9 tips for constitutional TASER use

The law regarding police use of force is constantly evolving, as the courts receive new challenges and rule on them, adding new layers to the case law. This presents a challenge for LE agencies and officers to stay abreast of the latest directives from the courts and incorporate those rulings into use-of-force policies and training.

One quickly evolving area of use-of-force law pertains to the use of electronic control devices (ECDs), otherwise known as electronic discharge weapons, or “TASERs.” The courts have been catching up to the deployment and use of these devices by law enforcement, issuing important rulings that influence the way these tools are deployed by police.

These changes were part of a Calibre Press presentation on constitutional use of force I recently attended taught by retired Sergeant Jim Schlicher. Jim noted that while Graham v. Connor serves as the umbrella that establishes standards for all police uses of force, several other decisions specific to ECD use have tailored and narrowed the standards for the deployment of these tools.

Determining “reasonable” use of force

The first case Schlicher discussed was Armstrong v. Village of Pinehurst, which establishes that “Taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger.”

While some officers have been taught that an ECD is an acceptable choice to gain compliance from all classes of resisting subjects, the courts have drawn a finer line in Armstrong and demanded that the subject must present a continuing safety risk to justify use of the tool. The court cautioned that “noncompliance with police directions and non-violent physical resistance do not necessarily create ‘a continuing threat to the officer’s safety,’” and don’t automatically create the conditions necessary for a constitutional use of a TASER.

This is a significant limitation to consider. Whereas TASERs are classed as less than lethal (sometimes referred to by the courts as “non-lethal”) tools, the courts have set a higher bar for their use than other less lethal means. In Armstrong, the 4th Circuit has clearly separated them from other less lethal weapons. An officer may be justified to go hands on with a resisting subject and use a control hold to obtain compliance, for example, but not be justified to use the TASER to accomplish the same job, absent a “risk of immediate danger.” Even if the suspect uses physical resistance (tensing up to hold an arm away, or holding onto an object to avoid being moved, for example), the 4th Circuit held that the officer doesn’t have the constitutional authority to force compliance with the TASER unless the immediate risk is present.

This is a much more restrictive standard than that set for other less lethal tools, which places the TASER closer to the standards for a lethal force tool.

Schlicher noted the Armstrong standard is supported by other case law. The Bryan v. McPherson decision, for example, held that TASERs are an “intermediate, significant level of force that must be justified by a ‘strong government interest’ that compels the employment of such force,” and that this government interest is best described as the “suspect [posing] an immediate threat to the officer or some other person.” While the TASER is indeed non-lethal force, the court found in Bryan that “the [Taser] and similar devices are a greater intrusion than other non-lethal methods of force,” and so have “placed [the] Taser at a higher level of force than other non-lethal tools.”

Repeated TASER deployments

As Armstrong discussed the decision-making associated with the initial use of the TASER, the Meyers v. Baltimore County, Md. ruling discussed the conditions that justify the repeated use of a TASER to deliver additional shocks to a suspect.

The 4th Circuit held in Meyers that “it is an excessive and unreasonable use of force for a police officer repeatedly to administer electrical shocks with a [Taser] on an individual,” when the following criteria are met:

• The individual is no longer armed;
• The individual has been brought to the ground;
• The individual has been restrained physically by several other officers;
• The individual is no longer actively resisting arrest.

This seems reasonable but the difficulty for law enforcement is determining whether the suspect is “actively resisting.” Per the Armstrong standard, non-violent physical resistance that doesn’t create a “continuing threat to safety” is not justification for using a TASER, but what of the suspect who has been lawfully TASERed and now refuses to follow an officer’s orders? What level of resistance qualifies as “active resistance” in these circumstances?

To assist officers, agencies may consider setting some goalposts to help define “active resistance” to ensure officers have an idea of when further shocks may be viewed as “unnecessary, gratuitous, and disproportionate” by the courts. They should also instruct their officers that each individual deployment of the TASER requires its own justification – in effect, resetting the clock on “reasonableness.”

How medical emergencies impact TASER use

In the Corey Hill v. Miracle case, a suspect experiencing a diabetic shock became combative when EMS attempted to treat him. An officer used a TASER in drive stun mode to gain compliance, which was successful but prompted an accusation of excessive force.

Schlicher discussed how the court established a set of rules in Corey Hill to determine whether it is lawful to use a TASER against a person undergoing a medical emergency. The court posed three questions to determine whether the force was constitutional:

• Was the person experiencing a medical emergency that made him incapable of making rational decisions under circumstances that posed an immediate threat of serious harm to self or others?
• Was some degree of force necessary to ameliorate the immediate threat?
• Was the force used more than necessary under the circumstances?

It’s important to note that the court focused, once again, on the presence of an “immediate threat of serious harm,” much as it did in Armstrong. While other forms of less lethal force can be used to exact compliance in less dangerous situations, the court clearly raised the bar on TASER use, demanding an immediate threat of serious harm to justify using the TASER.

9 considerations when reviewing TASER policy, training

Considering the courts’ propensity in recent cases to restrict TASER use to near-lethal force standards where there is “immediate danger” and “immediate threat of serious harm,” Schlicher recommended agencies review their policies and training with the following guidance in mind:

1. Minimize drive stuns. Since some law enforcement groups have promoted the idea that total exposure to electric shock beyond 15 seconds represents a possible safety risk, and since the courts seem increasingly sensitive to the delivery of multiple shocks, agencies are advised to consider restricting the use of drive stuns to situations where they are clearly required for officer and public safety.
2. Only use an ECD in response to a perceived or actual threat, an actively resistant or combative suspect, or a suspect fleeing from a violent crime.
3. Ensure officers give suspects a chance to comply with commands, including enough time to “regain their wits” after a shock
4. Evaluate if the individual can clearly understand you and is capable of complying with your commands (deaf, language barrier, medical status).
5. Ensure each application/cycle of the device can be independently justified.
6. Avoid using an ECD solely because an individual fails to comply with a command.
7. Avoid using ECDs on resistant, but non-combative, individuals during low government interest seizures or involuntary medical commitments.
8. Ensure officers are trained to articulate and document their observations and the circumstances which required the use of force.
9. Ensure officers are effectively trained to create time and distance, when the tactical situation allows, to slow things down. This will allow the officer to collect more information, get additional help, make better decisions, and formulate effective plans.

Just a piece of the puzzle

Schlicher’s section on TASERs was just one of the topics presented in the class, and officers/agencies are encouraged to check out the rest of the great information presented in the Constitutional Use of Force class. This entire body of law is constantly changing, and it requires continuous effort to stay abreast of the latest changes to ensure police act in compliance with legal standards.

God bless you all and be safe out there.