Does Just Threatening To Use A Taser Constitute Force?

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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.

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