Less Lethal Issues in Law Enforcement
with Capt. Greg Meyer (ret.)
A closer look at the AMA's CED report
In a well-meaning but flawed report, the American Medical Association (AMA) has taken on tactics and other issues related to the use of CEDs (such as the TASER). Let’s look at the strengths and weaknesses of the report.
In its Second Supplemental Report (June 2009) a “Report of the Council on Science and Public Health” reported, “Use of TASERs by Law Enforcement Agencies (Resolution 401, A-08) [CSAPH Report 6-A-09]. You may read the full report here.
The CSAPH resolution to the AMA summarized and concluded (on page 9) in part:
Concerns about the use of CEDs [Conducted Energy Devices, like the TASER] fall into three general areas: (1) they are used too frequently and at lower levels on the use-of-force continuum than indicated; (2) appropriate training and supervision of CED use is lacking in some jurisdictions; and (3) CEDs may contribute to the death of suspects, either directly or indirectly.
CEDs have a role to play in law enforcement and prudent use can save lives during interventions that would otherwise involve the use of deadly force. If deployed according to an appropriate use-of-force policy, and used in conjunction with a medically driven quality assurance process, TASER use by law enforcement officers appears to be a safe and effective tool to place uncooperative or combative subjects into custody. Treating CEDs as “only a substitute for deadly force, would endanger officers and negate the benefit that has been demonstrated” [quoting the 2008 Rand Corporation study for the New York Police Department]. Training protocols should emphasize that multiple activations and continuous cycling of CEDs appear to increase the risk of death or serious injury [quoting the controversial Police Executive Research Forum guidelines from 2005]. . . .
Ongoing issues include: (1) the need for clear usage guidelines, including restrictions on the application of multiple discharges; (2) an appreciation of the potential risks of injury and death associated with CED use and the gaps in knowledge about potential factors that affect the relative safety of deployment, and the risks of sudden death after exposure and physical restraint; (3) the need for independent peer-reviewed research into the safety (and usefulness) of CEDs in field applications; and (4) the need to establish a more comprehensive national database of in-custody deaths.
Much of the above seems quite reasonable. It is also noteworthy (and important that that the CSAPH report recognizes (on page 6) that:
“...'excited delirium' is a widely accepted entity in forensic pathology and is cited by medical examiners to explain the sudden in-custody deaths of individuals who are combative and in a highly agitated state.”
However, it is also noteworthy that there are several deficiencies in the CSAPH report, in the form of myths and misinformation. I quote from the CSAPH report, and offer my rebuttal on each point:
p. 2—The design of CEDs, especially TASERs, has evolved over the last 20 years. Early versions of CEDs (e.g., stun guns) did not incapacitate subjects, and primarily attempted to achieve compliance through the infliction of pain.
REBUTTAL: Conducted Energy Device (CED) technology has actually evolved over the course of 40 years (since 1969), not 20 years. Twenty years ago, CEDs (including TASERs, Nova, Ultron, and other devices) had been in use by hundreds of American law enforcement agencies for approximately a decade.
Also, early TASERs were not “stun guns” that primarily rely on the infliction of pain (“pain compliance”), rather they were neuromuscular incapacitation devices. Many of the early TASERs did in fact provide neuromuscular incapacitation, not just infliction of pain. I have much personal experience using “early” TASERs on people 15-30 years ago and observing others use TASERs on people in both field and training environments, and neuromuscular incapacitation was the typical result.
p. 3—Police officers are legally and morally required to use the lowest level of force necessary to control a situation and to deescalate at the earliest opportunity.
REBUTTAL: That passage misstates the law of the land. The United States Supreme Court’s landmark ruling 20 years ago established that the test of legitimacy of a police use of force is whether the force used was “objectively reasonable” under the 4th Amendment to the Constitution of the United States (see Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865). Officers are provided great latitude in what force options are appropriate to use to attempt to overcome resistance in a given situation, and they are not required to use the lowest level of force.
p. 3—Use-of-force policies are based on a continuum that provides various recommended options when encountering a subject based on the subject’s actions and the officer’s perception of the situation...A model (continuum) for use-of-force options has been developed by the Federal Law Enforcement Training Center (FLETC), Department of Homeland Security.
REBUTTAL: Not all agencies have established a use-of-force continuum. An increasing number do not. FLETC in particular did not develop a continuum. For some years they adopted a continuum developed by a use of force expert named Greg Connor. However, several years ago, FLETC did away with using a continuum, preferring instead to train personnel on force options without a continuum, and based upon the “objective reasonableness” standard set forth by the United States Supreme Court in Graham cited above.
p. 4—Accordingly, detailed national guidelines, containing more than 50 provisions for CED use, have been developed by the U.S. Department of Justice and Police Executive Research Forum to inform officers on their appropriate deployment within the use-of-force continuum.
REBUTTAL: I am a longtime member of the Police Executive Research Forum (PERF), and I represented the chief of the Los Angeles Police Department (who at the time was the PERF President) in the two-day PERF meeting of experts in Houston, Texas in October 2005 when the PERF guidelines were vetted. The adoption of the guidelines was an extremely contentious process that did not result in consensus on the guidelines. Just ask Steve Ijames, Sid Heal, Ted Sexton, and quite a few others who were in the room.
Several years of experience with the PERF guidelines has proven that several of them are in error (e.g., they permit CED use in circumstances where they should not be used, and they discourage CED use in circumstances where the CED is the best option). The PERF Executive Director has said for months that the PERF guidelines need a revisit, and he has been attempting to secure funding for the effort. Several of the PERF guidelines are out of date, and some of them are simply wrong.
p. 5—Despite the designation of the TASER as a less lethal, or less-than-lethal weapon, Amnesty International has catalogued a temporal association between the use of CEDs and more than 330 in-custody sudden deaths in North America between June 2001 and August 2008, all involving M-26 or X-26 TASERs.
REBUTTAL: The Amnesty International (AI) report, released in December 2008, is severely flawed. Applying its own numbers and assertions, just 2 percent of sudden in-custody deaths proximal to TASER use have been deemed by medical authority to potentially be linked to the TASER.
The Amnesty report documents 334 cases in slightly more than seven years in the United States (2001-2008), but also notes that, “In most cases coroners or medical examiners have listed causes of death unrelated to the TASER.” Still, according to the Amnesty report, in 40 cases it was “found that TASER shocks caused or contributed to the deceased’s fatal collapse, and in around a dozen other cases they could not rule this out.”
What is remarkable is that Amnesty also reports that the US Justice Department’s Bureau of Justice Statistics (BJS) has reported that from 2003 to 2005 “around 300 people a year died in police arrest-related incidents, excluding deaths from police use of firearms...While the [BJS] report showed no apparent statistical change in the number of deaths nationwide after the introduction of TASERs, research indicates that many deaths in US police custody occur during police restraining procedures.”
Assume that the 300 custody deaths per year during arrest-related incidents is an accurate base number. Over the seven-year, three-month period of Amnesty’s study (June 2001 through August 2008) there would be about 2,175 such deaths, and 334 of those (roughly one out of seven) occurred during incidents in which the TASER was used, according to the Amnesty report. If we accept Amnesty’s representation of the numbers from coroners and medical examiners that 52 of the cases were caused by or contributed by TASER use, or otherwise that TASER use could not be ruled out, then there are 52 cases out of 2,175 (one out of 42 cases, i.e. 2 percent. And what of the other more than 2,100 cases (i.e., 98 percent of the cases)? Amnesty wants us to believe that the TASER is such a big problem, and the CSAPH report bought into that argument; but the Amnesty report numbers only account for 2 percent of the arrest-related, custody-death problem. It would be helpful if researchers would direct some effort toward the other 98 percent. (See my PoliceOne.com article from January 2009 for more detail.)
p. 5—Arrest-related deaths are not new and predate the deployment of CEDs.
REBUTTAL: Yes, and they continue, regardless of whether a CED is deployed or not. It is noteworthy that the CSAPH report goes on to provide important context, also on page 5:
Initial studies on early CED weapons concluded that their association with in-custody deaths shared characteristics (to a large degree) with other in-custody deaths. Deceased subjects had a high prevalence of alcohol or other drug use, especially stimulants or phencyclidine (PCP), were agitated or exhibited otherwise bizarre behavior, engaged in intense physical struggle, and were subjected to various types of physical restraint.
That is the heart of the matter. Despite intense popular focus on CEDs in recent years (just as pepper spray received popular focus in the 1990’s, and the “hog-tie” restraint in the 1980’s), those who choose to put the focus of the problem on the choice of police restraint tools and tactics are missing the point. These “excited delirium” cases (relatively few of which lead to sudden in-custody deaths) are medical emergencies brought on by the effects of stimulant drug abuse or mental illness. The CSAPH report (on page 6 ) reports a similar conclusion from a research study:
As has been stated elsewhere, it is likely that such pre-existing disease, when combined with stimulant use, struggle against law enforcement, and definitive restraint maneuvers (TASER or otherwise), creates a high-risk situation for restraint-related fatalities.
p. 6—Similarly, the Police Executive Research Forum referred to a study it had commissioned of 118 deaths following TASER activations, noting that “the results indicated that multiple and continuous activations of CEDs may increase the risk of death or serious injury, and that there may be a higher risk of death in people under the influence of drugs.”
REBUTTAL: The problems with this quote from PERF are (1) that there are several medical research conclusions that “multiple and continuous activations of CEDs” do not cause significant changes to a person’s body chemistry or ability to breathe (in fact, breathing has been shown to be enhanced, not restricted, during CED use); (2) people in medical crisis are at higher risk of sudden death regardless of what police restraint tool or tactic is used (and regardless of whether the police are even present); and (3) it fails to recognize that the more a person is at risk of sudden death because of their hyperactivity, the more the CED or any other police restraint tool or tactic is likely to be used to bring them under control so that they can receive medical attention.
As the CSAPH report notes on page 7 (while citing another medical study):
The authors concluded that “such individuals are at a higher risk for sudden death, particularly those who are obese, under the influence of stimulant drugs, or have underlying (cardiovascular) disease.” Ongoing debate exists on whether certain forms of physical restraint such as the “hobble” position and “hogtying” place some individuals at risk for positional asphyxia, even in the absence of the use of pepper spray or CEDs.”
p.9—The growing use of CEDs makes it virtually inevitable that more cases of in-custody death are occurring in proximity to CED activation.
REBUTTAL: The proliferation of CEDs have resulted in CEDs being substituted more frequently for the more injurious police restraint tools and tactics of the past. But, as previously pointed out (above, in the Amnesty report’s acknowledgement of the BJS statistics), the number of sudden in-custody deaths has not increased as CED use has become more prolific.
p. 9—[CSAPH Recommendation No. 1] That our American Medical Association establish policy that law enforcement departments and agencies should have in place specific guidelines, rigorous training, and an accountability system for the use of conducted electrical devices (CEDs) that is modeled after available national guidelines.
REBUTTAL: Actually, the “available national guidelines,” both of which are from 2005, are out of date because of significant recent medical research as well as more field experience with CEDs. The International Association of Chiefs of Police (IACP) guidelines are currently undergoing significant revision (Steve Ijames and I are the authors); and, as previously mentioned above, the executive director of PERF has acknowledged that the PERF guidelines need to be updated.
It is easy to applaud the AMA effort. Certainly we can all support appropriate policy, training, and supervision of CED use. Indeed, all use of force should have appropriate policy, training, and supervision. No doubt, CEDs are still used in some situations that most would conclude are “too low,” but the overwhelming majority are being used appropriately.
The AMA effort appropriately recognizes the value of CEDs. But the document could have used a little fine-tuning.