In addition to being the TASER Coordinator for my agency, I also serve as an expert witness in litigation involving CEW use. I’ve had the opportunity to review a number of department policies on use of force, and use of Conducted Electrical Weapons (CEW) in particular.
As such, I have come to realize that some departments have provisions in their policies that unnecessarily hamstring officers when it comes to field use of a CEW. In the process, this may potentially lead to some issues when a case results in a lawsuit.
Certainly a policy violation does not translate into a violation of the U.S Constitution or a state law violation for that matter. I have, however, seen plaintiff attorneys try to make that argument and it results in some laborious and time-consuming legal argument.
Accidentally Increasing Liability
Agencies that adopt overly restrictive provisions in their use of force polices somehow believe this will protect them from liability, when in reality it may lead to increased liability. As an example, I have seen agencies that limit CEW use to situations involving “active aggression” where the suspect is actually attacking an officer before they can then use it for self-defense.
Most agencies — in my experience — allow CEW use at the “defensive resistance” level so an officer can use it early on in a confrontation. This will many times result in the safe resolution of the incident and no escalation of force is needed. This leads to reduced injury rates to both officers and suspects, which translates to reduced liability.
Other examples of overly restrictive policy provisions are those that require an officer to make a judgment call regarding age. For example, stating that a CEW will not be used on a person under the age of (arbitrary number) or over a certain age. Let’s say the numbers are 15 and 65 respectively. How is an officer supposed to determine a suspect is 15 versus 16? Or someone is 65 versus 64? What is the logic for choosing this particular age? What scientific or medical evidence was used to arrive at this number?
Human safety regarding CEW use is more appropriately determined by size and threat potential rather than age. I’ve seen an example of a 15-year-old who was six feet, two inches tall and 245 pounds. Predisposing someone as not being a threat solely due to age can lead to tragic results and many officers have paid the ultimate price at the hands of both juvenile and elderly persons.
Certainly, small children and elderly/infirm persons are at increased risk of injury and there needs to be compelling reasons for using force on persons in these categories — add in pregnant women to this as well — but to strictly rule out the use of a CEW on persons in these categories is a restriction that unreasonably places officers in a difficult spot.
The question one should always ask when analyzing use of force situations is “If not for the CEW, then what else?” The CEW (and TASER brand weapons in particular) have a long track record of creating lower injury rates than other less lethal/ non-lethal force options. If a CEW would not be allowed but baton use would be, what is the likelihood that the baton will result in more serious injury than the CEW? Clearly a baton has a foreseeable higher likelihood of creating substantial injury.
A good use of force policy should be broad enough that it leaves the officer some discretion. There is no way — when writing a policy — that a person can foresee every circumstance an officer may encounter in the field. As long as the officer’s actions are objectively reasonable, under the circumstances known to the officer at the time, (Graham v. Connor standard) the use of force can be justified.
I’m also not a fan of provisions that strictly limit the number of cycles that can be delivered from a CEW. This should instead be determined by the circumstances faced by the officer(s). Limiting the number/duration of cycles delivered is a desirable outcome but there will be situations where multiple/extended cycles may be justified. If an officer is alone without backup, then repeated/extended cycles may be justified. If on the other hand, there are other officers present who can cuff the suspect “under power” and avoid extended/repeated cycles, then those are two totally different scenarios.
No Other Force Options Have Such Restrictions
I’ve never seen a policy that limits baton strikes to three, or requirements with firearms that limit you to three shots. It depends on the circumstances of each situation and blanket, arbitrary restrictions that have no basis in medical or scientific study are counter-productive. They serve only to limit an officer’s options in dealing with combative/resistive suspects. This also results in increased risk to the officer for the benefit of the suspect, which goes against the model taught at many tactical courses on the “priority of life.”
The first priority is innocent citizens. Then comes police officers, then SWAT officers, and last is the suspect. If your policy — or any decision, really — places the priority of the suspect above that of anyone else on the ladder, your policy/decision is tactically unsound. Unfortunately, due to political expedience/correctness, these types of policy provisions are all too common.
Officer safety is then compromised, and in turn, the safety of the citizens we are charged with protecting. We must prevail in use of force encounters or we will be unable to protect anyone.
If your agency has these provisions in your policy, I would encourage you to start a conversation (tactfully of course) with your administration to try and get them changed.
