TASER® Blog

In late December 2009, the Ninth Circuit Court of Appeals issued a ruling in the Bryan v. McPherson case. Media accounts of the ruling indicated that this was some new and sweeping restriction on the use of TASER ECDs. It’s not. This judicial opinion actually follows well-established law and applies it to a specific fact situation. We’ve gotten a number of questions about it so wanted to break down those facts and the Court’s ruling.

To start, the Court had to view the facts of the case in the light most favorable to the plaintiff because it was an appeal from a motion for summary judgment based on qualified immunity. Basically, the Court concluded the following plaintiff’s version of the facts:

• Plaintiff was not an immediate threat.
- he was unarmed (wearing only boxer shorts and tennis shoes)
- he did not level a threat at the officer
- he was standing 15-25 feet away from the officer and not advancing
- he was, at most, a disturbed and upset young man, not an immediately threatening one
- he was not facing the officer when he was hit with the TASER ECD in probe mode

• His conduct did not constitute resistance at all.

• He was not a flight risk.

• He was not a dangerous felon.

• He was stopped for a seat-belt violation.

• Officer failed to warn that he would be shot with a TASER ECD if he did not comply.

• Officer did not consider what other tactics, if any, were available to effect the arrest.

• Officer failed to consider less-intrusive alternatives (e.g. waiting for approaching backup).

Also, the Court noted that “[t]he government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.” Non-legalese interpretation: Justifiable use of force standards for mentally-impaired persons are different than for others who are not mentally-impaired.

Based on that and for the specific facts of this case, the Court determined that the level of force used by the officer was excessive. Specifically, it said, “the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. Consequently, the objective facts reveal a tense, but static, situation with Officer McPherson ready to respond to any developments while awaiting back-up. Bryan was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply “no immediate need to subdue [Bryan]” before Officer McPherson’s fellow officers arrived or less-invasive means were attempted.”

Another important point from this ruling is that the court held that while the TASER X26 is a non-lethal use of force, it is an “intermediate or medium, though not insignificant”, use of force due to the incapacitation and pain it causes and the risk of secondary injuries from falls. “We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by ‘a strong government interest [that] compels the employment of such force.’”

The Court used a Fourth Amendment constitutional standard established in Graham v. Connor to determine that the TASER X26 use in this case was excessive force. Three core factors were evaluated to come to this conclusion: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”  In the Bryan case, the need for force was “at its lowest” – the target was a nonviolent, stationary, and twenty feet away. Additionally no warning was given before discharging the TASER ECD and other, less intrusive alternatives were not considered.

In conclusion, while the Court’s decision further analyzes use of an ECD, the holding does not establish new law for use of an ECD apart from applying it to the specific facts of this case. The court’s opinion is a good reminder that:

• ECDs are not risk free and officers need to consider the risk of secondary injuries from incapacitation and falls in determining when and how to deploy an ECD.

• ECDs, while non-lethal, are an ““intermediate or medium, though not insignificant” use of force and every trigger pull must be justified as a separate use of force.

• In any Fourth Amendment force analysis, an officer must consider the totality of the circumstances, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

• When circumstances allow, giving a warning and an opportunity to comply is very important prior to discharging an ECD.

• An officer must consider what other tactics if any were available to effect the arrest, and other less intrusive tactics that would have been available to effect the arrest and be able to articulate them in an arrest or force report.

• An officer must ensure that commands are clear, are being heard and the suspect has the opportunity and ability to respond.

• The government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.

• Understanding the difference between active and passive resistance and the different levels of force that can be applied in those different circumstances is very important for all officers no matter the force involved.

• Officers need to understand what constitutional rights are “clearly established in light of the specific context of the case” in order to avail themselves of the protection of qualified immunity in excessive use of force claims.

• This case highlights the importance that smart use training can play in teaching officers the proper use of a TASER ECD in accordance with judicial guidelines.

Here’s another great TASER use story about a Cincinnati woman who was able to defend herself from an attacker with her TASER ECD. Read the full story from the Cincinnati.com reporter Jennifer Baker. I’m betting this guy got a ride he’ll remember for a while!

Attacker gets Tased by victim
BY JENNIFER BAKER • JBAKER@ENQUIRER.COM • JANUARY 14, 2010

A woman grabbed by a man Wednesday night at the main library in downtown Cincinnati used a Taser stun gun on him before he was arrested, police said.

Aaron Crutcher, 20, was booked into the Hamilton County jail just before 8:30 p.m. on two counts of assault and one count each of disorderly conduct and menacing.

According to Cincinnati police, he grabbed a woman at the Public Library of Cincinnati and Hamilton County, 800 Vine St.

She happened to be armed with a Taser stun gun, which she fired at him, records show. He began punching her in the chest.

Library security personnel and Cincinnati police intervened and took him into custody. He screamed and threatened the woman and library staff, court records show.

Taser International, which supplies 15,000 law enforcement agencies with equipment, markets a new model of its stun gun designed for use by private citizens.

It’s small enough at 6 inches long and weighing about 7 ounces to be stashed in a purse or backpack, according to the Arizona-based company’s Web site. The Taser C2 ranges in cost from $299 to $349. It’s less powerful than the police version.

Some states, including Massachusetts, Michigan, New Jersey and New York, ban private citizens from owning Taser stun guns, according to Taser International.

Taser International has sold more than 205,000 stun guns for private citizens since 1994, said Steve Tuttle, spokesman for Taser International.

If the woman doesn’t receive her Taser back from police, the company will replace it for free, he said.

“As long as it’s used in self-defense properly, it’s covered with a lifetime warranty,” he said.

Yes, they do. YouTube is full of examples of people behaving badly regardless of (and many times for) the cameras. One of the greatest benefits of AXON and EVIDENCE.com is that it provides mutual accountability between citizens and police – eliminating the he said/she said issues that sometimes arise so the real story emerges not just some headline-grabbing snippets. Click here to watch an AP story on the San Jose PD AXON/EVIDENCE.com pilot program.

TASER AXON and EVIDENCE.com were critical components to the exoneration of a Ft. Smith, AR officer involved in fatal shooting on November 11th. Corporal Brandon Davis, wearing a TASER AXON as part of the Ft. Smith Police Department’s pilot program, recorded clear audio and video evidence of the events leading up to and after the shooting. Sebastian County Prosecutor Daniel Shue then reviewed the unedited video of the event that had been securely uploaded to EVIDENCE.com and determined that Officer Davis acted appropriately in the situation.  Portions of the video can be seen here as well as an interview with Cpl. Davis.  He credits the evidence captured by his AXON with bringing the investigative process to a close quickly and sparing him much of the anxiety that officers feel when faced with a potentially lengthy and career-altering investigation.

The video clearly demonstrates that the victim aimed a pistol at the officers responding to a 911 call for domestic abuse and terroristic threats. It captures the officer’s conversation with the man’s wife who made the 911 call and let officers into the house. Officer Davis then ordered the victim to drop the gun at least nine times, commands which were ignored, before shooting him.

The use of TASER technology in this tragic incident provided investigators with irrefutable evidence of what actually transpired at the scene. Prosecutor Shue credits TASER AXON and EVIDENCE.com for quickly and definitively resolving any doubts regarding the officer’s actions. He says “Clearly this technology is not just a step forward it is a quantum leap as far as an investigative tool.”

Here’s another great story about how use of a TASER ECD resolved a potentially dangerous situation without injury or worse.  Great job by Officer  Adam Kimpel of the Piqua, OH Police Department for acting calmly and compassionately.  Here is the account from the Piqua Daily Call.  I love the Deputy Police Chief Tom Steiner’s quote because it perfectly articulates why we at TASER do what we do – to protect lives!

Officer praised for heroic deed

12/8/2009 8:17:00 AM

http://www.dailycall.com/main.asp?Search=1&ArticleID=161446&SectionID=119&SubSectionID=205&S=1

By Will E Sanders
Staff Writer

PIQUA, OH – A rookie city cop is being heralded as possibly saving the life of a distraught teen-aged boy who allegedly attempted to shoplift a $2 canister of tobacco following an incident over the weekend that involved a loaded shotgun, authorities said.

With only a year’s worth of police work behind him, Piqua police officer Adam Kimpel deployed a Taser within a bedroom of a city residence, rendering the shotgun-holding 16-year-old male powerless as the rookie officer moved in to secure the loaded firearm and the scene as another officer arrived to the scene, police reports state.

Kimpel responded to the location as a part of an investigation where he tracked the license plate number of the vehicle the teen left in after allegedly attempting to pocket the tobacco from Kwik N Kold, 655 N. Main St., those reports further state.

Upon arrival at the teen’s home, Kimpel allowed the juvenile to go to the bathroom. The officer later found the teen sitting in a bedroom and holding a shotgun, his fingers six inches away from the trigger of the firearm, which was loaded and had the safety off, it was later determined by authorities.

“I was still outside of the room and knowing that I had cover and would be able to remove myself if there was a threat, I then began speaking to (the teen) again about the situation,” Kimpel wrote in his narrative of the incident. “(The teen) stated that he had messed up. His hands then moved down the barrel toward the handle and trigger and he began to say, ‘I (expletive deleted)” … I believe he was going to say ‘I (expletive deleted) up,’ but I quickly raised my Taser weapon and deployed the Taser cartridge at (the teen).”

The teen was later transported to Dettmer Hospital, but was otherwise not seriously harmed, reports state.

The teen was charged with attempted theft, a second-degree misdemeanor, and disorderly conduct, a minor misdemeanor, according to Piqua Police Department records.

Due to his age and the nature of the incident, the juvenile is not being named.

Deputy Police Chief Tom Steiner said Kimpel might have saved the teen’s life, or prevented potential harm to himself or other officers, or both. He called Kimpel’s actions “commendable.”

“He made a very good, quick judgement for any officer, especially a younger guy,” Steiner said. “Our feelings is he may have very well saved (the teen’s) life by doing that.”

Oftentimes coming under fire from critics, Steiner said Tasers are used to prevent bodily harm, not create it.

“We use them to save lives,” the deputy chief said.

We’re all familiar with the media stories about alleged TASER ECD misuses, but what we rarely hear in the news are the positive stories where TASER ECDs were used to preserve life.  Our TASER(r) XREP(tm)and TASER(r) X12(tm) Less Lethal Shotgun was used yesterday by the Waukesha (WI) Police Department  to safely and quickly resolve a tense situation with a knife-wielding suicidal woman.  The great news?  EVERYONE made it out of this situation alive – the woman herself, the other person she threatened, and the officers called to the scene.

This is why TASER International makes less-lethal alternatives.  Had this situation escalated, police could have been forced to use more forceful options.  TASER XREP and X12 allowed them to subdue the agitated woman from a safe distance and take her into protective custody.  We at TASER International applaud the Waukesha Police Department’s successful intervention to protect life with TASER technology.

Here are more details of the situation from Waukesha Police Lt. Dennis J. Angle.

At 3:25 p.m. Waukesha Police Officers responded to a report of a suicidal woman with a knife in the 1900 block of Bonnie Lane.  She was not only threatening her own life, but life of another.  Upon arrival officers received information that the subject of the call was a 47-year-old woman with a history of mental illness.  She had fled just prior to police arrival and it was unknown if she was armed.

Officers searched the area and later located the woman in a highly agitated state.  Her level of agitation increased upon officer contact and she resisted officers’ attempts to take her into protective custody.

In order to safely take her into protective custody officers were forced to deploy an Electronic Control Device known as the X-REP.  The deployment was successful and no higher forms of force were needed.  Neither the woman nor any officers were injured.  She was later transported to a Mental Health Facility.

The 2009 ASIS conference held in southern California for the professional security industry kicked off this week with a press conference held by Rick Smith, CEO and Founder of TASER International, announcing the debut partner of our “TASER Certified” program.  The president of the world’s largest security firm, Wackenhut/G4S, joined Rick in explaining the value of the designation to the corporate community.  Uniformed security officers of Wackenhut displayed their TASER® X26™ devices proudly on their belts after having volunteered to experience its effect the night before. 

Key issues such as executive protection, plant security, and responses to workplace violence are better served by security companies with the TASER Certified status because they subscribe to a time-tested training curriculum, expert deployment support, and the assurance that the supplier – TASER International – will extend its legal dominance to the civilian community if needed.

When walking the massive 800,000 square feet of exhibit area, I couldn’t help but be impressed by the extensive and elaborate booth displays from vendors offering video technologies, security services, and a variety of high-end detection equipment.  The TASER booth was one of the largest in recent years and was packed with new technologies now available to professional security firms and corporate security teams.  We’ve met with representatives from the pharmaceutical industry, fertilizer plant operators, hospital staff, military branches, and security firms from dozens of foreign countries; the furthest hailed from Nigeria.  TASER International has clearly been embraced by the security industry and we stand ready to serve…again.

Sheriff Scott receives one of the departments X3 devices from Tom Smith

Exciting news today out of Ft. Meyers, Florida. The Lee County Sheriff’s Office became the first agency to receive their order for the new multi-shot TASER® X3™, the latest in handheld electronic control device (ECD) technology.

TASER chairman and co-founder, Tom Smith, was on hand today at a press event in Ft. Meyers to personally deliver the first five X3 ECDs sold to Sheriff Mike Scott in front of a packed room of media and curious onlookers.

We’ve told you a lot about the X3 here, beginning with the teaser campaign, through the unveiling at the July TASER Conference, the designated Facebook persona page, and now the first sale. It’s always exciting to see hard work and innovation pay off.

The sale is a result of the Lee County Sheriff’s Office being able to test and evaluate the X3. They quickly considered it an important asset for use in their law enforcement and correctional settings.

We congratulate the Lee County Sheriff’s Office on being a leader in law enforcement technology. We look forward to more law enforcement agencies joining their ranks soon!

Read about today’s press event in the:

WINK News here

News-Press here

Naples News here

Phoenix Business Journal here

The Herald-Sun in Durham, North Carolina, recently ran an article on personal safety which highlighted sales of our civilian model TASER® C2™ being on the rise nearly “fivefold” in the past year at one distributor.

David Finley, founder and CEO of World Net Enterprises, said he is selling approximately 150 C2 units to the public each month, compared to the 30 to 40 typically sold last year at this same time. He also mentioned that nearly as many women as men are buying TASER electronic control devices.

“Many customers are often desperate, saying ‘I need protection for my family,’” said Finley.

Frequent TASER Blog readers will recall we announced last week a limited-time C2 promotion for our readers. Through this special offer, you’ll receive two free cartridges and a practice target with your purchase of a C2 — approximately $50.00 of added value.

More people — like in North Carolina — are choosing a C2 for personal safety. The current promotion is a good reason for more people to consider the C2 as well.

C2 Colors

Hey TASER® Blog fans- we have a very special opportunity for you! It’s our way of saying thank-you for your continuing interest in our product, company, and the people behind it all.

Starting a blog has been a new and exciting project for TASER International, a foray into the world of social media- and it’s been the dedicated blog fans like you that have made it so rewarding. So, we would like to give you a little something extra for your support.

By using this link , you will receive an extra two-pack of cartridges and a free target with your purchase of a TASER C2.

Happy Shopping!