TASER Electronic Control Devices (ECDs) -- Legal Update

1. TASER Electronic Control Devices (ECDs) -- Legal Update Michael Brave, Esq., M.S., C.L.S.3, C.L.E.T., C.P.S., C.S.T. National Litigation Counsel, TASER International, Inc. President, LAAW International, Inc.

2. Basics • TASER International does not create, recommend, or endorse policy. • Keep up to date – • Information overload • www.ecdlaw.info(owned by LAAW International, Inc.) • www.ipicd.com or www.incustodydeath.com • Learn the “science” not the “myths” • Constitutional standards of force history • Understand actual legal standards

3. ECD Political or Actual Risks? • Media/Special Interest Group Risks? • Outcome vs. Process • Political correctness risks? • Politically motivated risks? • Ignorance risks? • Perceptual risks? • Actual risks (informed – science/logic based)

4. What the Courts are Saying? • Torture? • How restrained is the person? • How passive is the person? • Member of “special” group? • Level of perceived risk from the person? • Lawful objective + perceived threat (physical) • Warning: lower threat = necessary warning

5. Elevated ECD Application Risk Factors • Presence of flammable liquids/fumes or explosive environments • Elevated positions • Person operating moving vehicle or machinery • Person running (fleeing) • Pregnant female (fall) • Swimming pool or other body of water • Intentional ECD application to sensitive areas • Frail or infirm individual • Perceived risk of repeated ECD applications

6. Societal perceptions/concerns creating elevated justification factors • Children • Seniors • Restrained subjects • Passive subjects who are being seized

7. Important URL Addresses • www.ecdlaw.info • Electronic Control Devices Legal Resources • www.ipicd.com or www.incustodydeath.com • Institute for the Prevention of In-Custody Deaths • Especially the • Articles page • Books page • Calendar page • IPICD Sudden Death Symposium Nov. 28-30 Las Vegas

8. Consider the Consequences? • If “You” made statements, made decisions, or took actions against a person based upon the same level of ignorance (lack of knowledge), speculation, unsupported statements, lack of proof, lack of medical or scientific support, subject to misinterpretation, rumor, bias, innuendo, argument, etc. that some media, special interest groups, and a few medical examiners have recently used in ICD cases? What would happen to “You?”

9. Questions • Should agency ECD standards be based on: • Scientifically invalid/unreliable speculation? • Media hysteria and mis-reporting? • Unsupported special interest group accusations? • Studies based on inflated standards? • ME findings lacking ECD causation evidence? • Illogical statements? • Statements exhibiting logical fallacies? • Causal oversimplification fallacy?

10. Good Science on Top of Junk Science? • 2005 Causation speculations unsupported by scientific validity resulting in ultra-conservative guidelines. • Resulted in numerous conservative guidelines: • June 14, 2005 Office of Police Complaint Commissioner • June 28, 2005 - TASER Int’l Training Bulletin/Warnings • August 22, 2005 - Canadian Police Research Center • August 2005 - IACP Model ECW Policy • October 2005 - IACP Conference (Miami, FL) • October 18-19, 2005 -PERF CED Guidelines • October 2006 - IACP Conference (Boston, MA) • Fall 2006 - FLETC Journal, Volume 4, Issue 2 • 2007 - Police Quarterly 2007, 2007, 10 (2), p. 170 • May 2007 – AELE Monthly Law Journal (FLETC)

11. June 14, 2005 – OPCC (BC) Published TASER Technology Report Respiratory Impairment/pH Changes in Multiple Applications Depending on probe location in the upper torso, it appears likely that the muscular tetany produced by a TASER deployment could impair a subject's respiration. ... [emphasis added]

12. June 14, 2005 – OPCC (BC) Published TASER Technology Report Training protocols, however, should reflect that multiple applications, particularly continuous cycling of the TASER for periods exceeding 15-20 seconds, may increase the risk to the subject and should be avoided where practical. OPCC Report, page 31. [Emphasis added.]

13. June 14, 2005 – OPCC (BC) Published TASER Technology Report Thus, the OPCC Report used key adjectives including “it appears likely,” “could,” and “may.” These statements were speculative and not based on published objective peer reviewed human medical, scientific, or engineering research.

14. June 14, 2005 – OPCC (BC) Published TASER Technology Report Also, note that with regard to a person’s experiencing excited delirium on page 31 of the OPCC Report, it states: A single TASER application made before the subject has been exhausted, followed by a restraint technique that does not impair respiration may provide the optimum outcome. OPCC Report, page 32.

15. TASER Int’l June 28, 2005 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 discharges 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.

16. August 22, 2005 CEDs, Technical Report, TR-01-02006, Canadian Police Research Centre (“CPRC Report”) The issue related to multiple CED applications and its impact on respiration, pH levels, and other associated physical effects, offers a plausible theory on the possible connection between deaths, CED use, and people exhibiting the symptoms of excited delirium. CPRC Report, page 4. [Emphasis added.]

17. August 22, 2005 CEDs, Technical Report, TR-01-02006, Canadian Police Research Centre (“CPRC Report”) Definitive research or evidence does not exist that implicates a causal relationship between the use of CEDs and death. Existing studies indicate that the risk of cardiac harm to subjects from a CED is very low. ED, although not a universally recognized medical condition, is gaining increasing acceptance as a main contributor to deaths proximal to CED use.

18. 2007-2008 Research? • NIJ Study of In-Custody Deaths • PERF Study of Agency Policies The question is – If a study is now (2007) being conducted to determine when an agency will allow an ECD to be used (what standard), however, the agencies being studied conservatively inflated the level at which an ECD could be used because of scientifically invalid speculations, then will the current study results be inappropriately based upon the unscientifically inflated standards (2005)?

19. Some Basic Realities: • 2005 to present – The hysterical attacks!!!!! • Ignorance + phobia + bias + negativity + agenda • No scientifically reliable bases for ECD causation • (a few) ME and (some) Media Errors: • Ignorance (lack of knowledge) • Lack of (even basic) understandings of: • ECDs, electricity, force • Scientific method and scientific reliability • Standards of certainty • Logical analyses and logical fallacies • The costs: “Homicide” or “Undetermined”?

20. To be an Expert? • What do you know? • Breadth and depth of knowledge? • Areas of knowledge and understanding? • A little knowledge – can be “VERY” dangerous! • Ability to explain, put forth concepts? • Misperceptions can cost lives, careers … • E.g. “Just below deadly force.” • “50,000 volts!” • Intellectual integrity?

21. Primer/Review – In-Custody DeathPrelude to Death – the Actual Causes • Hiding drugs by swallowing/ingesting • Acute drug abuse • Chronic drug abuse • Usually leading to neuro-chemistry changes • Polydrug toxicity • Long-term mental health problems • Neuroleptic drug imbalance • Over ingestion of drugs • Failure to take prescribed drugs (or abrupt cessation) • Self-inflicted injuries or death (e.g. suicide)

22. Primer/Review – In-Custody Death A “Victim” Emerges • Deceased will likely be considered a “Victim” • Someone else is always at fault • Screams for a “Victim:” • Family (inner circle) • Special Interest Groups (incl: those with agendas) • Media: • Rush to judgment – regardless of the truth or accuracy • Sensationalism and hysteria • Need for controversial headline • Inaccuracies are the norm – not the exception • Complex science and concepts – only time for sound bites

23. Primer/Review – In-Custody DeathPost Incident Onslaught • Emotion rules over logic • Panic self protection • Criticism avoidance • Anger and rage • Knee-jerk (over) reactions (appeasements?) • The importance of deflecting blame

24. Primer/Review – In-Custody DeathCausation • Often futile search for single mechanism • Disbelief, surprise, unexpected, or diversion • Ignorance (of numerous knowledge areas) • Conspiracies • PDPCT (Plaintiffs’ Deep Pocket Causation Theories) • He who has the deep pockets caused the death • He without deep pocket did not cause the harm • The “victim” is blameless

25. Primer/Review – In-Custody DeathInvestigative Needs • Need to understand science/standards • Need to understand issues/concepts • Need to collect and preserve scene • Need to accurately record incident • Need to collect all incident information • Need to collect medical histories • Need to collect drug and rehab histories • Need to timely collect deceased samples • Need to perform tests and analyses • Need to collect criminal histories

26. Primer/Review – In-Custody DeathME/Coroner – Opinion Taken as Fact Speculation Taken as Scientific Fact • Police/Device “directly caused” the death • P/D was a “direct cause” of the death • P/D was the “contributory cause” of the death • P/D was a “contributory cause” of the death • P/D was associated with the death • P/D was temporally tied to the death • P/D was listed as a descriptor to the death • P/D could not be ruled out

27. (A few) U.S. Medical Examiners Why we are here? Examples: - (IN) Borden - (OH) Holcomb (Summit County ME) - (OH) Hyde (Summit County ME)

28. Example – (IN) James BordenInvestigative Shortcomings Cause of Death Consistent with cardiac dysrhythmia Secondary to hypertrophic cardiomyopathy, pharmacologic intoxication, and electrical shock

29. Example – (IN) James Borden Excerpt from CBS Evening News with Dan Rather – Eye on America Investigation: Stun Gun Safety which aired on July 26, 2004: Dr Roland M. Kohr: “This is the straw that broke the camel’s back… The application of the TASER, I believe, was the trigger factor or the stressful event which stressed an already damaged heart to the point where it went into cardiac arrest. Wyatt Andrews: “The TASER is what triggered his heart attack…” Dr. Kohr: “Definitely.”

30. Example – (IN) James Borden Excerpt from CBS Early Show Report that aired on October 12, 2004: Dr. Roland M. Kohr: "This is the straw that broke the camel's back... The application of the TASER, I believe, was the trigger factor or the stressful event that caused an elevation of blood pressure and an elevation in heart rate which stressed an already damaged heart to the point where it went into cardiac arrest."

31. Example – (IN) James Borden Kohr’s deposition – March 3, 2005 Page 192 Line 8 to Page 192 Line 15 Q So if someone were to say that the Taser definitely caused, was a contributory cause of Mr. Borden's death, there would be no scientific, medical, or forensic basis to make that strong of an assertion, correct? A Correct. Q That would be a reckless statement? A In my opinion, yes. Page 389 Line 2 to Page 389 Line 5 Q You were asked by CBS News whether Taser was the triggering event that caused Mr. Borden's death, and you answered "Definitely," correct? A Correct.

32. Example – (IN) James BordenLegal Consequences & Costs • Deputy David Shaw – 2 Felony Counts • Law Enforcement – Intense scrutiny/criticism • Society – avalanche of anti-ECD criticism • How many officers were injured? • How many suspects needlessly injured? • How many lives/careers irreparably harmed? • TASER Int’l – Borden snowballed into a multi-year litigation avalanche

33. Example – (OH) Holcomb Cause of Death: Cardiac arrhythmia. Due to: Drug induced psychosis. Due to: (methamphetamine and MDMA/MDA0 intoxication, acute. Contributory conditions: Electrical pulse incapacitation. Manner of Death: HOMICIDE: Used drugs; Sudden death incurred during restraint.

34. Example – (OH) Holcomb July 25, 2005 ME's Media Release ... In summary: Mr. Holcomb died from the effects of methamphetamine and ecstasy which sensitized his heart to the effects of the TASER equipment that was required to subdue him. But for the drug intoxication, the use of the TASER would not have resulted in death. (emphasis added)

35. Example – (OH) Holcomb July 18, 2006 deposition of Dr. Dorothy Dean Page 106 Q Let me make sure I get the question straight then. You're unable to tell us, to a reasonable degree of medical certainty, the mechanism by which you believe, to some extent, electrical impulse is delivered by the Taser contributed to his death, correct? A That's correct, I cannot tell you.

36. Example – (OH) Holcomb Page 170 Q And so the temporal proximity is the fact upon which you rely to link the Taser to Mr. Holcomb's death, correct? A Yes.

37. Example – (OH) Holcomb Page 188 Q You indicated, in response to counsel's question, that you believe the Taser device contributed in some way. I think you've acknowledged that that "in some way" could be as low as .00000000001 percent? A Yes.

38. Example – (OH) Holcomb Page 5 Q If an event happens first and then a second event occurs some time after the first event, do you agree that that does not necessarily mean that the second event was caused by the first event? A Yes.

39. (OH) Hyde January 5, 2005 Death of Dennis S. Hyde Summit County (OH) Medical Examiner Cause of Death: Probable cardiac arrhythmia Due to: Acute methamphetamine intoxication and electrical pulse incapacitation. Contributing conditions: Psychiatric disorder with agitated behavior; Blood loss by rterial injury. Manner of Death: HOMICIDE: Sudden death occurred during restraint.

40. (OH) Hyde June 1, 2007 Deposition of George C. Sterbenz, M.D. Dennis Hyde death case P 168 Q ...And you do not contend that the TASER application was greater than even one billionth of a percent of the cause of Dennis Hyde's death because it's an indeterminate contribution, correct? A That's correct

41. (OH) Hyde Pg 170 Q … You've said that the percentage [of TASER ECD contribution to death] could be as little as a billionth of a percent. It could be even smaller than that, true? A True. Q ... And as you sit here today, do you have an opinion, to a reasonable degree of medical certainty, as to how the TASER device actually contributed in any way to Mr. Hyde's death? A No. I don't.

42. (OH) Hyde • Inflicted Force vs. Therapeutic Force? • Cause of death (to RDMP)? • Inflicted Force Contribution to death? • Manner of Death: • Homicide, • Accident, or • Undetermined? • What it means to involved officers?

43. Putting It Into Perspective The Litigation Landscape: Plaintiffs’ attempts to support speculations without scientific basis or support

44. Plaintiffs’ House of Cards • Electricaphobia! -- irrational fear of electricity … • All Electricity is the Same! And, its DANGEROUS!!!!!(ball example) • Negative Inferences and Innuendo • Abbreviated Facts + Negative Spin + Sensationalism • Sky is falling - Single Incident Equates to Broad Generality • Inappropriate Attempts at Correlations • Stretching “Causation” to the Breaking Point • Negative Emotion is more important than scientific proof • Attempting to force defense to disprove the negative • Blame Shifting - Always someone else’s fault (Plaintiff = Victim) • Causation by Deep Pocket Analysis • Just because I sued you – you should give me money!!!!!

45. Scientific Method Assessment of relevant existing knowledge of a phenomenon Formulation of concepts and propositions Statement of hypotheses or answer research questions Design research Acquire meaningful empirical data or observation data Analysis & evaluation of data Proposal of explanation of the phenomenon & statement(s) of new problems Common Sense Observation – non-scientific Bias (+ and -) Self interests View – Filtered glasses Circle of Protection In Circle – can do no wrong Fault – anyone outside circle No sampling Cause & Effect based upon the observation Erroneous Conclusions The World is “Flat” Scientific Method v. Common Sense

46. Acquiring Knowledge • Science – A process that combines the principles of rationalism with the process of empiricism, using rationalism to develop theories and empiricism to test the theories • Empiricism – gaining knowledge through observation • Rationalism – developing valid ideas using existing ideas and principles of logic (cows are black, this is a cow, this cow is black) • Mystical – knowledge from the gods, prophets, and supernatural authorities • Authority – accept the idea because it comes from a respected source • Intuition – e.g. hunches, gut feelings, accept ideas because they “feel” true • Tenacity – accepting ideas as knowledge because they have been around for a long time

47. Scientific Method – Sequential Steps • Publication • Communication phase – write a report • Interpretation phase – interpret the data • Data analysis phase – analyze the data • Methodology - Procedures designed to test the hypothesis or answer research questions • Problem definition phase • Idea generation phase – (observe & then ask questions)

48. Legal Standards - Proof: Beyond Any Doubt ---------------------------------------------------- 95% Beyond Reasonable Doubt 75% Clear & Convincing 51% By a Preponderance More likely than not 49% Probable Cause 35% Reasonable Suspicion ---------------------------------------------------- Mere Suspicion Hunch Random Wishful Thinking Begging Scientific Standards: (Scientific Certainty) Law Theory Model, Paradigm Constructs (Concept) Inference Observation Idea (Thought) Speculation Consider -- Where on the scale(s)?

49. Wilful & Wanton Purposeful Intentional Knowingly Reckless Disregard Deliberately Deliberate Indifference Gross Negligence Negligence Carelessly Due Regard Strict Liability Legal Standards of Care:

50. Common Words – Frequency or Foreseeability • "Absolute" - without exception, law • "Always" - at all times • “Certain” – a fact that is true or an event that is definitely going to take place • "Frequent" - ordinary, common • “Probable” – almost certainty, as far as one knows or can tell • “Likely” - probable” or “as likely as not probably • “Unusual” - not habitually or commonly occurring • "Maybe"- perhaps, possibly, perchance • "Unlikely" not likely, improbable, has little chance of being the case or coming about • “Freak” – a very unusual and unexpected event • “Unexpected” - not likely to happen • "Rare" - uncommon, infrequent, occurring very infrequently • "Could" - may , might, have the possibility • "Conceivable" - capable of being imagine or understood • "Plausible" - seeming reasonable or probable, appearing to merit belief or acceptance • “Conjecture” - an opinion or conclusion based on incomplete information; a guess • “Guess” - suppose (something) without sufficient information to be sure of being correct • “Speculation” - based on conjecture rather than knowledge • "Never" - not ever