Sunday, December 21, 2008

Rethinking Tasers, the Expanded Version

Last week, I noted Amnesty International's report on taser use and its consequences. My suggestion (which was merely that we think deeply about this issue) had me branded a bleeding heart liberal. (Of course, my recent post on the budget has me branded a closet Republican, so I suppose I'm just a hopelessly confused moron.)

AI's report (available here) has garnered attention elsewhere in the local blogosphere; at the Beacon, Justin Jeffre discusses it. So let's discuss how tasers are used in Cincinnati. But before we do, let's establish a baseline: I'm not some crazy guy who hates the police. If anything, my work as a criminal defense attorney has instilled within me far more respect for the police--and the work they do--than prior to being involved in the criminal justice system. But it is certainly fair--and necessary--to discuss appropriate police tactics.

So first, let's talk about the taser itself. CPD supplies its officers with the X26 Taser. There are two ways this taser can be used. First, an officer use it to shoot two darts at a suspect, which remain connected to the taser via wires and which deliver an electric charge. Second, the taser can be used in "drive stun mode," which means that an officer pushes the taser itself against a suspect's body, pulling the trigger and directly delivering a shock (like a personal protection "stun gun"). Here's how CPD describes drive stun mode:

While operating the X26 Taser in the drive stun mode, the carotid/brachial, groin, and common peronial nerve are the preferred target areas of the body. A drive stun is described as pushing the X26 Taser aggressively against the subject’s body while pulling the trigger. This will deliver a shock to that area of the body. A drive stun is intended to gain compliance from actively resisting subjects, aggressive non-compliant subjects, violent or potentially violent subjects, and persons attempting to swallow evidence or contraband.
(For those interested, CPD's Procedure Manual is maintained online here. The use of force portion of the manual is here.)

My concern is whether CPD policy with regards to taser use is correct or preferable. CPD--like all police departments--mandates a "continuum of force." In other words, officers must consider which level of force is appropriate to a given situation. The CPD continuum, from the lowest level of force to the most, is as follows:
  • Officer presence
  • Verbal skills
  • X26 Taser/Chemical irritant
  • Escort techniques
  • Balance displacement
  • Hard hands (pressure points/strikes)
  • Monadnock Autolock batons
  • Pepperballs/beanbags/40mm foam (all "less-than-lethal")
  • Deadly force
So here's the question: is the taser really the equivalent of chemical irritant? Should it be this low on the continuum of force?

There are truly two sides to the issue. AI's report is one of a growing number of sources that suggest that tasers may be more likely to cause harm than police departments realize. Moreover, officers sometimes escalate too quickly to tasers: that is, they sometimes move from verbal commands quicker than they would if the taser or chemical irritant weren't available. Anecdotally, at least, there are many, many instances of officers using tasers in situations where the situation wouldn't yet mandate the officer use "hard hands" or other, more physical techniques. The recent, truly egregious (and fatal) use of a taser by an officer in New York on a mentally ill, non-compliant man on a ledge is an example (albeit not a typical one) of officers using a taser in a circumstance in which they wouldn't use other forms of physical force. And the studies produced by the taser manufacturers regarding risk of serious harm to a tased subject assume that the subject being tased is healthy. Criminal suspects are often far from healthy, having abused their bodies with drugs or simply due to living in poverty for a lengthy time.

On the other hand, from the perspective of law enforcement, the taser is an excellent intermediary between verbal commands and more direct physical interaction. Moreover, once an officer begins to lay hands on a suspect, the taser may no longer be an option, as the officer will have to disengage and create enough space to reach across his/her body to pull out the taser and deploy it. (You've probably noticed that the taser appears to be "backwards" in an officer's utility belt, on the side of the officer's non-dominant hand. This is intentional. CPD does not want officers to simultaneously pull their taser and their firearm. Instead, officers are expected to make a conscious decision; they thus use their dominant (gun) hand to use the taser; that's why it's backwards-facing in the belt.) So placing the taser higher on the continuum of force may make it not usable at all.

Finally, I am concerned that CPD policy permits an officer to tase a suspect who is attempting to swallow evidence (most often, crack!). I've not seen this method of obtaining evidence challenged in court, but there's a colorable argument that evidence obtained this way should be excluded as violating a defendant's due process rights.

I don't have the answers to these qustions. But in the wake of AI's comprehensive report, this is an issue that should be debated, both within the CPD and by our City Council.

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