Topic: CNN story regarding a lawsuit against TASER International, Inc. (TASER) and allegations concerning TASER® Electronic Control Device (ECD) Safety

On March 4, 2010, CNN ran a story on its Web site related to the Steven Butler vs. TASER International lawsuit. The plaintiff’s attorney and one of his key experts are featured in the story making allegations against TASER about TASER ECD safety. The purpose of this document is to provide factual information about the key issues alleged by plaintiff in this news story.

Synopsis:

Mr. Butler had a pre-existing heart condition known to have high risk of cardiac arrest.

Mr. Butler had a blood alcohol level of 0.35 percent – measured at the Emergency Room after the event (this is a toxic level with known risk of death).

Mr. Butler was prescribed mental illness medication labeled with an alcohol warning and which also may exacerbate heart conditions.

Mr. Butler received three discharges to chest with TASER X26 ECD, collapsed, and was later revived with alleged brain injury.

Key facts:

• On October 7, 2006, police responded to a call of an intoxicated [blood alcohol level of 0.35 percent and THC (marijuana) in the bloodstream)] individual on a city bus. The officers encountered a seriously intoxicated male subject who they had probable cause to arrest, who refused officers’ requests to leave the bus, took a fighting stance, pulled away from officers’ attempts at handcuffing, and threatened the officers with physical assault.

• Officers tried to talk with him but he refused to cooperate. Officers tried to restrain him physically but he resisted. Officers deployed the TASER X26 ECD, which struck Mr. Butler in the chest and abdomen. There were three trigger pulls [5; 8; and 5-second cycles], which incapacitated Mr. Butler. After the final discharge, Mr. Butler became non-responsive. EMS was quickly on scene, CPR was started, and he was found to be in cardiac arrest. He was resuscitated with several drugs and several applications of a cardiac defibrillator. It is alleged that he sustained a brain injury during the time period in which he was in cardiac arrest.

• Plaintiff’s experts allege that the TASER X26 ECD was the cause of the cardiac arrest and are seeking money damages against TASER.

• There are several other key factors not included in the CNN Web site excerpt story:

1. A review of Mr. Butler’s medical records years before the incident and immediately after the incident showed that he had a pre-existing cardiac condition that places an individual at risk of sudden cardiac arrest and frequently results in having an implanted defibrillator surgically implanted to treat this high risk. The specifics of this condition cannot be publicly released at this time.
2. Mr. Butler was also prescribed and had been taking for many years the drug Zyprexa, which is not to be mixed with alcohol, and which is reported to also increase the risk of cardiac arrest.
3. At the emergency room after the event in question, Mr. Butler’s blood alcohol level was measured at 0.35 percent. This indicates that at some point during the incident, his blood alcohol level was likely even higher, approaching 0.40 percent. Blood alcohol levels in these ranges are known to have the following effects: Severe CNS depression, unconsciousness, and/or possible death. Toxicology results also showed that he had THC (marijuana) in his system.

Numerous medical professionals have closely examined this case and have concluded that Mr. Butler’s cardiac arrest was caused by his pre-existing cardiac condition, exacerbated by acute upon chronic alcohol abuse, agitated state, and other factors.

This case illustrates the challenges described in our training bulletin issued on September 30, 2009 advising a revision of the preferred target zones to avoid intentionally targeting the chest. The several “non-ECD” factors in this case that alone could have caused a cardiac arrest event are absent from the public controversy about this event.

Another allegation that needs to be addressed is that the plaintiff’s attorney alleges that a 2006 pig study “proved” that a TASER ECD can cause cardiac arrest in humans. This is false. The results of that study read as follows: “Standard NMI discharges [] did not cause VF (ventricular fibrillation) at any of the 5 locations before or after cocaine infusion.” Also, “Our study showed that VF could not be induced using the standard 5 second TASER discharge applied to a pig’s body surface even at the most sensitive area tested.”

Far from “proving” that TASER ECDs cause VF in humans, the 2006 pig study showed a significant safety margin in smaller animals than humans; animals which are more sensitive to electrically induced VF. This 2006 pig study did validate that those safety margins increase as darts are located further from the heart region, and also found that the presence of cocaine did not increase risk, rather it actually increased the overall safety margin.

Two recent human studies from researchers funded by the U.S. Department of Justice found the following:

In a combined experience of 4,058 consecutively monitored CEW (Conducted Energy Weapons or ECD) field uses with an electrical shock delivered, serious injuries are clearly rare, and there are no cases in any of the reports suggesting sudden cardiac death related to the TASER ECD.1 Also, Dr. Bozeman, the author of the study has stated, “From a public health/epidemiologic perspective the use of conducted electrical weapons is similar to that of automobile air bags, which are also known to pose a small risk of serious injury and even death in rare cases, but are clearly responsible for marked overall reductions in injurie2

“CEW exposure produced no detectable dysrhythmias and a statistically significant increase in heart rate. Overall, TASER CEW exposure appears to be safe and well tolerated from a cardiovascular standpoint in this population. This study increases the cumulative human subject experience of CEW exposure with continuous ECG monitoring and includes 28 full 5-second exposures.”3

Extrapolating from pig data, another plaintiff oriented expert, Dr. John Webster, has opined that the risk of VF from a TASER ECD discharge in the field is approximately 0.0000061, which equates to a risk of 1 in 160,000 discharges. This risk is far below any documented risk with alternative use of force options.

1 Bozeman WP, Hauda WE, 2nd, Heck JJ, Graham DD, Jr., Martin BP, Winslow JE, Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officers Against Criminal Suspects, Ann Emerg Med. Jan 21 2009.

2 Bozeman, WP, Annals of Emerg Med, Nov 2009.

3 W P Bozeman, D G Barnes, Jr, J E Winslow, III, J C Johnson, III, C H Phillips, and R Alson, Immediate cardiovascular effects of the TASER X26 conducted electrical weapon, Emerg. Med. J. 2009; 26(8): p. 567-570; http://emj.bmj.com/cgi/content/abstract/26/8/567?ct=ct.

4 J M MacDonald, R J Kaminski, and M R Smith, The Effect of Less-Lethal Weapons on Injuries in Police Use-of-Force Events, American Journal of Public Health, Dec 2009 Vol 99, No 12 p. 2268-2274.

Summary: TASER ECDs are not risk free. To be clear, TASER is not claiming that the risk of inducing VF in a human is zero. Estimates are that this risk is very low, less than 1 in 100,000 applications. The extremely low risks of serious injury or death can be further reduced by avoiding firing ECDs at subjects who may fall from elevated heights and by following the preferred targeting zones per current training. Studies consistently indicate that ECDs have among the lowest risk of injury of any modern force option and field results consistently show that agencies that deploy TASER ECDs experience significant reductions in force-related injuries.

Weapons cannot be evaluated from a perspective of zero risk. Every “use of force” carries high risk of injury or death and are all considered dangerous events for both law enforcement and the people resisting arrest. All uses of force need be evaluated from a perspective of comparative risk and risk-reduction.

According to a recent study in the American Journal of Public Health, “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 [Conducted Energy Devices] 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.”4

TASER remains committed to improving public safety and reducing the risks involved in use of force incidents and personal safety. We strive to continually update our products and training to provide the safest options available to protect human life.

Most recently, TASER International introduced CheckLok with its newest personal safety device the TASER C2.   With CheckLokTM, the TASER C2 is sold in a locked state – it does not work.  A person must subject themselves to and pass a criminal background check and age verification and at the same time register the device with the company in order to receive an activation code for the device.

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.

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.

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.”

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.

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!

As we said then, the report is generally positive. It recognizes that TASER devices, when used appropriately, can save lives during interventions that would otherwise involve deadly force.

However, since we first told you about the report, some others have looked at it and drawn additional interpretations and conclusions.

Greg Meyer — a retired Captain from the Los Angeles Police Academy — has done some of  the heavy lifting over at PoliceOne.com in taking a closer look at the AMA report. Capt. Meyers offers an excellent point-by-point breakdown and analysis.

Take a look at the column by Capt. Meyers. I think you will find it interesting.

The following story was sent to us this week by a Sergeant at a California law enforcement agency. The wife of one of his colleagues used her TASER® C2™ to ward off a potential attacker. The woman had obviously thought about her own personal safety beforehand, which is why she was carrying a C2 and was prepared to act in her own defense.  

We often find, as in this case, that just taking out your C2 is enough to scare off an attacker. However, if you do choose to carry some form of weapon to defend yourself, you also need to be prepared to use it. Check out the story after the jump, as it reinforces the fact that we constantly need to maintain an awareness of our surroundings:

The wife of one of our officers was shopping at Wal-Mart in California about a week ago. As she was selecting a bag of dog food she noticed a man looking at dog food. She continued get some material for a sewing project and the same man was showing an interest in fabric. She then went to the ladies section and guess who was there? The same man! You get the picture. As she was checking out, the same guy was behind her buying a single item like gum or something.

As she exited the store, she removed her Pink C2 from her purse and put it in her pocket. She stopped just outside the main doors, off to the side a bit, not wanting to chance an encounter in the middle of the parking lot. Sure enough, the man comes out looking for her. It was clear to her that he was going to address her in some manner. She adamantly stated to him that he was making her uncomfortable and he needed to leave her alone.

The man responded that he does not speak English (“No habla ingles”). The woman then displayed her TASER C2, and said, “I have a Taser and you need to leave me alone!”

The man took off running in the opposite direction, got into a car and fled. 

This story illustrates the importance of being aware of your surroundings and the way in which a TASER C2 can alleviate a situation. No one knows for sure if or how this situation may have ended differently had the woman not been so aware of her surroundings and not been carrying a TASER C2. What we do know is that, because of her actions, the situation had a positive outcome and she is safe.  

Be smart, notice the people around you, and when necessary, be prepared to act decisively to defuse a perceived and potential threat before it becomes dangerous.