When is using a TASER Reasonable Force?

Editor’s Note: This is a guest post written by Jerry Staton. Jerry is the owner of ARTT: Affordable Realistic Tactical Training.

“Ask, tell, make” has been used by instructors as a guideline to explain the concept of when to use force. That phrase is frequently followed by the phrase “use only the minimum force necessary to affect the arrest” when explaining how much force should be used. Neither of these often repeated phrases is a complete answer, but they have been used so often some officers have accepted them as a basis for when and how much force to use. When to use force and how much force to use is always going to be controversial. Where TASERs fit into this equation is perhaps even more controversial. Every street cop worth his salt “knows” force is used when required by the situation to overcome resistance. So what constitutes resistance? Is verbal non-compliance enough to justify an officer using force? How about using a TASER under those circumstances? The simple answer is sometimes yes, sometimes no.

Society has given law enforcement officers the authority to use force. The courts have agreed saying when justified by the totality of circumstances facing the officer at the time the force is used, the law will allow officers to use reasonable force. The more restrictive concept of using minimal force has been adopted by many agencies. Unfortunately law enforcement has not adopted a universal definition of “minimal force”. Using the force that would likely produce the least injury is one common concept. Another definition for minimal force is to use reasonable force until control has been established. This definition is not suggesting the least amount of force is required, but that force should be deescalated appropriate to the level of resistance. Whatever the definition, or lack thereof, the final judgment is going to be made by the courts based on what that court (or jury) considers reasonable.

The process, which is supposed to be objective, also has a subjective element. This can be seen when one court considers the actions of an officer to be unreasonable, and on appeal a higher court deems the same actions to be reasonable. If the judgment process were totally objective it would not matter who made the analysis, but in fact it matters very much. Take the case of an officer being investigated for using excessive force. The training unit examines the facts and determines the officer to have followed training and policy, therefore — his actions were reasonable. The internal affairs unit examines the same facts and determines the officer’s actions were not within policy and therefore unreasonable. The Police Chief looks at the identical information and determines the force to be not only unreasonable but also unnecessary and therefore excessive. Who is “right”? Could it be there is some disconnect between what is being taught and what is expected by the administration? Who gets to decide? For disciplinary action the Chief, otherwise ultimately the courts have final say so.

Despite what some officers may think, most courts have ruled in favor of the officer when reviewing use of force cases. Using verbiage from Graham v. Connor, they understand officers must make split second decisions in situations that are “tense, uncertain, and rapidly evolving”. The process of judging what force is objectively reasonable is an on-going one and each case carries with it the potential to change the playing field.

When a new force option is introduced a lengthy process of testing what is reasonable takes place. ECDs (electronic control devices) are still in the early stages of that process. Since ECDs have a proven track record of producing very few injuries they have been utilized at relatively low resistance levels by many agencies. This has resulted in fewer officers and suspects being injured but there is a down side. We are currently experiencing the push back from over use of an otherwise very valuable tool.

The jury is still out on whether an ECD can cause an unintended death, however the research done to date strongly suggests the probability is extremely low. In spite of this low injury rate an occasional unintended injury is going to result from the use of an ECD — as with any use of force. So when is it reasonable for an officer to use an ECD? The answer will always be found in a complete analysis of each situation, or as the Supreme Court stated in Graham v. Connor, “The test of reasonableness under the 4th Amendment is not capable of precise definition or mechanical application.”

The recently decided case of Bryan v. McPherson in the United States Court of Appeals for the 9th Circuit is an example of this on-going process. In a case decided December 28, 2009, the 9th Circuit ruled that a TASER® device is an intermediate weapon and as such requires a strong government interest before one can be used. This strong government interest as defined by the opinion requires the suspect pose an immediate threat to the officer or some other person to justify using an ECD. Additionally the court suggested officers must consider lesser alternatives prior to selecting an ECD. In this case lesser force to be considered included waiting for additional officers to arrive prior to using force. Up to now the test for reasonableness has been whether the force used was objectively reasonable and not whether lesser force options would have been “better” or required prior to the actual force used. It appears the 9th Circuit is now suggesting officers must consider a continuum of force when deciding what is or is not objectively reasonable force.

The 9th Circuit is recognized as the most liberal of the district courts (and the most frequently overturned). In spite of that track record, much of what they are saying in McPherson makes sense in light of the current ECD controversy. Even though your agency may not be affected directly by a 9th Circuit ruling, it would be wise to pay attention to the message being sent by the court. The law enforcement profession must share the blame for creating a problem with regards to ECDs because of the number of questionable deployments. Too many officers have failed to utilize good verbal skills before utilizing an ECD, thus creating the perception of the entire profession becoming “TASER-happy cops”. While it is impossible to calculate the number of situations in which this is actually true as opposed to someone’s impression, there are enough of these cases to make a compelling argument. In Bryan v. McPherson the court looked at one of these questionable deployments.

In McPherson, the court interpreted the actions by Bryan to be non-threatening. One question was, as always in a use of force; would a reasonable officer interpret what Bryan did as threatening? The court had the luxury of knowing Bryan’s version of what led up to the stop and why Bryan was clad in only underwear and tennis shoes. Knowing this information helped explain why Bryan was cursing and hitting himself. Officer McPherson of course was not privileged to that information. The court also concluded the event did not fit the definition of tense, uncertain, and rapidly evolving, when it said Officer McPherson should have considered waiting for backup before using force. If followed, that guidance puts officers in an unwinnable situation of deciding whether to control a suspect now or wait for additional units. I say unwinnable because only after the fact will it become clear as to whether waiting was a good decision or a bad one. If that is not complicated enough throw immediate (occurring or done at once) v. imminent (about to happen) into the mix. The definitions are strikingly close, yet the difference carried considerable weight with the court. Was Bryan an immediate threat? The court, considering the facts most favorable to Bryan, said no. But were his actions indicative of an imminent threat as perceived by Officer McPherson? Without trying to second guess the officer and having only limited information available, it would appear waiting would have been a good option in this case. What about the next “similar” case?

It takes extensive training plus years of experience to develop an in-depth understanding of the “right amount of force” to be used in any given situation. Right is not actually the correct term here, but officers are taught to do the “right thing” and is often the concept adopted for analyzing a use of force by the uninformed. Right is a subjective analysis and the law requires an objective analysis. Objectivity is obtained by looking at what a majority of reasonable officers with similar training and experience faced with the same situation might have done. It takes an extensive review of the event to determine what the officer knew at the time the force was used, what the totality of circumstances were, and what level of resistance the suspect displayed. Always critical to the analysis was the reason for the initial stop, whether the suspect was a danger to himself or others, and whether the suspect was resisting or attempting to flee. In this case Bryan was stopped for not wearing a seat belt, the court concluded Bryan was not a danger to himself or others, and there was no evidence Bryan was resisting or attempting to flee.

Perhaps the most questionable conclusion reached by the 9th Circuit and one that continues to be controversial is the statement about the risks involve when using a TASER® device. The court stated, “The physiological effects, the high levels of pain, and fore-seeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted.” As such, the court, at least for law enforcement agencies in the 9th Circuit’s jurisdiction, placed TASER® at a higher level of force than other non-lethal tools.” It would appear the court failed to consider the track record of ECDs with regards to injuries. Many studies looking at this issue have found ECDs to be on the low end of the injury producing force options. What are the other “non-lethal tools” the court refers to that produce less injuries? The court does not give us an answer. It appears the court has placed more weight on sources such as the Braidwood Commission from Canada and Amnesty International than it has on the actual case studies and results from countless agencies currently utilizing ECD technology.

Adding to the confusion, the media loves to capitalize on any topic that involves the police, especially a good use of force story. Any story with the word TASER included becomes a good story. I use the word “good” looking at the issue from the media view and not the officer behind the story. At the time what seemed like just another arrest requiring an appropriate response to resistance for the officer becomes the next eye-catching headline or YouTube video. The general public then becomes the self appointed expert on whether the officer responded appropriately to the resistance offered. There is often debate over whether the suspect, now referred to as the latest victim of police brutality, was resisting or just not following directions. To the average person not following directions does not equal resistance. To most police officers failing to follow directions is not only resistance but a red flag as to what is about to happen next.

So what is objectively reasonable force? Keep in mind; asking is normally the first step in obtaining compliance. There are times when the situation requires we skip this step and give direct orders (tell). Other times both ask and tell are inappropriate and making an offender do what is needed is the only safe way to proceed. Unfortunately this decision must often be made “in the heat of battle” or at least in the presence of impending battle, and will always be judged long after the battle has been won … or lost.

The closest we can come to an answer lies in attracting and hiring good candidates, providing them a solid training program, and continuing to monitor them throughout their careers. When we fail to do any of the three we fail to provide the public with the level of protection they deserve. When force has been used it needs to be investigated by officers that “have been there and done that” in order to understand the process. The results of the investigation need to be made pubic so the citizens can see the process is working. The latest term being used to explain this process is to make your agency more transparent. Not bad advice.

Related posts:

1. A Reasonable Force Option: Figure Four Throw In my post “Spartan Cops debuts Video Articles“, I demonstrated...
2. A Reasonable Force Option: Turning a Resistant Suspect onto his Stomach Have you ever confronted a large suspect laying flat on...
3. The TASER Generation: Issues for New Police Officers This is the first of a two part series. The...
4. BART shooting update: Mehserle intended to fire TASER not pistol Michael Rains, attorney for former BART police officer Mehserle, gave...
5. The future of cameras and digital evidence for police officers: The AXON by TASER When we were young officers we liked to hear stories...