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The ACLU, ECDs, and the erosion of police discretion?

Unlike officers who face the volatile realities of life, the ACLU-s safely-ensconced lawyers would rather evaluate TASER use by a less-encumbered and more academic criteria

Those opposed to the police use of TASERs may get their day in court. On May 24th the Supreme Court will consider, again, adding several TASER-related cases to the 2012 docket. Should the Supreme Court choose to hear them, the decision could have far-reaching implications for nation-wide law enforcement policy and procedures.

Since 1998, when TASERs first became widely available to law enforcement, critical voices soon emerged questioning whether the device was an appropriate less lethal alternative for gaining a suspect’s compliance. One of the most consistently vocal critics of police TASER use and policy has been the American Civil Liberties Union (ACLU).

ACLU offices from Oregon to Louisiana and New York to Arizona have voiced strong criticism of law enforcement’s TASER use. The ACLU has been instrumental in shaping the anti-TASER national narrative, especially in the press (see here and here, for example).

The ACLU professes they are not opposed to the use of TASERs per se, just that current law enforcement department policies vary (a lack of “reasonable” policies and legal guidelines. See, for example, ACLU reports here and here), allowing what they believe to be unfettered TASER use without adequate accountability.  They also argue that TASER use may be unconstitutional, especially if employed as a compliance tool against children, pregnant women, or the mentally handicapped. Opponents have concerns that officers resort to the TASER as a control alternative without full knowledge of the subject’s medical condition. In doing so officers unintentionally turn a “less lethal” device into a deadly weapon.

To support this latter assertion, the ACLU has cited a new study  by Douglas P. Zipes of the Indiana State University of Medicine. According to the ACLU, Dr. Zipe’s research “confirms that the misuse of a Taser can cause sudden cardiac arrest and death,” though the news release headline, “Tasers No Longer Non-Lethal Alternative for Law Enforcement,” is a more accurate reflection of the ACLU’s position. Unsurprisingly, the ACLU’s interpretation of Zipes’ findings rapidly surfaced in the news media.

What neither the ACLU nor Fox News explains is that Dr. Zipes (according to his own study) “has served (and in the future may serve) as a paid plaintiff expert witness in ECD-related sudden cardiac arrest/death cases.” All of the cases Zipes presents are “part of litigation related to...shocks from the TASER X26 device.”

What makes this omission relevant is not that it is a condemnation of Zipes or his study, but that the ACLU rejects TASER International’s research on the grounds that it’s tainted by reliance “on a private, for-profit company that has a vested interest in promoting and selling their product...”

Similar puerile logic could be used to dismiss Zipes’ study.

What Zipes’ study concludes is that, after studying eight cases in which an otherwise healthy suspect died after receiving a TASER shock, “ECD stimulation can cause cardiac electrical capture and provoke cardiac arrest due to ventricular tachycardia/ventricular fibrillation.” In all cases the deceased received a TASER shock in the “anterior chest near or over the heart.”

As a researcher, Dr Zipes also points out that any such determination of cause and effect is difficult and other studies have come to different conclusions. He also writes that studies of actual barb strikes to the chest “may not be able to replicate the clinical scenario of the frightened/fleeing/fighting individual.”

Zipes explains that restraining asphyxia and excited delirium could also explain some of the deaths, though not those in his study. He also writes that “sudden death occurs infrequently following ECD deployment, considering the number of ECD applications and the apparently few reported sudden deaths.” He does speculate, however, that the “actual incidence when the darts are impaled in the chest is unknown...,” allowing for the “potential underreporting of total number of sudden deaths and the actual number of chest shocks that might cause cardiac electrical capture.” However, his study does not address this conjecture.

Far from a blanket condemnation of TASER use, Dr Zipes concludes that officers should be judicious how and when to use the ECD device, and “avoid chest shocks if possible, as TASER International recommended in September, 2009...”

In other words, Dr. Zipes’ study does not condemn police TASER use policy, but instead explores what could be a result of an ECD shock to the chest.

The ACLU also expresses a strong desire to have the TASER placed higher on the force continuum, effectively eliminating its use as a compliance tool. To some this restriction may appear to be a common sense remedy. This superficial solution ignores, however, the fact that the force continuum does not accurately reflect the dynamics of police contacts.

Adherence to a force continuum, which describes an escalating or progressive series of actions of both officer and suspect, does not reflect what the US Supreme Court recognized in Graham v. Conner: police seizures are made under circumstances that are tense, uncertain, and rapidly evolving. Adherence to a linear, descriptive, or anticipatory force continuum belies what really happens during police contacts. 

In what must be an intentional lack of clarity on the ACLU’s part, they fail to mention that Zipes' published work does not describe the totality of the circumstances surrounding the TASER’s use in his eight examples. In an application of the ACLU’s own logic, each of the eight could have met the ACLU’s standard of acceptable use and therefore have nothing to do with their public efforts to place TASER higher on the force continuum.

Unlike officers who face the volatile realities of life, the ACLU’s safely-ensconced lawyers would rather evaluate TASER use by a less-encumbered and more academic criteria. They predictably prefer that departments embrace a linear or descriptive force continuum model, making it easier to litigate what they believe should be bright line constitutional violations and “unreasonable” variances from legal precedent and established police policy and procedure.

Should the Supreme Court open this door, the result could be a slow erosion of police discretion and the conceivable elimination of this important tool in anything other than a deadly force encounter.

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