Less Lethal Issues in Law Enforcement
with Capt. Greg Meyer (ret.)
TASER guidelines updated for first time since 2005
The Police Executive Research Forum's 2005 guidelines were well-intentioned, but became contentious in litigation
Back in 2005, the Police Executive Research Forum (PERF) published a set of TASER guidelines (then referred to as “Conducted Energy Devices,” or CEDs). Those guidelines were well-intentioned, but very contentious. Some of the 2005 guidelines recommended against CED use when it was called for, and encouraged CED use in situations where it was not. In litigation, the guidelines were quite contentious.
Since that time, years of TASER experience, updated medical research, and numerous court cases have resulted in broader knowledge about TASERs. Even after all that, TASER use is still a developing and controversial area among researchers, practitioners, the public, and the courts.
The 2005 PERF guidelines were badly in need of updating, and that has finally occurred following a meeting in Philadelphia last summer of police chiefs, medical experts, use-of-force experts, industry representatives, and others.
This morning (as this is written on April 8, 2011), PERF’s “2011 Electronic Control Weapon Guidelines,” were published in conjunction with the COPS office (i.e. the Office of Community Oriented Policing Services, United States Department of Justice). In my opinion, the 2011 guidelines are a vast improvement.
[Full disclosure: I was one of many people who worked on the guidelines at the Philadelphia meeting and in subsequent editing sessions with PERF.]
From the document’s introductory material:
Since 2005, researchers have continued to conduct studies of ECWs, and thousands of police departments have gained real-world experience with them. As a result, the COPS Office asked PERF to update the 2005 guidelines, reflecting these developments. PERF conducted background research, including a survey of nearly 200 law enforcement agencies regarding ECW deployments, as well as interviews of police chiefs and other experts. PERF and the COPS Office then convened a conference in Philadelphia in August 2010 where 150 police executives, researchers, doctors, attorneys, and others discussed the use of ECWs in light of five years’ worth of experience in the field.
This publication is the result of those efforts, providing an updated and improved version of the initial guidelines to reflect the state of the field regarding ECWs. The 2011 guidelines also reflect a general consensus in policing that ECWs play an invaluable role in providing officers with another type of less-lethal weapon that can be effective in many situations, but they should not be seen as an all-purpose weapon that takes the place of de-escalation techniques and other options. In addition, ECWs have limitations, so officers must be prepared to switch to other strategies if an ECW is not producing the desired result.
Obviously, ECWs are a subject of wide interest to law enforcement since so many thousands of agencies use TASERs. Policy makers and trainers would benefit from reviewing the guidelines and analyzing their own policies and training protocols.
Not everyone will be satisfied with the guidelines, of course, and the ECW subject will remain somewhat contentious as we move forward. The courts in particular are still trying to sort out TASER issues, and that effort will continue for years as unique cases rise through the system. Still, if you lay the 2005 and the 2011 versions of the PERF guidelines side-by-side, I think it is obvious that significant improvement has occurred.
The 2011 guidelines document also contains a listing of selected medical research and legal that are pertinent to ECWs, as well as a listing of the participants at the Philadelphia meeting where the guidelines revision process began.
My personal view is that the 2011 Electronic Control Weapon Guidelines document from PERF and COPS is a good step forward in the history of these valuable tools which have saved many lives and prevented many injuries.
Here are the new Guidelines and the related Glossary of terms, and a link to the complete document. For some of the guidelines I have made personal comments [in brackets immediately below the relevant guideline].
Electronic Control Weapon Guidelines (PERF 2011)
1. Agency personnel must always consider the totality of the circumstances when applying the guidelines. In certain situations, exigent circumstances may outweigh the recommendation of a specific guideline. Personnel should always be able to articulate the justification for going beyond agency policy or training.
2. Agencies should develop policies and training curricula for ECWs that are integrated with the agency’s overall use-of-force policy.
3. Agencies should work to share and disseminate information regarding their respective ECW policies and training to foster better cooperation and coordination during joint law enforcement responses or operations. When possible, agencies should enter into a memorandum of understanding to develop joint ECW policies, protocols, and training.
[Comment: Guideline 3 is particularly applicable to small agencies that routinely depend upon mutual aid from adjoining agencies.]
4. Agencies should consult with local medical personnel to develop appropriate police-medical protocols for medical evaluation and removal of ECW probes following subjects’ exposure to ECW application.
5. Agencies should consider adopting brightly colored ECWs (e.g., yellow), which may reduce the risk of escalating a force situation because they are plainly visible and thus decrease the possibility that a secondary unit will mistake the ECW for a firearm. (Note: Specialized units [e.g., SWAT units] may prefer dark-colored ECWs for tactical concealment purposes.)
6. Personnel should keep ECWs in a weak-side holster and should train to perform a weak-hand draw or cross-draw to reduce the possibility of accidentally drawing and/or firing a sidearm. Transitioning the ECW to the strong hand after drawing with the weak hand should be allowed.
[Comment: Dr. Bill Lewinski of the Force Science Research Center and I continue to suggest weak-side holsters and weak-hand draws. We concur that transition to the strong hand after the draw would be fine. We do NOT support strong-hand cross-draw of the TASER. Of the 9 known cases (so far) of accidentally drawing and shooting a firearm when TASER was intended, ALL of them involved strong-hand draws, and some of those (including the infamous Oakland BART case, where an officer was tried for murder and convicted of involuntary manslaughter last year) involved weapons confusion even though the TASER placement was strong-hand cross-draw. You can read more about such cases in my earlier BART articles and in the articles archive at Dr. Lewinski’s website, www.forcescience.org ]
7. If agencies permit personnel to use privately owned ECWs on duty, policy should dictate specifications, regulations, qualifications, etc. The privately owned ECWs should be registered with the agency.
8. Before any agency personnel (e.g., officers, jail personnel, auxiliary/reserve officers, civilian staff) are armed with ECWs, they should receive all mandated training and achieve all qualification requirements.
9. Agencies should use scenario- and judgment-based training that recognizes the limitations of ECW application and the need for personnel to be prepared to transition to other force options as needed.
10. Agencies should not rely solely on training curriculum provided by an ECW manufacturer. When they do use the curriculum, agencies should ensure the manufacturer’s training does not contradict agency use-of-force policies and values. Agencies should ensure that their ECW curricula are integrated into their overall use-of-force training curriculum.
11. Agencies should be aware that exposure to ECW application during training could result in injury to personnel and is not recommended. Any agency that does include ECW application as part of training should not make it mandatory for certification, and should ensure that safety protocols are rigorously followed.
12. ECW recertification should occur at least annually and should consist of physical competency and weapon retention, agency policy including any changes, technology changes, and reviews of local and national trends in ECW use. Recertification should also include scenario-based training.
13. Personnel should be trained to use an ECW for one standard cycle (five seconds) and then evaluate the situation to determine if subsequent cycles are necessary. Training protocols should emphasize that multiple applications or continuous cycling of an ECW resulting in an exposure longer than 15 seconds (whether continuous or cumulative) may increase the risk of serious injury or death and should be avoided.
14. Training protocols should emphasize the risk of positional asphyxia, and thus officers should be trained to use a restraint technique that does not impair the subject’s respiration following an ECW application.
[Comment: Whether positional or other forms of restraint asphyxia are a cause of arrest-related deaths continues to be a subject of controversy among medical researchers. No matter what tools or tactics are used, arresting officers should attempt to ensure that a subject’s breathing is not compromised.]
15. Personnel should be trained that when a subject is armed with an ECW and attacks or threatens to attack a police officer who is alone, the officer must defend himself or herself or take actions to avoid becoming incapacitated and risking the possibility that the subject could gain control of the officer’s firearm. However, if multiple officers are present, a subject’s attack with an ECW against one officer should not in and of itself cause a deadly-force response by other officers.
[Comment: This critical subject should be included in scenario-based training exercises.]
16. Agencies’ policy and training should discourage the use of the drive stun mode as a pain compliance technique. The drive stun mode should be used only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject so that officers can consider another force option.
17. Personnel should be trained to attempt hands-on control tactics during ECW application, including handcuffing the subject during ECW application (i.e., handcuffing under power). Training should emphasize that personnel who touch a subject during ECW application will not receive exposure to the electrical charge, so long as caution is taken not to touch the subject along the circuit (i.e., between the locations of the two probes).
18. Command staff, supervisors, and investigators should receive ECW awareness training appropriate to the investigations they conduct and review.
19. If an agency uses more than one model of ECWs, training should emphasize the differences in the various models (e.g., duration of cycle, optimal probe spread).
20. In addition to providing an overview of ECWs, agencies should provide ECW awareness training to personnel who are not certified to carry the devices and emphasize their responsibilities. The training should also cover situations such as attempting to handcuff subjects during ECW application and transitioning to other force options.
Using the ECW
21. Personnel should use an ECW for one standard cycle (five seconds) and then evaluate the situation to determine if subsequent cycles are necessary. Personnel should consider that exposure to the ECW for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious injury. Any subsequent applications should be independently justifiable, and the risks should be weighed against other force options.
22. A warning should be given to a subject prior to activating the ECW unless doing so would place any person at risk. Warnings may be in the form of verbalization, display, laser painting, arcing, or a combination of these tactics.
23. When feasible, an announcement should be made to other personnel on the scene that an ECW is going to be activated.
24. Personnel should not intentionally activate more than one ECW at a time against a subject.
[Comment: There will be occasional high-threat levels where this needs to be done. If the next logical option is to shoot the person, for example, I would argue that if the dynamics of the situation permit, officers might shoot more than one ECW at the subject. See Guideline #1 regarding totality of circumstances.]
25. ECWs should be used only against subjects who are exhibiting active aggression or who are actively resisting in a manner that, in the officer’s judgment, is likely to result in injuries to themselves or others. ECWs should not be used against a passive subject.
26. Fleeing should not be the sole justification for using an ECW against a subject. Personnel should consider the severity of the offense, the subject’s threat level to others, and the risk of serious injury to the subject before deciding to use an ECW on a fleeing subject.
27. ECWs should not generally be used against pregnant women, elderly persons, young children, and visibly frail persons. Personnel should evaluate whether the use of the ECW is reasonable, based upon all circumstances, including the subject’s age and physical condition. In some cases, other control techniques may be more appropriate as determined by the subject’s threat level to others.
28. Personnel should not intentionally target sensitive areas (e.g., head, neck, genitalia).
29. ECWs should not be used on handcuffed subjects unless doing so is necessary to prevent them from causing serious bodily harm to themselves or others and if lesser attempts of control have been ineffective.
30. ECWs should not be used against subjects in physical control of a vehicle in motion (e.g., automobiles, trucks, motorcycles, ATVs, bicycles, scooters).
31. ECWs should not be used when a subject is in an elevated position where a fall may cause substantial injury or death.
32. ECWs should not be used in the known presence of combustible vapors and liquids or other flammable substances including alcohol-based Oleoresin Capsicum (O.C.) spray carriers. Agencies utilizing both ECWs and O.C. spray should use a non-combustible (e.g., water-based) spray.
33. ECWs can be effective against aggressive animals. Policies should indicate whether use against animals is permitted.
34. Personnel should be aware that there is a higher risk of sudden death in subjects under the influence of drugs and/or exhibiting symptoms associated with excited delirium.
[Comment: Let’s be clear, subjects in excited/agitated delirium are at higher risk of sudden death REGARDLESS of what police tool or tactic is employed, and regardless of whether police are even present.]
35. When possible, emergency medical personnel should be notified when officers respond to calls for service in which they anticipate an ECW application may be used against a subject.
[Comment: Especially with cases of subjects who appear to be in excited/agitated delirium, it is desirable to roll EMT before engaging the subject if tactical circumstances allow. It is also desirable to train dispatchers to recognize the symptoms of excited/agitated delirium (such as the proverbial “naked man” running in the street, shouting irrationally, breaking things, etc.) so that several officers, and supervisor, and EMT personnel can be sent to the scene at the same time. As the Institute for Prevention of In-Custody Death (www.ipicd.com) teaches that “Excited delirium is a medical emergency disguised as a police problem.” The objective is for the police to subdue the violent subject, then the EMTs administer a body-cooling sedative immediately in an effort to prevent an arrest-related death.]
36. All subjects who have been exposed to ECW application should receive a medical evaluation by emergency medical responders in the field or at a medical facility. Subjects who have been exposed to prolonged application (i.e., more than 15 seconds) should be transported to an emergency department for evaluation. Personnel conducting the medical evaluation should be made aware that the suspect has experienced ECW activation, so they can better evaluate the need for further medical treatment.
37. All subjects who have received an ECW application should be monitored regularly while in police custody even if they received medical care. Documentation of the ECW exposure should accompany the subject when transferred to jail personnel or until the subject is released from police custody.
38. ECW probes should be treated as a biohazard. Personnel should not remove ECW probes from a subject that have penetrated the skin unless they have been trained to do so. Only medical personnel should remove probes that have penetrated a subject’s sensitive areas or are difficult to remove.
Reporting and Accountability
39. ECWs should be regulated while personnel are off duty under rules similar to those for service firearms (including storage, transportation, use, etc.).
40. A supervisor should respond to all incident scenes where an ECW was activated.
[Comment: Hopefully your agency requires response by a supervisor to ANY reportable use of force, not just ECW.]
41. When possible, supervisors should anticipate on-scene officers’ use of ECWs and should respond to calls for service that have a high propensity for the use of an ECW.
42. A supervisor should conduct an initial review of each ECW activation, and every instance of ECW use, including unintentional activation, should be documented.
43. Agencies should initiate force investigations when any of the following factors is involved:
- A subject experiences a proximity death or serious injury following ECW application
- A subject experiences prolonged ECW application (longer than 15 seconds)
- The ECW appears to have been used in a punitive or abusive manner
- There appears to be a substantial deviation from ECW training or policy
- A subject in an at-risk category has been subjected to application (e.g., young children, individuals who are elderly/frail, pregnant women, and any other activation as determined by a supervisor)
[Comment: I believe there was a word left out due to an editing error, and that Guideline 43 should read, “Agencies should initiate enhanced force investigations . . .” for the listed factors. An “enhanced” force investigation ought to occur at higher than the field supervisory level.]
44. Every ECW-related enhanced force investigation (and when possible every preliminary investigation) should include:
— Interviews of the subject and all officers who discharged their ECWs
— Location and interviews of witnesses (including other officers)
— Forensic quality photographs (including a ruler to show distances) of subject and officer injuries
— Photographs of cartridges/probes
— Collection of ECW cartridges, probes, data downloads, car video, confetti tags
— Copies of the ECW data download
— Other information as indicated in Reporting and Accountability Guideline #50
45. When reviewing downloaded ECW data, supervisors and investigators should be aware that the total time of activation registered on an ECW may not reflect the actual duration of ECW application on a subject.
[Comment: “Activations do not always equal applications.” This is particularly true of drive stun applications, which tend to have an on-and-off result as the subject and officer moves about; for probe applications, if the subject pulls out a probe, or the probe otherwise becomes dislodged, the computer will register activation time where actual application was not occurring.]
46. ECW activations should be tracked in the agency’s early intervention system (EIS).
47. Agencies should periodically conduct random audits of ECW data downloads and reconcile use-of-force reports with recorded activations. Agencies should take necessary action as appropriate when inconsistencies are detected.
48. Audits should be conducted to verify that all personnel who carry ECWs have attended initial and recertification training.
49. Agencies should collect and analyze information to identify ECW trends. Agencies may include display, laser painting, and arcing of weapons to measure prevention/deterrence effectiveness. Agencies should periodically analyze ECW statistics and make them available to the public.
50. Agencies should collect the following information about ECW use:
— Date, time, location of incident
— The use of display, laser painting and/or arcing, and whether those tactics deterred a subject and gained compliance
— Identifying and descriptive information and investigative statements of the subject (including membership in an at-risk population), all personnel firing ECWs, and all witnesses
— The type and brand of ECW used
— The number of ECW activations, the duration of each cycle, the duration between activations, and (as best as can be determined) the duration that the subject received applications
— Level of aggression encountered
— Any weapons possessed by the subject
— The type of crime/incident the subject was involved in
— Determination of whether deadly force would have been justified
— The type of clothing worn by the subject
— The range at which the ECW was used
— The type of mode used (probe deployment or drive stun)
— The point of probe impact on a subject with the device in probe mode
— The point of impact on a subject with the device in drive stun mode
— Location of missed probe(s)
— Terrain and weather conditions during ECW use
— Lighting conditions
— The type of cartridge used
— Suspicion that subject was under the influence of drugs (specify if available)
— Medical care provided to the subject
— Any injuries incurred by personnel or the subject
Public Information and Community Relations
51. Law enforcement agencies should conduct neighborhood programs that focus on ECW
awareness training, which should be part of any citizen’s training academy program.
52. Agencies’ public information officers should receive extensive training on ECWs so they can better inform the media and the public about the weapon. Members of the media should be briefed on agencies’ policies and use of ECWs.
53. ECW awareness should extend to law enforcement partners such as local medical personnel, citizen review boards, medical examiners, mental health professionals, judges, and local prosecutors.
Activation: Pulling the trigger of an ECW, causing arcing or probe discharge.
Active aggression: A threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is imminent.
Active resistance: A subject’s physical actions to defeat an officer’s attempt at control and to avoid being taken into custody. Verbal statements alone do not constitute active resistance.
Anti-Felon Identification (AFID) tags. See confetti tags.
application. The actual contact and delivery of electrical impulse to the subject via probe discharge or drive stun.
Arcing: Pulling the trigger to activate an ECW without discharging the probes. This may be done as a warning to the subject or to test the ECW prior to deployment (sometimes referred to as a spark test).
Cartridge: A replaceable vessel that generally contains compressed gas, probes, connecting wires, and confetti tags.
Complete the circuit: When there is not adequate spread between probes attached to a subject, or one probe misses the subject or dislodges, the ECW may be used in drive stun mode to incapacitate the subject. This allows for the electrical pulse to travel between the attached probe(s) and the point where the front of the ECW makes contact with the subject. This tactic is sometimes referred to as a three-point contact.
Conducted Energy Device (CED): See Electronic Control Weapon (ECW).
Confetti tags: Small identifying cards expelled from an ECW cartridge when probes are discharged. Each confetti tag contains a serial number unique to the specific cartridge used. Confetti tags are sometimes referred to as Anti-Felon Identification (AFID) tags.
Cycle: The period during which electrical impulses are emitted from the ECW following activation. In most models, a standard cycle is 5 seconds for each activation. The duration of a cycle may be shortened by turning the ECW off but may be extended in certain models by continuing to pull the trigger.
Display: Drawing and exhibiting the ECW as part of a warning tactic, typically accompanied by appropriate verbalization.
Drive stun: Drive stun mode is possible whether or not the cartridge has been expended or removed from the ECW. (If the cartridge is not removed, the probes will enter the body.) This action requires pulling the trigger and placing the ECW in direct contact with the subject, causing the electric energy to enter the subject directly. Drive stun is frequently used as a non-incapacitating pain compliance technique. It may also be used to incapacitate the subject where at least one probe is attached to the subject’s body and the ECW contact will complete the circuit.
Duration: The aggregate time that the ECW is activated. It is important to note that the duration of activation may differ from the duration of time that a subject is subjected to the electrical impulse from the ECW.
Electronic Control Weapon (ECW). A weapon designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and override the subject’s voluntary motor responses. Originally called Conducted Energy Device (CED).
Excited delirium: State of extreme mental and physiological excitement, characterized by behaviors and symptoms such as extreme agitation, elevated body temperature (hyperthermia), watering eyes (epiphoria), hostility, exceptional strength, and endurance without fatigue.
Exigent circumstances: Circumstances that would cause a reasonable person to believe that prompt and unusual action is necessary to prevent physical injury to self or others.
firing. Discharging ECW probes at an intended target.
Fleeing: An active attempt by a person to avoid apprehension by a law enforcement officer through evasive actions while attempting to leave the scene.
Laser painting: The act of unholstering and pointing an ECW at a subject and activating the ECW’s laser dot to show that the weapon is aimed at the subject.
Less-lethal weapon: Any apprehension or restraint tool that, when used as designed and intended, is less likely to cause death or serious injury than a conventional police lethal weapon (e.g., firearm).
Neuromuscular incapacitation: The effect of the ECW on a subject when, through the application of an electrical pulse, the ECW dominates the motor nervous system by interfering with electrical signals sent to the skeletal muscles by the central nervous system.
Passive resistance: Physical actions that do not prevent the officer’s attempt to control, for example, a person who remains in a limp-prone position, passive demonstrators, etc.
positional asphyxia. Death that occurs when a subject’s body position interferes with breathing, either when the chest is restricted from expanding properly or when the position of the subject’s head obstructs the airway.
Probe discharge: Pulling the trigger to release the probes from the cartridge to make contact with the subject and achieve neuromuscular incapacitation.
Probe spread: The amount of distance between probes fired from an ECW.
Probes: Projectiles with wires contained in an ECW cartridge. When the ECW is discharged, probes are expelled from the ECW and penetrate the subject’s clothing and/or skin, allowing application of the electric impulse.
Proximity death: The death of a subject following exposure to an ECW.
Sensitive areas: An area of the subject’s body that may cause more serious injury to the subject if struck with an ECW probe (e.g., head, neck, genitalia)
Serious bodily harm: An injury to a person that, either at the time of the actual injury or at a later time, involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any part or organ of the body, as well as any breaks, fractures, or burns of the third degree.
Three-point contact. See complete the circuit.