Expert: ARDs Rare But Demand High-Priority Attention

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In a snapshot preview of a book he’ll publish this summer, prominent researcher Dr. Darrell Ross recently offered law enforcement trainers a provocative update on one of the rarest events in policing, yet one of the most vexing: arrest-related death.

In a presentation running nearly four hours at the annual training conference of the International Law Enforcement Educators & Trainers Assn., Ross explored new findings from an analysis of nearly 5,000 ARDs in the US that he conducted—likely the most extensive investigation of the subject yet undertaken.

“This is serious stuff,” he said. “Like officer-involved shootings, ARDs are contentious, controversial, and highly charged. They often involve racial issues that provoke media coverage and community outrage. Medical examiners and the courts often fail to understand them correctly. And officers in some cases are being unfairly criminally prosecuted and sentenced to unusually long terms in connection with them.”

At ILEETA, Ross, a CJ professor and director of the Center of Applied Social Sciences at Valdosta State U. in Georgia, focused predominately on the relationship between ARDs and conducted electrical weapons. That subject and more are elaborated on in his forthcoming book, Guidelines for Investigating Officer-Involved Shootings, Arrest-Related Deaths, and Deaths in Custody, coauthored with Dr. Gary Vilke. The book is expected in July or August.

Highlights from Ross’s ILEETA appearance include:

“HIGH PRIORITY” RARITIES

Statistically, ARDs occur “very, very infrequently,” Ross said, “but the liability, implications, and political fallout from them are extremely high, so they command a high priority.”

Excluding officer-involved shootings, pursuit accidents, and suicides, he tabulated that 4,813 people died during a six-year study period while struggling during an arrest, while under restraint, during transport, while in custody, or at a hospital. That’s roughly 800 a year on average, and the trend is not increasing, Ross said.

Given that some 13,000,000 arrests occur in this country in an average year, control- and restraint-related fatalities result in only about 0.00006%, Ross calculates. In contrast, medical errors annually cause more than 250,000 deaths among the general US population. OISs result in about 900 deaths in a typical year.

About 75% of ARDs occur on the street, 25% in jails, and 5% in medical facilities. Two-thirds involve misdemeanor calls, predominately disorderly conduct/suspicious behavior, disturbances, domestic violence, and traffic stops/altercations.

Most decedents are males in the 20-45 age range, under the influence of intoxicants, mental illness, or both, Ross found. Typically, three to six officers are involved in the incident, and multiple uses of less-lethal force, including empty-hand control techniques, OC, and CEWs, have been employed. Commonly, the subject has become “tranquil” after having been “agitated” and “combative,” then “suddenly and unexpectedly” he is “unresponsive”—and dead.

REVIEW PROBLEMS

“For most officers, an ARD is a once-in-a-career event,” Ross said. “And the same is true for most medical examiners whose job it is to establish the cause of death.”

These fatalities can be medically mysterious, with a specific cause not readily apparent or easily determined at autopsy. “Classifying the manner of death can be problematic and requires caution,” Ross said. But with “little pathological evidence” to go on, he claimed, a time-pressured medical examiner may speculate without a solid medical foundation that arrest-related tools, such as a CEW or physical control/restraint techniques, were a causal or “contributing” factor.

In such cases, “temporal is conflated to causal,” Ross said. But because something like the use of a CEW occurred at about the same time as an ARD “does not necessarily make it a direct, causal link to the death,” he explained. Yet a medical examiner may draw that link “without explaining the exact mechanism” of causation or citing any “reliable , supportive scientific research.”

“Well-designed, peer-reviewed, controlled studies have discredited alleged causal diagnoses,” Ross declared, “yet they still appear on death certificates and autopsy reports.”

Likewise, courts in reviewing ARDs in civil or criminal cases often “misunderstand, misapply, or ignore” current scientific research, Ross charged, putting officers whose actions are at issue at a significant disadvantage.

SCIENTIFIC REALITY

Ross zeroed in on the speculative allegation that CEWs can be decisive factors in ARDs.

“Without question, the Taser is the most researched piece of equipment on a police officer’s belt,” he stated. More than 750 academic studies of CEWs have been published and in the process many alarming and persistent myths have, in fact, been scientifically refuted.

Well over 3,000,000 field applications and more than 2,000,000 training and other voluntary exposures, plus a bevy of research experiments, have clearly established these CEW realities, among others, according to Ross:

  • CEW use presents “no substantial increased risk of cardiac dysrhythmia or ventricular fibrillation or induced cardiac arrhythmia”;
  • “Studies have not found a physiological basis for respiratory compromise”; indeed, subjects tend to “breathe faster and deeper” when Tased;
  • There is a “theoretical possibility” of electrocution, but a dart would have to penetrate to within 4mm of the heart, a near impossibility given the organ’s protective shield of flesh and bone;
  • There may be a slight metabolic change, “but significantly less than that caused by fighting with an arrestee”;
  • Researchers have “not found a clinically important effect from CEWs on the body’s electrolytes”;
  • “Induced pain is not a valid contributing mechanism” to death;
  • There is “no published data supporting” the risk of a CEW triggering a seizure or loss of consciousness;
  • “There are no clinically significant biochemical or physiological changes from [continuous] CEW discharges up to 45 seconds”;
  •  “Multiple applications do not pose a substantial risk of death”; electricity does not build up in the body like poison.

Bottom line: “Research shows that the CEW is the safest force option available to law enforcement, with a lower risk of injury than other force measures,” Ross declared. There are only two known ways in which CEWs can contribute to ARDs: by causing uncontrolled falls that induce fatal traumatic brain injury and by igniting flammable fumes that then kill the arrestee.

“The majority of ARDs do not involve CEW use,” Ross found. But when plaintiffs or prosecutors attempt to blame these devices for a subject’s death, “you need an attorney who thoroughly understands use of force, the equipment involved, and the science of human performance,” he said.

COURTS SPEAK

Ross, who has testified as an expert witness in some 300 law enforcement cases, has looked extensively into how the courts have treated ARDs. He analyzed 1,250 state and federal cases that were decided or settled between 1991 and 2016, and identified some useful trends.

Claims against officers primarily centered on allegations of excessive force, failure to follow training or manufacturers’ guidelines, false arrest (no PC), or failure to provide timely or competent medical assistance to an injured party.

Challenges of administrators tended to concentrate on allegedly unconstitutional or deficient policies that didn’t meet contemporary police standards, as well as failure to train, supervise, discipline, properly hire, or meet requirements of the Americans with Disabilities Act.

Where courts have ruled that officers used unreasonable force, they’ve cited factors such as these, Ross pointed out:

  • “No serious crime was at issue”;
  • “The subject’s behavior or resistance was less than ‘active’”; (generally, for instance, use of a CEW is considered excessive if used on a ‘passive’ resister);
  • “The decedent did not present an immediate threat”;
  • Multiple officers were on the scene, so there was “no need” to use a CEW;
  • Once the decedent was controlled and restrained and resistance ceased, the need for force ended.

Increasingly, Ross said, courts “like to consider the possible ‘diminished capacity’ of the decedent’s mental state” in assessing whether the level of force was proper in ARD incidents.

They’ll want to know if the suspect was “confused or disoriented, naked and unarmed, a flight risk, able to understand and comply with instructions and given time to do so,” Ross said. “Mental health and diminished capacity are definitely relevant factors these days. An agitated and emotionally disturbed person does not necessarily equal an immediate threat” in the courts’ view.

As part of his presentation, Ross analyzed significant ARD cases from each of the US appellate circuits, including Armstrong v. Village of Pinehurst, which we covered in detail in Force Science News #308 (4/17/16).

DEFENSIVE PRELIMINARIES

In a call to action, Ross urged trainers and administrators to begin preparing defensively for an ARD in their jurisdictions by tending to a couple of basics:

  1. Check your “Response to Resistance” policy. Do officers understand it? Are they competent on it? Does it help them make decisions under stress in the field?
  2. Review your annual UOF training. Does it include policy testing and an update on legal issues? Is it scenario-based and competency-based on all duty-belt equipment, as well as restraints and empty-hand control techniques? Is it decision-making oriented? Does it include multiple-officer responses? Does it cover CEW applications as related to diminished-capacity individuals? Does it include medical issues and responses to injured arrestees? Does it prepare officers and supervisors to respond to an ARD investigation and lawsuit?

Covering so much for such a relatively rare event may seem like a lot—until it happens, and you need it.

Dr. Ross can be reached at: dross@valdosta.edu.

[Dr. Ross will be presenting at a special use-of-force conference sponsored by the Miami-Dade (FL) PD June 26-27. For more information on the program, email Lt. Alvaro Ortiz at: aortiz@mdpd.com or call: (305) 715-5000.]

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