Investigative Lessons Learned from Temporal Deaths Associated with 4th Amendment Seizures

1. Investigative Lessons Learnedfrom Temporal Deaths Associatedwith 4th Amendment Seizures Michael Brave, Esq., M.S., B.S. National/International Litigation Counsel, TASER International, Inc. Member/Manager, LAAW International, LLC Email – brave@laaw.com Telephone – (651) 248-2809 E-fax – (480) 275-3291 ECD Legal Resources Website – www.ecdlaw.info ICD Resources – www.incustodydeath.com

2. www.ecdlaw.info • I am not picking on anyone. • I have never seen what I consider even a very good such death investigation. • They are so rare we have to learn from what others have done, or failed to do, in the past. • Since the early 1990s I have looked at hundreds of such incidents or cases. • < 1 per career

3. Changing presentation gears(Dr. Mash)

4. Changing Presentation Gears as Dr. Mash said – there will be more CEW electrical effect on heart deaths – due to the literature – why?????

5. Zipes’ “Case Series” May 22, 2012

6. Logical Fallacies: • Aggrandizement: (Zipes 2012) “It is clear from the information cited above that an ECD shock to the chest can produce cardiac electrical capture at rapid rates in animals and humans.” (emphasis added) • Circular Reasoning: (Zipes, 2012) "Although it is possible that body size might influence cardiac capture and development of VF, clearly big people can still develop VF from an ECD shock (see the Table).“ (largest 220 pounds) What does this mean?

7. Circular Junk Science example

8. Circular Junk Science Example:(Zipes 2012) "The concept of cardiac capture by transthoracic electrical impulses in humans was pioneered by Zoll,8 replicated by many others subsequently,9 and is now a standard part of resuscitative equipment. The threshold for transthoracic cardiac electrical capture is 100 microcoulombs,10 which is the output of the TASER model X26.1

9. Circular Junk Science Example:(Zipes 2012) • The concept of cardiac capture by transthoracic electrical impulses in humans was pioneered by Zoll,8 • replicated by many others subsequently,9 and • is now a standard part of resuscitative equipment. • The threshold for transthoracic cardiac electrical capture is 100 microcoulombs,10 • which is the output of the TASER X26.1

10. Perceptions from Zipes Case Series: • Is “cardiac capture” dangerous? • What is the electrical charge necessary for transthoracic cardiac capture? • What is the electrical charge delivered by a TASER X26 CEW? • Thus, does scientific literature establish that an X26 CEW causes cardiac capture? • Thus, does this establish that an X26 CEW causes death by direct electrical stimulation of the heart?

11. Myerburg Editorial May 22, 2013

12. Circular Junk Science Example:(Myerburg Editorial (Zipes 2012) "Both clinical concepts and experimental data support this and are well summarized in Zipes’ discussion.2 The most salient points are that the energy delivered by the device is sufficient to achieve transthoracic capture when delivered to the anterior chest, analogous to clinical transthoracic pacing,7 in combination with a rate of stimulation that is sufficient to induce ventricular fibrillation."

13. Circular Junk Science Example:(Myerburg Editorial (Zipes 2012) • Both clinical concepts and experimental data support this and are well summarized in Zipes’ discussion.2 • The most salient points are that the energy delivered by the device is sufficient to achieve transthoracic capture when delivered to the anterior chest, analogous to clinical transthoracic pacing,7 • in combination with a rate of stimulation that is sufficient to induce ventricular fibrillation.

14. Perceptions from Zipes/Myerburg: • Is “cardiac capture” dangerous? • What is the electrical charge necessary for transthoracic cardiac capture? • What is the electrical charge delivered by a TASER X26 CEW? • Thus, does scientific literature establish that an X26 CEW causes cardiac capture? • Thus, does this establish that an X26 CEW causes death by direct electrical stimulation of the heart?

15. Circular Junk Science Example:(Zipes 2012) • The concept of cardiac capture by transthoracic electrical impulses in humans was pioneered by Zoll,8 EN 8 - Falk RH, Zoll PM, Zoll RH. Safety and efficacy of noninvasive cardiac pacing: a preliminary report. N Engl J Med. 1983;309:1166 –1168.

16. Circular Junk Science Example:(Zipes 2012) 2. replicated by many others subsequently,9 EN 9 - Klein LS, Miles WM, Heger JJ, Zipes DP. Transcutaneous pacing: patient tolerance, strength-interval relations, and feasibility for programmed electrical stimulation. Am J Cardiol. 1988;62:1126 –1129.

17. Circular Junk Science Example:(Zipes 2012) EN 9 – Klein LS … Zipes DP 1988 Also, the 1988 Klein paper (their Fig. 2) showed that it took another 20 mA (milliamperes) (= 800 µC) to get more rapid pacing similar to that attainable with an internal pacemaker. And, this was at a pacing rate still far slower than the rate required or necessary to induce ventricular fibrillation (VF).

18. Circular Junk Science Example:(Zipes 2012) 3. is now a standard part of resuscitative equipment.

19. Circular Junk Science Example:(Zipes 2012) 4. The threshold for transthoracic cardiac electrical capture is 100 microcoulombs,10 EN 10 - Grimnes S, Martinsen OG. Clinical applications of bioelectricity. In: Biomedical Engineering Desk Reference. 1st ed. New York, NY: Elsevier; 2009:241–382.

20. Circular Junk Science Example:(Zipes 2012) EN 10 – Grimnes In the 1964 Zoll paper, cited in the Grimnes treatise, statement that the researchers used “long subcutaneous precordial needles” (emphasis added) references endnote 4 (of the 1964 Zoll paper). Endnote 4 is: Zoll, P. M., H.A, Frankl,. R.N. Zarskya, J. Linenthal & A.H. Belgard. 1961. Long-term electric stimulation of the heart for Stokes-Adam disease. Ann. Surg. 154: 330.

21. Circular Junk Science Example:(Zipes 2012) 5. which is the output of the TASER X26.1 EN 1 - Test results for the Model X26 conducted energy weapon (CEW) in accordance with TASER International device specifications. April 22, 2009. Report A85R9006/9031/9059B1.

22. Circular Junk Science Example:(Myerburg Editorial (Zipes 2012) The mot salient points are that the energy delivered by the device is sufficient to achieve transthoracic capture when delivered to the anterior chest, analogous to clinical transthoracic pacing,7 EN 7 - Falk RH, Zoll PM, Zoll RH. Safety and efficacy of noninvasive cardiac pacing. A preliminary report. N Engl J Med Sci. 1983;309:1166 –1168.

23. Circular Junk Science Example: Zipes: EN 8 - Falk (1983) EN 9 – Klein, Zipes (1988) - for higher capture rate EN 10 – Grimnes (Zoll) EN 1 – TASER X26 Myerburg: EN 8 – Falk (1983) MINIMUM Pacing Tresholds 1,680-3,200 µC 1,800-4,000 µC + 800 µC “long precordial needles” 100 µC 1,680-3,200 µC

24. Perceptions from Zipes/Myerburg: • Is “cardiac capture” dangerous? • What is the electrical charge necessary for transthoracic cardiac capture? • What is the electrical charge delivered by a TASER X26 CEW? • Thus, does scientific literature establish that an X26 CEW causes cardiac capture? • Thus, does this establish that an X26 CEW causes death by direct electrical stimulation of the heart?

25. Circular Junk Science Example: Falk (1983), Klein/Zipes (1988), Grimnes/Zoll: - MINIMUM “HARMLESS” capture thresholds - NO dangerous capture rates - NO VF or cardiac arrest (NO one died) Pediatric transthoracic capture threshold: - 1,160–3,920 µC - 53 of 56 patients (ages 0.9–17.9 years) resulted in successful capture Transcutaneous Cardiac Capture to VF Safety Margins: - 12.6 ± 2.9 times or 1,260 %

26. Pyramid of science“case series”

27. Circular Junk Science Example:(Zipes 2012) • Zipes 2012 “case series” In no death incident did the medical examiner (ME) determine that the cause of death was direct CEW electrical stimulation of the heart. • Inappropriately aggrandize “case series” to methodologically reliable science • Some MEs now use Zipes’ case series as their support for concluding CEW electrically induced cardiac arrest

28. Case Series Not Reliable for Causation(the Pyramid of Science)

29. Case Series Not Reliable for Causation “Case series generally provide weak evidence of causality because they are particularly prone to bias and confounding.” In the hierarchy of scientific evidence, a case series has very important weaknesses, including: "[l]ack of comparison group markedly limits conclusions about causality" and "[r]isk, incidence, prevalence cannot be ascertained"

30. Show human pdf

31. CEW DTH Distance ≤ 16.7 mm May 24, 2012 Zipes’ deposition (pgs 159-160) 24 Q … can you state to a reasonable degree of • certainty that any dart-to-heart distance greater • that 16.7 millimeters can cause low rate cardiac • capture in humans? • A I have no data. I can't state one way or another.

32. First Need Cardiac Capture May 24, 2012 Zipes deposition (pgs 164-165) 21 Q When we left, we were talking about cardiac capture. 22 Just to be clear, the first element or factor 23 necessary in order to have cardiac effect on a human 24 being from the stimulation by a TASER electronic 25 control device is cardiac capture, correct? 165 1 A Yes.

35. Logical Fallacies: • Inappropriate Analytical Leaps "In 1 example, intravenous epinephrine in an anesthetized pig, infused at a concentration that increased the spontaneous sinus rate 50% to replicate the clinical “fight or flight” situation, improved the TASER model X26 electrical capture ratio from 3:1 to 2:1 and resulted in VF induction.12“ [Zipes, D.P. 1975. Electrophysiological Mechanisms Involved in Ventricular Fibrillation. Supplement III to Circulation, Vols. 51 and 52, December, 1975, pages III-120 - III-300.] - (Epinephrine initially decreased VFT, then increased VFT. )

36. Show 220 pound subject pdf

37. Temporal Deaths Associatedwith 4th Amendment Seizures:How Much Risk is Acceptable? What probability of risk is acceptable? • Criminal prosecution • Justified civil lawsuit • Money • Political • Community What is the definition of “zero?” How much effort, time, resources, money will be put into the death investigation?

38. Investigative realities

39. Investigation Realities: • Frequency: < 1 per career • Cannot identify issues • Do not access literature • Mis-assumes all literature is equally reliable • Do not know what to look for • Investigative bias/fallacies • Do not know importance of capturing certain information/evidence • Failure to capture, maintain evidence • False evidence

40. Investigation Realities: • Evidence errors (ambiguous, vague, transcription, bad questions) • Failure to clear conflicting evidence • Do not know the universe of possibilities • Does not understand/clearly state certainty • Do not know how to filter in/out specific possibilities • Do not know the literature • Do not know the underlying scientific principles, foundational concepts

41. Start With a Couple Key Points • Once in a career, or less • Understand the risks faced today (including CRM/DOJ) • Use radio to clearly time stamp key events • Understand that without clear video/audio recordings courts are usually required to view facts from subject’s perspective • Understand that some judges will interpret facts of case through their eyes, not yours • Understand importance of reporting, investigation, documentation, and spoliation of evidence • Understand differences between “possible,” “potential,” and “probable”(4th Amendment force justification)

42. Investigation Basics: • Purpose of Investigation? • Who will investigate? • Who will be involved/included in investigated? • Who is the investigation for? • What should the investigation do/allow? • Who will make decisions based upon the investigation?

43. What are the numbers

44. Estimates: Law EnforcementEncounters, Arrests, Force, Deaths [1] Snyder, H.N., Arrest in the United States, 1990-2010. Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice. October 2012, NCJ 239423.

45. Law Enforcement Officer (LEO) Temporal Related Deaths Per Category Summary Table

46. Estimates: Temporal Arrest–Related Deathsper Uses of Force [1] Hall, C. 2013. RESTRAINT . Canadian Police Research Centre, Canadian Safety and Security Program, Government of Canada. October 2013. [2] Hall, C.A., McHale, A., Kader, A.S., Stewart, L.C., MacCarthy, C.S., Fick, G.H. 2012. Incidence and outcome of prone positioning following police use of force in a prospective, consecutive cohort of subjects. Journal of Forensic and Legal Medicine xxx (2012) 1–7. [3] Strote J, Walsh M, Angelidis M, Basta A, Hutson HR., Conducted electrical weapon use by law enforcement: an evaluation of safety and injury, J Trauma. May 2010; 68(5):1239–1246. [4] Bozeman, W.P., Hauda, W.E., Heck, J.J., Graham, D.D., Martin B.P., Winslow, J.E. 2009. Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officers Against Criminal Suspects. Annals of Emergency Medicine. Volume 53, Issue 4, Pages 480-489, April 2009. [5] Eastman, A.L., et al., Conductive electrical deces: a prospective, population-based study of the medical safety of law enforcement use, J Trauma, 2008, 64(6): p. 1567–72. [6] Steven A. Koehler, MPH, PhD, et. al., Deaths Among Criminal Suspects, Law Enforcement Officers, Civilians, and Prison Inmates: A Coroner-Based Study, The American Journal of Forensic Medicine and Pathology, pages 334–338, Volume 24, Number 4, December 2003.

47. 2013 Basic Numbers Importance of putting issues and outcomes into perspective

48. Some Basic Numbers (Law Enforcement)(percentage of populations (approximate numbers with different years of analyses)) Who law enforcement encounters (population %): • 4.3 % (1:23) DUI illicit drugs (of age 16+ population) • 8.7 % (1:11.5) Current Illicit Drug Users (of age 12+ population) • 8.9 % (1:11.2) Classified with substance dependence or abuse in past year based on DSM-IV criteria • 10.9 % (1:9.2) In Serious Psychological Distress (“SPD”) Law enforcement numbers (percentages): • 17.0 % of U.S. population had LEO Face-to-Face (“FtF”) encounters (annually) • 1.4 % of LEO FtF encounters involved LEO threaten/use force • 2.1 % of LEO arrests involved LEO’s use of weapon • 19.0 % of LEO force recipients reported injuries • 75.0 % of force recipients felt LEO’s force was excessive

49. Some Basic Numbers (Deaths) • 1.6 deaths per 100 hospital ER admissions (weekdays) • 1.8 deaths per 100 hospital ER admissions (weekends) • 1 death per 126 people in U.S. population (annually 2009) • 1 death per 323 LEOs’ uses of weapons • 1 death per 600 LEOs’ uses of pepper spray • 1 death per 700 persons jailed • 1 Sudden Cardiac Death (“SCD”) per year: • 1,282 NCAA basketball black male athletes • 3,126 NCAA basketball all Division I male athletes • 1 death per 5,521 LEOs (annually) • 1 death per 7,692 Military recruit-years (non-traumatic) • 1 death per 15,385 arrests

50. Some Basic Numbers(of deaths annually (2009)) 2009 - US Population Death/Mortality Numbers: • 1 death per 126 people in the population • 2009: 307,006,550 people ÷ 2,436,682 deaths = 125.9937 2009 - Of those 2,436,682 deaths: • 1 death for every 18.81 people who died was caused by drugs, suicide, firearms, or alcohol • 1 death for every 65 people who died was caused by drugs (37,485 drug deaths)