NYCLU Report on Tasers

8/3/2019 NYCLU Report on Tasers

http://slidepdf.com/reader/full/nyclu-report-on-tasers 1/40

Better Regulationof Stun Guns

in New York

The Need for

NEW YORK CIVIL LIBERTIES UNION

Taking

Tasersseriously:



ACKNOWLEDGMENTS

This papr was writtn by Cory Stoughton, Taylor Pndrgrass, Hln Zlon and Alia Al-Khatib.

It was ditd by Mik Cummings, Hln Zlon and Jnnir Carnig.

Graphics wr cratd by Sara LaPlant.

It was dsignd by Li Wah Lai.

ABOUT THE NEW YORK CIVIL LIBERTIES UNION

Th Nw York Civil Librtis Union (NYCLU) is on o th nation’s ormost dndrs o civil

librtis and civil rights. Foundd in 1951 as th Nw York aliat o th Amrican Civil Librtis

Union, w ar a not-or-prot, nonpartisan organization with ight chaptrs and rgional

ocs and narly 50,000 mmbrs across th stat.

Our mission is to dnd and promot th undamntal principls and valus mbodid in th

Bill o Rights, th U.S. Constitution, and th Nw York Constitution, including rdom o spch

and rligion, and th r ight to privacy, quality and du procss o law or all Nw Yorkrs.

For mor inormation about th NYCLU, plas visit www.nyclu.org.


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www.nyclu.org



Taking Tasers seriously:

The Need for Better Regulationof Stun Guns in New York

2011C O N T e N T S

1 Executive Summary

5 Introduction

7 PART I: Taser Dangers: A Growing Recognition

Concrns about Lthality

Concrns about Tasr Abus

Th Courts’ Incrasingly Srious Approach

Nationwid Calls or Rvaluation

17 Part II: Tasers in New York: Overuse and Dangerous Deployment

Th Us o Tasrs Whr th Suspct Poss No Dangr or Risk o Injury to Anyonexcssiv Numbr and Duration o Shocks

Targting o Dangrous and Snsitiv Aras o th Body

Failur to Warn Prior to th Us o a Tasr

Ovr-Rlianc on Driv-Stun Mod

Targting At-Risk Populations and Using Tasrs in Dangrous Situations

Th Disproportionat Us o Tasrs on Popl o Color

27 Part III: Recommendation

Rcommndation 1

Rcommndation 2

Rcommndation 3

31 End Notes



in 1911, intrpid advnturr

Tom Swit “invnts” an elctric

Rif, with which h slays rhinos,

lphants and othr arsom

Arican basts, in Volum 10 o th

blovd scinc-ction sris.

In th lat 1960s, physicist John

(Jack) Higson Covr—who arnd

his doctorat at th Univrsity o

Chicago studying undr rnownd

nuclar physicists enrico Frmi

and edward Tllr—invntd a ral

lctric wapon, and namd it or

his childhood hro: H calld it

th Thomas A. Swit elctric Rif,

or TASeR.

A cntury atr th novl’s

rlas, Tasrs ar nar-

ubiquitous in law norcmnt.

How thy ar usd, and how

oicrs and thir supriors

monitor thir us, ar th

subjcts o this rport.

Imag usd undr Crativ Commons rom Ca. via Flickr.



Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York

new york Civil liberTies union \ 1

exct smm

T asers or “stun guns,” deliver up to 50,000 volts o electricity intended to

incapacitate their victims. Long lauded as saer alternatives to deadly orce,

asers are in use by 16,000 law enorcement agencies in the U.S.—including

350 in New York State—and have been linked with hundreds o deaths.

More than a dozen New Yorkers have died aer aser shocks, some in police

custody and others with mental illness whose amilies turned to law enorcement

or help, only to suer mortal loss. Since February 2004, news reports have docu-

mented ve deaths aer aser shocks in Suolk County alone. Scores more across

the state have been hurt or humiliated when ocers, lacking consistent guidelines

and thorough training, deployed asers inappropriately.

Agencies Purchasing TasersLaw Enforcement, Correctional, and Military Agencies

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

-2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

1,100

2,010

4,300

7,073

8,764

10,567

12,50013,938

15,10816,009

500

16,224(as of March)

If rst quarter sales are indicative of sales for the year,

close to 65,000 agencieswill purchase Tasers

in 2011.



2 / new york Civil liberTies union


o better identiy and understand patterns o aser use in New York State, the

New York Civil Liberties Union analyzed 851 aser incident reports rom eight

departments across the state as well as 10 departments’ guidelines or aser use,

obtained through the state Freedom o Inormation Law and public sources. Tese

records show that ocers misuse and overuse these weapons, resorting directly to

asers rather than less intrusive police tactics to calm, subdue or arrest people they

encounter. Tey also suggest a lack o awareness o the risks o multiple, prolonged

shocks; o the particular danger asers pose to vulnerable populations; and o the

need to avoid sensitive areas o the body, including the chest. While some stud-

ies tout the benets o asers as a tool or law enorcement, the absence o sound

policy, training and guidelines to direct the powerul weapons’ proper, lawul use

contributes to this disturbing pattern o misuse and overuse and puts the state’s

residents and visitors at unnecessary and unjustiable risk.

The NYCLU’s analysis found:

● Nearly 60 percent o reported Taser incidents did not meet expert-

recommended criteria or justiying aser use—criteria that limit the

weapon’s use to situations where law enorcement ocers can document

active aggression or a risk o physical injury.

● Fifeen percent o incident reports indicated clearly inappropriateTaser use, such as ocers shocking people who were merely passively or

verbally noncompliant with a police order, or where a suspect was already

handcued or restrained.

● Only 15 percent o documented Taser incidents involved people who

were armed or who were thought to be armed, belying the myth that

asers are most requently used as an alternative to deadly orce.

● More than one-third o Taser incidents involved multiple or prolonged

Taser shocks, which experts link to an increased risk o injury and death.

● More than 1 in 4 (27 percent) o Taser incidents involved shocks directly

to subjects’ chest area, despite explicit 2009 guidelines by the weapon’s

manuacturer instructing users to avoid ring asers at the chest area,

citing a risk o “potential cardiac consequences.”





● In 75 percent o incidents, no verbal warnings were reported , despite

expert recommendations that verbal warnings precede aser irings.Hal o the jurisdictions surveyed do not, in act, require ocers to issue

verbal warnings.

● Forty percent o the Taser incidents analyzed involved at-risk subjects.

aser experts caution against aser use on children, the elderly, the visibly

inrm and individuals who are seriously intoxicated or mentally ill — “the

very individuals” most likely to be in contact with police, according to the

International Association o Chies o Police. O these incidents, 30 percent

involved situations where ocers were called to assist with a mentally

disturbed individual with no indication or suggestion o criminal activity.

● People o color are overwhelmingly represented in Taser incidents.

O all incidents in which race was recorded, 58 percent involved black

or Latino New Yorkers. In Albany, where 28 percent o the population

is black, 68 percent o aser incidents involved black subjects; similar

disproportionalities were evident in Syracuse and Rochester.

February 2004, Southampton Village,

Sufolk County. David Glowczenki, 35,

died ater being Tasered nine times in aconrontation with police on Southampton

Village’s Main Street. Glowczenki’s amily

had called the Southampton Village

Volunteer Fire Ambulance Corps because

he became agitated ater learning that his

amily sought to place him in a psychiatric

hospital or treatment o his schizophrenia.

Glowczenki, carrying a Bible, ought with police ocers, knocking one ocer to

the ground. In the struggle that ollowed,

Glowczenki was beaten, maced, sprayed

with pepper spray and shocked nine times

with the Taser. “He had no weapon and

committed no crime,” said his sister, Jean

Grin, ater her brother’s death.

An independent pathologist conducted

an autopsy on Glowczenski’s body and

documented evidence o excessive orce,

including electrical burns consistent with

Taser shocks.

(A $75 million civil lawsuit was led by the

amily against our village police ocers,

the Suolk County Medical Examiner, theSouthampton Volunteer Ambulance Corps

and the Suolk County Police, and a second

lawsuit led against Taser International, or

$55 million.)





As the NYCLU’s analysis demonstrates, these problems are directly linked to

the act that use-o-orce policies governing the use o asers lack consistency

and, with the exception o the NYPD, do not comply with the recommenda-tions o national law enorcement experts that have developed model poli-

cies or aser use. Moreover, seven o the eight jurisdictions surveyed by the

NYCLU analysis appear to rely exclusively on training materials provided by

ASER International, the weapon’s manuacturer—an approach that experts

widely condemn as inadequate preparation or crucial decisions in the eld.

In addition to these undamental faws in policy and training, law enorcement

agencies are not doing enough to monitor and supervise the use o asers in

the eld. Te incident reports obtained by the NYCLU showed grossly incon-sistent and incomplete record-keeping, a signicant obstacle to accountability

and proper assessment o the risks and rewards o asers.

Dening and practicing the “appropriate use” o asers remains the outstanding

challenge in the eort to ensure that asers do not cause more harm than good.

Accordingly, the NYCLU recommends the ollowing:

1. New York State law enorcement agencies must reorm use-o-orce po-

lices and aser training programs to comply with nationally recognizedexpert guidelines, such as the guidelines created by the United States

Department o Justice and the Police Executive Research Forum.

2. Te State o New York must play an active role in promoting and

achieving universal adoption o these expert-recommended policies

and guidelines, and in ensuring that local agencies coordinate their

aser policies and training programs.

3. Te State o New York and local law enorcement agencies must require

accurate, complete reporting and robust monitoring o aser use. Suchreporting should be made available to the elected ocials responsible or

oversight o law enorcement agencies and to the citizens whose taxes

support them.n





itdct

Since their widespread introduction more than two decades ago, asers

have been lauded by their manuacturer and by law enorcement as a

sae and eective way o subduing criminal suspects. At the same time,

they have been condemned by critics as dangerous and routinely misused.

Te U.S. Department o Justice (DOJ) recently noted that more than 200Americans have died aer being shocked by asers.1

Notwithstanding the controversy, asers are here to stay: In the U.S., 16,000

law enorcement agencies now use asers, including 350 in New York State.2

Despite their widespread use, there has been little

systematic refection by state law enorcement or

other government ocials on the use o asers. Na-

tional experts have developed comprehensive modeluse-o-orce policies and training recommenda-

tions, but no studies have compared how New York’s

varied policies and training programs compare to

those models and recommendations. And there

has been no meaningul examination o whether

the thousands o New York law enorcement ocers who carry asers deploy

them saely and consistently, within sound use-o-orce guidelines.

Tis report is a rst step to lling the research gap. Between April o 2009and January o 2010, the New York Civil Liberties Union requested, pursuant

to New York’s Freedom o Inormation Law, use-o-orce policies and train-

ing materials governing asers rom 10 law enorcement agencies represent-

ing urban, suburban and rural areas o the state.3 In addition, the NYCLU

requested reports detailing individual incidents in which ocers used or

Reform

use-of-force policiesand Taser

training programs.





displayed a aser rom eight police departments statewide.4 Combined, the

eight departments provided 851 individual reports.

Our review refects poorly on New York. Te incident reports show that

many ocers use asers in inappropriate and potentially dangerous ways.

Te policies we examined are inconsistent and, with the notable exception

o the NYPD’s policy, generally ail to comply with the recommendations

o national law enorcement experts, particularly those recommendations

designed to avoid dangerous and inappropriate aser use. Most departments

queried rely solely on training materials prepared by the weapon’s manuac-

turer, aser International—a widely-condemned approach that ails to ully

prepare ocers or when and how to deploy asers. n





Tasers have two modes: In “probe mode,” an electro-shock projectile

delivers up to 50,000 volts in a series o pulses through barbed wires

shot at a person. In “drive-stun mode,” the stun gun delivers its charge

at close range directly rom metal contacts on the weapon.

In probe mode, the weapons are designed to disrupt the

central nervous system and temporarily incapacitate the

subject. Te barbed wires attach directly to the skin or

clothing o the subject to deliver the electrical charge

and the barbs are meant to be removed only by a medi-

cal proessional.5 In drive-stun mode, which does not

require the use o barbed wires, the electric shock is

designed to cause sucient pain to induce compliance.

aser International, the weapons’ primary manuac-

turer, has aggressively marketed asers as a sae method

o controlling dangerous or combative subjects.

Concerns about Lethality

As aser use spread in the United States, so did reports

o their lethality. A 2005 report rom the American

Civil Liberties Union o Northern Caliornia docu-

mented several atalities associated with asers and

highlighted the lack o independent medical stud-

ies o their eects, especially the eect o multiple

shocks.6 Tat same year, the Arizona Republic reviewed

PART I: T D:

a g rct

March 2008, Clay, outside o

Syracuse. Police ocers summoned

to the Norstar apartments were

conronted by a resident, Christopher

H. Jackson, shortly ater 9 p.m.

Ocers used a Taser to subdue

Jackson. Within 90 seconds o

the Taser shock, Jackson was

unresponsive to direct questions,

witnesses said, and paramedics were

summoned. Jackson experienced cardiac arrest in the ambulance and

was pronounced dead at St. Joseph’s

Hospital and Health Center.





autopsy reports in several dozen aser-related deaths.

In at least 18 cases, the medical examiner listed asers

as a cause or contributing actor.7

In 2006, both the United Nations Committee Against

orture and the United Nations Human Rights Com-

mittee raised concerns about American law enorce-

ment’s aser use, and Amnesty International called or

a aser moratorium.8 In 2008, Amnesty linked asers

to the deaths o 334 people in the United States,9 and

Canadian authorities undertook a comprehensive

review o their policies and practices ollowing reports

o a high number o aser-linked atalities.10

Even today, with nearly two decades o experience,

scientic evidence o aser saety is lacking. In May

2011, an independent study published by the DOJ

raised serious concerns about the possibility o serious

injury and death rom continuous or prolonged aser

activations, as well as their use in and around water

or hazardous materials and on vulnerable populations

such as persons prone to dangerous alls, persons with

pacemakers or debrillators, intoxicated or mentally

disturbed persons, and “small children, those with

diseased hearts, the elderly, pregnant women and other

potentially at-risk individuals.”11 Tese are not merely

exceptional situations; according to the International

Association o Chies o Police, mentally disturbed, intoxicated, stressed and

otherwise “unhealthy” subjects are “the very individuals most likely to come

into contact with police.”12

Academic studies acknowledge asers’ potential lethality and have raised

concerns about the ongoing lack o authoritative studies establishing their

saety.13 Concerns over lethality increased in October 2009, when aser

June 2008, Southampton,

Sufolk County. Brooklyn native

Tony Curtis Bradway, 26, died shortly

ater police ocers shocked him

twice with a Taser. The ocers had

been called to a Southampton

home on unrelated matters when

one noticed a plastic bag o white

powder, thought to be cocaine.

Bradway tried to swallow the plastic

bag as police ocers Tasered him.

The coroner’s report said Bradway’s

death was due to cardiac arrest,

although it could not be determined

whether possible cocaine ingestionor shock-induced ventricular

brillation—a disturbance o the

heartbeat linked to Taser use—was

the primary cause.





International’s new targeting guide recommended that

ocers avoid ring in the chest area due to potential

cardiac consequences.14

Nonetheless, several studies link asers with reduced

injury rates among both law enorcement personnel

and the people they encounter, as well as reductions

in the use o lethal orce.15 Tese studies suggest that,

despite their risks, asers can be important and use-

ul tools, provided they are deployed with appropriate

training and within adequate use-o-orce policies.

Te question then becomes whether asers are de-

ployed appropriately in practice.

Concerns about Taser Abuse

Te DOJ recently noted that asers “are rapidly

overtaking other orce alternatives. Although injury

ndings suggest that substituting [asers] or

physical control tactics may be useul, their ease o

use and popularity among ocers raise the specter

o overuse.”16

Tis concern is not hypothetical. Amnesty International

has documented multiple incidents o repeated or pro-

longed shocks, in which subjects were unarmed and did

not appear to present a serious threat and in which sub-

jects were handcued or otherwise already restrained.17

Te ACLU o Northern Caliornia’s study noted that

most police department policies ail to limit multiple

shocks, permit asers against passive subjects and those

already handcued or restrained, and do not prevent the

use o asers on particularly vulnerable people, includ-

ing pregnant women, small children and the elderly.18

March 2005, Guilderland. Fiteen-year-old Stephen Bishop,

a student at Colonie High School,

and a 16-year-old riend were at the

Crossgates Mall ood court when a

mall security guard called them “ruit

loops” and asked them to leave. The

boys complained to mall security;

security personnel then called the

security ocer who had asked them

to leave and two police ocers.

When Bishop’s riend, whose name

has not been released, reached or a

book, an ocer mistook his gesture

and grabbed his arm, causing ascue, in which both teenagers

were shocked twice with Tasers and

handcued. Both boys were charged

with resisting arrest, misdemeanor

assault and obstruction o justice.

“He was only hit twice,” Police Chie

James Murley said later o Bishop.

His riend, who weighed 114 pounds

at the time, was let with burns and

signicant bruises.





Expert guidelines caution against

multiple shocks and require ocers to

justify each additional application of force. Here, the young man was Tasered

twice, but the arresting ocer provided

no justication for the need to

administer a second Taser application.





The young man was Tasered in his

chest and lower torso, despite

Taser International’s warning thatshocking someone in the chest

area creates a heightened risk of

cardiac arrest.

Expert guidelines caution against

multiple shocks and require ocers to

justify each additional application of force. Here, the young man was Tasered

twice, but the arresting ocer provided

no justication for the need to

administer a second Taser application.

This report shows that the

arresting ocer did not attempt

any other police tactics before

Tasering the young man in the

chest. There was no documented

threat of violence toward the

ocer or the public. This is a

prime example of how ocers

often default to using Tasers even

when other options are available.





A 2006 study by the Louisville Courier-Journal showed that ocers “used the

weapons in dozens o situations in which neither they nor others appeared to

be at risk,” including situations o “verbal non-compliance,” and when sub-

jects showed no active resistance or aggression or were handcued.19 asers

were requently used against the mentally ill, juveniles and people feeing

aer minor crimes, such as shopliing.20 Tat same year, the PERF noted that

the results o studies then available showed that “multiple and continuous”

aser activations “may increase the risk o death or serious injury, and that

there may be a higher risk o death in people under the infuence o drugs.” 21

Te review “indicated a real need or more attention to the issues related to

[aser] activation on persons operating vehicles, handcued persons, and

feeing suspects.”22

The Courts’ Increasingly Serious Approach

Advocates and law enorcement experts are not alone in raising concerns

about aser misuse. Courts, too, acknowledge asers’ potential dangers in

evaluating the liability o law enorcement ocers and municipalities or

injuries caused by their use.

Te use o asers, like any use o orce by law enorcement ocers, is governed

by constitutional principles that prohibit excessive and unreasonable orce.23

Graham v. Connor 24 makes clear that the use o orce is constitutional only i

it is objectively reasonable under the Fourth Amendment.25

In the rst generation o aser litigation, some courts credited now-abandoned,

overbroad claims about the saety o, and relatively minimal harm caused

by, asers.

26

In recent years, however, as the public, law enorcement experts,medical proessionals and advocates have become better educated about the

risks asers pose, so too have the courts. Police ocers who deploy asers do

so knowing that the aser inficts extreme pain and may cause serious injury

or death. An ocer may be liable or an unreasonable aser use and munici-

palities may be liable or policies that promote aser overuse or misuse, and or

the ailure to adequately supervise and train their ocers.





September 2008, Brooklyn. ImanMorales, 35, had a long history o

emotional disturbance and mental

illness. When police arrived in response

to Morales’ mother’s call or help, saying

he had stopped taking his antipsychotic

medications, a naked and agitated

Morales stepped out o his mother’s

Bedord-Stuyvesant apartment building

and onto a narrow second-foor ledge,

brandishing an 8-oot fuorescent light

bulb as i it were a light saber. As his

mother pleaded with ocers not to shoot

her son, saying “he’s sick,” Emergency

Services Ocer Nicholas Marchesona red

his Taser at Morales, on the orders o Lt.

Michael Pigott.

No air bag was in place to break Morales’

all (ocers had radioed or an airbag; it

hadn’t arrived). Morales ell 10 eet to the

pavement and died. “He just ell ace rst,”

said a neighbor, Sean Brown. Morales

was pronounced dead on arrival at Kings

County Hospital. “His mother called

911,” another neighbor, Sharonnie Perry,said. “She called or assistance and the

assistance she got was her son being killed.”

On the day o Morales’ uneral, Lt. Michael

Pigott took his own lie with another

ocer’s handgun. Earlier, Pigott, a 21-year

veteran ocer who was distraught since

Morales’ death, apologized to Morales’

amily or the Taser death and asked that

Ocer Marchesona not be blamed or

Pigott’s decision. A suicide note ound

near Pigott’s body said that he did not

want his three children to see him in

handcus, as he eared arrest. Pigott died on his 46th birthday.

The NYPD analysis later said that “the

order to employ the Taser . . . appears

to have violated guidelines” that were

issued in June 2008, including directions

that prohibit Taser use “when the subject

is in a position where a all may cause

substantial injury or death.”





In ennessee v. Garner , the Supreme Court prohibited deadly orce “unless

it is necessary to prevent the escape and the ocer has probable cause to

believe that the suspect poses a signicant threat o death or serious physical

injury to the ocer or others.”27 While a aser may not always be a deadly

weapon, it clearly constitutes the use o deadly orce. For example, courts

have held that use o a aser on a person who is standing at a substantial

height constitutes the use o deadly orce.28 In addition, prolonged or multiple

aser discharges may be recognized by courts as deadly orce, particularly

when applied in combination with ace-down restraint or to at-risk individu-

als such as the mentally ill and individuals under the infuence o narcotics.29

Courts also recognize the “increased potential or possibly lethal results cre-

ated by newer models” o asers.30

Even when not used in a manner that constitutes deadly orce, asers may

still “pose a risk o permanent or signicant injury.”31 As early as the mid-

1980s, a New York court noted with regard to asers that “there has been

great concern about the impact on people with heart problems ….” 32 Courts

have specically recognized that asers cause “serious and substantial harm”

to persons taking psychotropic medication and the mentally ill.

33

(It is im-portant to note that it is the risk o injury that is important to the Fourth

Amendment analysis, not whether that risk was realized.)34

Te pain asers infict is another actor in determining reasonable orce

under the Fourth Amendment. Courts have described the eect o a aser

discharge as “shocking, burning, and even rendering numb its target;”35 and

“a painul and rightening blow, … temporarily … rendering the victim

helpless.”36 Courts agree that a aser used in drive-stun mode causes acute,

signicant and severe physical pain.”

37

One court cited the testimony o a lawenorcement ocer who compared a aser shock to “being hit on the back

with a ‘our-by-our’ by Arnold Schwarzenegger.”38

Te growing legal consensus about the serious risk o pain, injury and death

with aser use parallels an increasing number o court decisions nding

aser use unconstitutional and sanctioning ocers and law enorcement





agencies or their improper use. Courts have ound aser use unconstitutional

in scenarios that New York police departments appear to have implicitly

or explicitly permitted (see Parts II and III below.) For example, courts

have held it is unconstitutional to use a aser multiple times on an already

restrained person39 and on a mentally unstable individual who was not

suspected o a crime and posed no immediate threat to ocers.40 It is also

unconstitutional to use a aser even once on a nonviolent, noncompliant

person suspected o only a minor crime,41or a nonviolent person suspected

o a trac violation who was not threatening or feeing.42

Law enorcement agencies that ail to provide ocers with appropriate training

and guidance about constitutional aser use may be held responsible or the

misuse o the weapons. For example, courts have permitted claims against

municipalities where a police department ailed to provide timely periodic

trainings aer the manuacturer updated saety inormation;43 where a police

department ailed to train ocers regarding the use o asers on the men-

tally ill;44 and where aser use was authorized against individuals who were

“passively resisting” police orders.45 Law enorcement agencies must appro-

priately instruct and train their ocers on the use o asers and must require

sucient reporting on aser use to promptly analyze, identiy and correct

any misuse.

Nationwide Calls for Reevaluation

Departmental policies oen exacerbate the dangers o aser misuse and

provide insucient guidance to ocers on the weapons’ proper use. A 2005

study o use-o-orce policies by the United States Government Accountabil-

ity Oce (GAO) showed enormous inconsistency among law enorcement

agencies as to when it is appropriate to use asers.46 Some policies permit-

ted use only when there is a risk o physical harm. Other policies are much

broader, permitting aser use when a person is passively resisting an ocer,

or example. As a result, the GAO report concluded that “a standardized

training program on the use o asers is needed.”47





Some law enorcement agencies have begun to reevaluate the rush to adopt

asers. In Maryland, the Attorney General’s ask Force on Electronic Weap-

ons issued a 2009 report urging greater accountability and community

involvement in local decisions to adopt asers, as well as more stringent

training and use-o-orce policies.48 Te report noted that training materials

provided by the aser manuacturer “tended to signicantly understate the

risks.” Underestimating risk, coupled with the ease o aser use, “appears to

have led to over-reliance on [asers]… particularly in response to low-level

threats o harm and situations that have now been shown to involve a height-

ened risk o injury or death.”49

In light o this nationwide controversy surrounding asers, there is strong

reason to believe that New York law enorcement authorities should careul-

ly evaluate their approach to these weapons, consider measures to decrease

over-reliance on asers and limit their misuse, and monitor policies and

practices governing the use o these weapons. o date, however, no such

eorts have occurred. n





Part II:

T n y:

o d D Dpmt

The NYCLU’s review o several hundred incident reports involving

asers, as well as the policies and procedures governing aser use,

paints a disturbing picture. Inconsistent and incomplete reporting

means that the data presented here only provide a rough sense o the reality

on the ground. Nonetheless, the inormation that can be gleaned rom these

reports and policies shows that improperly trained law enorcement ocers

are using asers in ways that are ineective, unnecessary and expose people

in New York to the risk o serious injury or death.

Te pattern o misuse and overuse o asers all into seven distinct categories:

the use o asers where the suspect poses no demonstrated danger or risk o

injury to any person; the administration o excessive numbers o or exces-

sively long shocks; dangerous targeting o vulnerable areas o the body, such

as the chest, neck or genitals; the ailure to warn a subject prior to using a

aser; the over-reliance on drive-stun as opposed to probe mode; the use o

asers on vulnerable populations or in dangerous situations; and the dispro-

portionate use o asers on people o color.

Tese ailings can be linked directly to inadequate policies and training

governing the use o asers in New York. Drawing on recommendations and

model policies prepared by national law enorcement experts, the NYCLU

ound that the policies and training o New York police departments are

severely lacking, specically with regard to the issues identied above. While

a ew departments across the state, including the NYPD, comply with expert

recommendations, most miss almost every mark. On the whole, the policies





surveyed revealed a patchwork o inconsistent and oen inadequate policies.

Most departments appear to rely solely on training materials prepared by

the manuacturer o these weapons, suggesting that ocers are not receiving

proper guidance on when and how to use asers.

January 2009, Salina, Onondaga

County. Onondaga County Deputy

Sean Andrews pulled Audra Harmon, 38,

over on a routine trac stop, charging

that she had been speaking on her

cell phone while driving, which she

denied. Andrews next said Harmon

was speeding, asserting that she had

driven 50 miles an hour in a 45 mph

zone. Harmon stepped out o her van

to conront Andrews. He told her to get

back into the minivan, but asked her to

step outside her vehicle shortly thereater.

(A video camera on Andrews’ squad car

captured the scene.)

Harmon, accompanied by her 15-year-

old son and 5-year-old daughter, was

rightened by what she perceived as

Andrews’ erratic behavior. She clung

to the steering wheel. Andrews pulled

Harmon out o the van by her arm as

her children protested. When Harmon

resisted his eorts, he used his Taser to

shock her twice, landing a barb in her

upper let chest, despite Harmon’s plea

to stop: “Don’t do this in ront o my

children,” she begged. Ater the second

Taser shock, Harmon ell to her knees.

Andrews pushed her to the ground and

handcued her. Andrews took Harmon

into custody on charges o disorderly

conduct and resisting arrest. Her children

were let unattended in the amily van

until their ather arrived, 40 minutes later.

Prosecutors dropped all charges against

Harmon ater they viewed the video rom

Deputy Andrews’ squad car.

(In December, 2009, Onondaga County

legislators unanimously agreed to award

a $75,000 settlement in response to a

lawsuit Harmon led.)





Each o these issues is discussed in more details in the sections that ollow.

The Use of Tasers Where the Suspect Poses No Danger or Risk

of Injury to Anyone

Experts and advocates alike agree that asers should be used only where there

is active aggression by a subject or a documented threat o physical harm to

another person.50 Unortunately, less than hal o the incident reports reviewed

(42 percent) documented acts showing such a justication or the use o the

aser. In 35 percent o incident reports reviewed,

documentation provided in the reports indicated thatthe subject was only engaged in deensive or pas-

sive resistance, establishing that the use o the aser

armatively did not conorm to expert recommen-

dations. Fieen percent o incident reports reviewed

involved ocers ring asers without documenting

any justication or the weapon’s use beyond the act

that the subject was feeing or non-compliant with a

police order. Tis misuse appears to be widespread.

With the exception o Nassau County, every lawenorcement agency surveyed reported at least one

incident o aser use against a merely passively resist-

ing or verbally noncompliant person.

Particularly disturbing were the number o incidents in which asers were

used on people in fight or in handcus, a use o orce condemned by law

enorcement experts.51 In 7 percent o incidents, ocers’ reports showed that

subjects were handcued or otherwise restrained, and 4 percent o the reports

indicated that the individual was merely feeing rom the ocers.

Te data, while imperect,52 shatter the illusion that asers are primarily used

as an alternative to deadly orce on armed or otherwise dangerous subjects.

Indeed, only 15 percent o aser incidents reviewed or this report involved a

subject who was armed or thought to be armed.

Nearly 60 percent

of Taser use

did not meet expert

recommended use.





Tese disturbing statistics refect the act that

almost none o the departmental use-o-orce

policies reviewed or this report complied

with expert recommendations governing the

appropriate circumstances or the use o as-

ers.53 Most o the policies surveyed dened

the proper use o asers ar more broadly

than experts recommend or in a vague man-

ner not refective o the careul recommenda-

tions o experts, creating the likelihood i not

the certainty o overuse and abuse o asers.

Te Glens Falls Police Department, or example, permits the use o a aser

whenever it is deemed “reasonable and necessary,” in light o the “totality o

circumstances surrounding the incident.” Indeed, some policies authorized

asers in circumstances

specically condemned

by experts, such as use

on already restrained or

handcued individuals.

A ew departments admi-

rably speciy that asers

may never be used or

punitive or coercive pur-

poses. Fewer still say that

asers may not be used to

compel compliance with

a police order. But eventhese departments ail to

require documentation o a specic threat o harm or injury. Such vague and

acially inappropriate policies make it inevitable that a substantial percent-

age—well over hal—o the incident reports reviewed or this report ailed to

document active aggression or a threat o harm to a person as a justication

or using the aser.

In at least7 percent of

incidents, subjects were

already restrained.

In only

of incidents,

subjects were

armedor thought

to be.

15percent





Excessive Number and Duration of Shocks

Most deaths associated with aser use involve multiple or prolonged discharges,54

which experts say are extremely dangerous. Model policies require individu-

alized assessment o the need or additional shocks or shocks longer than the

standard ve-second cycle.55 Unortunately, more than one-third (38 per-

cent) o the incidents reviewed by the NYCLU involved multiple shocks, with

16 percent involving three or more shocks. Prolonged shocks were reported

less requently, appearing in 3 percent o records reviewed, with the major-

ity occurring in one department—the Glens Falls Police Department. Tere,

nearly 20 percent o the aser incidents reported involved prolonged applica-

tion o the aser.

Rarely do ocers justiy the reasons or additional or prolonged shocks. For

example, the Glens Falls Police Department reported 15 instances in which

asers were deployed three or more times. In none o these reports did the

ocer provide any specic indication o why the weapon was used in this

dangerous manner. Frequently, the ocer said nothing at all. In a 2008 inci-

dent, an ocer applied our cycles in drive-stun mode against an uncoopera-tive individual, but provided only a single sentence explanation.

Tis situation plainly is linked to the act that the majority o departments

surveyed provide no caution against multiple or prolonged aser discharges

in their use o orce policies.56 Te silence o these policies invites abuse.

Te Albany Police Department policy stands out in this regard. Contrary

to expert recommendations, it appears to endorse repeat asering, without

precaution or limitation, until people are compliant or apprehended. Tepolicy states, “Compliance through incapacitation is the desired goal, and

to that end the ocer should be prepared to administer continued electri-

cal charge(s), in the event that the initial 5-second charge is not eective,

until the subject is compliant and/or apprehended.” Tis language embod-

ies no recognition or warning o the dangers o prolonged or repeated aser

cycles, sets no limit on the number or duration o cycles and does not require





individualized assessment o the need or repeated or

prolonged asering.

A ew departments, recognizing i not ully responding

to the risks associated with multiple aser cycles, urge

caution beore asering someone multiple times, but

set no specic limits or a requirement or individual-

ized assessment or consecutive cycles.57 Te incon-

sistency and incompleteness o New York’s policies in

itsel raises serious concerns.

Targeting of Dangerous and Sensitive

Areas of the Body

Te matter o targeting asers at particularly sensitive

areas o the body has generated a great deal o contro-

versy in the wake o aser International’s 2009 warn-

ing against targeting the chest area.58 Even beore this

announcement, expert recommendations encouraged

departments to avoid sensitive areas o the body, such

as the head, neck and genitalia.59

In 27 percent o the reports NYCLU reviewed,

an ocer red at a person’s chest, the very

area the manuacturer warns against. In 14

incidents, individuals were shocked in the

head, neck or groin.

Although most departments surveyed provide

some targeting guidance, some provide no

guidance whatsoever, licensing ocers to

target subjects without limitation.60 Even among those that guide aser

targeting, many policies are incomplete, covering only some o the most

vulnerable areas, or limiting targeting guidance to drive-stun mode only.

In more than 1 out of 4

incidents, an ocer red at a

person’s

chest.

June 2008, Harlem. Alexander

Lombard III, the 18-year-old son o

retired NYPD Lieutenant Alexander

Lombard II, was Tasered our times

at a Harlem barbeque when police

intervened in a ght between two

emale guests.

Lombard received Taser shocks to

the neck, shoulder, ace and rib cage,

resulting in permanent scarring and

mental anguish, according to his

ather. The teenager was also beaten

with a nightstick and placed in a

choke hold.





wo departments—the NYPD and the Suolk

County Police Department—appear to ollow aser

International’s warnings about targeting the chest,

suggesting that most New York State ocers operate

asers with insucient guidance.

Failure to Warn Prior to the Use of a Taser

In light o the dangers o asers and their purpose to

de-escalate potentially violent situations, experts rec-

ommend that ocers issue a verbal warning beore

using the weapons.61 In 75 percent o the incidents

reviewed, however, there was no documentation

o a verbal warning in the use-o-orce report. Te

departmental policies surveyed do not uniormly

require a warning beore ring a aser at a sub-

ject; indeed, the surveyed departments split almost

evenly between those requiring a warning and those

that do not.62

Over-Reliance on Drive-Stun Mode

Experts strongly emphasize that asers are meant

to be used in probe mode whenever easible, both

because it is more eective and because it is saer.63

Only two departments surveyed—the Guilderland

Police Department and the NYPD—incorporate this

concept into practice, by requiring that drive-stun

mode be used only as a last resort or in exceptional

circumstances. One department, Saratoga Springs,

cautions that drive-stun mode is less eective, with no

mention o the dangers o over-reliance on this meth-

od. Te remaining departments either are entirely

silent or leave the decision to the ocers’ discretion.

September 2009, Syracuse.

A.E., a 15-year-old student at Fowler

High School, was shocked by a

Taser meant or another student,

school ocials later stated, as school

resource ocers attempted to stop

an aterschool ght between two

girls. School ocer James Stone shot his Taser toward one o the girls in

the ght. But Stone’s Taser missed its

mark and struck A.E., who was trying

to stop the ght. The ocers did not

announce their intent to use the Taser,

and students had no warning beore

the ocers red the Taser barbs.

A.E. was shocked and handcued

in ull view o 30 to 40 students who

pleaded with the police ocers to

stop, saying that he was not part o

the ght. He suered pain, injury and

emotional distress as a result o theTaser shock. In 2010, the NYCLU led

a suit against the Syracuse Police

Department on behal o A.E.





Unsurprisingly, among those departments that document the mode o use,

drive-stun mode was used in 47 percent o aser deployments. Probe mode

accounted or 53 percent, suggesting that ocers use the more dangerous,

less eective mode with alarming requency.

Targeting At-Risk Populations and Using Tasers in

Dangerous Situations

In addition to the dangers o targeting specic areas o the body, experts

warn o the dangers o targeting physically or mentally vulnerable people,

including the inebriated.64

Despite these warnings, our analysis suggests

that asers are regularly used on intoxicated

people. In 40 percent o incidents surveyed,

ocers reported that the subject showed signs

o intoxication.

Although aser use on children and the elderly

are relatively rare, they provide disturbing ex-

amples o aser misuse. In a 2005 report rom

the Guilderland Police Department, an ocer asered a 13-year-old boy who

had allegedly been involved in a ght at a shopping mall. During the arrest, the

ocer gave no indication that he elt threatened or that the boy had threatened

himsel or those around him. Nonetheless, the ocer deployed a aser and

struck the boy’s thigh. Te ocer’s narrative indicated nothing more to justiy

the aser’s use than that the weapon was red in order “to gain compliance.”

Experts caution that an apparent mental health crisis or mental distress

should not be a justication or using a aser to subdue a subject.65 Yet in

about 30 percent o the incident reports reviewed, the ocer using a aser

was responding to a “mental health” call (with no suspicion o criminal activ-

ity) or the ocer reported that the subject was seriously mentally ill.

In almost

HALF of the incidents,

ocers used the

‘drive-stun’ mode

-meant only as a last resort.





In a particularly disturbing report rom the Syracuse

Police Department, a total o three ocers each used

their asers against a mentally ill man. In their indi-

vidual reports, each ocer reported ring and applying

multiple aser cycles. Te rst applied ve to six cycles,

the second our to ve cycles, and the third three to six

cycles. Te man had reused the ocers’ orders to get

on the foor, yet at no point in the report did the ocers

document any risk o harm. Only one ocer issued a

verbal command to attempt to control the situation be-

ore the man was asered – more than a dozen times. No

charges were ever led against the man.

Te ailure o many departments’ policies to caution

ocers against using asers on vulnerable populations

contributes to this problem.66 Even in departments that

do provide guidance, the lists o “vulnerable populations”

are inconsistent with one another and incomplete relative

to expert recommendations.

Expert guidelines deliberately enumerate risky situa-

tions in which asers should be avoided. Once again,

many departments’ policies are silent on this subject, and

the guidance that is provided is oen inconsistent and

incomplete. Reliable data on how requently asers are

used in identiably risky situations could not be gath-

ered rom the incident reports surveyed because police

departments across New York do not require detailed

reporting o this kind o inormation.

The Disproportionate Use of Tasers on

People of Color

Among departments that track race in their incident

reports, black and Latino New Yorkers accounted or

August 2004, Queens. Terence

L. Thomas, 35, o Hempstead,

Long Island, was under arrest in a

holding cell in the 105th Precinct

in Queens when he became

agitated and banged his head

into the holding cell wall. Thomas

reused medical attention and

resisted ocers’ attempts to calm

him; police said later that Thomas

might have swallowed crack

cocaine to avoid its discovery

ater his arrest. Four police ocers

and our re department medical

workers tried to subdue Thomas,

who was shocked with a Taser at

3:45 a.m. Thomas experienced

cardiac arrest in the ambulance en

route to Queens Hospital Center,

where he was pronounced dead

at 4:30 a.m. (Analysis o Thomas’

stomach contents revealed

cocaine.) Thomas’ amily was

not permitted to see his body at

the hospital, and charged that his

ace was bruised and beaten in a

Polaroid they were shown.





58 percent o aser incidents.67 Closer scrutiny o the

data illustrates precisely how disproportionate that

statistic is to the relative population. For example,

according to the most recent census data available,

28 percent o the population in Albany is black, yet

68 percent o those asered were black.68 Similarly,

in Syracuse, 56 percent o individuals involved in a

aser-related incident were black – more than twice

their presence (25 percent) in the total population.

In Rochester, 48 percent o those asered were black,

while 38 percent o the population is black.

Full analysis o this troubling pattern o heightened aser use in communi-

ties o color alls outside o the scope o this report. But it echoes consistent

and disturbing practices o over-policing in communities o color and the

disproportionate impact o abusive police practice on these communities. n

of incidentsinvolved40 percent

children

elderly

inrm

intoxicated

mentally ill

at risk subjects:

December 2004, Guilderland.

On the day ater Christmas, Swahiti

S. “Chevron” Bolden, 34, o Albany,

was outside a Houlihan’s restaurant

with his amily in the Crossgates

Mall. Mall police called local police

ocers at 1:30 p.m. when Bolden was

acting “belligerently.” Once policeocers arrived, Bolden declined to

show them his identication. Ocers

Tasered Bolden twice: The rst shock

did not penetrate his winter clothing,

but a second shock was applied

directly to his groin. Witnesses say

that Bolden was handcued beore

being Tasered; police ocers say that

Bolden was resisting arrest and that

the Taser shocks permitted them to

handcu him.





Part III:

rcmmdt

T hese troubling statistics o misuse and overuse o asers are clearly

linked to the inadequacies o New York law enorcement agencies’

use-o-orce policies and training governing asers. Moreover, the data

are incomplete because o extremely lax reporting on aser incidents withinindividual departments and a complete lack o such reporting at the state level.

Tese problems suggest three necessary steps to begin to address the problems

association with the use o asers by New York law enorcement ocials.

Recommendation 1

New York law enforcement agencies must reform their use-of-force

policies and training programs to comply with national expert

guidelines governing asers.

Te essential elements o an appropriate aser use-o-orce policy and training

guidelines are by now well established. Te Police Executive Research Forum

(PERF) and the DOJ have combined their expertise to produce guidelines,

updated most recently in 2011, establishing the essential elements o sound

use-o-orce policies and practices governing asers.69 One New York law

enorcement agency, the NYPD, uses these recommendations in its depart-

mental policy. Other New York law enorcement agencies should review their

policies in light o these recommendations and the inadequacies details inthis report, and make changes to address the clear deciencies and inconsis-

tencies in their policies and training programs.

In addition to the need or reorm o policies and procedures, inormation

obtained by the NYCLU suggests that many New York police departments





have grossly inadequate aser training. Experts recommend that depart-

ments provide their own training curriculum, 70 but o the departments that

responded to the NYCLU’s Freedom o Inormation request, only the Roch-

ester Police Department reported used independent training materials in

addition to protocols issued by the manuacturer. Expert recommendations

also suggest annual recertication to carry asers. Nonetheless, more than

hal o the departments surveyed did not require annual recertication.71

Given that new inormation about the saety, reliability and proper aser use

emerges every year, the ailure to ensure annual recertication across the

board must be addressed.

Recommendation 2

Te State of New York should do more to encourage reform of, and

uniformity among, law enforcement agencies’ use-of-force policies.

PERF and the DOJ specically recommend that law enorcement agencies

coordinate their aser policies and strive toward multi-jurisdictional train-

ing programs and policies.72 Such coordination can only occur with the

assistance o state agencies such as the Division o Criminal Justice Services

(DCJS), and in particular the Municipal Police raining Council (MPC).

In September 2009, the MPC, a department o the DCJS, published rec-

ommended guidelines or aser use.73 Tese recommendations have some

positive elements, but they are relatively weak and ar rom comprehensive.

Indeed, they do not address the undamental question o when the use o a

aser is authorized and appropriate, leaving law enorcement agencies on

their own in answering this dicult and controversial question.

Moreover, MPC has done little to see that its recommendations are ollowed.

Although the agency conducted a series o trainings or willing departments

in 2009, participation in the training and adoption o MPC recommenda-

tions was entirely voluntary, and did not gain momentum statewide. No





indications suggest that MPC is continuing its push to bring more coherence

to aser policies.

Recommendation 3

Te State of New York should require statewide comprehensive

reporting and monitoring of aser use.

Accurate, comprehensive data on aser use and misuse in New York is un-

available because o poor recordkeeping by law enorcement agencies and

a lack o monitoring or oversight by state and local authorities. New York-

ers deserve a complete and well-grounded understanding o the costs and

benets o aser use. Such an understanding cannot occur until and unless

responsible state ocials demand appropriate reporting rom local law en-

orcement agencies.

Given the rapid spread o this relatively new technology, one would expect

law enorcement agencies and government ocials to careully monitor and

review aser use. Expert recommendations emphasize the importance o

such review,74 and say that incident reports should include copious inorma-

tion, such as the acts supporting the ocer’s decision to re a aser; specic

justication or a prolonged cycle or multiple discharges; whether the person

asered was a juvenile, elderly or a person obviously under the infuence o

drugs or alcohol; the range at which the aser was deployed; where on the

body the person was asered; and the injuries, i any, to the subject.75

All departments queried require ocers to complete an incident report ollow-

ing the use o a aser. But only two departments surveyed, Rochester and Sara-

toga Springs, required reporting o the specic inormation deemed necessary

by experts. Indeed, some departments’ policies and practices actively interere

with attempts to provide sucient inormation. For example, incident report

orms in the Syracuse and Greece police departments provide little physical

room to describe a aser incident. Even when orms are nominally adequate,





many reports were incomplete or had a number o elds le blank. Te absence

o proper documentation results in grossly inconsistent and incomplete re-

cordkeeping, orming a clear obstacle to understanding aser use and holding

law enorcement accountable.

Even i the reporting in individual incident reports were complete, it is not

clear how departments use the inormation they collect. According to the

policies provided to the NYCLU, almost no police departments surveyed

mandate comprehensive departmental review o incident reports to assess

their aser program.

Te state should step into this void. At the present time, there is no independent

or state-level evaluation or assessment o aser use, whether by the MPC or

any other state agency. Such statewide mandates are not unprecedented. In

2007, the State o New Jersey passed a law requiring specic reporting when-

ever a aser is discharged or displayed.76 Te law also requires supervising o-

cers, the chie executive o the law enorcement agency, the county prosecutor

and, ultimately, the state attorney general, to review such reports.77

Tese relatively modest rst steps will lay the oundation or a more sound

approach to the use o asers in New York. Better policies and training, con-

sistent with the recommendations o law enorcement experts, will curtail the

overuse and misuse o asers while ensuring that they remain a viable and

appropriate law enorcement tool. Better reporting will contribute to a more

robust understanding o the risks and benets o asers and create stronger

mechanisms o accountability or ocers who continue to overuse or misuse

these weapons. Ensuring the responsible and appropriate use o asers is in the

interest o law enorcement ocers and the citizens they serve. n





ed nt:

1 U.S. Department o Justice, Oce o Justice Programs, NIJ Research in Brie: Police Use o Force, asers and Other Less-Lethal Weapons (Washington: U.S. Department o Justice, May 2011) 2.

2 Tis inormation was reported to the NYCLU ollowing a press inquiry to the primary manuacturer o

asers, ASER International, and is available on le with the NYCLU.

3 Tose departments include the Albany Police Department, the Glens Falls Police Department, the Greece

Police Department, the Guilderland Police Department, the Monroe County Sheri’s Oce, the Nassau

County Police Department, the Rochester Police Department, the Saratoga Springs Police Department, the

Suolk County Police Department, the Syracuse Police Department and the New York Police Department.

Te policies o each o these departments are available upon request rom the NYCLU. Te NYCLU also

requested policies rom the Bualo Police Department and the New York State Police but, at the time they

responded to the request, neither o those two departments used asers.

4 Tose departments include the Albany Police Department, the Glens Falls Police Department, the Greece

Police Department, the Guilderland Police Department, the Nassau County Police Department, the

Rochester Police Department, the Saratoga Springs Police Department and the Syracuse Police Department.

A spreadsheet containing the data points rom these many hundreds o reports is available upon request

rom the NYCLU. Original copies o the incident reports are also on le with the NYCLU.

5 See U.S. Department o Justice & Police Executive Research Forum, 2011 Electronic Control Weapon

Guidelines (Washington: March 2011).

6 Mark Schlosberg, Stun Gun Fallacy: How the Lack o ASER Regulation Endangers Lives, ACLU o Northern

Caliornia, September 2005. Since that time, at least one study concluded that “more than 99% o subjects

do not experience signicant injuries” aer the use o asers, based on an examination o 1,200 incidents

rom six American law enorcement agencies. William P. Bozeman et al., “Saety and Injury Prole o Conducted Electrical Weapons Used by Law Enorcement Ocers Against Criminal Suspects,” Annals

o Emergency Medicine, April 2009. Like this report, the Bozeman study was based on a review o ocer

reports, “which has well-recognized limitations.” Id. at 485.

7 Robert Anglen, “144 Cases o Death Following Stun Gun Use,” Arizona Republic, Aug. 8, 2005.

8 United Nations Committee Against orture, CA/C/USA/C)2 (New York: United Nations, July 25, 2006);

United Nations Human Rights Committee, CCPR/C/USA/CO/3 (New York: United Nations, Sept. 15, 2006);

Amnesty International, Continuing Concerns About aser Use, May 2006.

9 Amnesty International, ‘Less than Lethal’? Te Use o Stun Weapons in U.S. Law Enorcement, December

2008.

10

Nova Scotia Department o Justice, Conducted Energy Device (CED) Review (Nova Scotia: March 5, 2008).

11 U.S. Department o Justice, Oce o Justice Programs, National Institute o Justice, NIJ Special Report: Study

o Deaths Following Electro Muscular Disruption (Washington: U.S. Department o Justice, May 2011) viii –

ix, 6, 10, 16, 22, 23, 24.

12 IACP National Law Enorcement Policy Center, Electronic Control Weapons: Concepts and Issues Paper ,

August 2005, 4.





13 See Bozeman et al., supra note 6 at 487; Michael Cao et al., “aser-Induced Rapid Ventricular Myocardial

Capture Demonstrated By Pacemaker Intracardiac Electrograms,” Journal o Cardiovascular Electrophysiology

18:8 (2007) 876-879; P.J. Kim et al., “Ventricular Fibrillation Aer Stun-Gun Discharge,” New England

Journal o Medicine 353 (2005) 155, 156.

14 aser International, “raining Bulletin 15.0 Medical Research Update and Revised Warnings,” Oct. 12, 2009.

15 Police Use o Force, asers and Other Less-Lethal Weapons, supra note 1 at ii; J.M. MacDonald et. al, “Te

Eect o Less-Lethal Weapons on Injuries in Police Use-o-Force Events,” American Journal o Public Health

99 (2009) 1-7; M.R. Smith, et al., “Te Impact o Conducted Energy Devices and Other ypes o Force and

Resistance on Ocer and Suspect Injuries,” Policing 30 (2007) 423, 446; E. Jenkinson et al., “Te Relative

Risk o Police Use-o-Force Options: Evaluating the Potential or Deployment o Electronic Weaponry,

Journal o Clinical Forensic Medicine,” 13 (2006) 229, 241. As another academic study points out, however,

many o these studies may signicantly overstate the value o asers because their data are based solely on

internal agency reviews o the use o asers. See Bozeman et al., supra note 6, at 485.

16 Police Use o Force, asers and Other Less-Lethal Weapons, supra note 1 at 15.

17 Less Tan Lethal? , supra note 9, at 3-4.

18 Stun Gun Fallacy, supra note 6, at 12-13.

19 Andrew Wolson, “asers Help Save Lives But Use Also Criticized,” Te Courier-Journal , Oct. 2, 2006.

20 Id.

21 James Cronin et al., Conducted Energy Devices: Development o Standards or Consistency and Guidance ,

U.S. Department o Justice Oce o Community Oriented Policing Services and Police Executive Research

Forum (Washington: U.S. Department o Justice, 2006) 7.

22 Id. at 8.

23 Tis report ocuses on the use o orce by patrol ocers, but excessive use o orce is also prohibited onpersons held in detention. For convicted prisoners, the standard derives rom the Eighth Amendment’s

ban o cruel and unusual punishment. See Graham v. Connor , 490 U.S. 386, 395 n.10 (1989). For pretrial

detainees, the Due Process Clause controls. Id.

24 490 U.S. 386. Te Graham test requires an analysis o “the totality o the circumstances” in order to

determine whether the use o orce by a law enorcement ocer was reasonable, and the Supreme Court

and lower courts have identied a range o actors to be considered when analyzing whether the use o

orce was excessive. Many o these actors have particular relevance to the question o when aser use is

constitutionally appropriate, including: the degree or severity o the orce applied; the risk o signicant

injury rom the use o orce; the severity o the crime; whether the suspect posed an immediate threat to

the saety o the ocers or others; whether the suspect was actively resisting arrest or attempting to evade

arrest by fight; whether a warning was given prior to the use o orce; whether the use o orce complied with

manuacturer’s instructions and saety warnings; whether there were available alternatives to the use o orcedeployed; and the ocer’s opportunity or deliberation prior to the use o orce.

25 Id. at 395. Graham le open the question whether the Fourth Amendment continues to apply between the

time o arrest and the initial appearance beore a judge. Id. at 395 n.10. Many lower courts have held that

the Fourth Amendment applies aer arrest until the initial appearance beore a judge. See, e.g., Luck v.

Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992).

26 See, e.g, Bronson v. Mitchell , 1995 U.S. Dist. Lexis 21651, *12 (N.D. Miss. 1995).





27 471 U.S. 1, 3 (1985).

28 Snauer v. City o Springeld , 2010 WL 4875784, *6 (D.Or., 2010).

29 See, e.g., Estate o Mathis ex rel. Babb v. Kingston, 2009 WL 1033771, *6 (D.Colo., 2009).

30 McKenney v. Harrison, 2011 WL 1104528, 5 (8th Cir. 2011).

31 See, e.g., Headwaters Forest Deense v. County o Humboldt , 240 F.3d 1185, 1199 (9th Cir. 2001), vacated 534

U.S. 801 (2001), a’d on remand , 276 F.3d 1125 (2002).

32 People v. Sullivan, 116 A.D.2d 101, 107 (1 Dep’t 1986).

33 Id. at 1322 n.58.

34 C. Ryder v. City o opeka, 814 F.2d 1412, 1417 n.11 (10th Cir. 1987) (“[]he use o deadly orce does not

occur only when the suspect actually dies.”); Shillingord v. Holmes, 634 F.2d 263, 266 (5th Cir. 1981) (“Tat

the results o the attack on Shillingord’s person were not crippling was merely ortuitous. Tat same blow

might have caused blindness or other permanent injury.”).

35 DeSalvo v. City o Collinsville, 2005 U.S. Dist. Lexis 23180, *13 (S.D. Ill. 2005).

36 Hickey v. Reeder , 12 F.3d 754, 757, 758 (8th Cir. 1993). See also Preston v. Pavlushkin, 2006 U.S. Dist. Lexis

14357, *4 (D. Colo. Mar. 16, 2006) (describing plainti as “writhing in obvious pain” aer being asered).

37 Crowell v. Kirkpatrick, 667 F.Supp.2d 391 (2d Cir. 2010).

38 Madrid v. Gomez , 889 F. Supp. 1146, 1175 n.43 (N.D. Cal. 1995).

39 Roberts v. Manigold , 240 Fed.Appx. 67, (6th Cir. 2007).

40 Oliver v. Fiorino, 586 F.3d 898, (11th Cir. 2009).

41

Brown v. City o Golden Valley, 574 F.3d 491, (8th Cir. 2009).42 Casey v. City o Federal Heights, 509 F.3d 1278, (10th 2007) .

43 Estate o Mathis ex rel. Babb v. Kingston , 2009 WL 1033771, *6 (D.Colo. 2009).

44 Id.

45 Oliver v. City o Orlando, 2008 WL 4000863, *5 (M.D.Fla. 2008) (“[I]t should have been obvious to the

City that training ocers to use this excessive orce against passively resistant individuals would result in

constitutional violations.”).

46 United States General Accounting Oce, aser Weapons: Use o asers by Selected Law Enorcement

Agencies, (Washington: GAO-05-464, May 2005).

47 Id. at 9 n.10.

48 Maryland Attorney General’s Oce, Report o the Maryland Attorney General’s ask Force on Electronic

Weapons, (Baltimore: Oce o the Attorney General, December 2009). See also Report o the Use o Force

Working Group o Allegheny County, Pennsylvania (Pittsburgh: Allegheny County District Attorney’s Oce,

October 8, 2009) (conducting a comprehensive review and recommending changes to Allegheny County’s

approach to using asers).

49 Maryland Attorney General’s Ofce Report, supra note 48, at 2.





50 United States Department o Justice & Police Executive Research Forum, 2011 Electronic Control

Weapon Guidelines (Washington: U.S. Department o Justice, March 2011) [hereinaer “DOJ/PERF 2011

Guidelines”], Guideline 25, 20; Maryland Attorney General’s Oce Report, supra note 48, at 3. Te

International Association o Chies o Police takes a slightly more permissive approach, suggesting that

aser use be prohibited “unless the person demonstrates an overt intention to use violence or orce againstthe ocer or others or resists detention and arrest and other alternatives to controlling them are not

reasonable or available. Te use o ECWs [electronic control weapons] against passively resistant individuals

who do not pose an immediate threat o violence to ocers or others would not normally be permitted.”

IACP Concepts and Issues Paper, supra note 12. Even judged by this standard, however, the policies we

reviewed all ar short.

51 DOJ/PERF Guidelines, supra note 5051, Guideline 26, at 20 (asers should not be authorized merely

because a suspect is feeing); Maryland Attorney General’s Oce Report, supra note 48, at 3 (same); DOJ/

PERF Guidelines, supra note 5051, Guideline 29, at 20 (asers should generally not be used on handcued

persons); Maryland Attorney General’s Oce Report, supra note 48, at 3 (same).

52 Te requent absence o actual narratives and the over-reliance on vague or undened terms such as “active

resistance” or “uncooperativeness” complicated our analysis. For example, some departments only ask anocer to tick a box labeled “Active Resistance (pulling away, striking or attempting assault).” Te confation

o “pulling away” with “attempting assault” blurs a crucial distinction – the presence o absence o an actual

risk o injury. In other instances, the ailure to provide certain details fouts established departmental policy.

53 O the policies collected and reviewed by the NYCLU, only the Suolk County Police Department and the

NYPD’s policies comport with this aspect o expert recommendations. All o these policies are available

upon request rom the NYCLU.

54 Study o Deaths Following Electro Muscular Disruption, supra note 11 at ix.

55 DOJ/PERF Guidelines, supra note 5051, Guidelines 13, 21, at 18, 20; Maryland Attorney General’s Oce

Report, supra note 48, at 4-5. In addition to these national guidelines, standards promulgated by the

Municipal Police raining Council (MPC), a department o the New York State Division o CriminalJustice Services, urge “extra caution” with consecutive aser discharges and encourages re-evaluation o the

approach aer three discharges. Municipal Police raining Council, New York State Division o Criminal

Justice Services, Recommended Guidelines or the Use o Conducted Energy Devices (Albany: New York State

Division o Criminal Justice Services, September 2009) (hereinaer “MPC Recommended Guidelines”),

Recommendation IV.I.1, IV.I.2.

56 Te exceptions are the Guilderland Police Department, which requires an independent assessment and

“elevated justication” or more than three consecutive cycles o a aser, the Monroe County Sheri’s

Department, which prohibits more than three cycles “absent exigent circumstances,” and the NYPD, which

requires an ocer to “reassess the situation” aer the rst discharge cycle, use the minimum number o cycles

necessary, and in “no situation [use] more than three (3) standard discharge cycles against any subject.

57 Such departments include the Rochester Police Department and the Saratoga Springs Police Department.

58 aser International raining Bulletin, supra note 14.

59 DOJ/PERF Guidelines, supra note 5051, Guideline 28, at 20; MPC Recommended Guidelines, supra note

55, Recommendation IV.E.2. In 2009, aser International discouraged targeting in the chest area because o

heightened risk o heart ailure. Te Maryland Attorney General’s recommendations, which were published

ollowing aser International’s announcement, include a caution against targeting the chest area, in addition

to the other areas mentioned previously. Maryland Attorney General’s Oce Report, supra note 48, at 4.





60 Tose departments are the Nassau County Police Department, the Rochester Police Department and the

Glens Falls Police Department.

61 DOJ/PERF Guidelines, supra note 5051, Guidelines 22-23, at 20; Maryland Attorney General’s Oce

Report, supra note 48, at 43; MPC Recommended Guidelines, supra note 55, Recommendation IV.H.1.

62 Six departments do require some kind o warning (the NYPD, Albany, Guilderland, Monroe, Rochester and

Syracuse), while our do not (Glens Falls, Nassau County, Saratoga Springs and Suolk County).

63 DOJ/PERF Guidelines, supra note 5051, Guidelines 16, at 16; Maryland Attorney General’s Oce Report,

supra note 48, at 5; MPC Recommended Guidelines, supra note 55, Recommendation IV.C.1, IV.C.2, IV.E.3.

64 DOJ/PERF Guidelines, supra note 5051, Guideline 27, 34, at 20-21; Maryland Attorney General’s Oce

Report, supra note 48, at 4; MPC Recommended Guidelines, supra note 55, Recommendation IV.G.

65 Maryland Attorney General’s Oce Report, supra note 48, at 4.

66 In particular, the Glens Falls, Nassau County, and Syracuse police departments’ policies provide no caution

or limitation on the use o asers on vulnerable populations.67 Te Greece and Nassau County police departments did not record the race o any o the individuals who

were asered.

68 U.S. Census Bureau, State and County Quick Facts, available at http://quickacts.census.gov/qd/

states/36/36001.html. Last visted Aug. 17. 2011.

69 DOJ/PERF Guidelines, supra note 50.

70 DOJ/PERF Guidelines, supra note 5051, Guideline 12 at 18; Maryland Attorney General’s Oce Report,

supra note 48, at 3; MPC Recommendation IV.C.1.

71 Tese departments were the Albany Police Department, Glens Falls Police Department, Nassau County

Police Department and the Saratoga Springs Police Department. Suolk County requires “periodicretraining” but does not speciy the period.

72 DOJ/PERF Guidelines, supra note 50, Guideline 3, at 17.

73 MPC Recommended Guidelines, supra note 55.

74 DOJ/PERF Guidelines, supra note 5051, Guidelines 42-50, at 22-24; Maryland Attorney General’s Oce

Report, supra note 48, at 5.

75 IACP Concepts and Issues Paper, supra note12, at 5; id. at 2 (recommending that ocers justiy in their

use-o-orce reports any instance in which “subjects are energized more than three times” or “subjects are

subjected to any energy cycle longer than 15 seconds in duration”); DOJ/PERF Guidelines, supra note 5051,

Guidelines 21, 50, at 20, 23; Maryland Attorney General’s Oce Report, supra note 48, at 57-58.

76 State o New Jersey, Oce o the Attorney General, Department o law and Public Saety, Revised Supplemental

Policy on Conducted Energy Devices, (renton: Oce o the Attorney General, Oct. 7, 2010). Available at

http://www.state.nj.us/lps/dcj/pds/NJ-OAG-Stun-Gun-Policy-10-2010.pd. Last visited Aug. 17, 2011.

77 Id.




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