TASER® Blog

Fact Sheet for March 5, 2010 CNN Web site excerpt

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.

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.

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.

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

Today I came across an article regarding a man in Alice Springs, Australia, who was waving a machete and screaming, “I want to chop people up,” and to the police, “I’ll make you shoot me.”  Sadly, while this story may be horrifying to most citizens, it is all too familiar to law enforcement officers. This is known as “suicide by cop.”

According to Wikipedia, “suicide by cop is a suicide method in which a suicidal deliberately acts in a threatening way, with the goal of provoking a lethal response from a law enforcement officer, such as being shot to death.” Tragically, those officers that are placed in those situations not only face media and public scrutiny, internal investigations, self-doubt, but they have to live the rest of their lives with the fact that they were involved in an incident where a life was taken to no fault of their own.

The main mission that co-founders Rick and Tom Smith had when starting TASER International in 1993 was to find a safer response to resistance. This mission is accomplished each time we read of similar lives saved by the use of a TASER ECD. To shed a little light on “who” we are, our staff at “Team TASER” is highly motivated and driven by these stories. Although we aren’t walking the beat or putting on a badge to protect and serve, it still makes us feel like we are, albeit a small, but important contributing cog in the law enforcement world. It’s a story like this that helps feel like we’re doing our part to make the world a little bit safer and doing our part to protect life.

We are human at TASER International. We read the controversial stories and sometimes you can feel overwhelmed that so many of the life-saving events are simply not covered or reported in any large extent despite thousands of lives that have been positively affected by the use of a TASER ECD. However, we as a company continue to produce products that help deter incidents that end in any death or serious injury, which allows us to continue to fulfill our number one mission: Protect life.

Although our technology is not a replacement for deadly force, we do know our TASER technology has been invaluable in more than 800,000 field use in situations — including the prevention of suicide by cop. It’s a good reminder today to see the positive impacts this technology makes each day at nearly 14,500 law enforcement agencies  in more than 40 countries.

It amazes me how little coverage there is of life saving incidents that involve TASER® devices. However, today I spotted an article from last weekend I wanted to share with you. I think it is important to highlight the ones that do make the media coverage.

In Bay County, Michigan, sheriff’s deputies were dispatched in the early morning hours on Friday, August 7, 2009 to a retail fraud complaint. When the deputies arrived they found a Texas man sitting in the passenger seat of a vehicle holding his 5-month old niece. According to reports, the man was obviously distraught as he gave a false name, used the baby as a shield and even stated that he would, “…kill this baby, I will break its neck.” The deputies tried several failed attempts to remove the baby safely from the man. Finally, a TASER device was deployed, allowing the police officers to recover the unharmed infant and return her safely to her family.

Deputies later learned that this man was wanted in Texas for several crimes, including parole violation, and he was also wanted for numerous crimes in counties throughout Michigan. Who’s to say what would have happened if the TASER device wasn’t used, but we can at least state that everyone involved wasn’t hurt and the infant is now at home safe with her family and the bad guy is sitting in a jail cell facing felony charges.

Today I came across an excellent story that illustrates an officer’s quick thinking and the TASER device’s ability to end a situation quickly and effectively.

Early this morning in Surprise, Arizona, an officer investigating a suspicious vehicle was grabbed by the suspect inside the vehicle and dragged by his arm outside the suspect’s vehicle for 40 yards. The suspect, pretending to be asleep, waited until the officer put his hand on his shoulder to determine if he required medical attention, and then abruptly threw the car in drive and grabbed the officer by the arm, dragging him alongside the car. By using his free hand and thinking quickly, the officer was able to pull out his TASER® X26™ to subdue the suspect and put the vehicle in park.

In many jurisdictions, assaulting an officer with a vehicle would be a justifiable use of deadly force. However, the officer chose to use his X26, quickly and safely ending the confrontation in a safer use-of-force manner.

Read the article here.