Taser use presents legal risks
Ruling finds police can face liability when using stun guns
A federal court recently put police on notice: They could lose on-the-job immunity from civil lawsuits if they use a Taser to shock suspects in the face of nonviolent resistance.
In a ruling this year from the U.S. Court of Appeals for the 4th Circuit, which includes Maryland, a panel of judges found it unlawful to use a Taser on an unarmed, mentally ill man who was holding on to a pole to avoid being taken into custody. The man died afterward.
That was one of several rulings in recent years in which judges deemed it excessive force to use a stun gun on suspects who are resisting arrest but pose no immediate danger.
The rulings have alarmed police departments that now must navigate a confusing legal landscape that is increasingly skeptical of stun guns. While plaintiffs' lawyers and civil rights activists hope the rulings reduce what they see as unchecked abuses, the manufacturer Taser International and police say the courts are taking away an essential tool that officers need to handle difficult situations without resorting to other uses of force.
At least one department — Norfolk police in Virginia — has taken Tasers from officers until it can rewrite its policy to ensure they aren't in legal jeopardy.
Courts often give the benefit of the doubt to police when judging how officers use force during stressful, dangerous situations, said Susan K. Dunn, legal director for the American Civil Liberties Union in South Carolina. The 4th Circuit jurisdiction also includes the Carolinas, Virginia and West Virginia.
That court's ruling “sort of pulls back from that deference,” she said. “It says you have a dangerous tool and you have to have protocols on how to use it ... and here are standards that we suggest.”
But Taser, which has supported police in their legal fights, contends that courts are basing their rulings on inaccurate information about the weapon, including how many volts it sends into a body.
Taser said the ruling “only muddies the waters and leaves law enforcement guessing,” according to a motion the company filed to support an appeal, which was rejected.
The ruling has “caused significant confusion among law enforcement trainers and policymakers ... leaving officers without what most experts agree is the safest, most effective less-lethal force option on an officer's tool belt,” Taser said in the motion.
Many Taser encounters with Maryland police involve nonviolent resistance, which the courts have increasingly frowned upon.
The Baltimore Sun found that nearly 60 percent of those hit by Tasers from 2012 to 2014 were described by police as “non-compliant and non-threatening.” As part of a six-month investigation, The Sun created a database with information obtained from the state through public records requests.
The weapon fires two electrified darts that incapacitate suspects long enough to be handcuffed. An alternative “drive-stun” method allows officers to press the hand-held device against a suspect's body to inflict localized pain or to complete the electrical circuit when a dart fails to pierce the skin.
The Sun also found that in one out of every 10 incidents over the three year-period, police discharged the weapon for longer than 15 seconds — a duration that exceeds recommendations from Taser, the U.S. Department of Justice and policing experts.
In addition, officers failed to heed other recommendations, including to avoid repeated drive-stunning and chest shots. They fired the weapons at the chest 119 times in 2014.
Eleven people have died in Maryland since 2009 after encounters in which police used Tasers, including five who died after being shocked for longer than what is now recommended. Three people died after being repeatedly hit by a Taser in “drive-stun” mode, according to police reports and other accounts. One died after being hit in the chest.
In Maryland, some police agencies contend that the 4th Circuit's decision applies only to encounters with mentally ill suspects. Others say it's already their policy to avoid shocking people who are nonviolently resisting arrest.
Still others have elevated the Taser up the chain of acceptable force, so that officers must exhaust other means before resorting to the weapon, while others are rewriting their policies.
The January ruling is a “ground changer,” said John Peters Jr., who has trained officers in Maryland as founder of the Institute for the Prevention of In-Custody Deaths in Nevada. “If you're a police department in the 4th Circuit, you had better rewrite your policies to abide by the ruling.”
The case centers on a North Carolina man, 43-year-old Ronald Armstrong. The bipolar and schizophrenic man was drive-stunned five times by Pinehurst, N.C., police because he would not let go of a pole to be escorted across the street to the hospital where he was being involuntarily committed. He died shortly after being handcuffed.
The unarmed man did not pose an immediate danger to officers or the public, the court said. “At bottom, ‘physical resistance' is not synonymous with ‘risk of immediate danger,'?” the court wrote.
The judges pointed to an earlier decision, out of Baltimore County, to buttress their argument.
In 2013 the 4th Circuit Court ruled that Baltimore County police officer Stephen Mee was not entitled to immunity for using his Taser 10 times against 40-year-old Ryan Meyers of Middle River, which led to his death. The court determined that the first three Taser strikes were reasonable because Meyers, who had manic-depressive disorder, was wielding a bat at officers.
But seven additional Taser shocks were “excessive and unreasonable” because Meyers had dropped the bat, was physically restrained by several other officers and was not actively resisting arrest, the court wrote. The ruling stripped Mee of immunity and sent the case back to U.S. District Court in Maryland.
A jury found Mee's use of the Taser justified.
In the Armstrong case, the appellate court agreed with the District Court that the officer was entitled to “qualified immunity,” which shields law enforcement and government officials from civil liability when carrying out their duties. It can be suspended if a court believes that a reasonable officer would have known their actions violated the Constitution.
The court found that the Pinehurst officer's actions did violate the suspect's 4th Amendment right against unreasonable searches and seizures, but that case law up to that point had been murky so the officer might not have realized what he was doing was unlawful.
That's why the court put officers in future cases on notice.
Police agencies within the 4th Circuit's jurisdiction are changing their policies to account for the decision. But different agencies are taking vastly different steps.
The Baltimore City Police Department responded to the Armstrong decision by placing Taser use higher up its scale of acceptable force. Tasers had been on the same level with pepper spray. But after Armstrong, the department moved it a notch between pepper spray and deadly force.
Rather than allowing officers to use the device in response to active resistance, city police are instructed to shock suspects who display “aggravated or aggressive resistance,” said Col. David Reitz.
“We won't use it for passive or active resistance,” Reitz said. “Before, we could use it for noncompliance where someone was holding on to a pole, we could use the Taser to get them off the pole. Now we don't use that.”
Nonetheless, police are concerned that the ruling will result in more injuries to officers and suspects as police have to use their hands to subdue suspects.
“We don't want officers struggling with people either,” he said. “It hurts the person and the officers.”
As a result of the court ruling, the Washington County sheriff's office policy now states that the weapon cannot be used “during the course of seizing an out-numbered mentally ill person who is a danger only to himself.”
Other police officials have had a more nuanced reaction. After the ruling, the Maryland Chiefs of Police Association and Maryland Sheriffs' Association sent a statewide legal alert regarding the use of electronic-control weapons, or stun guns. Tasers are the only stun guns used by police in Maryland.
“Training for the use of electronic control weapons should carefully distinguish between active and passive or ‘stationary' behavior by requiring a differing analysis when an officer elects to use force,” the memo states. “Oftentimes, but not always, the use of an ECW will not be appropriate in the face of passive resistance or to compel compliance.”
Baltimore County government lawyers “concluded that no changes are needed to our Standard Operating Procedures and Field manual because both already prohibit the use of Taser on a ‘passive, non-threatening subject,' as was the case in Armstrong,” according to a statement from a county spokeswoman.
While the county's policy prohibits firing the device at “passive, non-threatening subjects,” Taser use is permitted for “stopping a subject who the officer believes is resisting lawful control and/or arrest.”
Plaintiffs' lawyers complain that police are too often turning to Tasers before exhausting other options. They warn that failure to heed the court rulings leaves police departments more vulnerable to legal action and residents more likely to be shocked when they shouldn't be.
“These types of tactics are dangerous and unconstitutional,” said Cary Hansel, a defense attorney who served on a Maryland task force that studied Tasers. “It's unfortunate that law enforcement agencies still need to be reminded of the dangers of deploying Tasers in the rare circumstances when they have to use it.”
Departments and police organizations in other states have made more sweeping changes.
Dana G. Schrad, executive director of the Virginia Association of Chiefs of Police, said her organization took several steps. She sent an advisory to all chiefs with a copy of the 4th Circuit decision and hosted online discussions to work on amendments to their use-of-force policies.
While the Norfolk Police Department immediately took Tasers off the street until it can rewrite its policy, the Virginia Beach Police Department imposed significant restrictions until its lawyers can review the 4th Circuit's ruling.
The Police Department in Burlington, N.C., expanded training in techniques to verbally calm crisis interventions, said Capt. Brian Long of the Burlington department. Officers who know that a physical altercation is about to erupt based on their experience and a subject's appearance — clenched fists, body language — cannot resort to a Taser, Long said.
“Even in those cases you're going to have to try some alternative measure such as hands-on, which is a bit concerning to officers,” he said. “The court has identified Taser as a significant level of force.”
He added: “We hope we don't have more injured officers.”
The training academy housed in the North Carolina attorney general's office distributed a notice to police agencies. “Effective immediately, Taser use as a pain compliance tool against a resisting subject is prohibited by the Fourth Amendment unless the police can articulate ‘immediate danger' to the officer apart from the fact of resistance alone,” the notice states.
It advised distributing the notice to all officers “ASAP.”
But the academy took issue with the court's ruling.
“All future Taser use is now subject to the Fourth Circuit's pronouncement that ‘Taser use is severe and injurious regardless of the mode to which the Taser is set,'?” the notice states. “Although that statement is not factually true, today the court said it, and thus it's now controlling law.”
Taser also took issue with the court's finding that Taser is a serious use of force that can cause harm, and tried to argue that the 4th Circuit Court should hear the case again even if it was just to reconsider the “injury risks.” The court declined.
Taser's lawyer during the Armstrong case, Scott MacLatchie, also helped write the North Carolina academy's notice.
While the company has an interest in defending the safety of its product, it is rarely held liable in court. Taser regularly argues that it has consistently updated its safety warnings to police agencies across the country, as new information becomes available.
Taser “is regularly dismissed from litigation based on the strength of its product warnings and training materials, either voluntarily by plaintiffs' counsel or by the court,” Taser spokesman Steve Tuttle said in an email.
Other federal appeals courts in the Midwest and West Coast have issued similar rulings when police used stun guns on suspects who are putting up nonviolent resistance. In one case out of Seattle, officers used a Taser in “drive-stun” mode on a woman who was seven months pregnant after she refused to sign a speeding ticket.
The courts ruled that the officers were not liable because the laws governing Taser use were not clearly established at the time.
But now that a number of courts have ruled, officers need to be retrained, said Ken Wallentine, senior legal adviser to Lexipol, a private consulting company that provides legal analysis to police department clients across the nation.
“We do not invest enough time and resources training our officers in crisis communications,” said Wallentine, also director of the Utah attorney general's training center for police. The 4th Circuit ruling “takes us back to what is really resistance.”
Maryland lawmakers and former Maryland Attorney General Douglas Gansler have called for a statewide Taser policy that would incorporate best practices. Only Connecticut and Vermont have done so, and legislation to establish a uniform policy in Maryland failed in 2010, after a task force convened by Gansler recommended it.
The Sun, in its investigation, found that Taser policies from 15 Maryland police departments with the most stun gun use vary widely. Some don't incorporate the warnings Taser has issued over the years or safety recommendations from national policing experts.
Last week lawmakers said a new independent police commission, which would be created under legislation being considered, should develop a statewide policy on how officers use stun guns.
Anne Arundel County is one of the departments in the state to adopt all of the best practices developed by the Police Executive Research Forum under a contract with the U.S. Department of Justice.
Department officials said the county's policy has never allowed officers to use a Taser on a passive, noncompliant person.
Of the nearly 3,000 Taser deployments across Maryland, Anne Arundel's 170 incidents accounted for only 6 percent of all uses between 2012 and 2014, according to The Sun's analysis. The county has more than 400 Tasers for its 720 officers, the fourth-largest Taser arsenal in the state.
He added that Tasers are an essential tool for police: “If it is done appropriately, most people don't want to continue to fight.”