NYCLU Report on Tasers
Transcript of NYCLU Report on Tasers
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 1/40
Better Regulationof Stun Guns
in New York
The Need for
NEW YORK CIVIL LIBERTIES UNION
Taking
Tasersseriously:
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 2/40
ACKNOWLEDGMENTS
This papr was writtn by Cory Stoughton, Taylor Pndrgrass, Hln Zlon and Alia Al-Khatib.
It was ditd by Mik Cummings, Hln Zlon and Jnnir Carnig.
Graphics wr cratd by Sara LaPlant.
It was dsignd by Li Wah Lai.
ABOUT THE NEW YORK CIVIL LIBERTIES UNION
Th Nw York Civil Librtis Union (NYCLU) is on o th nation’s ormost dndrs o civil
librtis and civil rights. Foundd in 1951 as th Nw York aliat o th Amrican Civil Librtis
Union, w ar a not-or-prot, nonpartisan organization with ight chaptrs and rgional
ocs and narly 50,000 mmbrs across th stat.
Our mission is to dnd and promot th undamntal principls and valus mbodid in th
Bill o Rights, th U.S. Constitution, and th Nw York Constitution, including rdom o spch
and rligion, and th r ight to privacy, quality and du procss o law or all Nw Yorkrs.
For mor inormation about th NYCLU, plas visit www.nyclu.org.
NEW YORK CIVIL LIBERTIES UNION
125 Broad Strt, 19th Floor
Nw York, NY 10004
www.nyclu.org
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 3/40
Taking Tasers seriously:
The Need for Better Regulationof Stun Guns in New York
2011C O N T e N T S
1 Executive Summary
5 Introduction
7 PART I: Taser Dangers: A Growing Recognition
Concrns about Lthality
Concrns about Tasr Abus
Th Courts’ Incrasingly Srious Approach
Nationwid Calls or Rvaluation
17 Part II: Tasers in New York: Overuse and Dangerous Deployment
Th Us o Tasrs Whr th Suspct Poss No Dangr or Risk o Injury to Anyonexcssiv Numbr and Duration o Shocks
Targting o Dangrous and Snsitiv Aras o th Body
Failur to Warn Prior to th Us o a Tasr
Ovr-Rlianc on Driv-Stun Mod
Targting At-Risk Populations and Using Tasrs in Dangrous Situations
Th Disproportionat Us o Tasrs on Popl o Color
27 Part III: Recommendation
Rcommndation 1
Rcommndation 2
Rcommndation 3
31 End Notes
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 4/40
in 1911, intrpid advnturr
Tom Swit “invnts” an elctric
Rif, with which h slays rhinos,
lphants and othr arsom
Arican basts, in Volum 10 o th
blovd scinc-ction sris.
In th lat 1960s, physicist John
(Jack) Higson Covr—who arnd
his doctorat at th Univrsity o
Chicago studying undr rnownd
nuclar physicists enrico Frmi
and edward Tllr—invntd a ral
lctric wapon, and namd it or
his childhood hro: H calld it
th Thomas A. Swit elctric Rif,
or TASeR.
A cntury atr th novl’s
rlas, Tasrs ar nar-
ubiquitous in law norcmnt.
How thy ar usd, and how
oicrs and thir supriors
monitor thir us, ar th
subjcts o this rport.
Imag usd undr Crativ Commons rom Ca. via Flickr.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 5/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 1
exct smm
T asers or “stun guns,” deliver up to 50,000 volts o electricity intended to
incapacitate their victims. Long lauded as saer alternatives to deadly orce,
asers are in use by 16,000 law enorcement agencies in the U.S.—including
350 in New York State—and have been linked with hundreds o deaths.
More than a dozen New Yorkers have died aer aser shocks, some in police
custody and others with mental illness whose amilies turned to law enorcement
or help, only to suer mortal loss. Since February 2004, news reports have docu-
mented ve deaths aer aser shocks in Suolk County alone. Scores more across
the state have been hurt or humiliated when ocers, lacking consistent guidelines
and thorough training, deployed asers inappropriately.
Agencies Purchasing TasersLaw Enforcement, Correctional, and Military Agencies
2,000
4,000
6,000
8,000
10,000
12,000
14,000
16,000
-2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
1,100
2,010
4,300
7,073
8,764
10,567
12,50013,938
15,10816,009
500
16,224(as of March)
If rst quarter sales are indicative of sales for the year,
close to 65,000 agencieswill purchase Tasers
in 2011.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 6/40
2 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
o better identiy and understand patterns o aser use in New York State, the
New York Civil Liberties Union analyzed 851 aser incident reports rom eight
departments across the state as well as 10 departments’ guidelines or aser use,
obtained through the state Freedom o Inormation Law and public sources. Tese
records show that ocers misuse and overuse these weapons, resorting directly to
asers rather than less intrusive police tactics to calm, subdue or arrest people they
encounter. Tey also suggest a lack o awareness o the risks o multiple, prolonged
shocks; o the particular danger asers pose to vulnerable populations; and o the
need to avoid sensitive areas o the body, including the chest. While some stud-
ies tout the benets o asers as a tool or law enorcement, the absence o sound
policy, training and guidelines to direct the powerul weapons’ proper, lawul use
contributes to this disturbing pattern o misuse and overuse and puts the state’s
residents and visitors at unnecessary and unjustiable risk.
The NYCLU’s analysis found:
● Nearly 60 percent o reported Taser incidents did not meet expert-
recommended criteria or justiying aser use—criteria that limit the
weapon’s use to situations where law enorcement ocers can document
active aggression or a risk o physical injury.
● Fifeen percent o incident reports indicated clearly inappropriateTaser use, such as ocers shocking people who were merely passively or
verbally noncompliant with a police order, or where a suspect was already
handcued or restrained.
● Only 15 percent o documented Taser incidents involved people who
were armed or who were thought to be armed, belying the myth that
asers are most requently used as an alternative to deadly orce.
● More than one-third o Taser incidents involved multiple or prolonged
Taser shocks, which experts link to an increased risk o injury and death.
● More than 1 in 4 (27 percent) o Taser incidents involved shocks directly
to subjects’ chest area, despite explicit 2009 guidelines by the weapon’s
manuacturer instructing users to avoid ring asers at the chest area,
citing a risk o “potential cardiac consequences.”
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 7/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 3
● In 75 percent o incidents, no verbal warnings were reported , despite
expert recommendations that verbal warnings precede aser irings.Hal o the jurisdictions surveyed do not, in act, require ocers to issue
verbal warnings.
● Forty percent o the Taser incidents analyzed involved at-risk subjects.
aser experts caution against aser use on children, the elderly, the visibly
inrm and individuals who are seriously intoxicated or mentally ill — “the
very individuals” most likely to be in contact with police, according to the
International Association o Chies o Police. O these incidents, 30 percent
involved situations where ocers were called to assist with a mentally
disturbed individual with no indication or suggestion o criminal activity.
● People o color are overwhelmingly represented in Taser incidents.
O all incidents in which race was recorded, 58 percent involved black
or Latino New Yorkers. In Albany, where 28 percent o the population
is black, 68 percent o aser incidents involved black subjects; similar
disproportionalities were evident in Syracuse and Rochester.
February 2004, Southampton Village,
Sufolk County. David Glowczenki, 35,
died ater being Tasered nine times in aconrontation with police on Southampton
Village’s Main Street. Glowczenki’s amily
had called the Southampton Village
Volunteer Fire Ambulance Corps because
he became agitated ater learning that his
amily sought to place him in a psychiatric
hospital or treatment o his schizophrenia.
Glowczenki, carrying a Bible, ought with police ocers, knocking one ocer to
the ground. In the struggle that ollowed,
Glowczenki was beaten, maced, sprayed
with pepper spray and shocked nine times
with the Taser. “He had no weapon and
committed no crime,” said his sister, Jean
Grin, ater her brother’s death.
An independent pathologist conducted
an autopsy on Glowczenski’s body and
documented evidence o excessive orce,
including electrical burns consistent with
Taser shocks.
(A $75 million civil lawsuit was led by the
amily against our village police ocers,
the Suolk County Medical Examiner, theSouthampton Volunteer Ambulance Corps
and the Suolk County Police, and a second
lawsuit led against Taser International, or
$55 million.)
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 8/40
4 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
As the NYCLU’s analysis demonstrates, these problems are directly linked to
the act that use-o-orce policies governing the use o asers lack consistency
and, with the exception o the NYPD, do not comply with the recommenda-tions o national law enorcement experts that have developed model poli-
cies or aser use. Moreover, seven o the eight jurisdictions surveyed by the
NYCLU analysis appear to rely exclusively on training materials provided by
ASER International, the weapon’s manuacturer—an approach that experts
widely condemn as inadequate preparation or crucial decisions in the eld.
In addition to these undamental faws in policy and training, law enorcement
agencies are not doing enough to monitor and supervise the use o asers in
the eld. Te incident reports obtained by the NYCLU showed grossly incon-sistent and incomplete record-keeping, a signicant obstacle to accountability
and proper assessment o the risks and rewards o asers.
Dening and practicing the “appropriate use” o asers remains the outstanding
challenge in the eort to ensure that asers do not cause more harm than good.
Accordingly, the NYCLU recommends the ollowing:
1. New York State law enorcement agencies must reorm use-o-orce po-
lices and aser training programs to comply with nationally recognizedexpert guidelines, such as the guidelines created by the United States
Department o Justice and the Police Executive Research Forum.
2. Te State o New York must play an active role in promoting and
achieving universal adoption o these expert-recommended policies
and guidelines, and in ensuring that local agencies coordinate their
aser policies and training programs.
3. Te State o New York and local law enorcement agencies must require
accurate, complete reporting and robust monitoring o aser use. Suchreporting should be made available to the elected ocials responsible or
oversight o law enorcement agencies and to the citizens whose taxes
support them.n
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 9/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 5
itdct
Since their widespread introduction more than two decades ago, asers
have been lauded by their manuacturer and by law enorcement as a
sae and eective way o subduing criminal suspects. At the same time,
they have been condemned by critics as dangerous and routinely misused.
Te U.S. Department o Justice (DOJ) recently noted that more than 200Americans have died aer being shocked by asers.1
Notwithstanding the controversy, asers are here to stay: In the U.S., 16,000
law enorcement agencies now use asers, including 350 in New York State.2
Despite their widespread use, there has been little
systematic refection by state law enorcement or
other government ocials on the use o asers. Na-
tional experts have developed comprehensive modeluse-o-orce policies and training recommenda-
tions, but no studies have compared how New York’s
varied policies and training programs compare to
those models and recommendations. And there
has been no meaningul examination o whether
the thousands o New York law enorcement ocers who carry asers deploy
them saely and consistently, within sound use-o-orce guidelines.
Tis report is a rst step to lling the research gap. Between April o 2009and January o 2010, the New York Civil Liberties Union requested, pursuant
to New York’s Freedom o Inormation Law, use-o-orce policies and train-
ing materials governing asers rom 10 law enorcement agencies represent-
ing urban, suburban and rural areas o the state.3 In addition, the NYCLU
requested reports detailing individual incidents in which ocers used or
Reform
use-of-force policiesand Taser
training programs.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 10/40
6 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
displayed a aser rom eight police departments statewide.4 Combined, the
eight departments provided 851 individual reports.
Our review refects poorly on New York. Te incident reports show that
many ocers use asers in inappropriate and potentially dangerous ways.
Te policies we examined are inconsistent and, with the notable exception
o the NYPD’s policy, generally ail to comply with the recommendations
o national law enorcement experts, particularly those recommendations
designed to avoid dangerous and inappropriate aser use. Most departments
queried rely solely on training materials prepared by the weapon’s manuac-
turer, aser International—a widely-condemned approach that ails to ully
prepare ocers or when and how to deploy asers. n
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 11/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 7
Tasers have two modes: In “probe mode,” an electro-shock projectile
delivers up to 50,000 volts in a series o pulses through barbed wires
shot at a person. In “drive-stun mode,” the stun gun delivers its charge
at close range directly rom metal contacts on the weapon.
In probe mode, the weapons are designed to disrupt the
central nervous system and temporarily incapacitate the
subject. Te barbed wires attach directly to the skin or
clothing o the subject to deliver the electrical charge
and the barbs are meant to be removed only by a medi-
cal proessional.5 In drive-stun mode, which does not
require the use o barbed wires, the electric shock is
designed to cause sucient pain to induce compliance.
aser International, the weapons’ primary manuac-
turer, has aggressively marketed asers as a sae method
o controlling dangerous or combative subjects.
Concerns about Lethality
As aser use spread in the United States, so did reports
o their lethality. A 2005 report rom the American
Civil Liberties Union o Northern Caliornia docu-
mented several atalities associated with asers and
highlighted the lack o independent medical stud-
ies o their eects, especially the eect o multiple
shocks.6 Tat same year, the Arizona Republic reviewed
PART I: T D:
a g rct
March 2008, Clay, outside o
Syracuse. Police ocers summoned
to the Norstar apartments were
conronted by a resident, Christopher
H. Jackson, shortly ater 9 p.m.
Ocers used a Taser to subdue
Jackson. Within 90 seconds o
the Taser shock, Jackson was
unresponsive to direct questions,
witnesses said, and paramedics were
summoned. Jackson experienced cardiac arrest in the ambulance and
was pronounced dead at St. Joseph’s
Hospital and Health Center.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 12/40
8 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
autopsy reports in several dozen aser-related deaths.
In at least 18 cases, the medical examiner listed asers
as a cause or contributing actor.7
In 2006, both the United Nations Committee Against
orture and the United Nations Human Rights Com-
mittee raised concerns about American law enorce-
ment’s aser use, and Amnesty International called or
a aser moratorium.8 In 2008, Amnesty linked asers
to the deaths o 334 people in the United States,9 and
Canadian authorities undertook a comprehensive
review o their policies and practices ollowing reports
o a high number o aser-linked atalities.10
Even today, with nearly two decades o experience,
scientic evidence o aser saety is lacking. In May
2011, an independent study published by the DOJ
raised serious concerns about the possibility o serious
injury and death rom continuous or prolonged aser
activations, as well as their use in and around water
or hazardous materials and on vulnerable populations
such as persons prone to dangerous alls, persons with
pacemakers or debrillators, intoxicated or mentally
disturbed persons, and “small children, those with
diseased hearts, the elderly, pregnant women and other
potentially at-risk individuals.”11 Tese are not merely
exceptional situations; according to the International
Association o Chies o Police, mentally disturbed, intoxicated, stressed and
otherwise “unhealthy” subjects are “the very individuals most likely to come
into contact with police.”12
Academic studies acknowledge asers’ potential lethality and have raised
concerns about the ongoing lack o authoritative studies establishing their
saety.13 Concerns over lethality increased in October 2009, when aser
June 2008, Southampton,
Sufolk County. Brooklyn native
Tony Curtis Bradway, 26, died shortly
ater police ocers shocked him
twice with a Taser. The ocers had
been called to a Southampton
home on unrelated matters when
one noticed a plastic bag o white
powder, thought to be cocaine.
Bradway tried to swallow the plastic
bag as police ocers Tasered him.
The coroner’s report said Bradway’s
death was due to cardiac arrest,
although it could not be determined
whether possible cocaine ingestionor shock-induced ventricular
brillation—a disturbance o the
heartbeat linked to Taser use—was
the primary cause.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 13/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 9
International’s new targeting guide recommended that
ocers avoid ring in the chest area due to potential
cardiac consequences.14
Nonetheless, several studies link asers with reduced
injury rates among both law enorcement personnel
and the people they encounter, as well as reductions
in the use o lethal orce.15 Tese studies suggest that,
despite their risks, asers can be important and use-
ul tools, provided they are deployed with appropriate
training and within adequate use-o-orce policies.
Te question then becomes whether asers are de-
ployed appropriately in practice.
Concerns about Taser Abuse
Te DOJ recently noted that asers “are rapidly
overtaking other orce alternatives. Although injury
ndings suggest that substituting [asers] or
physical control tactics may be useul, their ease o
use and popularity among ocers raise the specter
o overuse.”16
Tis concern is not hypothetical. Amnesty International
has documented multiple incidents o repeated or pro-
longed shocks, in which subjects were unarmed and did
not appear to present a serious threat and in which sub-
jects were handcued or otherwise already restrained.17
Te ACLU o Northern Caliornia’s study noted that
most police department policies ail to limit multiple
shocks, permit asers against passive subjects and those
already handcued or restrained, and do not prevent the
use o asers on particularly vulnerable people, includ-
ing pregnant women, small children and the elderly.18
March 2005, Guilderland. Fiteen-year-old Stephen Bishop,
a student at Colonie High School,
and a 16-year-old riend were at the
Crossgates Mall ood court when a
mall security guard called them “ruit
loops” and asked them to leave. The
boys complained to mall security;
security personnel then called the
security ocer who had asked them
to leave and two police ocers.
When Bishop’s riend, whose name
has not been released, reached or a
book, an ocer mistook his gesture
and grabbed his arm, causing ascue, in which both teenagers
were shocked twice with Tasers and
handcued. Both boys were charged
with resisting arrest, misdemeanor
assault and obstruction o justice.
“He was only hit twice,” Police Chie
James Murley said later o Bishop.
His riend, who weighed 114 pounds
at the time, was let with burns and
signicant bruises.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 14/40
10 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
Expert guidelines caution against
multiple shocks and require ocers to
justify each additional application of force. Here, the young man was Tasered
twice, but the arresting ocer provided
no justication for the need to
administer a second Taser application.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 15/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 11
The young man was Tasered in his
chest and lower torso, despite
Taser International’s warning thatshocking someone in the chest
area creates a heightened risk of
cardiac arrest.
Expert guidelines caution against
multiple shocks and require ocers to
justify each additional application of force. Here, the young man was Tasered
twice, but the arresting ocer provided
no justication for the need to
administer a second Taser application.
This report shows that the
arresting ocer did not attempt
any other police tactics before
Tasering the young man in the
chest. There was no documented
threat of violence toward the
ocer or the public. This is a
prime example of how ocers
often default to using Tasers even
when other options are available.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 16/40
12 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
A 2006 study by the Louisville Courier-Journal showed that ocers “used the
weapons in dozens o situations in which neither they nor others appeared to
be at risk,” including situations o “verbal non-compliance,” and when sub-
jects showed no active resistance or aggression or were handcued.19 asers
were requently used against the mentally ill, juveniles and people feeing
aer minor crimes, such as shopliing.20 Tat same year, the PERF noted that
the results o studies then available showed that “multiple and continuous”
aser activations “may increase the risk o death or serious injury, and that
there may be a higher risk o death in people under the infuence o drugs.” 21
Te review “indicated a real need or more attention to the issues related to
[aser] activation on persons operating vehicles, handcued persons, and
feeing suspects.”22
The Courts’ Increasingly Serious Approach
Advocates and law enorcement experts are not alone in raising concerns
about aser misuse. Courts, too, acknowledge asers’ potential dangers in
evaluating the liability o law enorcement ocers and municipalities or
injuries caused by their use.
Te use o asers, like any use o orce by law enorcement ocers, is governed
by constitutional principles that prohibit excessive and unreasonable orce.23
Graham v. Connor 24 makes clear that the use o orce is constitutional only i
it is objectively reasonable under the Fourth Amendment.25
In the rst generation o aser litigation, some courts credited now-abandoned,
overbroad claims about the saety o, and relatively minimal harm caused
by, asers.
26
In recent years, however, as the public, law enorcement experts,medical proessionals and advocates have become better educated about the
risks asers pose, so too have the courts. Police ocers who deploy asers do
so knowing that the aser inficts extreme pain and may cause serious injury
or death. An ocer may be liable or an unreasonable aser use and munici-
palities may be liable or policies that promote aser overuse or misuse, and or
the ailure to adequately supervise and train their ocers.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 17/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 13
September 2008, Brooklyn. ImanMorales, 35, had a long history o
emotional disturbance and mental
illness. When police arrived in response
to Morales’ mother’s call or help, saying
he had stopped taking his antipsychotic
medications, a naked and agitated
Morales stepped out o his mother’s
Bedord-Stuyvesant apartment building
and onto a narrow second-foor ledge,
brandishing an 8-oot fuorescent light
bulb as i it were a light saber. As his
mother pleaded with ocers not to shoot
her son, saying “he’s sick,” Emergency
Services Ocer Nicholas Marchesona red
his Taser at Morales, on the orders o Lt.
Michael Pigott.
No air bag was in place to break Morales’
all (ocers had radioed or an airbag; it
hadn’t arrived). Morales ell 10 eet to the
pavement and died. “He just ell ace rst,”
said a neighbor, Sean Brown. Morales
was pronounced dead on arrival at Kings
County Hospital. “His mother called
911,” another neighbor, Sharonnie Perry,said. “She called or assistance and the
assistance she got was her son being killed.”
On the day o Morales’ uneral, Lt. Michael
Pigott took his own lie with another
ocer’s handgun. Earlier, Pigott, a 21-year
veteran ocer who was distraught since
Morales’ death, apologized to Morales’
amily or the Taser death and asked that
Ocer Marchesona not be blamed or
Pigott’s decision. A suicide note ound
near Pigott’s body said that he did not
want his three children to see him in
handcus, as he eared arrest. Pigott died on his 46th birthday.
The NYPD analysis later said that “the
order to employ the Taser . . . appears
to have violated guidelines” that were
issued in June 2008, including directions
that prohibit Taser use “when the subject
is in a position where a all may cause
substantial injury or death.”
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 18/40
14 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
In ennessee v. Garner , the Supreme Court prohibited deadly orce “unless
it is necessary to prevent the escape and the ocer has probable cause to
believe that the suspect poses a signicant threat o death or serious physical
injury to the ocer or others.”27 While a aser may not always be a deadly
weapon, it clearly constitutes the use o deadly orce. For example, courts
have held that use o a aser on a person who is standing at a substantial
height constitutes the use o deadly orce.28 In addition, prolonged or multiple
aser discharges may be recognized by courts as deadly orce, particularly
when applied in combination with ace-down restraint or to at-risk individu-
als such as the mentally ill and individuals under the infuence o narcotics.29
Courts also recognize the “increased potential or possibly lethal results cre-
ated by newer models” o asers.30
Even when not used in a manner that constitutes deadly orce, asers may
still “pose a risk o permanent or signicant injury.”31 As early as the mid-
1980s, a New York court noted with regard to asers that “there has been
great concern about the impact on people with heart problems ….” 32 Courts
have specically recognized that asers cause “serious and substantial harm”
to persons taking psychotropic medication and the mentally ill.
33
(It is im-portant to note that it is the risk o injury that is important to the Fourth
Amendment analysis, not whether that risk was realized.)34
Te pain asers infict is another actor in determining reasonable orce
under the Fourth Amendment. Courts have described the eect o a aser
discharge as “shocking, burning, and even rendering numb its target;”35 and
“a painul and rightening blow, … temporarily … rendering the victim
helpless.”36 Courts agree that a aser used in drive-stun mode causes acute,
signicant and severe physical pain.”
37
One court cited the testimony o a lawenorcement ocer who compared a aser shock to “being hit on the back
with a ‘our-by-our’ by Arnold Schwarzenegger.”38
Te growing legal consensus about the serious risk o pain, injury and death
with aser use parallels an increasing number o court decisions nding
aser use unconstitutional and sanctioning ocers and law enorcement
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 19/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 15
agencies or their improper use. Courts have ound aser use unconstitutional
in scenarios that New York police departments appear to have implicitly
or explicitly permitted (see Parts II and III below.) For example, courts
have held it is unconstitutional to use a aser multiple times on an already
restrained person39 and on a mentally unstable individual who was not
suspected o a crime and posed no immediate threat to ocers.40 It is also
unconstitutional to use a aser even once on a nonviolent, noncompliant
person suspected o only a minor crime,41or a nonviolent person suspected
o a trac violation who was not threatening or feeing.42
Law enorcement agencies that ail to provide ocers with appropriate training
and guidance about constitutional aser use may be held responsible or the
misuse o the weapons. For example, courts have permitted claims against
municipalities where a police department ailed to provide timely periodic
trainings aer the manuacturer updated saety inormation;43 where a police
department ailed to train ocers regarding the use o asers on the men-
tally ill;44 and where aser use was authorized against individuals who were
“passively resisting” police orders.45 Law enorcement agencies must appro-
priately instruct and train their ocers on the use o asers and must require
sucient reporting on aser use to promptly analyze, identiy and correct
any misuse.
Nationwide Calls for Reevaluation
Departmental policies oen exacerbate the dangers o aser misuse and
provide insucient guidance to ocers on the weapons’ proper use. A 2005
study o use-o-orce policies by the United States Government Accountabil-
ity Oce (GAO) showed enormous inconsistency among law enorcement
agencies as to when it is appropriate to use asers.46 Some policies permit-
ted use only when there is a risk o physical harm. Other policies are much
broader, permitting aser use when a person is passively resisting an ocer,
or example. As a result, the GAO report concluded that “a standardized
training program on the use o asers is needed.”47
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 20/40
16 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
Some law enorcement agencies have begun to reevaluate the rush to adopt
asers. In Maryland, the Attorney General’s ask Force on Electronic Weap-
ons issued a 2009 report urging greater accountability and community
involvement in local decisions to adopt asers, as well as more stringent
training and use-o-orce policies.48 Te report noted that training materials
provided by the aser manuacturer “tended to signicantly understate the
risks.” Underestimating risk, coupled with the ease o aser use, “appears to
have led to over-reliance on [asers]… particularly in response to low-level
threats o harm and situations that have now been shown to involve a height-
ened risk o injury or death.”49
In light o this nationwide controversy surrounding asers, there is strong
reason to believe that New York law enorcement authorities should careul-
ly evaluate their approach to these weapons, consider measures to decrease
over-reliance on asers and limit their misuse, and monitor policies and
practices governing the use o these weapons. o date, however, no such
eorts have occurred. n
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 21/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 17
Part II:
T n y:
o d D Dpmt
The NYCLU’s review o several hundred incident reports involving
asers, as well as the policies and procedures governing aser use,
paints a disturbing picture. Inconsistent and incomplete reporting
means that the data presented here only provide a rough sense o the reality
on the ground. Nonetheless, the inormation that can be gleaned rom these
reports and policies shows that improperly trained law enorcement ocers
are using asers in ways that are ineective, unnecessary and expose people
in New York to the risk o serious injury or death.
Te pattern o misuse and overuse o asers all into seven distinct categories:
the use o asers where the suspect poses no demonstrated danger or risk o
injury to any person; the administration o excessive numbers o or exces-
sively long shocks; dangerous targeting o vulnerable areas o the body, such
as the chest, neck or genitals; the ailure to warn a subject prior to using a
aser; the over-reliance on drive-stun as opposed to probe mode; the use o
asers on vulnerable populations or in dangerous situations; and the dispro-
portionate use o asers on people o color.
Tese ailings can be linked directly to inadequate policies and training
governing the use o asers in New York. Drawing on recommendations and
model policies prepared by national law enorcement experts, the NYCLU
ound that the policies and training o New York police departments are
severely lacking, specically with regard to the issues identied above. While
a ew departments across the state, including the NYPD, comply with expert
recommendations, most miss almost every mark. On the whole, the policies
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 22/40
18 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
surveyed revealed a patchwork o inconsistent and oen inadequate policies.
Most departments appear to rely solely on training materials prepared by
the manuacturer o these weapons, suggesting that ocers are not receiving
proper guidance on when and how to use asers.
January 2009, Salina, Onondaga
County. Onondaga County Deputy
Sean Andrews pulled Audra Harmon, 38,
over on a routine trac stop, charging
that she had been speaking on her
cell phone while driving, which she
denied. Andrews next said Harmon
was speeding, asserting that she had
driven 50 miles an hour in a 45 mph
zone. Harmon stepped out o her van
to conront Andrews. He told her to get
back into the minivan, but asked her to
step outside her vehicle shortly thereater.
(A video camera on Andrews’ squad car
captured the scene.)
Harmon, accompanied by her 15-year-
old son and 5-year-old daughter, was
rightened by what she perceived as
Andrews’ erratic behavior. She clung
to the steering wheel. Andrews pulled
Harmon out o the van by her arm as
her children protested. When Harmon
resisted his eorts, he used his Taser to
shock her twice, landing a barb in her
upper let chest, despite Harmon’s plea
to stop: “Don’t do this in ront o my
children,” she begged. Ater the second
Taser shock, Harmon ell to her knees.
Andrews pushed her to the ground and
handcued her. Andrews took Harmon
into custody on charges o disorderly
conduct and resisting arrest. Her children
were let unattended in the amily van
until their ather arrived, 40 minutes later.
Prosecutors dropped all charges against
Harmon ater they viewed the video rom
Deputy Andrews’ squad car.
(In December, 2009, Onondaga County
legislators unanimously agreed to award
a $75,000 settlement in response to a
lawsuit Harmon led.)
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 23/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 19
Each o these issues is discussed in more details in the sections that ollow.
The Use of Tasers Where the Suspect Poses No Danger or Risk
of Injury to Anyone
Experts and advocates alike agree that asers should be used only where there
is active aggression by a subject or a documented threat o physical harm to
another person.50 Unortunately, less than hal o the incident reports reviewed
(42 percent) documented acts showing such a justication or the use o the
aser. In 35 percent o incident reports reviewed,
documentation provided in the reports indicated thatthe subject was only engaged in deensive or pas-
sive resistance, establishing that the use o the aser
armatively did not conorm to expert recommen-
dations. Fieen percent o incident reports reviewed
involved ocers ring asers without documenting
any justication or the weapon’s use beyond the act
that the subject was feeing or non-compliant with a
police order. Tis misuse appears to be widespread.
With the exception o Nassau County, every lawenorcement agency surveyed reported at least one
incident o aser use against a merely passively resist-
ing or verbally noncompliant person.
Particularly disturbing were the number o incidents in which asers were
used on people in fight or in handcus, a use o orce condemned by law
enorcement experts.51 In 7 percent o incidents, ocers’ reports showed that
subjects were handcued or otherwise restrained, and 4 percent o the reports
indicated that the individual was merely feeing rom the ocers.
Te data, while imperect,52 shatter the illusion that asers are primarily used
as an alternative to deadly orce on armed or otherwise dangerous subjects.
Indeed, only 15 percent o aser incidents reviewed or this report involved a
subject who was armed or thought to be armed.
Nearly 60 percent
of Taser use
did not meet expert
recommended use.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 24/40
20 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
Tese disturbing statistics refect the act that
almost none o the departmental use-o-orce
policies reviewed or this report complied
with expert recommendations governing the
appropriate circumstances or the use o as-
ers.53 Most o the policies surveyed dened
the proper use o asers ar more broadly
than experts recommend or in a vague man-
ner not refective o the careul recommenda-
tions o experts, creating the likelihood i not
the certainty o overuse and abuse o asers.
Te Glens Falls Police Department, or example, permits the use o a aser
whenever it is deemed “reasonable and necessary,” in light o the “totality o
circumstances surrounding the incident.” Indeed, some policies authorized
asers in circumstances
specically condemned
by experts, such as use
on already restrained or
handcued individuals.
A ew departments admi-
rably speciy that asers
may never be used or
punitive or coercive pur-
poses. Fewer still say that
asers may not be used to
compel compliance with
a police order. But eventhese departments ail to
require documentation o a specic threat o harm or injury. Such vague and
acially inappropriate policies make it inevitable that a substantial percent-
age—well over hal—o the incident reports reviewed or this report ailed to
document active aggression or a threat o harm to a person as a justication
or using the aser.
In at least7 percent of
incidents, subjects were
already restrained.
In only
of incidents,
subjects were
armedor thought
to be.
15percent
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 25/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 21
Excessive Number and Duration of Shocks
Most deaths associated with aser use involve multiple or prolonged discharges,54
which experts say are extremely dangerous. Model policies require individu-
alized assessment o the need or additional shocks or shocks longer than the
standard ve-second cycle.55 Unortunately, more than one-third (38 per-
cent) o the incidents reviewed by the NYCLU involved multiple shocks, with
16 percent involving three or more shocks. Prolonged shocks were reported
less requently, appearing in 3 percent o records reviewed, with the major-
ity occurring in one department—the Glens Falls Police Department. Tere,
nearly 20 percent o the aser incidents reported involved prolonged applica-
tion o the aser.
Rarely do ocers justiy the reasons or additional or prolonged shocks. For
example, the Glens Falls Police Department reported 15 instances in which
asers were deployed three or more times. In none o these reports did the
ocer provide any specic indication o why the weapon was used in this
dangerous manner. Frequently, the ocer said nothing at all. In a 2008 inci-
dent, an ocer applied our cycles in drive-stun mode against an uncoopera-tive individual, but provided only a single sentence explanation.
Tis situation plainly is linked to the act that the majority o departments
surveyed provide no caution against multiple or prolonged aser discharges
in their use o orce policies.56 Te silence o these policies invites abuse.
Te Albany Police Department policy stands out in this regard. Contrary
to expert recommendations, it appears to endorse repeat asering, without
precaution or limitation, until people are compliant or apprehended. Tepolicy states, “Compliance through incapacitation is the desired goal, and
to that end the ocer should be prepared to administer continued electri-
cal charge(s), in the event that the initial 5-second charge is not eective,
until the subject is compliant and/or apprehended.” Tis language embod-
ies no recognition or warning o the dangers o prolonged or repeated aser
cycles, sets no limit on the number or duration o cycles and does not require
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 26/40
22 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
individualized assessment o the need or repeated or
prolonged asering.
A ew departments, recognizing i not ully responding
to the risks associated with multiple aser cycles, urge
caution beore asering someone multiple times, but
set no specic limits or a requirement or individual-
ized assessment or consecutive cycles.57 Te incon-
sistency and incompleteness o New York’s policies in
itsel raises serious concerns.
Targeting of Dangerous and Sensitive
Areas of the Body
Te matter o targeting asers at particularly sensitive
areas o the body has generated a great deal o contro-
versy in the wake o aser International’s 2009 warn-
ing against targeting the chest area.58 Even beore this
announcement, expert recommendations encouraged
departments to avoid sensitive areas o the body, such
as the head, neck and genitalia.59
In 27 percent o the reports NYCLU reviewed,
an ocer red at a person’s chest, the very
area the manuacturer warns against. In 14
incidents, individuals were shocked in the
head, neck or groin.
Although most departments surveyed provide
some targeting guidance, some provide no
guidance whatsoever, licensing ocers to
target subjects without limitation.60 Even among those that guide aser
targeting, many policies are incomplete, covering only some o the most
vulnerable areas, or limiting targeting guidance to drive-stun mode only.
In more than 1 out of 4
incidents, an ocer red at a
person’s
chest.
June 2008, Harlem. Alexander
Lombard III, the 18-year-old son o
retired NYPD Lieutenant Alexander
Lombard II, was Tasered our times
at a Harlem barbeque when police
intervened in a ght between two
emale guests.
Lombard received Taser shocks to
the neck, shoulder, ace and rib cage,
resulting in permanent scarring and
mental anguish, according to his
ather. The teenager was also beaten
with a nightstick and placed in a
choke hold.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 27/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 23
wo departments—the NYPD and the Suolk
County Police Department—appear to ollow aser
International’s warnings about targeting the chest,
suggesting that most New York State ocers operate
asers with insucient guidance.
Failure to Warn Prior to the Use of a Taser
In light o the dangers o asers and their purpose to
de-escalate potentially violent situations, experts rec-
ommend that ocers issue a verbal warning beore
using the weapons.61 In 75 percent o the incidents
reviewed, however, there was no documentation
o a verbal warning in the use-o-orce report. Te
departmental policies surveyed do not uniormly
require a warning beore ring a aser at a sub-
ject; indeed, the surveyed departments split almost
evenly between those requiring a warning and those
that do not.62
Over-Reliance on Drive-Stun Mode
Experts strongly emphasize that asers are meant
to be used in probe mode whenever easible, both
because it is more eective and because it is saer.63
Only two departments surveyed—the Guilderland
Police Department and the NYPD—incorporate this
concept into practice, by requiring that drive-stun
mode be used only as a last resort or in exceptional
circumstances. One department, Saratoga Springs,
cautions that drive-stun mode is less eective, with no
mention o the dangers o over-reliance on this meth-
od. Te remaining departments either are entirely
silent or leave the decision to the ocers’ discretion.
September 2009, Syracuse.
A.E., a 15-year-old student at Fowler
High School, was shocked by a
Taser meant or another student,
school ocials later stated, as school
resource ocers attempted to stop
an aterschool ght between two
girls. School ocer James Stone shot his Taser toward one o the girls in
the ght. But Stone’s Taser missed its
mark and struck A.E., who was trying
to stop the ght. The ocers did not
announce their intent to use the Taser,
and students had no warning beore
the ocers red the Taser barbs.
A.E. was shocked and handcued
in ull view o 30 to 40 students who
pleaded with the police ocers to
stop, saying that he was not part o
the ght. He suered pain, injury and
emotional distress as a result o theTaser shock. In 2010, the NYCLU led
a suit against the Syracuse Police
Department on behal o A.E.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 28/40
24 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
Unsurprisingly, among those departments that document the mode o use,
drive-stun mode was used in 47 percent o aser deployments. Probe mode
accounted or 53 percent, suggesting that ocers use the more dangerous,
less eective mode with alarming requency.
Targeting At-Risk Populations and Using Tasers in
Dangerous Situations
In addition to the dangers o targeting specic areas o the body, experts
warn o the dangers o targeting physically or mentally vulnerable people,
including the inebriated.64
Despite these warnings, our analysis suggests
that asers are regularly used on intoxicated
people. In 40 percent o incidents surveyed,
ocers reported that the subject showed signs
o intoxication.
Although aser use on children and the elderly
are relatively rare, they provide disturbing ex-
amples o aser misuse. In a 2005 report rom
the Guilderland Police Department, an ocer asered a 13-year-old boy who
had allegedly been involved in a ght at a shopping mall. During the arrest, the
ocer gave no indication that he elt threatened or that the boy had threatened
himsel or those around him. Nonetheless, the ocer deployed a aser and
struck the boy’s thigh. Te ocer’s narrative indicated nothing more to justiy
the aser’s use than that the weapon was red in order “to gain compliance.”
Experts caution that an apparent mental health crisis or mental distress
should not be a justication or using a aser to subdue a subject.65 Yet in
about 30 percent o the incident reports reviewed, the ocer using a aser
was responding to a “mental health” call (with no suspicion o criminal activ-
ity) or the ocer reported that the subject was seriously mentally ill.
In almost
HALF of the incidents,
ocers used the
‘drive-stun’ mode
-meant only as a last resort.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 29/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 25
In a particularly disturbing report rom the Syracuse
Police Department, a total o three ocers each used
their asers against a mentally ill man. In their indi-
vidual reports, each ocer reported ring and applying
multiple aser cycles. Te rst applied ve to six cycles,
the second our to ve cycles, and the third three to six
cycles. Te man had reused the ocers’ orders to get
on the foor, yet at no point in the report did the ocers
document any risk o harm. Only one ocer issued a
verbal command to attempt to control the situation be-
ore the man was asered – more than a dozen times. No
charges were ever led against the man.
Te ailure o many departments’ policies to caution
ocers against using asers on vulnerable populations
contributes to this problem.66 Even in departments that
do provide guidance, the lists o “vulnerable populations”
are inconsistent with one another and incomplete relative
to expert recommendations.
Expert guidelines deliberately enumerate risky situa-
tions in which asers should be avoided. Once again,
many departments’ policies are silent on this subject, and
the guidance that is provided is oen inconsistent and
incomplete. Reliable data on how requently asers are
used in identiably risky situations could not be gath-
ered rom the incident reports surveyed because police
departments across New York do not require detailed
reporting o this kind o inormation.
The Disproportionate Use of Tasers on
People of Color
Among departments that track race in their incident
reports, black and Latino New Yorkers accounted or
August 2004, Queens. Terence
L. Thomas, 35, o Hempstead,
Long Island, was under arrest in a
holding cell in the 105th Precinct
in Queens when he became
agitated and banged his head
into the holding cell wall. Thomas
reused medical attention and
resisted ocers’ attempts to calm
him; police said later that Thomas
might have swallowed crack
cocaine to avoid its discovery
ater his arrest. Four police ocers
and our re department medical
workers tried to subdue Thomas,
who was shocked with a Taser at
3:45 a.m. Thomas experienced
cardiac arrest in the ambulance en
route to Queens Hospital Center,
where he was pronounced dead
at 4:30 a.m. (Analysis o Thomas’
stomach contents revealed
cocaine.) Thomas’ amily was
not permitted to see his body at
the hospital, and charged that his
ace was bruised and beaten in a
Polaroid they were shown.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 30/40
26 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
58 percent o aser incidents.67 Closer scrutiny o the
data illustrates precisely how disproportionate that
statistic is to the relative population. For example,
according to the most recent census data available,
28 percent o the population in Albany is black, yet
68 percent o those asered were black.68 Similarly,
in Syracuse, 56 percent o individuals involved in a
aser-related incident were black – more than twice
their presence (25 percent) in the total population.
In Rochester, 48 percent o those asered were black,
while 38 percent o the population is black.
Full analysis o this troubling pattern o heightened aser use in communi-
ties o color alls outside o the scope o this report. But it echoes consistent
and disturbing practices o over-policing in communities o color and the
disproportionate impact o abusive police practice on these communities. n
of incidentsinvolved40 percent
children
elderly
inrm
intoxicated
mentally ill
at risk subjects:
December 2004, Guilderland.
On the day ater Christmas, Swahiti
S. “Chevron” Bolden, 34, o Albany,
was outside a Houlihan’s restaurant
with his amily in the Crossgates
Mall. Mall police called local police
ocers at 1:30 p.m. when Bolden was
acting “belligerently.” Once policeocers arrived, Bolden declined to
show them his identication. Ocers
Tasered Bolden twice: The rst shock
did not penetrate his winter clothing,
but a second shock was applied
directly to his groin. Witnesses say
that Bolden was handcued beore
being Tasered; police ocers say that
Bolden was resisting arrest and that
the Taser shocks permitted them to
handcu him.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 31/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 27
Part III:
rcmmdt
T hese troubling statistics o misuse and overuse o asers are clearly
linked to the inadequacies o New York law enorcement agencies’
use-o-orce policies and training governing asers. Moreover, the data
are incomplete because o extremely lax reporting on aser incidents withinindividual departments and a complete lack o such reporting at the state level.
Tese problems suggest three necessary steps to begin to address the problems
association with the use o asers by New York law enorcement ocials.
Recommendation 1
New York law enforcement agencies must reform their use-of-force
policies and training programs to comply with national expert
guidelines governing asers.
Te essential elements o an appropriate aser use-o-orce policy and training
guidelines are by now well established. Te Police Executive Research Forum
(PERF) and the DOJ have combined their expertise to produce guidelines,
updated most recently in 2011, establishing the essential elements o sound
use-o-orce policies and practices governing asers.69 One New York law
enorcement agency, the NYPD, uses these recommendations in its depart-
mental policy. Other New York law enorcement agencies should review their
policies in light o these recommendations and the inadequacies details inthis report, and make changes to address the clear deciencies and inconsis-
tencies in their policies and training programs.
In addition to the need or reorm o policies and procedures, inormation
obtained by the NYCLU suggests that many New York police departments
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 32/40
28 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
have grossly inadequate aser training. Experts recommend that depart-
ments provide their own training curriculum, 70 but o the departments that
responded to the NYCLU’s Freedom o Inormation request, only the Roch-
ester Police Department reported used independent training materials in
addition to protocols issued by the manuacturer. Expert recommendations
also suggest annual recertication to carry asers. Nonetheless, more than
hal o the departments surveyed did not require annual recertication.71
Given that new inormation about the saety, reliability and proper aser use
emerges every year, the ailure to ensure annual recertication across the
board must be addressed.
Recommendation 2
Te State of New York should do more to encourage reform of, and
uniformity among, law enforcement agencies’ use-of-force policies.
PERF and the DOJ specically recommend that law enorcement agencies
coordinate their aser policies and strive toward multi-jurisdictional train-
ing programs and policies.72 Such coordination can only occur with the
assistance o state agencies such as the Division o Criminal Justice Services
(DCJS), and in particular the Municipal Police raining Council (MPC).
In September 2009, the MPC, a department o the DCJS, published rec-
ommended guidelines or aser use.73 Tese recommendations have some
positive elements, but they are relatively weak and ar rom comprehensive.
Indeed, they do not address the undamental question o when the use o a
aser is authorized and appropriate, leaving law enorcement agencies on
their own in answering this dicult and controversial question.
Moreover, MPC has done little to see that its recommendations are ollowed.
Although the agency conducted a series o trainings or willing departments
in 2009, participation in the training and adoption o MPC recommenda-
tions was entirely voluntary, and did not gain momentum statewide. No
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 33/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 29
indications suggest that MPC is continuing its push to bring more coherence
to aser policies.
Recommendation 3
Te State of New York should require statewide comprehensive
reporting and monitoring of aser use.
Accurate, comprehensive data on aser use and misuse in New York is un-
available because o poor recordkeeping by law enorcement agencies and
a lack o monitoring or oversight by state and local authorities. New York-
ers deserve a complete and well-grounded understanding o the costs and
benets o aser use. Such an understanding cannot occur until and unless
responsible state ocials demand appropriate reporting rom local law en-
orcement agencies.
Given the rapid spread o this relatively new technology, one would expect
law enorcement agencies and government ocials to careully monitor and
review aser use. Expert recommendations emphasize the importance o
such review,74 and say that incident reports should include copious inorma-
tion, such as the acts supporting the ocer’s decision to re a aser; specic
justication or a prolonged cycle or multiple discharges; whether the person
asered was a juvenile, elderly or a person obviously under the infuence o
drugs or alcohol; the range at which the aser was deployed; where on the
body the person was asered; and the injuries, i any, to the subject.75
All departments queried require ocers to complete an incident report ollow-
ing the use o a aser. But only two departments surveyed, Rochester and Sara-
toga Springs, required reporting o the specic inormation deemed necessary
by experts. Indeed, some departments’ policies and practices actively interere
with attempts to provide sucient inormation. For example, incident report
orms in the Syracuse and Greece police departments provide little physical
room to describe a aser incident. Even when orms are nominally adequate,
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 34/40
30 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
many reports were incomplete or had a number o elds le blank. Te absence
o proper documentation results in grossly inconsistent and incomplete re-
cordkeeping, orming a clear obstacle to understanding aser use and holding
law enorcement accountable.
Even i the reporting in individual incident reports were complete, it is not
clear how departments use the inormation they collect. According to the
policies provided to the NYCLU, almost no police departments surveyed
mandate comprehensive departmental review o incident reports to assess
their aser program.
Te state should step into this void. At the present time, there is no independent
or state-level evaluation or assessment o aser use, whether by the MPC or
any other state agency. Such statewide mandates are not unprecedented. In
2007, the State o New Jersey passed a law requiring specic reporting when-
ever a aser is discharged or displayed.76 Te law also requires supervising o-
cers, the chie executive o the law enorcement agency, the county prosecutor
and, ultimately, the state attorney general, to review such reports.77
Tese relatively modest rst steps will lay the oundation or a more sound
approach to the use o asers in New York. Better policies and training, con-
sistent with the recommendations o law enorcement experts, will curtail the
overuse and misuse o asers while ensuring that they remain a viable and
appropriate law enorcement tool. Better reporting will contribute to a more
robust understanding o the risks and benets o asers and create stronger
mechanisms o accountability or ocers who continue to overuse or misuse
these weapons. Ensuring the responsible and appropriate use o asers is in the
interest o law enorcement ocers and the citizens they serve. n
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 35/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 31
ed nt:
1 U.S. Department o Justice, Oce o Justice Programs, NIJ Research in Brie: Police Use o Force, asers and Other Less-Lethal Weapons (Washington: U.S. Department o Justice, May 2011) 2.
2 Tis inormation was reported to the NYCLU ollowing a press inquiry to the primary manuacturer o
asers, ASER International, and is available on le with the NYCLU.
3 Tose departments include the Albany Police Department, the Glens Falls Police Department, the Greece
Police Department, the Guilderland Police Department, the Monroe County Sheri’s Oce, the Nassau
County Police Department, the Rochester Police Department, the Saratoga Springs Police Department, the
Suolk County Police Department, the Syracuse Police Department and the New York Police Department.
Te policies o each o these departments are available upon request rom the NYCLU. Te NYCLU also
requested policies rom the Bualo Police Department and the New York State Police but, at the time they
responded to the request, neither o those two departments used asers.
4 Tose departments include the Albany Police Department, the Glens Falls Police Department, the Greece
Police Department, the Guilderland Police Department, the Nassau County Police Department, the
Rochester Police Department, the Saratoga Springs Police Department and the Syracuse Police Department.
A spreadsheet containing the data points rom these many hundreds o reports is available upon request
rom the NYCLU. Original copies o the incident reports are also on le with the NYCLU.
5 See U.S. Department o Justice & Police Executive Research Forum, 2011 Electronic Control Weapon
Guidelines (Washington: March 2011).
6 Mark Schlosberg, Stun Gun Fallacy: How the Lack o ASER Regulation Endangers Lives, ACLU o Northern
Caliornia, September 2005. Since that time, at least one study concluded that “more than 99% o subjects
do not experience signicant injuries” aer the use o asers, based on an examination o 1,200 incidents
rom six American law enorcement agencies. William P. Bozeman et al., “Saety and Injury Prole o Conducted Electrical Weapons Used by Law Enorcement Ocers Against Criminal Suspects,” Annals
o Emergency Medicine, April 2009. Like this report, the Bozeman study was based on a review o ocer
reports, “which has well-recognized limitations.” Id. at 485.
7 Robert Anglen, “144 Cases o Death Following Stun Gun Use,” Arizona Republic, Aug. 8, 2005.
8 United Nations Committee Against orture, CA/C/USA/C)2 (New York: United Nations, July 25, 2006);
United Nations Human Rights Committee, CCPR/C/USA/CO/3 (New York: United Nations, Sept. 15, 2006);
Amnesty International, Continuing Concerns About aser Use, May 2006.
9 Amnesty International, ‘Less than Lethal’? Te Use o Stun Weapons in U.S. Law Enorcement, December
2008.
10
Nova Scotia Department o Justice, Conducted Energy Device (CED) Review (Nova Scotia: March 5, 2008).
11 U.S. Department o Justice, Oce o Justice Programs, National Institute o Justice, NIJ Special Report: Study
o Deaths Following Electro Muscular Disruption (Washington: U.S. Department o Justice, May 2011) viii –
ix, 6, 10, 16, 22, 23, 24.
12 IACP National Law Enorcement Policy Center, Electronic Control Weapons: Concepts and Issues Paper ,
August 2005, 4.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 36/40
32 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
13 See Bozeman et al., supra note 6 at 487; Michael Cao et al., “aser-Induced Rapid Ventricular Myocardial
Capture Demonstrated By Pacemaker Intracardiac Electrograms,” Journal o Cardiovascular Electrophysiology
18:8 (2007) 876-879; P.J. Kim et al., “Ventricular Fibrillation Aer Stun-Gun Discharge,” New England
Journal o Medicine 353 (2005) 155, 156.
14 aser International, “raining Bulletin 15.0 Medical Research Update and Revised Warnings,” Oct. 12, 2009.
15 Police Use o Force, asers and Other Less-Lethal Weapons, supra note 1 at ii; J.M. MacDonald et. al, “Te
Eect o Less-Lethal Weapons on Injuries in Police Use-o-Force Events,” American Journal o Public Health
99 (2009) 1-7; M.R. Smith, et al., “Te Impact o Conducted Energy Devices and Other ypes o Force and
Resistance on Ocer and Suspect Injuries,” Policing 30 (2007) 423, 446; E. Jenkinson et al., “Te Relative
Risk o Police Use-o-Force Options: Evaluating the Potential or Deployment o Electronic Weaponry,
Journal o Clinical Forensic Medicine,” 13 (2006) 229, 241. As another academic study points out, however,
many o these studies may signicantly overstate the value o asers because their data are based solely on
internal agency reviews o the use o asers. See Bozeman et al., supra note 6, at 485.
16 Police Use o Force, asers and Other Less-Lethal Weapons, supra note 1 at 15.
17 Less Tan Lethal? , supra note 9, at 3-4.
18 Stun Gun Fallacy, supra note 6, at 12-13.
19 Andrew Wolson, “asers Help Save Lives But Use Also Criticized,” Te Courier-Journal , Oct. 2, 2006.
20 Id.
21 James Cronin et al., Conducted Energy Devices: Development o Standards or Consistency and Guidance ,
U.S. Department o Justice Oce o Community Oriented Policing Services and Police Executive Research
Forum (Washington: U.S. Department o Justice, 2006) 7.
22 Id. at 8.
23 Tis report ocuses on the use o orce by patrol ocers, but excessive use o orce is also prohibited onpersons held in detention. For convicted prisoners, the standard derives rom the Eighth Amendment’s
ban o cruel and unusual punishment. See Graham v. Connor , 490 U.S. 386, 395 n.10 (1989). For pretrial
detainees, the Due Process Clause controls. Id.
24 490 U.S. 386. Te Graham test requires an analysis o “the totality o the circumstances” in order to
determine whether the use o orce by a law enorcement ocer was reasonable, and the Supreme Court
and lower courts have identied a range o actors to be considered when analyzing whether the use o
orce was excessive. Many o these actors have particular relevance to the question o when aser use is
constitutionally appropriate, including: the degree or severity o the orce applied; the risk o signicant
injury rom the use o orce; the severity o the crime; whether the suspect posed an immediate threat to
the saety o the ocers or others; whether the suspect was actively resisting arrest or attempting to evade
arrest by fight; whether a warning was given prior to the use o orce; whether the use o orce complied with
manuacturer’s instructions and saety warnings; whether there were available alternatives to the use o orcedeployed; and the ocer’s opportunity or deliberation prior to the use o orce.
25 Id. at 395. Graham le open the question whether the Fourth Amendment continues to apply between the
time o arrest and the initial appearance beore a judge. Id. at 395 n.10. Many lower courts have held that
the Fourth Amendment applies aer arrest until the initial appearance beore a judge. See, e.g., Luck v.
Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992).
26 See, e.g, Bronson v. Mitchell , 1995 U.S. Dist. Lexis 21651, *12 (N.D. Miss. 1995).
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 37/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 33
27 471 U.S. 1, 3 (1985).
28 Snauer v. City o Springeld , 2010 WL 4875784, *6 (D.Or., 2010).
29 See, e.g., Estate o Mathis ex rel. Babb v. Kingston, 2009 WL 1033771, *6 (D.Colo., 2009).
30 McKenney v. Harrison, 2011 WL 1104528, 5 (8th Cir. 2011).
31 See, e.g., Headwaters Forest Deense v. County o Humboldt , 240 F.3d 1185, 1199 (9th Cir. 2001), vacated 534
U.S. 801 (2001), a’d on remand , 276 F.3d 1125 (2002).
32 People v. Sullivan, 116 A.D.2d 101, 107 (1 Dep’t 1986).
33 Id. at 1322 n.58.
34 C. Ryder v. City o opeka, 814 F.2d 1412, 1417 n.11 (10th Cir. 1987) (“[]he use o deadly orce does not
occur only when the suspect actually dies.”); Shillingord v. Holmes, 634 F.2d 263, 266 (5th Cir. 1981) (“Tat
the results o the attack on Shillingord’s person were not crippling was merely ortuitous. Tat same blow
might have caused blindness or other permanent injury.”).
35 DeSalvo v. City o Collinsville, 2005 U.S. Dist. Lexis 23180, *13 (S.D. Ill. 2005).
36 Hickey v. Reeder , 12 F.3d 754, 757, 758 (8th Cir. 1993). See also Preston v. Pavlushkin, 2006 U.S. Dist. Lexis
14357, *4 (D. Colo. Mar. 16, 2006) (describing plainti as “writhing in obvious pain” aer being asered).
37 Crowell v. Kirkpatrick, 667 F.Supp.2d 391 (2d Cir. 2010).
38 Madrid v. Gomez , 889 F. Supp. 1146, 1175 n.43 (N.D. Cal. 1995).
39 Roberts v. Manigold , 240 Fed.Appx. 67, (6th Cir. 2007).
40 Oliver v. Fiorino, 586 F.3d 898, (11th Cir. 2009).
41
Brown v. City o Golden Valley, 574 F.3d 491, (8th Cir. 2009).42 Casey v. City o Federal Heights, 509 F.3d 1278, (10th 2007) .
43 Estate o Mathis ex rel. Babb v. Kingston , 2009 WL 1033771, *6 (D.Colo. 2009).
44 Id.
45 Oliver v. City o Orlando, 2008 WL 4000863, *5 (M.D.Fla. 2008) (“[I]t should have been obvious to the
City that training ocers to use this excessive orce against passively resistant individuals would result in
constitutional violations.”).
46 United States General Accounting Oce, aser Weapons: Use o asers by Selected Law Enorcement
Agencies, (Washington: GAO-05-464, May 2005).
47 Id. at 9 n.10.
48 Maryland Attorney General’s Oce, Report o the Maryland Attorney General’s ask Force on Electronic
Weapons, (Baltimore: Oce o the Attorney General, December 2009). See also Report o the Use o Force
Working Group o Allegheny County, Pennsylvania (Pittsburgh: Allegheny County District Attorney’s Oce,
October 8, 2009) (conducting a comprehensive review and recommending changes to Allegheny County’s
approach to using asers).
49 Maryland Attorney General’s Ofce Report, supra note 48, at 2.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 38/40
34 / new york Civil liberTies union
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
50 United States Department o Justice & Police Executive Research Forum, 2011 Electronic Control
Weapon Guidelines (Washington: U.S. Department o Justice, March 2011) [hereinaer “DOJ/PERF 2011
Guidelines”], Guideline 25, 20; Maryland Attorney General’s Oce Report, supra note 48, at 3. Te
International Association o Chies o Police takes a slightly more permissive approach, suggesting that
aser use be prohibited “unless the person demonstrates an overt intention to use violence or orce againstthe ocer or others or resists detention and arrest and other alternatives to controlling them are not
reasonable or available. Te use o ECWs [electronic control weapons] against passively resistant individuals
who do not pose an immediate threat o violence to ocers or others would not normally be permitted.”
IACP Concepts and Issues Paper, supra note 12. Even judged by this standard, however, the policies we
reviewed all ar short.
51 DOJ/PERF Guidelines, supra note 5051, Guideline 26, at 20 (asers should not be authorized merely
because a suspect is feeing); Maryland Attorney General’s Oce Report, supra note 48, at 3 (same); DOJ/
PERF Guidelines, supra note 5051, Guideline 29, at 20 (asers should generally not be used on handcued
persons); Maryland Attorney General’s Oce Report, supra note 48, at 3 (same).
52 Te requent absence o actual narratives and the over-reliance on vague or undened terms such as “active
resistance” or “uncooperativeness” complicated our analysis. For example, some departments only ask anocer to tick a box labeled “Active Resistance (pulling away, striking or attempting assault).” Te confation
o “pulling away” with “attempting assault” blurs a crucial distinction – the presence o absence o an actual
risk o injury. In other instances, the ailure to provide certain details fouts established departmental policy.
53 O the policies collected and reviewed by the NYCLU, only the Suolk County Police Department and the
NYPD’s policies comport with this aspect o expert recommendations. All o these policies are available
upon request rom the NYCLU.
54 Study o Deaths Following Electro Muscular Disruption, supra note 11 at ix.
55 DOJ/PERF Guidelines, supra note 5051, Guidelines 13, 21, at 18, 20; Maryland Attorney General’s Oce
Report, supra note 48, at 4-5. In addition to these national guidelines, standards promulgated by the
Municipal Police raining Council (MPC), a department o the New York State Division o CriminalJustice Services, urge “extra caution” with consecutive aser discharges and encourages re-evaluation o the
approach aer three discharges. Municipal Police raining Council, New York State Division o Criminal
Justice Services, Recommended Guidelines or the Use o Conducted Energy Devices (Albany: New York State
Division o Criminal Justice Services, September 2009) (hereinaer “MPC Recommended Guidelines”),
Recommendation IV.I.1, IV.I.2.
56 Te exceptions are the Guilderland Police Department, which requires an independent assessment and
“elevated justication” or more than three consecutive cycles o a aser, the Monroe County Sheri’s
Department, which prohibits more than three cycles “absent exigent circumstances,” and the NYPD, which
requires an ocer to “reassess the situation” aer the rst discharge cycle, use the minimum number o cycles
necessary, and in “no situation [use] more than three (3) standard discharge cycles against any subject.
57 Such departments include the Rochester Police Department and the Saratoga Springs Police Department.
58 aser International raining Bulletin, supra note 14.
59 DOJ/PERF Guidelines, supra note 5051, Guideline 28, at 20; MPC Recommended Guidelines, supra note
55, Recommendation IV.E.2. In 2009, aser International discouraged targeting in the chest area because o
heightened risk o heart ailure. Te Maryland Attorney General’s recommendations, which were published
ollowing aser International’s announcement, include a caution against targeting the chest area, in addition
to the other areas mentioned previously. Maryland Attorney General’s Oce Report, supra note 48, at 4.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 39/40
Taking Tasers seriously: The Need for Better Regulation of Stun Guns in New York
new york Civil liberTies union \ 35
60 Tose departments are the Nassau County Police Department, the Rochester Police Department and the
Glens Falls Police Department.
61 DOJ/PERF Guidelines, supra note 5051, Guidelines 22-23, at 20; Maryland Attorney General’s Oce
Report, supra note 48, at 43; MPC Recommended Guidelines, supra note 55, Recommendation IV.H.1.
62 Six departments do require some kind o warning (the NYPD, Albany, Guilderland, Monroe, Rochester and
Syracuse), while our do not (Glens Falls, Nassau County, Saratoga Springs and Suolk County).
63 DOJ/PERF Guidelines, supra note 5051, Guidelines 16, at 16; Maryland Attorney General’s Oce Report,
supra note 48, at 5; MPC Recommended Guidelines, supra note 55, Recommendation IV.C.1, IV.C.2, IV.E.3.
64 DOJ/PERF Guidelines, supra note 5051, Guideline 27, 34, at 20-21; Maryland Attorney General’s Oce
Report, supra note 48, at 4; MPC Recommended Guidelines, supra note 55, Recommendation IV.G.
65 Maryland Attorney General’s Oce Report, supra note 48, at 4.
66 In particular, the Glens Falls, Nassau County, and Syracuse police departments’ policies provide no caution
or limitation on the use o asers on vulnerable populations.67 Te Greece and Nassau County police departments did not record the race o any o the individuals who
were asered.
68 U.S. Census Bureau, State and County Quick Facts, available at http://quickacts.census.gov/qd/
states/36/36001.html. Last visted Aug. 17. 2011.
69 DOJ/PERF Guidelines, supra note 50.
70 DOJ/PERF Guidelines, supra note 5051, Guideline 12 at 18; Maryland Attorney General’s Oce Report,
supra note 48, at 3; MPC Recommendation IV.C.1.
71 Tese departments were the Albany Police Department, Glens Falls Police Department, Nassau County
Police Department and the Saratoga Springs Police Department. Suolk County requires “periodicretraining” but does not speciy the period.
72 DOJ/PERF Guidelines, supra note 50, Guideline 3, at 17.
73 MPC Recommended Guidelines, supra note 55.
74 DOJ/PERF Guidelines, supra note 5051, Guidelines 42-50, at 22-24; Maryland Attorney General’s Oce
Report, supra note 48, at 5.
75 IACP Concepts and Issues Paper, supra note12, at 5; id. at 2 (recommending that ocers justiy in their
use-o-orce reports any instance in which “subjects are energized more than three times” or “subjects are
subjected to any energy cycle longer than 15 seconds in duration”); DOJ/PERF Guidelines, supra note 5051,
Guidelines 21, 50, at 20, 23; Maryland Attorney General’s Oce Report, supra note 48, at 57-58.
76 State o New Jersey, Oce o the Attorney General, Department o law and Public Saety, Revised Supplemental
Policy on Conducted Energy Devices, (renton: Oce o the Attorney General, Oct. 7, 2010). Available at
http://www.state.nj.us/lps/dcj/pds/NJ-OAG-Stun-Gun-Policy-10-2010.pd. Last visited Aug. 17, 2011.
77 Id.
8/3/2019 NYCLU Report on Tasers
http://slidepdf.com/reader/full/nyclu-report-on-tasers 40/40
NEW YORK CIVIL LIBERTIES UNION
125 Broad Strt, 19th Floor
Nw York, NY 10004
www.nyclu.org