purposes • Constitutional rights purpose • State statutes purpose • Recommendations purposes • Department policy purpose • “Smart Use” purpose

26. ECD “Smart Use” Basics Department: • Clearly delineate (understand) force standards • Delineate accountability standards and should • Support officers’ appropriate force decisions • Train “Smart Use” Force Basics • Train force alternatives and options • Monitor force and remedial training • Provide optimal equipment and training

27. ECD “Smart Use” Basics Officer: • Make good decisions: • Risk management approach to force • Force minimization • Write excellent reports • Bolded timeline paragraph headers • Record incident – avoid he said/she said • Appropriately gauge risk and need for haste • Listen

28. ECD “Smart Use” Basics • Use no more force than necessary to accomplish lawful objectives • the minimum (least amount of) force goal • Use lowest possible number of applications • Use probe rather than drive-stun (DS) • DS is not necessarily less force than probe • Avoid DS (less probability of effectiveness) • Especially avoid cartridge removed or X3 DS • Greater injury probability/potential

29. ECD “Smart Use” Basics • Force in Presence of Immediate Threat • Force to Restrain or Control • Force to Restrain or Capture • Force to Prevent/Stop Fleeing • Coercive Force to Overcome Obstruction • Distraction Force for Community Caretaker • Beware force when no force is necessary: • Listen • Patience, alternatives

30. ECD “Smart Use” Basics Force in Presence of Immediate threat: • Immediate threat of deadly force • Immediate threat of serious injury • Immediate threat of injury Force to Restrain or Capture : • Force to control intentionally assaultive • Person resisting/struggling against control

31. ECD “Smart Use” Basics Force to Restrain or Capture: • Force to facilitate restraint • Force to capture (not fleeing) Force to Prevent/Stop Fleeing: • Tackling justified • Tackling not justified

32. ECD “Smart Use” Basics Force to Overcome Objective Obstruction: • Coercive force • Force on passive person Distraction Device for Community Caretaker • Use least risk force alternative • Reasonable warning of impending force • Reasonably gauge health, mental condition, frailties • Reasonably gauge ability to comply • Reasonableness of warning and ability to comply

33. Numbers: Putting Things Into Perspective

34. Basic ECD deployment numbers: • (03/31/10) 485,000 TASER® brand electronic control devices (ECDs) worldwide to more than 15,300 law enforcement and military agencies. More than 6,250 agencies deploy TASER ECDs to all members of their patrol officers. TASER ECDs sold to in more than 40 countries. • (03/31/10) Since 1993, more than 217,502 TASER brand ECDs have been sold to the general public. • (04/30/10) ECD applications to humans: • 2 million+ - total ECD human applications • 999,637 ± 2% - field use/suspect applications • 1,064,106 ± 7% - training/voluntary applications

35. Basic selected death numbers (US): • From January 1, 2000 through 2009 - over 1,300,000 people in US died from drugs, suicide, firearms, or alcohol • These deaths increasing annually • (2006) 124,665 people died from drugs, suicide, firearms, or alcohol • (2005) 118,506 people died from drugs, suicide, firearms, or alcohol • (2000) 97,376 people died from drugs, suicide, firearms, or alcohol • (2006) For every 19 people who died 1 of those 19 died from drugs, suicide, firearms, or alcohol • (2006) For every 63 people who died 1 of those 63 died from drugs

36. Some TASER Numbers: • Over 702,502 TASER ECDs fielded • Over 2,000,000 TASER ECD exposures • Over 15,300 US LEAs w/ECDs (out of 18,400) • Over 6,250 LEAs with full ECD deployment • TASER ECDs in 44 countries • TASER (manufacturer) litigation: • TASER has been sued approx. 155 times • Of those, TASER’s record is 116:1 • The one is being challenged and appealed • Civilian – over 217,502 ECDs (no lawsuits)

37. Arrest-Related Deaths in the United StatesBureau of Justice StatisticsDeaths In Custody Reporting Act (DICRA) Arrest-Related Deaths (all causes) • 2006 – 710 deaths • 2005 – 679 deaths • 2004 – 670 deaths • 2003 – 627 deaths CED (temporal) (not causal) • 2006 not reported • 2005 – 24 deaths • 2004 – 9 deaths • 2003 – 3 deaths

38. Arrest-Related Deaths in the United StatesBureau of Justice StatisticsDeaths In Custody Reporting Act (DICRA)

41. United States TodayPutting the Numbers Into Perspective • Since 01/01/2000: 1,000,000+ US Deaths From 4 Causes: • Drugs (38,396 in 2006) (33,541 in 2005) (19,720 in 2000) • Suicide (33,300 in 2006) (32,637 in 2005) (29,350 in 2000) • Firearms (30,896 in 2006) (30,694 in 2005) (28,663 in 2000) • Alcohol (22,073 in 2006) (21,634 in 2005) (19,643 in 2000) • Totals            124,665 (2006) 118, 506 (2005)  97,376 (2000) • 2006 US numbers show odds of dying from drugs, suicide, alcohol, or firearm): • 1 in 2,393 – from general US population • 1 in 19 – of those who died • 1 in 63 – of those who died - died from drugs

42. United States TodayPutting the Numbers Into Perspective • More Year “2004” Numbers (Law enforcement problems?): • 21,400,000 Serious Psychological Distress (9.9% of adults) • 19,100,000 Current Illicit Drug Users (7.9% of population) • 20,357,000 (2006) current U.S. illicit drug abusers • 10,200,000 Operating Vehicles Under the Influence • 1,997,993 Drug Caused ER Visit

43. More Nos – 1999 through 2006 • 459,206+ LEOs Assaulted • 129,265 + LEOs Assaulted with Injuries • 1,026 LEOs Killed • 431 LEOs Feloniously Killed • 595 LEOs Accidentally Killed

44. 2004 ME/C Numbers(the Government’s Numbers) 2,000 Medical Examiner/Coroner offices in U.S.: • 7,320 ME/C full-time equivalent employees • $718,500,000.00 total annual budgets 2,398,000 human deaths: • 956,000 deaths referred to ME/C offices • 487,000 deaths accepted for investigation • 677 Arrest Related Deaths (“ARDs”) (all causes) • 9 ARDs involving use of CEDs

45. Physiologically compromised persons - elevated risks of death

46. Physiologically compromised persons - elevated risks of death: • In approximately every 600 force uses 1 person will die (serious uses of force and rough statistics) • Root causes of most physiologically compromised persons’ condition are drugs, mental illness, serious psychological distress

47. Physiologically compromised persons - elevated risks of death: There is a risk of serious injury or death from any law enforcement (LE) incident with a physiologically compromised person no matter how the encounter is handled, even the person continuing his exertion. • LE incidents with physiologically compromised persons should be treated as medical emergencies. Focus should be getting these persons captured, controlled, and restrained as quickly and safely as possible in order to prevent further injury and to expedite medical care. • ECDs are a safer means to capture, control, or restrain physiologically compromised persons since biggest threat to life is the self destructive exertion and ECD has less negative physiologic impact and is more effective in capturing, controlling, and facilitating restraint, and shortening this period of continued self-destructive exertion.

48. Physiologically compromised persons - elevated risks of death: LE and emergency medical services (EMS) need better guidance on safest, most effective methods to handle these incidents and avoid bad force-option choices • Best practices for LE to capture, control, and facilitate and maintain restraint • Best practices for EMS to treat • Best practices for Medical to treat

49. Basic Legal Concepts

50. Basic Legal Concepts • Plaintiffs can allege (almost) anything • Burden of proof in a civil case: • by a preponderance of the evidence • more likely than not • Summary judgment motion (MSJ): • court “MUST” take the facts as offered by the MSJ opposing party • UNLESS incident recording trumps party’s stated facts (Scott v. Harris, USSC)