Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

Burton Representing Clients Injured by Tasers 1983 Litigation 2010

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Part C. Section 1983 Litigation
Chapter 3

Representing Clients Injured by 	
TASER International Electrical
Control Devices*
John Burton and Peter M. Williamson‡
Introduction
Electrical control devices (ECDs)1 are handheld weapons that deliver
brief bursts of rapidly pulsing electrical current. Used primarily by law
enforcement and correctional officers (lower power consumer models are
available) ECDs cause intense pain and incapacitating muscle contractions,
either through two darts attached to wires or directly from contact with
exposed electrodes.
Introduced in 1976, the original, relatively low-power ECDs were linked
to abuses and in-custody deaths. Since TASER International, Inc., captured
the ECD market following the release of its first high-power ECD, the Model M26, in November 1999, followed by its equally high-power, but more
compact, Model X26 in 2003, there have been a growing number of reports
that the devices have been abused, or caused catastrophic injuries and death.
In the most comprehensive report to date, Amnesty International identified
*	

Copyright © 2010.

‡	
John Burton, admitted to the California State Bar in 1979, has focused his practice on representing
victims of police misconduct and is a member of the National Police Accountability Project (NPAP) Board
of Directors. Peter M. Williamson was admitted to the California State Bar in 1981. His practice emphasizes
police misconduct, wrongful death and TASER product-liability cases. Together, they represented plaintiffs
in Heston v. City of Salinas and TASER International, Inc. On June 9, 2008, the jury returned a $6.2 million
verdict against TASER International, Inc., the first products-liability judgment against the company.

27

Civil Rights Litigation Handbook
334 deaths associated with TASER International products in the United
States from June 2001 through August 2008, almost all cardiac arrests.2
This article is written to assist plaintiffs’ attorneys prosecuting civil
claims for money damages against law enforcement agencies, correctional
institutions and the manufacturer for ECD-related injuries. First, we summarize ECD history, technology and basic functions. Second, we address
ECD research, warnings and training. Finally, we discuss the rapidly developing section 1983 excessive-force case law in the United States Circuit
Courts of Appeals based on allegations of ECD abuse.
ECD safety has been at issue since the devices were first used. There
are obvious risks of which the manufacturer has always warned: a dart in
the eye, ignition of flammable substances (including pepper spray), fallrelated trauma, and orthopaedic fracture or dislocation – each of which can
result in a catastrophic injury or death.3 TASER International has, at least
until quite recently, stridently defended the cardiac safety of its product,
arguing in general that coronary deaths were due to drug overdoses, socalled “excited delirium” – a dubious diagnosis not generally accepted as
a cause of death by the medical profession4 – or pre-existing heart abnormalities. There are scientific and medical studies which establish, however,
that when shot directly into the chest the electrical current can cause lethal
cardiac arrhythmias, and repeated shocks delivered anywhere on the body
can alter blood chemistry sufficiently to induce cardiac arrest.
Plaintiffs lawyers should argue that due to these serious risks any law
enforcement or correctional use of an ECD must be considered a high-level
of force justifiable under Graham v. Connor5 for arrests or Hudson v. McMillian6 in jails or prisons.
Despite the fact this article may well be out of date by the time of publication, due to the rapidly evolving nature of this complex subject, we hope
it will, nonetheless, help the plaintiffs’ lawyer make informed decisions on
which cases are worth pursuing and assist in the prosecution of those cases
once filed.

The History of the TASER ECD
Lawyers representing clients claiming ECD-related injuries need to understand the product.
Jack Cover, an electrical engineer, developed ECDs in the early 1970s
as a “less-lethal” force option for law enforcement, whimsically naming
his invention after the 1911 novel Tom Swift’s Electric Rifle; or, Daring
Adventures in Elephant Land, one in a series of stories written for young
males. Cover gratuitously inserted an “A” in TSER to make the acronym
pronounceable.7 Cover’s original ECD fired two darts attached to wires
28

Representing Clients
which were propelled by gunpowder. When both darts hit their target the
ECD discharged brief bursts of electricity – as short as 10 microseconds
(ten millionths of a second) – pulsing at a rate of about 10 times a second –
through the completed electrical circuit for five seconds.
Depending on the location of the darts, the current activates the body’s
motor nervous system, triggering severe contractions throughout the skeletal muscles. It also stimulates the sensory nervous system, causing intense
pain. The intended effect of the ECD’s is to lockup the muscle system, causing the person to fall, allowing officers to move in safely and handcuff
without any further use of force.
Cover patented his invention in 1974, and the first sales occurred in
1976. The first generation ECDs used electrical output of approximately .4
joules per pulse – around seven watts per second. Despite the risks inherent in this new technology, there was no peer-reviewed scientific testing or
medical evaluation performed before manufacturers began selling ECDs
directly to law enforcement and correctional agencies for use on human
beings.
ECD use did not immediately become widespread, in large part because
officers found that a motivated person could fight through the effects of its
relatively low power output.8 There were, however, reports of deaths associated with ECD use,9 and the world watched in horror as Los Angeles Police
Sergeant Stacy Koon tortured Rodney King with a first-generation ECD on
March 3, 1991 – prior to King being beaten with batons, kicked and hogtied – when George Holliday’s video was shown repeatedly on national and
international newscasts.10
In 1993 Cover sold the “TASER” trademark, along with various licenses
and patents, to brothers Patrick “Rick” and Thomas Smith, the founders of
TASER International, Inc. They changed the propellant to nitrogen, thus removing the product from regulation by the Bureau of Alcohol, Tobacco and
Firearms,11 and then, to make the device more popular for law enforcement,
increased its power four-fold, to 1.76 joules per pulse, 26 watts a second.12
TASER International introduced the ADVANCED TASER Model M26
late in 1999. Shaped like a pistol, it holds eight AA batteries and delivers,
depending on the battery charge, between 15 to 20 pulses per second –
each of 40 microsecond duration – at a peak current ranging from 15 to 17
amps.13 Although the Model M26 sold well, officers complained about its
size, weight, and similarity to a firearm.14 In 2003, TASER International
substantially re-engineered the electronics and released the more popular
Model X26, smaller, sleeker and lighter because it is powered by only two
AA batteries. To generate the same stopping power from a smaller energy
source, the Model X26 has a longer (100 microsecond) although flatter
29

Civil Rights Litigation Handbook
(peak three to five amps) waveform. The X26 regulates its pulse rate better,
consistently delivering around 19 per second. The individual pulses delivered by each model contain roughly the same amount of electrical energy
– 100 micro-coulombs.15 The Model X26 can be equipped with an optional
video camera.16
TASER International had an initial public offering of stock in May 2001,
trading on the NASDAQ under the symbol “TASR.” The stock skyrocketing
before coming back to Earth in 2005 amid concerns about product safety.17
Product sales to corrections and law enforcement have been substantial,
however. According to TASER International, by the beginning of 2009, at
least 350,000 officers in over 12,750 agencies in 45 countries used its products, estimating approximately 680,000 human volunteer exposures – generally law enforcement and corrections officers during ECD training – and
547,000 field uses.18

The Operation and Effects of TASER ECDs
Both the Model M26 and Model X26 operate the same. A plastic cartridge clips onto the front of the “barrel.” Switching off the safety activates
a laser sight, the dot of light representing the target for the top dart. Pulling
the trigger fires two darts, each bearing a barbed point nine millimeters
long, connected to wires ranging in length from 15 to 35 feet, with 21 feet
being the most common. The top dart travels straight while the bottom dart
angles downward so that the darts should spread one foot for each seven
feet traveled. The wider the spread, the more effective the electrical discharge will be in causing muscle incapacitation. ECDs are more effective
in the back than the chest due to the presence of more muscles and nerves.19
As the cartridge doors fly open, confetti-like “AFIDs” (anti-felon identification”) scatter, each bearing the serial number of the cartridge. (This feature was originally developed for the consumer model – hence the name.)
AFIDs help place the location of an officer firing an ECD.
Although darts frequently penetrate the skin, the current arcs at 50,000
volts, allowing it to jump through thick clothing when necessary. Much
has been made about the “50,000 volt” shocks in early TASER International promotional literature and the popular media, but in fact there is far
less voltage when the current flows through human tissue – approximately
7,000 volts for the Model M26 and 1,300 for the Model X26. Regardless,
voltage is not the relevant measure. Peak amperage, pulse duration, pulse
rate and total charge per pulse are much more important for assessing physiological effects.20
Both the Model M26 and the Model X26 are set to cycle automatically for five seconds, accompanied by the audible clicking of the electrical
30

Representing Clients
pulses. The cycle can be ended sooner, however, by engaging the safety, or
it can be prolonged by holding down the trigger longer than five seconds,
continuing until the release of the trigger. Five-second cycles can be repeated with additional trigger pulls and prolonged cycles continued until
the device overheats or the batteries wear out, a period of up to ten minutes
depending on battery strength. The fired cartridge can be removed and replaced with a fresh one and the process repeated.
Alternatively, the officer can remove the cartridge altogether – exposing
two electrodes – disengage the safety, pull the trigger, and shove the electrified tip of the weapon into a person’s body to cause excruciating pain, albeit
without the spread between electrodes necessary for muscle disruption to
take effect. TASER International euphemistically labels this barbaric tactic
a “drive-stun,” and issues training materials encouraging officers to target
the neck and groin, and to hold the device against human flesh for the full
five-second duration of the cycle. Drive-stuns typically leave tell-tale pairs
of burn marks, and sometimes permanent scars.
Finally, there is a hybrid tactic. After a cartridge is fired, but still attached
to the ECD, the electrodes are exposed. A person can be drive-stunned with
the expended cartridge still in place. If there is also a dart attached somewhere on the person’s body, then the drive-stun will complete the circuit,
and the path of the current will have the necessary spread for muscle disruption to occur.
People who have experienced the effect of an ECD liken it to a debilitating, full-body seizure, complete with mental disorientation and loss of
control over bodily functions. It is extremely painful. When effective, the
electrical current causes the skeletal muscles to contract severely throughout the extremities, making the person stiffen and fall without means of
self-protection. A person generally cannot comply with instructions while
being shocked, and contractions in the arms may make it difficult for officers to move them into handcuffing position while the current is active,
although TASER International trains this tactic, calling it “handcuffing under power.”

Tracking ECD Use through the TASER Dataport
Trigger pulls are recorded on a built-in computer chip TASER International calls the “dataport.” With a cable and software, the dates and times
of each trigger pull can be downloaded and printed. The information on
the dataport chip itself cannot be modified. The dataport is invaluable for
tracking ECD use, and TASER International should be commended for including this accountability feature on its ECDs. In every case involving
ECD use, the plaintiff’s lawyer must take steps to preserve and to obtain the
31

Civil Rights Litigation Handbook
dataport information as soon as possible. If the defendant agency claims the
data is unreadable, the device should be sent to TASER International, where
technicians are frequently able to rescue “corrupted” data.
The internal clocks in the ECDs tend to drift, and therefore dataport
times can be minutes, hours, or even days off from real time. ECDs should
be test fired, downloaded and then checked against real time to reconcile
discrepancies. Alternatively, the plaintiff’s lawyer can compare the dataport time to some documented event in real time, such as an officer’s radio
broadcast, or a call history entry. Regardless of the internal clock’s accuracy,
the dataport downloads show the relative timing and number of discharges.
The dataport printouts for the Model M26 and Model X26 have important differences. The Model M26 records the time the trigger was pulled
and the discharge cycle started, but not the duration of the discharge cycle or the time it ended. There is no indication on the dataport download
whether the officer shortened the cycle by engaging the safety before the
automatic five-second shut-off. Prolonged cycles appear as successive trigger pulls exactly five seconds apart, but there is no way to tell whether the
last entry in the series represents a full five seconds or a shorter duration,
as after five seconds the device shuts off as soon as the trigger is released.
The Model M26 records only 585 trigger pulls before the dataport begins
to overwrite existing data.
The Model X26 dataport, on the other hand, records the time the discharge ended, rather than the time it began, as well as the duration of the
discharge. Subtracting the latter from the former gives the time the trigger
was pulled – subject of course to inaccuracies in the setting of the internal
clock. The Model X26 records battery strength and temperature, variables
which affect the ECD’s effectiveness, as well as both Greenwich Mean Time
and local time. Records are not overwritten until after 1,500 discharges.

TASER Scientific and Medical Research, and Training
As mentioned above, there was no peer-reviewed scientific testing or
medical research performed before Jack Cover’s original, low-power ECDs
were first sold to police agencies in 1976. Similarly TASER International
introduced both the Model M26 and the Model X26 without any peer-reviewed scientific testing or medical study.
TASER International’s initial Model M26 “Medical Safety Information”
was based on testing performed by “medical adviser” Robert Stratbucker,
M.D., who had conducted some private experiments with ECDs during the
1980s. He placed electrodes from a makeshift electrical device on the chest
of a single anesthetized pig, increasing the power per pulse until they observed the desired amount of muscle contractions in its legs, thus estab32

Representing Clients
lishing the amplitude of what became the Model M26 waveform. The test
device did not emulate the final product, however, because it pulsed for
only 13 microseconds and at a rate of only two to two-and-a-half times per
second. Nevertheless, TASER International deemed the test a medical success because the single anesthetized pig tested did not experience cardiac
arrest. No further medical or scientific testing was done before the ECD
was used, primarily with brief shocks, on human volunteers – without any
medical monitoring or evaluations.21 TASER International then began to
sell the device.
The first published peer-reviewed medical research was funded by
TASER International and directed by Dr. Stratbucker, appearing in January
2005 – after more than four years of TASER ECD use by law enforcement
and over a hundred reported ECD-associated deaths in the United States
and Canada.22 The researchers built a custom device which allowed them to
increase the strength of the current. Electrodes were attached to the chests
of anesthetized pigs and five-second cycles administered. Power was increased until the induction of ventricular fibrillation (VF), the deadly cardiac arrhythmia associated with exposure to an external electrical source.
The researchers concluded that an ECD “discharge that could induce VF
required 15-42 times the charge of the standard [ECD] discharge,” depending on dart placement and the weight of the test animal.23 The researchers
did not test multiple applications, repeated discharges or prolonged cycles.
The next year, the publication of additional peer-reviewed, TASER-funded research contradicted those findings. Different researchers – this time including board-certified cardiac electro-physiologists – attached darts from
an adjustable experimental device to anesthetized pigs and determined that
the standard X26 current, when it passed through the heart, can “capture”
the cardiac rhythm, a precursor to VF and cardiac arrest. “Avoidance of ”
such positions “would greatly reduce any concern for induction of ventricular arrhythmias,” the study concluded.24
At about the same time, an independent peer-reviewed study using offthe-shelf Model M26s and Model X26s determined that discharges delivered to the chest of test animals resulted in cardiac capture, particularly
with the Model X26’s longer duration waveform. Significantly, when a test
animal was given epinephrine (adrenaline) to simulate the agitated state of
an individual being shocked during a confrontation with the police, a single
ECD administration produced VF and cardiac arrest.25
These studies put TASER International on notice that its products, when
fired into the chest, can disrupt the body’s natural regulation of the heart
rhythm, and even cause ventricular fibrillation, cardiac arrest and death. Yet
TASER International continued to train users to target “center body mass”
33

Civil Rights Litigation Handbook
and represented that its product was proven to be cardiac safe. Warnings
about the cardiac risks of chest shots were not issued until September 2009.
Also, by 2005 the link of multiple, repeated or prolonged ECD applications to a separate and distinct mechanism for cardiac arrest became undeniable. Metabolic acidosis, the build-up of lactic acid (lactate) in the bloodstream from excessive muscle contractions, is a known cause of cardiac
arrest.26 The relationship between repeated ECD-induced muscle contractions and severe metabolic acidosis was documented in a study sponsored
by the United States Air Force,27 and in a series of experiments conducted
by independent researchers in Chicago.28
In the authors’ review of ECD deaths, acidosis-related deaths more often
arise in association with stimulant-induced agitated behavior or mental illness. Such deaths are generally accompanied by five or more ECD cycles
and aggressive prone restraints which impair breathing, and therefore the
person’s ability to recuperate.
The risks posed by the introduction of ECDs were documented in the
most thorough etymological study to date. Independent researchers from
the University of California, San Francisco, School of Medicine determined
that in-custody deaths increased six-fold during the year following the first
deployments of TASER International products in the surveyed California
law-enforcement agencies.29
TASER International finally updated its training and warning materials
in September 2009 to educated its users about the cardiac risks of its devices. These warnings, currently contained in TASER X26 Training Version
17, include the following:
•	 “The risk of an ECD causing cardiac arrest in humans from ventricular fibrillation is sufficiently remote that making accurate estimates is very difficult. Current estimates of the risk are on the
order of 1 in 100,000 applications.”
•	 “Experts have identified heart to dart distance as being a key determining factor in whether an ECD can affect the heart.”
•	 “The further an ECD dart is away from the heart, the lower the
risk of affecting the heart.”
•	 “When possible, avoiding chest shots with ECDs reduces the risk
of affecting the heart.”
•	 “Reasonable effort should be made to minimize the number of
ECD exposures and resulting physiologic and metabolic effects.”
•	 “Law enforcement personnel are called upon to deal with individuals in crises [who] are often physiologically or metabolically
34

Representing Clients
compromised and may be susceptible to arrest-related death . . . .
Any physiologic or metabolic change may cause or contribute to
death or serious injury.”
“Better late than never,” as the saying goes. These warnings of lethal
consequences, which perhaps would have saved hundreds of lives had they
accompanied the initial sales of the Model M26 and Model X26, should
be brought to the attention of judges and juries in all ECD-related actions.

Section 1983 Cases In the United States Court of Appeals Arising
from Alleged Abuse of ECDs
A. ECD Use in the Correctional Setting.
Michenfelder v. Sumner,30 decided in 1988, is the first federal Court
of Appeals decision addressing the use of “taser guns” in the correctional
setting. An inmate sought a declaratory judgment that the prison’s policy
of allowing its guards to shock inmates with ECDs constituted cruel and
unusual punishment. While acknowledging the Supreme Court’s ruling in
Hutto v. Finney31 that the use of electric shocks to punish inmates for misconduct was indeed “unusual,”32 the Ninth Circuit allowed that “the legitimate penological purpose of strip searches – to discover hidden weapons
and contraband – justifies using force necessary to induce compliance by
difficult inmates.”33
The court noted, however, that “the appropriateness of the use must be
determined by the facts and circumstances of the case.”34 ECDs cannot be
used “for the sole purpose of punishment or the infliction of pain.”35 The
court recognized that “the record regarding the risk of tasers is sketchy at
best” and the “long-term effects of tasers are currently unknown,” noting
that the trial court relied on “the manufacturer’s literature regarding testing
on animals.”36
The Eighth Circuit addressed the issue twice, coming to different conclusions based on the facts of each case. In 1993’s Jasper v. Thalacker37 an
inmate lunged at a guard. Three guards held him while a fourth shocked
him with an ECD. The court affirmed the district court’s grant of summary
judgment, holding that the “infliction of pain in the course of a prison security measure . . . does not amount to cruel and unusual punishment simply
because it may appear in retrospect that the degree of force authorized or
applied for security purposes was unreasonable, and hence unnecessary in
the strict sense.”38
In Hickey v. Reeder,39 decided only six months later, the Court reached
the opposite conclusion. An inmate was shocked by an ECD for refusing to
sweep his cell. The court reversed summary judgment, observing that “The
35

Civil Rights Litigation Handbook
law does not authorize the day-to-day policing of prisons by stun gun.”
The court held that the “relationship between the need for force (zero) and
the force used (a painful and incapacitating shock) was excessive. And the
pain inflicted was substantial.” Hickey called “the defendants’ attempt to
minimize the pain of being shot with a stun gun by equating it with the pain
of being shocked by static electricity” “completely baseless,” adding that
the “defendants’ own testimony reveals that a stun gun inflicts a painful
and frightening blow, which temporarily paralyzes the large muscles of the
body, rendering the victim helpless. This is exactly the sort of torment without marks with which the Supreme Court was concerned in McMillian, and
which, if inflicted without legitimate reason, supports the Eighth Amendment’s objective component.”40 The court rejected qualified immunity, stating: “We have not found, and hope never to find, a case upholding the use of
this type of force on a nonviolent inmate to enforce a housekeeping order.”41
More recently, in Lewis v. Downey42 the Seventh Circuit reversed summary judgment for prison guards who shocked an inmate with a high-power TASER International ECD. Eleven days into a hunger strike, after the
guards denied the inmate’s request for medical assistance, he held a bottle
of ibuprofen tablets and announced he would “take care of my pain myself.”
The inmate threw the bottle to the floor, the pills scattering around his cell,
and then laid down on his bunk. Several minutes later, three guards entered
his cell and ordered him off the bed. One guard shocked him in the leg,
causing him to slide to the floor.43
Lewis rejected the district court’s conclusion that the ECD use was de
minimis force. “[P]ain, not injury, is the barometer by which we measure
claims of excessive force,” the court noted, and “one need not have personally endured a taser jolt to know the pain that must accompany it.” The court
explained that “a stun gun inflicts a painful and frightening blow [that] temporarily paralyzes the large muscles of the body, rendering the victim helpless” and “sends an electric pulse through the body of the victim causing
immobilization, disorientation, loss of balance, and weakness.”44
Accordingly, the Seventh Circuit denied the guards qualified immunity.
“We hold that a reasonable officer would understand that employing a taser
gun under the version of the facts that [the inmate] has described would
violate the prisoner’s constitutional rights. [The inmate] claims that he was
prone on his bed, weakened, and docile. He asserts that he was told to rise
one time and was not warned that a taser would be used against him if he
failed to comply. He states that he was scarcely given enough time to turn
his head and did not otherwise respond to [the guard’s] order. If these truly
are the facts, no reasonable officer would think that he would be justified in
shooting [the inmate] with a taser gun.”45
36

Representing Clients
The authors believe that ECD use in the correctional setting is often
problematic, at best.46 Generally, the guards have a variety of more effective
and less dangerous tactics available for the control of inmates. The possibilities for abuse are extremely high. Accordingly, we encourage plaintiffs’
lawyers to accept such cases when possible and litigate them fully.
B. ECD Use as Excessive Force Outside Corrections
As one might imagine, the majority of ECD uses occur outside the corrections environment. Ironically, courts sometimes seem more willing to
hold ECD use on inmates actionable under the Eighth Amendment than
when members of the public claim damages under the far more protective “objective reasonableness” standard for Fourth-Amendment claims.
The cases which deny liability as a matter of law, in the authors’ opinion,
unreasonably minimize the medical risks and pain arising from ECD use.
Plaintiffs’ lawyers must make a good record in this regard.
The Supreme Court has yet to review an ECD excessive-force case.47
The first federal Court of Appeals decision to address an alleged inappropriate use of the current generation of TASER International ECDs48 is the
Eleventh Circuit’s unfortunate 2004 decision in Draper v. Reynolds.49
The incident started with the defendant deputy pulling over plaintiff’s
truck because “its tag light was not appropriately illuminated under Georgia
law.” After the two men exchanged some words – the driver was clearly annoyed at being stopped – the deputy directed him to the rear of the truck,
and a video camera mounted in the patrol car recorded the rest of the incident. The driver insisted that he had done nothing wrong, gestured animatedly, paced and spoke loudly, but was not violent. He refused to provide
papers to the deputy, at one point stating, “How ‘bout you just go ahead
and take me to fucking jail, then, man, you know, because I’m not going to
kiss your damn ass because you’re a police officer.” As a back-up deputy
arrived, the first deputy shot his TASER Model M26 into the driver’s chest,
cycling it once, causing him to fall to the ground.50
The court affirmed the district court’s grant of the deputy’s motion for
summary judgment, holding that “[i]n the circumstances of this case, [the
deputy’s] use of the taser gun to effectuate the arrest . . . was reasonably
proportionate to the difficult, tense and uncertain situation that [the deputy]
faced in this traffic stop, and did not constitute excessive force.” The court
added: “Although being struck by a taser gun is an unpleasant experience,
the amount of force [the deputy] used – a single use of the taser gun causing
a one-time shocking – was reasonably proportionate to the need for force
and did not inflict any serious injury.”51
37

Civil Rights Litigation Handbook
In the authors’ opinion Draper’s analysis is deeply flawed. The court
sanctions ECD use on a vocal and indignant, but non-violent, person without addressing any of the significant medical risks, including a dart to the
eye or groin, a fall related injury, or a cardiac event. Should not these risks
of harm figure into the force calculus even if they did not occur?52 Should
liability be different assuming the facts were the same, but the driver did
suffer a serious injury? Moreover, there is no discussion of the horrible pain
inflicted by ECDs, or of the many less intrusive alternatives available to the
deputy,53 especially once the back-up deputy arrived.54
Draper’s impact has been somewhat watered down by the more recent
Eleventh Circuit decision affirming the denial of qualified immunity in
Oliver v. Fiorino,55 where the person died as a result of ECD discharges.
The court distinguished Draper on the basis that the decedent was shocked
repeatedly. In the middle of a hot Florida afternoon, an officer observed the
decedent flagging her down. He claimed “they’re shooting at me” several
times, and pointed across the street. A second officer arrived. The two discussed whether the man was mentally unstable and subject to involuntary
commitment. After the man provided his identification, the situation deteriorated. There was a brief tussle, and without warning, an officer shocked
the decedent with her ECD.56
The man fell on scorching hot asphalt, screaming in pain that it was “too
hot.” He attempted to get up, but never threatened or assaulted an officer. A
witness observed that after the decedent fell down, he could not roll over.
When he tried to sit up, he flopped around like a “wet cloth” because he had
no control over his body. After three or four discharges, the officer loaded a
second cartridge into her ECD and shot again, leaving the decedent immobilized, clenched up and lying on his back. He subsequently died, according
to plaintiffs’ medical expert, as a result of “ventricular dysrthythmia” from
“being struck by a Taser.”57
The Court held: “Quite simply, though the initial use of force (a single
Taser shock) may have been justified, the repeated tasering of [the decedent]
into and beyond his complete physical capitulation was grossly disproportionate to any threat posed and unreasonable under the circumstances.”58
Although “neither the United States Supreme Court nor the Florida Supreme Court has even addressed the use of Tasers in an excessive force inquiry, and this Court has only squarely done so in one published decision,”
the denial of qualified immunity was affirmed. “Tasering the plaintiff at
least eight and as many as eleven or twelve times over a two-minute span
without attempting to arrest or otherwise subdue the plaintiff – including tasering [him] while he was writhing in pain on the hot pavement and after he
had gone limp and immobilized – was so plainly unnecessary and dispro38

Representing Clients
portionate that no reasonable officer could have thought that this amount of
force was legal under the circumstances.”59
The Eleventh Circuit in Mann v. Taser International, Inc.,60 however,
found that the use of a TASER, apparently in drive-stun mode, for three
cycles on a violent and agitated woman under the influence of methamphetamine did not violate her Fourth-Amendment right to be secure from
excessive force.61 The court seemed influenced by the facts that the woman
was later examined by medical personnel and did not appear to be injured,
but became unresponsive about 25 minutes later. While in the emergency
room 45 minutes after that – with her body temperature in excess of 107
degrees – the woman went into cardiac arrest and never recovered.62
Results in other circuits have been similarly mixed. In Cook v. City of
Bella Villa,63 a panel of the Eighth Circuit, over a vigorous dissent, upheld
summary judgment against a motorist shocked during a contentious traffic
stop, noting that he “sustained only minor scrapes and two taser puncture
marks which did not require medical treatment,”64 distinguishing Hickey v.
Reeder65 on the basis that the officer “was not in a secure prison facility, but
was alone, on a state highway, at midnight.”66 The majority seems to have
been influenced by the district court’s noting “the lack of any significant
injury . . . and no permanent physical injury,” in light of there being “‘an
open question in this circuit whether an excessive force claim requires some
minimum level of injury.’”67
On the other hand, in Brown v. City of Golden Valley68 the Eighth Circuit
ruled that the use of an ECD on a non-violent individual can amount to
excessive force. The plaintiff’s husband was, she believed, being roughed
up during a late-night traffic stop. She called 911 for help. She refused the
officer’s orders to terminate the call, so he drive-stunned her upper right
arm while grabbing her phone.69 Denying qualified immunity, the court
ruled that “the law was sufficiently clear to inform a reasonable officer that
it was unlawful to Taser a nonviolent, suspected misdemeanant who was not
fleeing or resisting arrest, who posed little to no threat to anyone’s safety,
and whose only noncompliance with the officer’s commands was to disobey
two orders to end her phone call to a 911 operator.” Id. at 499.
Similarly, in Parker v. Gerrish70 the First Circuit upheld a verdict for
excessive force for $111,000 based on an improper use of an ECD during
a drunk driving arrest. The court applied the familiar Graham v. Connor
factors, that although “driving while intoxicated is a serious offense, . . .
since [plaintiff] complied with [the officer’s] requests and exited the vehicle
voluntarily, he no longer posed a threat of driving while intoxicated.” The
plaintiff was neither resisting arrest nor attempting to flee, and did not pose
an immediate threat to the officer’s safety. Although the plaintiff was per39

Civil Rights Litigation Handbook
haps obnoxious, “a reasonable officer would not discharge his Taser simply
because of insolence.”71
Parker took into account the potential risks posed by ECDs. “When considering whether it was reasonable for [the officer] to fire his Taser in light
of these facts, the jury could turn to testimony about the strong incapacitating effect of the Taser and the fact that the [police department] considered
the Taser just below deadly force in its ‘continuum’ of force.”72
The Fourth Circuit upheld a denial of qualified immunity in Orem v.
Rephann.73 The plaintiff had been arrested for assaulting a deputy after being served with a restraining order. She was cuffed, hobbled, and put in a
police car, with the hobble cord secured to the door. On the way to jail,
she loosened the hobble. While the hobble was being re-secured, a deputy
drive-stunned her twice, once underneath her breast and once on her inner
thigh, the latter leaving a scar.74
The court analyzed the claim of plaintiff – a pre-trial detainee – under
the Fourteenth, rather than the Fourth, Amendment,75 requiring her to “show
that [the deputy] ‘inflicted unnecessary and wanton pain and suffering.’”76
Holding that plaintiff met her burden, the court noted that the deputy did
not follow his department’s policy, which requires use of open hand measures before application of an ECD. The court emphasized that the locations
of the drive-stuns would support an inference that the “application of force
in these areas was done for the very purpose of harming and embarrassing
[plaintiff] – motives that are relevant factors . . . to determining whether the
use of force was excessive under the Fourteenth Amendment.” Id. at 447.
Finally, the court rejected the claim that the injury was de minimus. “A stun
gun inflicts a painful and frightening blow, which temporarily paralyzes
the large muscles of the body, rendering the victim helpless. This is exactly
the sort of torment without marks . . . which, if inflicted without legitimate
reason, supports the Eighth Amendment’s objective component.”77
The day before this article was finalized for publication, the Seventh
Circuit decided a wrongful death case, Cyrus v. Town of Mukwonago,78 reversing summary judgment in favor of an officer who repeatedly shocked a
mentally ill man with a Model X26. The parents of the 29-year-old decedent
reported him missing. The defendant officer found him wandering about
in his bathrobe. He knew the decedent was “that crazy boy” who had been
reported missing – and the officer had previous experiences dealing with
the decedent during his psychotic episodes.
The officer fired darts into the decedent’s back, causing him to fall to
the ground. The officer admitted cycling the device a second time, and then
drive stunning the decedent four times during the handcuffing process. The
dataport recorded 12 trigger pulls, however. The decedent stopped breath40

Representing Clients
ing and was pronounced dead at the hospital. The medical examiner attributed his death to exertion, panic, the prone position, pressure to the back
and neck during handcuffing, mental illness, “the pain and panic caused
by the Taser” and “the electrical shock from the Taser.” She testified that
“while she believed all eight factors contributed to [the] death, she could
not determine whether any one factor was more significant than the others.”
Applying the Graham excessive-force analysis, the court held there were
triable issues because the crime at issue was, at most, a misdemeanor, and
the decedent “was not exhibiting violent behavior.” The court rejected the
officer’s contention that if his “first use of the Taser was reasonable, all
other uses were necessarily appropriate,” citing Oliver v. Fiorino for the
proposition that “the repeated tasering . . . was grossly disproportionate to
any threat posed.” Most interesting, however, is the court’s discussion of
causation, which it held can be proved without expert testimony “if all the
primary facts can be accurately and intelligibly described to the jury, and
if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are
witnesses possessed of special or peculiar training, experience or observation.”79
The “primary facts” here include the close temporal proximity between
the allegedly excessive force and [the] death: [the decedent] stopped breathing just a minute or two after being repeatedly shocked with the Taser, and
this tight chronology bears on causation. Other evidence suggests that potential alternative causes of death may be ruled out.
Finally, the recent development of ECD law in the Ninth Circuit has been
peculiar, to say the least. On December 28, 2009, a panel comprised of three
judges widely regarded as among the court’s most liberal issued an excellent opinion – now withdrawn and replaced – in Bryan v. McPherson.80 The
officer shot a motorist who was “agitated, yelling gibberish and hitting his
thighs, clad only in his boxer shorts and tennis shoes” with probes, “causing
him to fall face first, fracturing four teeth and suffering facial contusions.”
Before addressing the Graham v. Connor factors, Bryan reviewed the
“quantum of force” involved.81
The X26 uses compressed nitrogen to propel a pair of “probes”
– aluminum darts tipped with stainless steel barbs connected to the
X26 by insulated wires – toward the target at a rate of over 160 feet
per second. Upon striking a person the X26 delivers a 1200 volt, low
ampere [sic] electrical charge through the wires and probes and into
his muscles. The impact is as powerful as it is swift. The electrical
impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp
41

Civil Rights Litigation Handbook
[sic] and helpless. The tasered person also experiences an excruciating pain that radiates throughout the body.82
Bryan also took into consideration the impact of the ECD on the plaintiff,
as well as the injury caused.
[The plaintiff] vividly testified to experiencing both paralysis and
intense pain throughout his body when he was tasered. . . . As a
result of the taser, [the plaintiff] lost muscular control and fell, uncontrolled, face first into the pavement. This fall shattered four of his
front teeth and caused facial abrasions and swelling. Additionally, a
barbed probe lodged in his flesh, requiring hospitalization so that a
doctor could remove the probe with a scalpel. A reasonable police officer with . . . training on the X26 would have foreseen these physical
injuries when confronting a shirtless individual standing on asphalt.
....
. . . . We similarly reject any contention that, because the taser
results only in the “temporary” infliction of pain, it constitutes a
non-intrusive level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering the
victim’s muscles and nerves. Beyond the experience of pain, tasers
result in “immobilization, disorientation, loss of balance, and weakness,” even after the electrical current has ended. Moreover, tasering
a person may result in serious injuries when intense pain and loss of
muscle control cause a sudden and uncontrolled fall.83
Because the Model X26 “intrudes upon the victim’s physiological functions
and physical integrity in a way that other non-lethal uses of force do not,”
the court held that “the X26 and similar devices constitute an intermediate,
significant level of force that must be justified by ‘a strong government
interest [that] compels the employment of such force.’”84
The court then proceeded through the various Graham v. Connor factors, resolving them against the officer’s decision to use his ECD, and held
that no “reasonable officer confronting a situation where the need for force
is at its lowest – where the target is a nonviolent, stationary misdemeanant twenty feet away – would have concluded that deploying intermediate
force without warning was justified.” The court therefore denied qualified
immunity.85
Two weeks after the Bryan opinion was filed, however, a Ninth Circuit
panel representative of the more conservative judges issued a contrary decision – now withdrawn and pending en banc review – in Mattos v. Agarano.86
One of the officers responding to a domestic disturbance call shocked the
42

Representing Clients
wife with an ECD – one five-second cycle. The court did not say whether
with probes or drive stun. The wife’s testimony that she “felt a pinch on the
back of her right hand and then felt an incredible burning and painful feeling locking all of [her] joints,” causing her to scream and fall to the floor,
sounds like a probe shot.87 Yet the court refers to the defendant’s expert
opining about the effects of “a Taser in the drive stun mode.”88 Holding
that no constitutional violation occurred, the court of appeals reversed the
district court’s denial of qualified immunity, distinguishing the Eleventh
Circuit’s opinion in Oliver as well as the Ninth Circuit’s in Bryan with the
conclusion that “this is simply not a case in which the officers’ conduct was
so ‘patently violative’ of . . . constitutional rights ‘that reasonable officials
would know without guidance from the courts that the action was unconstitutional.’ The officers used the Taser only once in a domestic violence situation that could have quickly become much more dangerous to everyone
involved.”89
The Mattos panel, by its own admission, lacked a full factual record
about ECDs, stating “The problem here is that, even with the benefit of
some briefing and argument on the subject, it is difficult for us to opine
with confidence regarding either the quantum of force involved in a deployment of a Taser gun or the type of force inflicted.”90 Mattos underscores
the need for plaintiffs’ lawyers to establish through expert testimony and
scientific studies the dangers posed by ECDs.
Mattos was followed in March 2010 by an even more disturbing Ninth
Circuit decision, Brooks v. City of Seattle, an opinion also withdrawn and
pending en banc review.91 The defendant officer stopped the plaintiff for
allegedly speeding in a school zone, and she refused to sign the citation.
After a second officer and supervisor arrived, they told the plaintiff she was
under arrest. She refused to leave her car, remaining in it with the ignition
running and her door shut. An officer displayed his ECD, advising that it
would hurt “extremely bad” if applied. When she stayed in the car, another
officer opened the door, turned off the ignition and dropped the keys on the
floorboard.92 While he held her arm, the first officer drive-stunned plaintiff’s thigh, causing “tremendous pain.” She was then shocked two more
times – on her shoulder and neck.93
The two-judge panel majority emphasized that the officer used his ECD
in “touch” or “drive-stun” mode which his department deemed a “Level
1” tactic, akin to “pain compliance applied through the use of distraction,
counter-joint holds, hair control holds,” and pepper spray for overcoming
passive as well as active resistance. By contrast, the court observed, using an ECD in “probe” or “dart mode” can cause neuro-muscular incapacitation which the department considered a “Level 2” tactic to be used
43

Civil Rights Litigation Handbook
only against aggressive resistance. Calling an “overestimation” the district
court’s assessment that the pain inflicted by a drive stun was “severe,” the
court noted that the district court – like the Mattos panel – failed to differentiate between the modes of ECD use.94
The force at issue here is markedly different than the force in Bryan, and, unlike in Mattos, we have the benefit of a fully-developed
record on the use of a Taser in drive-stun mode. The use of the Taser
in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury. Brooks said she sustained burn marks and now has scars
on her upper arm and thigh, which is certainly not insignificant, but
these injuries are far less serious than those inflicted on Bryan by the
X26 Taser-excruciating pain throughout his entire body, temporary
paralysis, facial abrasions, shattered teeth, and a sharp barb lodged
into his flesh. Thus, the use of the Taser in drive-stun mode – as opposed to dart mode – seems unlike the force used in Bryan or uses of
force which this court has previously considered severe.95
In a sharp dissent, Judge Martha Berzon wrote:
I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against
[plaintiff], let alone three activations of a Taser, in response to such
a trivial offense. . . . As “the situation here was far from that of a
lone police officer suddenly confronted by a dangerous armed felon
threatening immediate violence,” we should be holding the force
used constitutionally excessive. But the majority does the opposite:
it sanctions the use of painful force causing permanent scars against
a citizen who threatened no harm.96
Finding support in Brown v. City of Golden Valley that a reasonable jury
could determine that a single application of an ECD in drive-stun mode to
the arm of an individual suspected of committing a “minor, non-violent
crime[ ]” and who posed no “realistic threat to [the officer’s] safety” constituted excessive force,97 the dissent concluded that “there is no question
whatever that a reasonable jury could find that the repeated use of a Taser
on a woman driving her son to school whose only crime was refusing to
sign a notice of infraction was objectively unreasonable.”
In June 2010, the Bryan panel withdrew its original opinion and filed a
new one.98 The body of the opinion reads the same, except that the officer
was granted qualified immunity, the Court asserting that as of the date of
the incident,
44

Representing Clients
July 24, 2005, there was no Supreme Court decision or decision of
our court addressing whether the use of a taser, such as the Taser
X26, in dart mode constituted an intermediate level of force. Indeed,
before that date, the only statement we had made regarding tasers in
a published opinion was that they were among the “variety of nonlethal ‘pain compliance’ weapons used by police forces.”And, as the
Eighth Circuit has noted, “[t]he Taser is a relatively new implement
of force, and case law related to the Taser is developing.” Two other
panels have recently, in cases involving different circumstances, concluded that the law regarding tasers is not sufficiently clearly established to warrant denying officers qualified immunity. Based on
these recent statements regarding the use of tasers, and the dearth of
prior authority, we must conclude that a reasonable officer in [the
officer’s] position could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances
[the officer] confronted in July 2005.99
As of the date of this writing en banc hearings are pending in Mattos and
Brooks, and an en banc petition is pending in Bryan. Hopefully, we will get
some positive rulings soon.

Conclusion
It seems that not a week goes by without a major ECD related incident
appearing in the news. Videos of a speaker challenging a politician, a student studying in a university library and even a 64-year-old man sitting on
his sofa, suffering the effects of ECD shocks have, in the current vernacular,
“gone viral.”
The authors urge plaintiffs’ lawyers to accept meritorious ECD-related
cases and prosecute them vigorously. Only by forcing ECD manufacturers and users to accept responsibility for their wrongful conduct can these
abuses be curtailed.
1.	

2.	
3.	

An ECD is frequently referred to as a “taser,” but that terminology should be
avoided as “TASER” is a registered trademark owned by TASER International.
“Stun gun” is an unfortunate expression because it fails to describe accurately
the effect of an ECD. The authors use ECD, but the literature contains many
other expressions and acronyms, including conducted electrical device (CED),
conducted electrical weapon (CEW), electrical control weapon (ECW) and neuro-muscular incapacitator (NMI).
“Less than Lethal”? The Use of Stun Weapons in US Law Enforcement, Amnesty International (2008).
See, e.g., Brooklyn Man Dies After Police Use a Taser Gun, The New York
Times, Sept. 24, 2008 (fall from building); C.M. Sloane, T.C. Chan, G.M. Vilke,
45

Civil Rights Litigation Handbook

4.	

5.	
6.	
7.	
8.	
9.	

10.	
11.	
12.	
13.	

14.	

46

Thoracic Spine Compression Fracture after TASER Activation, J Emerg Med.
2008:34(3):283-5 (orthopaedic injury).
Neither the American Medical Association nor the American Psychological Association recognizes excited delirium as a medical or mental-health condition.
No such diagnosis is listed in The Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV) published by the American Psychiatric Association.
490 U.S. 386 (1989).
503 U.S. 1 (1002).
Contrary to TASER’s claim, see “Company Trivia,” located at http://www.taser.
com/company/Pages/trivia.aspx, TASER is not an acronym for “Thomas A.
Swift’s Electric Rifle,” as the character had no middle initial.
Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir.1992), provides a particularly tragic example of the original ECD’s lack of stopping power, leading to the
shooting of an agitated and suicidal individual holding a knife in each hand.
Kornblum, Ronald N., M.D., and Reddy, Sara K., M.D., Effects of Taser in Fatalities Involving Police Confrontation, Journal of Forensic Sciences, Vol. 36, No.
2, pp. 434-48 (March 1991) (reporting sixteen cases). In McCranie v. State, 172
Ga. App. 188, 322 S.E.2d 360, 361 n. 1 (1984), after noting that a prison inmate
was subjected to a single ECD discharge, the court explained: “Apparently, at the
time of the incident at issue, taser guns were not considered by prison officials to
constitute deadly force. They have, however, since been classified as such at the
[Georgia State] prison.” A few years later in People v. Sullivan, 116 A.D.2d 101,
500 N.Y.S.2d 644, 647 (1986), order rev’d on other grounds, 68 N.Y.2d 495, 510
N.Y.S.2d 518, 503 N.E.2d 74 (1986), the court, discussing ECDs as among the
alternatives for controlling irrational persons, noted that “although the device
was introduced in 1971 [sic], there has been great concern about the impact on
people with heart problems and its use has been outlawed in this State.”
See Koon v. United States, 518 U.S. 81 (1996) (affirming in part and reversing in
part criminal sentence for civil rights violation).
Presently, TASER International’s ECDs are within the jurisdiction of the Consumer Product Safety Commission. To the authors’ knowledge, the CPSC has
conducted no testing of the products, nor offered opinions regarding their safety.
ADVANCED TASER M26: Less-Lethal EMD Weapon Medical Safety Information, TASER International (2000).
Braidwood Commission on Conducted Energy Weapon Use, Restoring Public
Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia, at 54-56 (June 2009). The testimony and reports of the Braidwood Commission, established to investigate the role of ECDs in the October 2007 death of
Robert Dziekanski in the Vancouver International Airport, caught on video, are
an invaluable resource for ECD technical issues. They can be accessed at http://
www.braidwoodinquiry.ca.
There have been at least six officers in the United States and Canada who claimed
they shot someone accidentally after confusing their firearm with an ECD, most
famously Bay Area Rapid Transit (BART) officer Johannes Mehserle, caught on
video shooting and killing Oscar Grant, III, in Oakland, California on January
1, 2009. Although Mehserle used a Model X26, most cases involved the Model
M26, the shape and weight of which much more closely resembles those of a
pistol. Mehserle justified in using Taser, expert says, San Francisco Chronicle,

Representing Clients

15.	
16.	

17.	
18.	
19.	

20.	

21.	

22.	
23.	
24.	

25.	

26.	

A-1, June 29, 2010; see also Toreres v. City of Madera, 524 F.3d 1053, 1055
(9th Cir. 2008) (Model M26); Henry v. Purnell, 501 F.3d 374 (2007) (model not
identified). Consideration should be given in such cases to the possibility that the
firearm was drawn deliberately, and the ECD story subsequently fabricated.
Braidwood, supra, note 13.
TASER International recently introduced the Model X3, which can fire three
cartridges rather than just one. The company also sells the XREP, an ECD built
into a shotgun round, and various other products. Cases since 2000, however,
involve either the Model M26 or Model X26.
See, e.g., Taser Shares Fall Sharply Despite Gain In Earnings, New York Times,
February 9, 2005.
Braidwood, supra, note 13, at 50.
There are several examples of individuals being shot by darts in the chest and not
collapsing because of the lack of muscles and nerves. Perhaps the most graphic
is found in Davenport v. Causey, 521 F.3d 544, 547-50 (6th Cir. 2008), where the
person not only remain standing, but also was able to punch the officer before he
was shot with a firearm by another officer.
TASER International lists the amperage of its ECDs as being the range of two
to three milliamps, using an average current per second – over 99.8 percent of
which consists of dead time between pulses – rather than the relevant measure of
peak amperage per pulse. Braidwood, supra, note 13.
Simultaneous with the Model M26’s release, Dr. Stratbucker tested them on
anesthetized dogs. Although the “Medical Safety Information” states that the
experiments proved the product to be safe, the study was not peer-reviewed and
the underlying data never published. Dr. Stratbucker testified at deposition that
although the dogs generally tolerated the Model M26 shocks to their chest, when
electrodes were inserted directly into the heart they induced cardiac arrest, a
finding TASER International never reported.
Amnesty report slams Taser, cites 103 related deaths, Associated Press, April 1,
2005.
W.C. McDaniel, R.A. Stratbucker, M. Nerheim and J.E. Brewer, Cardiac Safety
of Neuromuscular Incapacitating Defensive Devices, Pacing and Clinical Electrophysiology, Vol. 28 pages S284-S287(January 2005).
D. Lakkireddy, D. Wallick, K. Ryschon, M.K. Chung, J. Butany, D. Martin, W.
Saliba, W. Kowalewski, A. Natale, P.J. Tchou, Effects of Cocaine Intoxication
on the Threshold for Stun Gun Induction of Ventricular Fibrillation, J Am Coll
Cardiol, 2006; 48:805-811.
Kumaraswamy Nanthakumar, MD, Ian M. Billingsley, MD, Stephane Masse,
MASC, Paul Dorian, MD, Douglas Cameron, MD, Vijay S. Chauhan, MD, Eugene Downar, MD, Elias Sevaptsidis, DEC, Cardiac Electrophysiological Consequences of Neuromuscular Incapacitating Device Discharges, J Am Coll Cardiol, 2006; 48:798-804.
Paul H. Gerst, William H. Fleming and James R. Malm, Increased Susceptibility
of the Heart to Ventricular Fibrillation During Metabolic Acidosis, Circ. Res.
1966;19;63-70; John L. Hick, M.D., Stephen W. Smith, M.D., Michael T. Lynch,
M.D., Metabolic Acidosis in Restraint-Associated Cardiac Arrest: A Case Series,
Acad Emerg Med. 1999 Mar;6(3):239-43 (linking metabolic acidosis to cardiac
arrests suffered by agitated people during police restraint procedures).
47

Civil Rights Litigation Handbook
27.	 Jauchem JR, Sherry CJ, Fines DA, Cook MC, Acidosis, lactate, electrolytes,
muscle enzymes, and other factors in the blood of Sus scrofa following repeated
TASER exposures, Forensic Sci Int. 161:20-30 ( 2006).
28.	 Andrew J. Dennis, DO, Daniel J. Valentino, MD, Robert J. Walter, PhD, Kimberly K. Nagy, MD, Jerry Winners, BS, Faran Bokhari, MD, Dorion E. Wiley,
MD, Kimberly T. Joseph, MD, and Roxanne R. Roberts, MD, Acute Effects of
TASER X26 Discharges in a Swine Model, Jour. Trauma, Vol. 63, No. 3 page
581 (2007); Robert J. Walter, PhD, Andrew J. Dennis, DO, Daniel J. Valentino,
MD, Bosko Margeta, MD, Kimberly K. Nagy, MD, Faran Bokhari, MD, Dorion
E. Wiley, MD, Kimberly T. Joseph, MD, Roxanne R. Roberts, MD, TASER X26
Discharges in Swine Produce Potentially Fatal Ventricular Arrhythmias, Acad.
Emer. Med. Vol. 15, No. 1 (2008); Daniel J. Valentino, MD, Robert J. Walter,
PhD, Andrew J. Dennis, DO, Bosko Margeta, MD, Frederic Starr, MD, Kimberly K. Nagy, MD, Faran Bokhari, MD, Dorion E. Wiley, MD, Kimberly T.
Joseph, MD, and Roxanne R. Roberts, MD, Taser X26 Discharges in Swine:
Ventricular Rhythm Capture is Dependent on Discharge Vector, Jour. Trauma,
2008 Dec;65(6):1478-85.
29.	 Byron K. Lee, MD, Eric Vittinghoff, PhD, Dean Whiteman, BS, Minna Park,
Linda L. Lau, BS, and Zian H. Tseng, MD, Relation of Taser (Electrical Stun
Gun) Deployment to Increase in In-Custody Sudden Deaths, Am J. Cardiol. Volume 103, Issue 6, Pages 877-880, 15 March 2009.
30.	 860 F.2d 328, 335-36 (9th Cir. 1988)
31.	 437 U.S. 678, 682 (1978)
32.	 In Hutto, guards in an Arkansas prison used the “Tucker telephone,” a handcranked device, to administer electrical shocks to various sensitive parts of an
inmate’s body.
33.	 860 F.2d at 336.
34.	 Id. (citing Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)).
35.	 Id. (citing Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979)).
36.	 Id.; accord Caldwell v. Moore, 968 F.2d 595 (6th Cir. 1992).
37.	 999 F.2d 353 (8th Cir. 1993).
38.	 Id. at 354 (citing Whitley, 475 U.S. at 319 (1986)).
39.	 12 F.3d 754 (8th Cir. 1993).
40.	 Id. at 757-59 (citing Hudson v. McMillian, 503 U.S. 1 (1002)).
41.	 Id. at 759
42.	 581 F.3d 467 (7th Cir. 2009), cert. denied, 130 S. Ct. 1936, 176 L. Ed. 2d 366
(2010).
43.	 Id. at 470-71.
44.	 Id. (citing Hudson v. McMillian, 503 U.S. at 9 (1992), Hickey v. Reeder, 12 F.3d
at 757 (8th Cir. 1993), and Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n. 2
(7th Cir. 1990)).
45.	 Id. at 479.
46.	 Hawkins v. Comparet-Cassani, 251 F.3d 1230 (9th Cir. 2001), involved a different electrical control device, a “Remote Electronically Activated Control Technology” (REACT) belt designed to be worn by potentially disruptive prisoners
during court appearances. “When activated, the belt delivers a 50,000-volt, three
48

Representing Clients
to four milliampere shock lasting eight seconds. Once the belt is activated, the
electro-shock cannot be shortened. It causes incapacitation in the first few seconds and severe pain during the entire period. Activation may lead to involuntary defecation and urination; immobilization may cause the victim to fall to the
ground. Other courts have found the shock can ‘cause muscular weakness for
approximately 30-45 minutes,’ see, e. g., People v. Melanson, 937 P.2d 826, 835
(Colo. 1996), and it is suspected of having triggered a fatal cardiac arrhythmia.
See Shelley Dahlberg, Comment, The React Security Belt: Stunning Prisoners
and Human Rights Groups into Questioning Whether Its Use Is Permissible Under the U.S. and Texas Constitutions, 30 St. Mary’s L.J. 239, 251-52 (1998). The
‘belt’s metal prongs may leave welts on the victim’s skins’ that take months to
heal. Id. at 249.” 251 F.3d at 1234.

The judge ordered the bailiff to shock the pro-se plaintiff because he
would not stop argument during his sentencing. The Ninth Circuit upheld
an injunction under the Sixth Amendment against using the REACT belt in
courtrooms other than to prevent violence or escape. Id. at 1242.
47.	 The only mention of an ECD by the Supreme Court is in Koon v. United States,
518 U.S. 81, 86 (1996), affirming in part and reversing in part the criminal sentence of the Los Angeles Police Department sergeant who supervised the infamous Rodney King beating.
48.	 There appear to be only a few appellate decisions involving first-generation
ECDs. In one, Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993), the Tenth
Circuit upheld summary judgment in favor of officers who, among other uses
of force, shocked a man repeatedly with a “stun gun,” holding the force was
“clearly commensurate with the level of resistance offered.” Id. at 781. Apparently, the court was influenced by the testimony of plaintiff’s expert “that wrestling a defendant [sic] to the ground and using a stun gun are not inappropriate
police practices when a suspect is resisting arrest,” and “that use of a stun gun
is one of the least serious methods of accomplishing” an arrest. Id. Plaintiffs’
lawyers should select experts with a better understanding of constitutional police
practices and ECD effects.
49.	 369 F.3d 1270 (11th Cir. 2004), cert. denied, 543 U.S. 988 (2004).
50.	 Id. at 1272-74.
51.	 Id. at 1278.
52.	 See, e.g., Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001), cert. denied, 536 U.S. 958 (2002) (evaluating potential medical risks of non-penetrating
“beanbag” shotgun round).
53.	 See, e.g., Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.), cert. denied 545
U.S. 1128 (2005) (en banc) (availability of alternatives to siccing dog to arrest
agitated man a factor to consider in excessive force action).
54.	 In a similarly unfortunate decision, the Eleventh Circuit followed Draper in
Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008). Deputies were called to a
disturbance, and broke the nose of a young man while subduing him. As he was
being led to the police car in handcuffs, they shocked him with two ECDs, claiming that he was deliberately trying to spray them with blood. The court wrote:
“We have previously held that in a ‘difficult, tense and uncertain situation’ the
use of a taser gun to subdue a suspect who has repeatedly ignored police instruc49

Civil Rights Litigation Handbook

55.	
56.	
57.	
58.	
59.	
60.	
61.	
62.	

63.	
64.	
65.	
66.	
67.	

68.	
69.	
70.	
71.	
72.	
73.	
74.	
75.	

76.	
77.	
78.	
79.	

50

tions and continues to act belligerently toward police is not excessive force. This
was such a situation, and we conclude that [the deputy’s] use of his taser gun was
reasonably proportionate to the need for force.” Id. at 1073 (quoting Draper, 369
F.3d at 1073).
586 F.3d 898 (11th Cir. 2009)
Id. at 902.
Id. at 902-03.
Id. at 907.
586 F. 3d at 908.
588 F.3d 1291 (11th Cir. 2009).
Id. at 1306.
Id. at 1300-01. Summary judgment was affirmed on the products liability claim
against TASER International because the plaintiffs failed to establish a causal link
between the ECD use and the cardiac arrest in the emergency room more than an
hour-and-half later. Id. at 1304 (“Plaintiffs’ own medical expert testified that while
it would be naive of him to say that use of the Taser, ‘didn’t contribute in some
degree’ to [the] death, he could not, to a reasonable degree of medical certainty,
declare that [the decedent] would have survived that day but for use of the Taser.”)
582 F.3d 840 (8th Cir. 2009).
Id. at 850.
Supra, note 39.
Id.
Id. (quoting Hunter v. Namanny, 219 F.3d 825, 831 (8th Cir. 2000). The Eighth
Circuit had before it in Lash v. Hollis, 525 F.3d 636 (8th Cir.), cert. denied, 129
S. Ct. 511, 172 L. Ed. 2d 375 (2008), a jury verdict against an officer who drivestunned a man six times in the back while pinned to the floor. The issues raised,
however, related only to the extent of damages and attorneys’ fees.
574 F.3d 491 (8th Cir. 2009)
Id. at 494.
547 F.3d 1 (1st Cir. 2008), abrogated on other grounds by Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).
Id. at 9.
Id. at 10.
523 F.3d 442 (4th Cir. 2008).
Id. at 444-45.
Id. at 446 (citingYoung v. Prince George’s County, Maryland, 355 F.3d 751, 758
(4th Cir. 2004)). Other circuits would have applied a Fourth-Amendment standard. See, e.g., Pierce v. Multnomah County, 76 F.3d 1032, 1042-43 (9th Cir.),
cert. denied 519 U.S. 1006 (1996).
Id. (quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998), abrogated on
other grounds by Wilkins v. Gaddy, 130 S. Ct. 1175 (2010)).
Id. at 448 (citing Hickey v. Reeder, supra note 39, 12 F.3d at 757 (8th Cir. 1993).
7th Cir. Case No. 09-2331 (Nov. 10, 2010).
Quoting Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (internal quotation
marks omitted).

Representing Clients
80.	 590 F.3d 767 (9th Cir. 2009) (affirming denial of qualified immunity), opinion
withdrawn and replaced by Bryan v. McPherson, 608 F.3d 614 (9th Cir. 2010)
(reversing denial of qualified immunity).
81.	 Id. at 772 (citing Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001), and
Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.1994)).
82.	 Id. at 772-73 (footnotes omitted) (citing Lewis v. Downey, supra, 581 F.3d at 475
(“[O]ne need not have personally endured a taser jolt to know the pain that must accompany it.”). As explained above, the peak amperage is by no means “low,” and the
usual effect of the muscle contractions is to make the body stiffen, not go “limp.”
83.	 Id. at 773-74 (quoting Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2 (7th
Cir. 1990) and citing Beaver v. City of Federal Way, 507 F. Supp. 2d 1137, 1144
(W.D. Wash. 2007) (“[A]fter being tased, a suspect may be dazed, disoriented,
and experience vertigo.”)).
84.	 Id. at 774-75 (quoting Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052, 1057 (9th Cir. 2003)) (emphasis in original).
85.	 590 F. 3d at 781-782.
86.	 The case is reported at 590 F.3d 1082 (9th Cir. 2010). On October 4, 2010, however, en banc review was granted and the decision may not be cited.
87.	 Id. at 1085.
88.	 Id. at 1087. The authors are informed that the plaintiff was shocked through
probes.
89.	 Id. at 1090 (quoting Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.1994)).
90.	 Id. at 1087. According to Mattos, “The defendants paint a benign portrait of the
Taser, offering evidence that it has been used on over one million human subjects
and has proven extremely safe, as well as evidence that the actual voltage applied
to a subject’s body uses less electricity than a single bulb on a string of Christmas
tree lights.” Id. Many of the “over one million human subjects” are volunteers
shocked for minimal periods of time in controlled settings, and the degree of
safety is disputed. The reference to “voltage” is all wrong. The measure is amperage. Both the Model M26 and Model X26 have peak amperage many times
greater than the one amp needed to power a Christmas tree light.
91.	 The case is reported at 599 F.3d 1018 (9th Cir. 2010). On September 30, 2010,
however, en banc review was granted and the decision may not be cited.
92.	 Id. at 1021.
93.	 Id. Fortunately, two months after the incident the plaintiff delivered a healthy
baby. Id.
94.	 Id. at 1026.
95.	 Id. at 1027.
96.	 Id. at 1031 (quoting Deorle, supra, 272 F.3d at 1283).
97.	 Brown, supra, 574 F.3d at 498.
98.	 Bryan v. McPherson, 608 F.3d 614 (9th Cir. 2010). As of this writing a petition
for rehearing and rehearing en banc is pending.
99.	 608 F. 3d at 629 (quoting San Jose Charter of Hells Angels Motorcycle Club,
402 F.3d at 969 n.8, and Brown v. City of Golden Valley, 574 F.3d 491, 498 n. 5
(8th Cir.2009), and citing Mattos, supra, 590 F.3d at 1089-90; Brooks, supra, 599
F.3d at 1031 n. 18).
51

 

 

Prison Phone Justice Campaign
Advertise Here 3rd Ad
The Habeas Citebook Ineffective Counsel Side