Force Science News #238:

Does just threatening to use a Taser constitute force?

TRAINING NOTE: In Force Science News #225 we announced Minnesota State University's launch of the Lewinski Lecture Series for law enforcement. The inaugural presentation titled, "Dissecting Law Enforcement Decision Making: How Science is Revolutionizing the Analysis of Officers' Actions" was given by Dr. Bill Lewinski and is now available for viewing online free of charge.

 

CLICK HERE to watch or visit: www.billlewinski.com/lewinskilecture.html

 

In this edition

 

I. Does just threatening to use a Taser constitute force?

 

II. New survey seeks your thoughts on crisis intervention

 

III. Hand-on-your-shoulder guide thru the post-OIS legal swamp

 

I. Does just threatening to use a Taser constitute force?

 

A new force-related issue is beginning to surface in state and federal court proceedings: Whether merely threatening to use an electronic control weapon (ECW)--including pointing it, sparking it, and aiming its laser beam--constitutes a use of force under the law.

 

"The caselaw on the subject is still relatively limited, but the question of when and under what circumstances officers should be unholstering, pointing, or threatening to use ECWs is a fruitful area for policy discussion and training," says Wayne Schmidt, executive director of Americans for Effective Law Enforcement (AELE), the nonprofit that closely monitors court decisions affecting peace officers.

 

In a recent issue of its free online publication, the AELE Monthly Law Journal, the organization offers an eight-page roundup of pertinent cases to date and a list of suggested guidelines to help officers, trainers, and administrators address this issue. The article, "Pointing and Threatening to Use Electronic Control Weapons," can be accessed without charge by clicking here or visiting www.aele.org/law/2013-08MLJ101.html.

 

"As ECWs become more ubiquitous and the number of encounters during which they are drawn, pointed, or their use is threatened grows, there will be more lawsuits by individuals objecting to their use even when they are not actually fired," the article predicts. In judging whether such actions comprise "a use of force (and if so, a reasonable one) courts will generally be guided by the totality of the circumstances and by the general objective reasonableness standard...."

 

So far, courts have generally supported law enforcement on this issue, the article reports. "[W]here it is exceedingly clear that an officer had little alternative...to move an encounter along in the face of either active resistance or repeated noncompliance," courts have been "more prone" to find in summary judgment that pointing and threatening was "reasonable and necessary."

 

Two examples:

 

• A US District Court in Texas "found that it was not unreasonable for an officer to point a Taser at and threaten to use it on a motorist who was refusing to exit his vehicle during a traffic stop, despite being ordered to do so at least 21 times," even though the officer had to break a car window to get his ECW within effective range in the event its use became necessary.

 

• A federal court in Nebraska ruled that pointing a Taser at a man who became combative during a possible diabetic reaction was not excessive force, even though the officer was mistaken in believing the man had some potentially dangerous object in his hand.

 

At the state level, plaintiffs have claimed that threatening with an ECW constitutes assault and/or battery. Cases are cited where courts have ruled otherwise.

 

In contrast, AELE notes a Canadian case in which a sergeant was caught on dash-cam pressing a Taser against a handcuffed suspect's neck and "threatening to Taser the groin of a second handcuffed suspect." The Taser was never discharged and neither suspect was injured, but the sergeant was convicted of threatening bodily harm and sentenced to probation and a fine.

 

As caselaw develops, AELE offers these suggestions for officers and agencies:

 

1. Officers "can legitimately unholster an ECW when they believe that it is necessary for their own protection or the protection of others, particularly when there is a reasonable fear that the [suspect/s] might be armed. Waiting to unholster an ECW until it is clearly necessary to fire it could lead to tragic results."

 

2. "The more clear it is that [suspects] are noncompliant with legitimate orders and requests, the more certain it is that pointing an ECW and threatening to use it after giving a warning is reasonable."

 

3. "Pointing an ECW at persons who are complying with orders, and against whom there appears to be no real need to use force, or threatening to fire it when doing so would not be justified under the circumstances, may constitute an assault under state law, and also unnecessarily escalate encounters to a point where the use of force becomes involved."

 

4. "ECWs are not toys and inappropriate brandishing or horseplay should always be avoided."

 

5. "Lasers attached to ECWs should not be pointed at the eyes, and no one should ever stare into the beam."

 

6. "Officers should be required to document instances where an ECW is sparked or the laser beam is directed at a person, even if the darts were not deployed."

 

7. "To avoid weapon confusion during the dynamics of a confrontation, management should consider adopting a requirement that an ECW be holstered on the opposite side from an officer's firearm."

 

In the article, live links are provided to the full written decisions in the cases cited, as well as to a laundry list of other relevant resources.

 

A link is also provided to a recent study of a Michigan police department's documented experience with pointing and threatening with Tasers on the street. In this five-year study, officers with that agency pointed ECWs at suspects 23 times. In 16 of those, merely pointing the weapon produced "voluntary compliance."

 

To register for free email notifications when future issues of the AELE Monthly Law Journal are published online, go to: www.aele.org/e-signup.html.

 

II. New survey seeks your thoughts on crisis intervention

 

A survey that may lead to better training for officers in how to deal safely with mentally ill subjects has been launched by criminal justice researchers at Washington State University.

 

Force Science News readers are urged to participate by accessing the anonymous Survey Monkey questionnaire by CLICKING HERE or by visiting: https://www.surveymonkey.com/s/SRTJ9K3".

 

Funded by the Spokane (WA) PD, the survey seeks to rate encounters with the mentally ill or others in crisis according to:

 

the extent to which these events are made more difficult to resolve as various complicating elements are added to the circumstances;

the frequency with which they tend to occur;

how various performance factors seem likely to affect a positive outcome.

"Once a scale of measurement is established, it will be easier to know what knowledge, skills, and abilities are most important to emphasize in training and in after-action reviews and how better to assess what works best for officers in the field," researcher Stephen James told FSN.

 

James and his wife, Dr. Lois James, are conducting the survey. Both are associated with the Sleep & Performance Research Center, headed by Dr. Bryan Vila, in WSU's department of criminal justice and criminology.

 

Their project began earlier this summer with a focus group of street-level police personnel and mental health professionals who spent two days itemizing and analyzing the myriad of challenging variables and tactics they had experienced in dealing with people in crisis.

 

From that input, the Jameses devised the survey, which calls for responses across some 20 categories. These range from typical crisis symptoms and characteristics to safety and communication issues to tactical planning, policy, and training.

 

Within each category, participants are asked to assign ratings of difficulty, frequency of occurrence, and/or effectiveness of response for up to 22 variables that may impact a crisis encounter.

 

In the safety category, for example, variables include: whether the subject is armed...whether hostages are involved...whether the encounter is taking place at a life-threatening location, such as on a bridge or in traffic...whether the subject is threatening to harm him/herself or another party...whether the subject has a history of violence...whether weapons of opportunity are at hand, and so on.

 

Although responses primarily require only mouse clicks, Stephen James estimates that the survey will take from 60 to 90 minutes to "thoughtfully" complete. The researchers hope to attract at least 200 participants, particularly patrol officers and sergeants from the US and other countries with real-world experiences to draw upon. Survey-takers are not asked to name themselves or their agencies.

 

"The survey results will be critical as we go about finding ways to enhance crisis intervention training and ultimately try to minimize tragic outcomes from encounters involving mental illness," James says.

 

Once responses are tabulated and weighted, the next phase of the project will be to script and film a series of 60 videos that incorporate the key complexities of crises events and their successful management, James says. Coupled with guidelines for measuring officer performance, these could then be used as research-validated training scenarios.

 

For more information, James can be reached at: stevejames@wsu.edu.

 

III. Hand-on-your-shoulder guide thru the post-OIS legal swamp

 

Coming through a life-or-death encounter alive may be only the first challenge in claiming victory in a shooting or other major use of force.

 

After the firing stops, a criminal investigation, an IA review, media scrutiny, and likely civil lawsuits can create punishing secondary assaults for surviving officers if not negotiated properly.

 

It's this potentially treacherous legal mire that police lawyer Lance LoRusso addresses in his new book, When Cops Kill: The Aftermath of a Critical Incident. Himself a former LEO, LoRusso is now an FOP attorney in Georgia and has counseled dozens of officers through the post-shooting ordeal.

 

"While I would like to tell you the road forward [after an OIS] will be smooth, that is most often not the case," he writes. "We can try to wish away the effects of a critical incident, or prepare now to handle the alligators as we walk through the swamp. I prefer the latter."

 

Across more than 230 lively and easy-reading pages, LoRusso explains in practical detail what to expect and how to manage the many unfamiliar facets of having your use of deadly force scrutinized by IA detectives, criminal investigators, skeptical news reporters, no-holds-barred plaintiffs' attorneys, and others who have the power to judge your actions and, in some cases, seem to operate with agenda-driven motives.

 

Much of the hand-on-your-shoulder guidance he dispenses covers OIS matters seldom discussed candidly in police legal debriefings. A few examples, among many:

 

• Why your dispatcher should know how to reach your lawyer

 

• What to do if you're approached by federal investigators or others from outside your agency

 

• What you should know about IA investigations before a shooting

 

• Legal considerations when you're involved in multi-jurisdiction task forces

 

• How your agency should proactively use the Internet to its advantage

 

• What kind of media release should be issued in controversial cases

 

• How to respond to suspects who threaten to sue you

 

• 10 steps you should take when served with notice of a civil lawsuit

 

• What role you should play in preparing your legal defense

 

• The costs even legal defense funds can't protect you against.

 

Officers who've been through the legal wringer after a shooting commonly complain that not knowing what to expect constituted a major stressor. In itself, LoRusso's 50-page chapter explaining in layman's terms the nuances of the civil justice system could be an important antidote to that anxiety.

 

LoRusso says that "all proceeds from When Cops Kill will go to charities benefitting disabled law enforcement officers."

 

[When Cops Kill is available in paperback or Kindle format through Amazon.com. Author LoRusso also conducts a blog on legal issues for LEOs at: www.bluelinelawyer.com.]

© 2017 Force Science Institute Ltd.