February, 2005

Electronic Control Weapons: Liability Issues
Chief's Counsel
By Randy Means, Attorney at Law, Thomas and Means, LLP, and Eric
Edwards, Lieutenant and Legal Advisor, Phoenix Police Department, and
Executive Director, Arizona Association of Chiefs of Police
Considerable public attention has been given to electronic control weapons lately.
News media outlets have reported incidents in which the use of electronic control
weapons were linked to the deaths of suspects, and critics have questioned the
safety of the devices. Nevertheless, research supports reasonable deployment and
use of these weapons. Much of what is fueling the debate today is anecdotal and not
based in research.
History of Electronic Control Weapons
A quick review of the history of electronic control weapons will help the law
enforcement executive to understand today's devices. Jack Cover, a National
Aeronautics and Space Administration scientist, experimented with electricity as a
nondeadly weapon in the 1960s. He discovered that when short-duration
(milliseconds) high-energy direct-current electric pulses were applied to human
beings, immediate incapacitation almost always occurred with direct, negative side
effects. This discovery led to a delivery system he called the Taser.1 Cover spent
several years perfecting this futuristic device, and it was introduced to the public
through the 1976 Clint Eastwood film The Enforcer.
The original electronic control weapons were 50,000-volt, seven-watt stun systems
that were classified as a firearm, because they used gunpowder to fire probes into
targeted subjects, and fell under provisions of the 1968 Gun Control Act. Later
research and development efforts resulted in the introduction of new electronic
control weapons in 1999. One of the newer devices is a 50,000-volt, 26-watt system.
Unlike its predecessor, this version uses nitrogen cartridges, rather than gunpowder,
to fire its probes. The device is classified as an electro-muscular disruptor that
overrides the central nervous system. This version of the device increases its
effectiveness.2
Electronic control weapons are an important additional force option, significantly
because nondeadly force options such as oleoresin capsicum (OC), or pepper spray,
impact projectiles, and police batons all rely on pain to overcome a suspect's
resistance to officer commands, and persons who are under the influence of drugs or
alcohol or who have a mental illness may have a higher tolerance of pain that
correspondingly decreases the effectiveness of pain compliance weapons. Officers
employing these options sometimes find that these options have little or no effect.3
Electronic control weapons do not rely on pain and are therefore useful in situations

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where other weapons are not.
Risk Management
Like all force tactics and devices, use of electronic control weapons creates liability
risks. The more critical question is how the amount and type of risk created
compares to the risk reduced or eliminated. For example, if tasing someone, as it is
sometimes known, creates substantial risk of serious injury but eliminates the need
to shoot and kill that person, the risk of tasing obviously would be worth taking. If
tasing creates substantial risk of serious injury but does not substantially reduce any
serious risks, the tasing generally would be inappropriate, possibly illegal, and likely
to increase liability exposures. Because the touchstone of use-of-force law is
reasonableness, the risk-to-reward ratio is crucial.
It is important for decision makers to appreciate fully the following:
•It is usually not the tool itself that increases liability exposures but the
reasonableness of when and how the tool is used, given surrounding
circumstances.4 As with any force measure, use of an electronic control
weapon must be justified both generally and specifically. Whereas we might
say generally that electronic control weapons may be used on persons who
are actively resistive, a particular use on an actively resistive but apparently
unarmed six-year-old child might nonetheless be totally unreasonable.
•In order to balance risks appropriately, one must know, at least generally,
what amount and type of risk is involved in a particular tasing. The starting
point, of course, is the gathering of data concerning electronic control weapon
use generally. How many applications have there been? What percentage of
them caused death or serious injury? What percentage did not? What other
circumstances surrounded any deaths or serious injuries? Relevant
circumstances can include the suspect's physical condition, drug and alcohol
use, existing medical conditions, and level of physical exertion, among other
potential contributors. Without this data, risk balancing is impossible because
one side of the equation is unknown.
•The fact that a device or tactic occasionally but rarely causes death or
serious injury does not make it deadly force.5 Deadly force, according to
federal courts, is force that creates a substantial risk of (or is likely to cause)
death or serious injury.6 It would seem that, under this definition, electronic
control weapon use would be classified simply as nondeadly force along with
police dogs, impact weapons, and OC, all of which can cause death or serious
injury but all of which, when properly used, are unlikely to do so.7
The task is to regulate electronic control weapon use as any other force option—that
is, to define when the use of a electronic control weapon is reasonable. Of course,
these matters are necessarily and irrevocably situational. As in most other liability
matters, we note that careful policy, training, supervision, and discipline (proactive
and reactive) are critical to proper management of liability risks.
Data Analysis
A good place to start is with a review of what is currently known about electronic
control weapon research and applications. One of the leading studies to date, the

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U.S. Department of Defense Human Effects Center for Excellence's "Report on
Human Effectiveness and Risk Characterization for Electromuscular Incapacitation
Devices," concluded that application of an electronic control device such as the Taser
M26 and X26 "for temporary incapacitation does not appear to pose significant risk
to the recipients."8
In another study, the British Home Office Defense Scientific Advisory Council
Subcommittee on the Medical Implications of Less-Lethal Weapons concluded that
"the risk of life-threatening or serious injuries from the M26 Taser is very low."9
Additional studies of electronic control weapons, including research by the Force
Science Research Center, a nonprofit institution based at Minnesota State University
in Mankato; the Orange County, Florida, Medical Task Force; and the Carleton
University M26 Evaluation are available at www.taser.com/facts/medical_info.htm.
In an article published in the December 24, 2004, edition of the Arizona Republic,
Robert Anglen documents 84 deaths that came after the application of an electronic
control weapon since September 1999.10 Of the 84 cases, Anglen reports that
medical examiners in 11 cases stated that "Tasers were a cause, a contributing
factor, or could not be ruled out in someone's death." In 19 cases, "coroners and
other officials reported the stun gun was not a factor." The article also provides
limited information about the circumstances surrounding the deaths.
Of the 84 cases identified in the newspaper article, only in 11 cases was the
electronic control weapon purportedly linked to a death or not ruled out as a
contributing factor. In 19 of 84 cases where an electronic control weapon has been
used and a death ultimately resulted from the incident, the weapon was not a factor
in death. However, the most meaningful statistic is the total number of applications
compared to the 11 deaths where the weapon was reported to be a cause or a
contributing factor or could not be ruled out as a factor.
This calculation requires a judgment as to what number is the appropriate baseline
for comparison. Taser International, manufacturer of the M26 and X26 devices, cites
approximately 62,000 Taser applications in the field and another 100,000 Taser
applications in training and on volunteers. Comparing the 11 deaths to the 62,000
estimated field uses results in a .00018 percent death rate. Even using all 65 of the
cases where the electronic control weapon was not clearly ruled out (84 total deaths
minus 19 deaths in which the weapon was ruled out as a factor) and only the 62,000
field uses results in a .00105 percent death rate.
The appropriate comparison may be to include the 62,000 field uses with the
100,000 training and volunteer applications or 162,000 as the baseline. While the
training and volunteer applications do not duplicate real-world applications, it
appears reasonable to expect some correlation if the sole factor contributing to the
death is the use of a Taser. Using this number, the 11 deaths result in a .000067
percent death rate, and the 65 cases result in a .0004 percent death rate.
Certainly, these statistics suggest that the risk of death caused by electronic control
weapon use is low. Some may question the number of field uses and training and
volunteer applications, but these numbers appear reasonable given that more than
6,000 police departments have purchased electronic control weapons, and
approximately 133,000 devices have been sold through the third quarter of 2004.
It is also worth reviewing the factors that frequently appear in cases of death when

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an electronic control weapon has been used. Many involve multiple applications of
the device against a suspect, or a suspect who has a history of drug abuse, is
suffering from extreme physical exertion, or has preexisting medical conditions.
Obviously, the factors of drug abuse, preexisting medical conditions, and extreme
physical exertion often contribute to deaths associated with any type of force
application.
So what do we do with all this data? Until additional statistically significant data are
available, we attempt to make reasonable decisions about whether the risks reduced
or eliminated by a particular use of an electronic control weapon substantially
outweigh the risks created by that same application. This position comports with the
response of Dr. Bill Lewinski, executive director of the Force Science Research
Center, to the call of Amnesty International to suspend all electronic control weapon
use until additional research has been done; he said, "Nonsense."11 Presumably, we
would not use a tool or tactic at all if we didn't reasonably believe that it would
prevent appreciably more injuries and deaths than it would cause.
"Less-Lethal"?
Given the data available, a major question should be addressed: if an electronic
control weapon, properly deployed, is well within the existing definition of nondeadly
force (extremely unlikely to cause death or serious injury), why would we describe it
as "less-lethal," which implies that we view it as lethal, just less so?
Fourth Amendment law speaks of two categories of force: deadly and nondeadly. The
term "less-lethal" potentially confuses the fact that electronic control weapons,
appropriately used, are by definition nondeadly force devices. It also suggests that
the use of electronic control weapons is questionable in anything but deadly force
situations.
In fact, some of the most beneficial applications of electronic control weapons will be
in nondeadly force situations. Law enforcement agencies should consider eliminating
the term "less-lethal" from their vernacular because its use potentially increases
liability exposure or, alternately, dramatically narrows the utility of what otherwise
appears to be a widely beneficial tool. Even in cases where police canines have
caused death, reviewing federal courts have emphatically stated that the deployment
of the canine was nondeadly force because it was so statistically unlikely to cause
death or serious injury.12
Recommendations
At a point, it becomes necessary to enunciate some verbiage that identifies or
describes when, generally speaking, we view the use of electronic control weapons
as appropriate. It seems clear that the use of such devices should not be limited to
situations where a subject has already become assaultive but instead would be
allowed when an officer reasonably believes that a subject is "imminently a physical
threat." A requirement that electronic control weapons be used only as a last resort
of nondeadly force (that is, only after other measures have been unavailing or are
deemed impractical) would unnecessarily limit the beneficial use of electronic control
weapons. v
Authors' note: The opinions expressed in this writing do not necessarily represent
the views of the Police Chief or the IACP.

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1. Inspired by a futuristic weapon used by Tom Swift, the hero of Victor Appleton's
popular adventure stories from the early 1900s, Cover named his invention the
"Taser," an acronym for "Thomas A. Swift's electric rifle." Today, Taser is a
registered trademark name that has achieved in law enforcement circles what
Kleenex and Xerox achieved in society at large: it has become the generic descriptor
for an entire type of product. But the Taser is not the only electronic control weapon.
The operational concepts for electronic control weapons are generally standard and
could easily be adapted to similar devices. It is noted, however, that although
devices may be similar in design, function, and appearance, the individual
manufacturers' guidelines may differ and should be followed for particular devices.
See the IACP National Law Enforcement Policy Center, "Electronic Control Weapons:
Concepts and Issues Paper" (Alexandria, Va.: December 2004): 2.
2. IACP National Law Enforcement Policy Center, "Electronic Control Weapons": 3.
3. IACP National Law Enforcement Policy Center, "Electronic Control Weapons": 3.
4. See Graham v. Connor, 490 U.S. 386 (1989).
5. Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988) (K-9 case).
6. See Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987); Pruitt v.
City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985); and Robinette v.
Barnes, 854 F.2d 909, 912-913 (6th Cir. 1988).
7. Robinette, 854 at 912 (K-9 case resulting in death); Kuha v. City of Minnetonka,
328 F.3d 427, at 434 (8th Cir. 2003) (K-9); Vera Cruz v. City of Escondido, 139 F.3d
659, at 663 (9th Cir. 1998) (K-9); and Deorle v. Rutherford, 263 F.3d 1106, 1113
(9th Cir. 2001) (bean bag).
8. U.S. Department of Defense, Human Effects Center for Excellence, "Report on
Human Effectiveness and Risk Characterization for Electromuscular Incapacitation
Devices"; available at
www.taser.com/documents/HECOE_Report_Summary_101804.pdf
9. The British Home Office, Defense Scientific Advisory Council, Subcommittee on the
Medical Implications of Less-Lethal Weapons, "Report"; available at
www.taser.com/documents/UK_DOMILL_med_statement.pdf
10. Robert Anglen, "84 Cases of Death Following Stun-Gun Use," Arizona Republic,
December 24, 2004; available at
www.azcentral.com/specials/special43/articles/1224taserlist24-ON.html
11. Force Science News, no. 8; available at www.forcescience.org
12. Robinette, 854 at 913.

The Police Chief
International Association of Chiefs of Police
515 North Washington Street
Alexandria, VA 22314-2357

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