I suppose it’s unsurprising that criminal defense lawyers and plaintiff’s lawyers would all have concerns about the use of Tasers — the Taser victims and their family members end up in our offices — but even prosecutors and municipal and state defense lawyers (speaking off the record, of course) express dismay at the frequency and manner in which Tasers are used.
By Amnesty International’s count, since 2001 over 500 people have died in the US as a result of Taser use. Police departments have just begun admitting there’s a problem.Cincinnati’s police chief has admitted Tasers can kill. Seattle won dismissal of the civil rights claims in a case case where they Tasered a pregnant woman for refusing to sign a speeding ticket and, rather than crowing over their victory, said they had already changed their policy. It’s a start; as I’ve discussed before, the tendency of police departments to move from zealous law enforcement to brutality is all too common.
Alas, if you’re a criminal defense lawyer or a civil rights lawyer, then you instinctively rolled your eyes the moment you read the phrase “changed their policy.” To what? Do these new policies treat Tasers the way they should be treated — given the studies confirming real risks of heart attacks and skull fractures — as a means of last resort, literally a substitute for a bullet, instead of a more convenient means of obtaining compliance? Or do these new policies merely warn about “extended or repeated Taser exposure” — which some police officers will gladly read as including more than a minute of tasing, and dozens of shocks — with an all-purpose exception for “active resistance,” so the police officers can always claim the suspect was “actively resisting” and thereby comply with the Potemkin policy?
Which brings us to the point of this post. So, you’re a plaintiff’s lawyer, and a client (or their survivor) has just come in after a tasing incident. Now what?
There are three main claims you could bring: (1) excessive force civil rights claims against the cops; (2) a Monell practice or policy claim against the police department; and, (3) a products liability claim in strict liability or negligence against Taser International itself.
Excessive force claims (of all types, not just Tasers) are common; they’re disfavored by federal courts that are a bit too keen on summary judgment, but they’re typically inexpensive to litigate and can provide for attorney’s fees if successful, which is important because the verdicts and settlements are typically fairly low unless the client is brain damaged, paralyzed, or deceased. The real art is in distinguishing strong claims from merely meritorious ones in effectively conveying your own client’s version of events while undermining the police officer’s undoubtedly different version, and in grappling with the tendency of many jurors to believe your client got what was coming to them.
Monell claims are also tough. Courts rarely let any type of civil rights claim get to a jury, and courts are even more strict on Monell claims. There’s little harm in alleging them in the complaint, but get moving in discovery to back them up — and if you can’t back them up, know when to fold them and stop wasting everyone’s time. Truth is, Monell claims are generally not the province of generalist personal injury lawyers doing an occasional police brutality or wrongful prosecution case, they’re more for civil rights and public interest lawyers who have repeatedly seen the same problem and so already have the inside knowledge needed to back up the claims.
Finally, product liability lawsuits in general are not for the faint of heart nor plaintiff’s lawyers on shoestring budgets, and lawsuits directly against Taser International are no exception. Consider this: Taser won the first 60 product liability lawsuits filed against it, going back to the early 1990s, then finally lost one in 2008. Similarly, like with most product liability claims, plaintiffs’ firms should expect to pay $100,000 in costs just to get to a jury and should have the wherewithal to pay $250,000 on a single risky case. Needless to say, that means Taser product liability suits tend to make sense only when your client has been catastrophically injured or when your suit is on behalf of survivors. Study the Fontenot and Rich cases below; if you don’t have a case like that — e.g., a client who died from a heart attack after being tasered in the chest by a cop taught by Taser to go for “center of mass” — then consider forgoing the product liability claim because it’ll just chew up your time and money, reduce the recovery for your client, and create bad law for the rest of us. If you have a case like that but don’t have the ability to prepare or to fund it, refer it to someone who can.
Now, on to the law.
I. The Excessive Force Claim Against The Police Officers Directly
Despite Kozinski’s loud dissent, Taser claims aren’t any different from typical civil rights claims alleging excessive force force in the context of an arrest or seizure under Graham v. Connor, 490 U.S. 386, 394 (1989), the “objective reasonableness” standard. Determining whether the force used was reasonable requires a balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake,” including factors like (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. The Taser doesn’t change that analysis; pre-existing Graham case law holds that all use of force, deadly or not, is evaluated under that standard.
There are about a billion cases out there interpreting Graham. Check your local Court of Appeals for details. There are a couple situations in which the use of force, including taser use (unless prolonged or repeated after the resistance has stopped) will pass muster as a matter of law, see, e.g., Russo v. City of Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir. 1992)(threatening someone with a weapon); Hinton v. City of Elwood, 997 F.2d 774, 776–77 (10th Cir. 1993)(attacking officers); Draper v. Reynolds, 369 F.3d 1270, 1276-77 (11th Cir. 2004)(same); Buckley v. Haddock, 292 F. App’x 791, 794-95 (11th Cir. 2008)(posing a risk to themselves or others). Case selection is key: the mere use of a Taser isn’t enough, it needs to be excessive.
If you’ve already filed the case on behalf of the taser victim and need to respond to a motion for summary judgment, I like this recent language from a non-precedential Ninth Circuit opinion, because it involves the common situation of tasing continuing after the suspect has been restrained:
A jury could, however, reasonably conclude that the officers used excessive force in tasing Keith and applying their body pressure to restrain him after he was handcuffed and face down on a bed. Although the officers testified that Keith continued to threaten their safety even after he was handcuffed, and that they exercised considerable restraint in their use of force, the district court accurately identified significant discrepancies and omissions in their respective accounts of the altercation. A jury, after hearing live testimony and cross-examination, might therefore discredit the officers’ testimony and conclude that, in light of the degree of danger Keith posed once handcuffed, if any, and other pertinent circumstances (including Keith’s apparent physical and mental state at the time), the degree of force used was excessive.
Tucker v. Las Vegas Metro. Police Dep’t, No. 09-17141, 2012 U.S. App. LEXIS 4341, at *5 (9th Cir. Mar. 2, 2012)(affirming denial of summary judgment in police brutality case).
II. The Monell Practice or Policy Claim Against the Police Department.
For reasons that make sense to constitutional scholars, federal appellate judges, and nobody else, there’s an entirely separate analysis for suing police officers for what they do as part of their job and suing police departments for what police officers do, and so the claim against a police department, municipality, or county falls under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978). To prevail, you need to show a pattern, police or practice of intentionally violating constitutional rights.
As most civil rights lawyers know, these claims are even harder to win than the direct claims against the police officers themselves. Under the most generous standard, you still have to show the government entity was “deliberately indifferent” to the plaintiff’s rights in failing to train police officers properly. Unsurprisingly, almost any policy put together by the police department — even if it’s just a paper policy that is routinely violated in practice — suffices to get these claims dismissed. That shouldn’t be the case, but it often is; unless you can marshal a fair amount of evidence to clearly show the department tolerated violations of their written policies, it’s not going anywhere. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)(“The undisputed facts show that the county trained jailers to use tasers only if and when an inmate should become violent, combative, and pose a direct threat to the security of staff.”); Smith v. City of Akron (6th Cir. 2012)(dismissing Monell claim that training and supervision were inaccurate even where the arresting officers “did not follow the city’s taser manual,” were the subject of complaints by other arrestees, and where the improper arrest and taser usage “occurred on Miles’s first day on the job, immediately after he completed his police academy training”).
Start out with an obvious question: where did the incident occur? California, Florida, Texas, Ohio, North Carolina, Louisiana and New York account for half of the taser-related deaths in the U.S. Maricopa county has a big problem, too (no surprise). That’s where the departments all have ample notice of dangerous policies; in other areas, it will be much harder to show ineffective policies because you’re less likely to have multiple similar incidents.
III. The Product Liability Claims Against Taser International.
It sounds like such an easy product liability claim: Taser International makes a product that quite literally kills people, but advertises it as “safe.” (TASER, by the way, is an acronym for “Thomas A. Swift’s Electric Rifle,” a reference to a Tom Swift adventure novel published in 1911.) Taser smartly cleaned up the “non-lethal” language and now sticks with the dubious puffery of “less lethal weapons,” which I suppose would apply to anything short of a nuclear missile. As the Taser blog cheerfully announces:
A stun gun only affects the nervous system (OUCH!) while a TASER ECD when deployed in probe mode affects the nervous system & the muscular system (OUCH & INCAPACITATION!)
Left unsaid is that in addition to “ouch,” Tasers also often produce sudden cardiac arrest and death and hit with such force they can penetrate the skull and enter the brain, both of which are a bit more than “OUCH & INCAPACITATION.” Whether styled as strict liability or negligence, the case is going to come down to a failure-to-warn, i.e., Taser failed to warn the police department of the risks of using the Taser.
But products liability actions always appear far easier to prove than they really are. In many ways, Taser cases are most analogous to vehicle crashworthiness cases; the product only comes into question because of something going terribly, terribly wrong. Like crashworthiness cases, Taser cases begin with serious questions of causation. When it wins, Taser typically wins the product liability cases won on issues of causation, challenging whether the electrical charge caused the plaintiff’s cardiac injury / death and whether a better warning by Taser would have changed the cop’s actions.
On the medical causation issue, choice of experts is critical. A pathologist alone may not cut it. Neal-Lomax v. Las Vegas Metro. Police Dep’t, 371 Fed. Appx. 752, 752 (9th Cir. 2010). Similarly, a pathologist merely stating the tasing made “excited delirium” due to methamphetamines worse may not cut it, either. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1304 (11th Cir. 2009). (Notably, plaintiff subsequently produced a report identifying electrocution and acidosis as the cause of death, but the court rejected it as untimely.) You want “a board-certified cardiologist with extensive experience in the field of cardiac electrophysiology [and a] board-certified medical examiner … who has performed thousands of autopsies … to testify regarding the effects of the M26 TASER device on Heston’s body and the ultimate causes of his death. ” Heston v. Taser Int’l., Inc., 431 Fed. Appx. 586, 588 (9th Cir. 2011).
Ideally, you’ll get Dr. Zipes himself, author of that recent heart attack study, “a foremost authority on electrophysiology … on the editorial board of more than fifteen cardiology journals …” Rich v. Taser Int’l, Inc., 2012 U.S. Dist. LEXIS 44584, at *16–18 (D. Nev. Mar. 30, 2012). As he says:
In his report prepared for this case, Dr. Zipes opines that ‘to a high degree of medical certainty, the electrical impulses from a Model X26 electrical control device (ECD) manufactured by defendant TASER International, Inc. (TASER) caused the cardiac arrest, and therefore the death, of 33-year-old Ryan Rich, M.D., on January 4, 2008.’ More specifically, ‘[a] TASER Model X26 discharge can cause cardiac arrest by capturing the cardiac rhythm at very rapid rates and precipitating ventricular tachycardia or ventricular fibrillation, as shown in animal testing and human reports.’
Id.; see also Fontenot v. Taser Int’l, Inc., 2012 U.S. Dist. LEXIS 55699, at *19–20 (W.D.N.C. Apr. 20, 2012)(Dr. Zipes testifying that TASER’s ECD captured a pig’s heart rate in 24 of 25 five-second shock tests where the probes hit the animal’s chest.) As Excited Delirium explains, the big problem with the X26 is the waveform it uses, which more easily “captures” the heart beat.
It’s worth noting what Taser’s response is to this evidence: “TASER argues that only a test on humans could be used to determine whether their product could cause ventricular fibrillation.” The Fontenot rightly rejected that, noting that such “testing” would be hopelessly unethical and illegal, and noting, inter alia, “For further human case studies, TASER need look no further than the unfortunate facts surrounding Turner’s death. SeeWilson v. City of Lafayette, Nos. 07-cv-1844, 07-cv-2248, 2010 U.S. Dist. LEXIS 30457, 2010 WL 1291518, at *4 (D. Colo. Mar. 29, 2010) (holding that the jury may properly consider what happened to the plaintiff upon the discharge of TASER’s ECD in its causation analysis).” Id.
Update: After I posted this blog, the 9th Circuit held that, at least as of 2004, there was inadequate scientific evidence to put TASER on notice that repeated Taser uses could lead to metabolic acidosis. As I mentioned above, I think the heart attack cases are far stronger product liability than the metabolic acidosis cases. In 2009, Taser added a warning about “changes in acidosis” and instructed police officers to minimize exposure, so post-2009 metabolic acidosis cases are thus strong claims against the cops and the police department, but likely won’t succeed against Taser.
On the failure to warn and adequately train issue, that’s where the details of the case matter the most. The police officer needs to have used the Taser in a manner that caused the plaintiff’s injury and was consistent with the Taser training and manual. If the officer’s use was inconsistent with the manual, then that can support the direct constitutional claim against them. (Side note: although the design of the Taser to replicate the size, shape and feel of a gun causes many accidental shootings, these “mis-draw” claims are better as civil rights claims against the police, and they don’t hold up as product liability claims because the Taser was not “used” to cause the injury. Torres v. Taser Int’l, Inc., 277 Fed. Appx. 684, 687 (9th Cir. 2008)(where police officer drew firearm believing it was a Taser, court rejected claim Taser should have warned about “an alleged danger or risk of weapons confusion between the M26 and a firearm”).
Both causation and the adequacy of the warning should be an issue for the jury but federal courts strictly consider them both, and sometimes even fault plaintiff for not having an expert. Patterson v. Taser Int’l, Inc., 2011 U.S. Dist. LEXIS 88346, at *7 (N.D. Miss. Aug. 9, 2011)(“None of Plaintiff’s proposed expert testimony supports a claim for inadequate warnings.”); cf. Rich v. Taser Int’l, Inc., 2012 U.S. Dist. LEXIS 44584, at *13–16 (D. Nev. Mar. 30, 2012)(rejecting testimony of “a nationally recognized expert on product warnings and safety [with] a B.A. in Psychology, an M.A. in Human Experimental Psychology, a Ph.D. in Human Factors Psychology” because adequacy of the warning was an issue for the jury).
Moreover, in June 2005, Taser issued an important training bulletin, “Restraint During TASER System Application,” that to address “a training issue where arrest teams are avoiding touching the subject during the TASER device application.” Id. The bulletin noted:
It is important to emphasize that arrest teams can handle the subject during a TASER device application. … Repeated, prolonged, and/or continuous exposure(s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple charges whenever practicable in order to minimize the potential for over-exertion of the subject or potential impairment of full ability to breathe over a protracted time period. … Particularly when dealing with persons showing symptoms of excited delirium, use of the TASER system should be combined with physical restraint techniques to minimize the total duration of the struggle and minimize the total duration of TASER system stimulation.
Taser product liability claims have been dismissed on the grounds that this warning is adequate as a matter of law for many situations. Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 Fed. Appx. 435, 442–443 (6th Cir. 2011)(affirming summary judgment in favor of Taser International).
But note what’s not in the warning: any suggestion of causing a heart attack, and any warning to officers not to aim for the center of mass because it will put the electrodes close to the heart. Indeed, many of Taser’s materials “teach officers to aim for the ‘center of mass’ and depicted chest shots as examples,” and the shooting officer will often recall being taught to aim for the chest and being told that shots aimed at animal’s chests in experiments were safe. Fontenot v. Taser Int’l, Inc., 2012 U.S. Dist. LEXIS 55699, at *21–22 (W.D.N.C. Apr. 20, 2012)(denying summary judgment on warning grounds). That’s where to aim your claims. As the Rich court held,
A reasonable jury could conclude that they do not adequately warn of the specific risk of cardiac arrest and death, or that they do not adequately advise of the risk of aiming at a target’s chest. A reasonable jury could likewise conclude that these warnings are not of sufficient intensity given the magnitude of the risk. Further, while other training materials also recommend that a user consider targeting the waist area, Officer Lazoff testified, as noted above, that he was instructed to aim at the chest area, and a reasonable jury could conclude that users should have been explicitly advised to avoid the chest area.
Rich v. Taser Int’l, Inc., 2012 U.S. Dist. LEXIS 44584, at *26–30 (D. Nev. Mar. 30, 2012).
By and large, most Taser usage across the United States do not give rise to viable civil rights lawsuits, because they weren’t excessive under the law, because the plaintiff will not be able to successfully dispute the police officers (truthful or otherwise) claim that they were “actively resisting,” or because the plaintiff has minimal damages. For the cases that do give rise to a claim, excessive force and Monell claims should be plead virtually every time, then a thorough discovery record should be built for both claims — civil rights claims aren’t like car accidents where a mere “I recall the light being green” will get you to a jury — but product liability suits should generally be avoided unless you have a case involving a heart attack from a chest shot, or a case where you can find the police officer’s training materials and they show something unsafe, like failing to warn against prolonged or repeated shocks.