When Do "Tasers & Stun Guns" Amount to
Police Brutality & Excessive Force?
Explained by California Civil Rights Attorneys

Police misconduct and abuse involving tasers is very common.

Tasers and stun guns burst onto the law enforcement scene in the 1990's.  They are sometimes billed as "non lethal" alternatives to firearms. But in fact tasers and stun guns are very serious and even lethal weapons.  Over 350 people in the United States have died after contact with tasers since 1991.1

If you or a loved one have been unreasonably tased by police officers or jail or prison guards, you might have a legal case for police brutality and excessive force.

Our California Civil Rights Attorneys are uniquely positioned to help you.  As former prosecutors and police officers, we know the ins and outs of the courtroom and how to identify and prove police misconduct.2

This article discusses some of the basics of tasers.   If you have questions after reading it, please contact our California Civil Rights Lawyers for a consultation.

You might also be interested in our related articles on Police Abuse and Civil Rights Violations, Police Abuse and Excessive Force, Prison and Jail Abuse, 42 U.S.C. 1983, Civil Court Cases, Police Dogs, and Pepper Spray.

This article covers:

1. What are tasers and stun guns?
2. Can tasers cause injuries or death?
3. When are cops allowed to use tasers?
4. Does anyone regulate tasers?
5. If I've been tased, can I take my case to court?
6. I'm an inmate in jail, can guards tase me?
7. Will an officer who tases me have any defenses?
8. Can police be prosecuted for misusing tasers?
9. What can I get if I win?
1. What are tasers and stun guns?

Tasers and stun guns are pistol-like devices that shoot electrical volts instead of bullets.  "Taser" is actually the brand name of the powerful electronic control devices manufactured and marketed by an Arizona company called Taser International.3

Approximately 14,000 police and law enforcement agencies in the world use taser electronic control devices.4

Advocates of tasers tout them as non lethal or less lethal alternatives to firearms that can be used by cops to subdue dangerous suspects during arrests, or to protect officers against battery on a peace / police officer.5 But questions exist about the dangers posed by tasers and the ways in which tasers can be misused.

There are different varieties of taser, including the M26 and X26.  When fired, these devices deploy two probes of 50,000 volts of electricity.  The probes incapacitate a suspect by temporarily paralyzing his/her central nervous system.

The probes can be deployed up to a distance of 20 to 30 feet.  They can penetrate an inch of clothing on a suspect (two inches cumulatively).6

Theory behind tasers

The theory behind tasers is that they can sometimes save lives if used as alternatives to lethal force.

Example:  Two cops go to a house in Los Angeles to execute a California arrest warrant.  They are met at the door by a man wielding a knife.  The suspect comes at one of the police officers with the knife.  The officer draws his service revolver and, after issuing a warning, fatally shoots the suspect.

If the police officer had used a stun gun like a taser instead of a service revolver, the suspect might still be alive.

The problem with this theory, as we discuss more below, is that it assumes police officers use tasers in a legitimate and reasonable manner.  Unfortunately, this is not always the case.  Sometimes police officers make mistakes.  Sometimes they are not trained or inadequately trained.

Worse still, sometimes cops are just lazy and even malicious.intentionally wanting to harass and harm people they don't like.

Change the facts:  Two cops go to a house to execute an arrest warrant for a nonviolent crime.  When they arrive, the suspect, a Hispanic man, is cowering in the corner.  The cops have had a long day and still have paperwork ahead of them before they can go home and eat dinner.  They want to get this arrest over as quickly as possible.  Besides, they have made comments at the station that they do not like Hispanic people anyway.  One of the cops fires two taser rounds at the suspect.  The suspect is on special medication that affects his heart rate.  He goes into cardiac arrest and dies.

This is clearly excessive force, misconduct and police brutality.
2. Can tasers cause injury or death?

People have been injured and killed after being tased in California and across the world.  Andrew Washington, for example, died in the San Francisco Bay Area after being tased 17 times in a three-minute period.7

Even cops have been injured by tasers.  One Arizona officer sued Taser International for a compression fracture to his spine sustained during a tasing while participating as a "volunteer" test subject.8

According to Taser International's own materials, taser shocks can cause

  • burns
  • scars
  • infections
  • seizures
  • hernia
  • vision loss
  • tissue damage9

Tasings also can lead to injuries like broken bones and broken teeth caused when a subject falls down while stunned.  At least two people have drowned while being shocked near bodies of water.10

It is clear that people have died after being tased.  The debate centers around whether in those cases it was the taser that actually caused the death or whether another factor, such as a pre-existing condition, primarily caused the death.  You can read more about the concept of causation in our related article on Civil Court Cases.

Regardless, people are becoming more and more aware of the dangers posed by tasers, especially when used multiple times in succession and for prolonged periods.11

Tasers and Heart Failure

As the death toll associated with tasers is rising, doctors are weighing in about the harmful ways tasers can interact with the human heart and result in sudden cardiac arrest.

Ventricular fibrillation is one fatal complication that may be triggered by a tasing.  The heart beats in cycles.and if the taser shock happens to hit the subject's heart at a certain vulnerable point during that cycle, it can lead to uncontrolled heart spasm and failure.12

In 2008, a jury held Taser International liable for over $5,000,000 relating to the death of a Salinas, California man who died from cardiac arrest after being tased.13

Tasers and Vulnerable People

Tasers might be more harmful to some people than to others.  These people have an altered physiology and are considered vulnerable or high risk.  They include

  • people with heart conditions
  • people high on illegal drugs
  • people taking certain medications
  • lightweight people
  • children
  • pregnant women
  • elderly people
  • people with excited delirium14
3. When are cops allowed to use tasers?

Generally speaking, cops can use tasers when it is "reasonable under the circumstances."

Police officers perform an important function in society.  They are charged with keeping us safe and maintaining law and order.  In order to carry out these duties, cops are authorized to use force, including stun guns and lethal force, in certain situations.

This power is not unlimited.  It can not be used in an abusive or reckless manner.  It must be

  1. reasonable
  2. under the circumstances

When a cop uses a taser on someone in an excessive, abusive manner, the cop violates that person's Fourth Amendment constitutional right to be free from unreasonable seizure.  The cops might also violate other civil and criminal laws.

You can read more about the Fourth Amendment and other constitutional rights in our related articles, Police Abuse and Civil Rights Violations, Police Abuse and Excessive Force, and Police and Jail Abuse.

Intermediate Force

The Ninth Circuit, a high federal court that hears constitutional rights and civil rights cases in California, considers tasers an "intermediate" use of force that can be applied when the government has a "strong" interest in doing so.

Here is what the court wrote in a recent case called Bryan v. McPherson:

We recognize the important role controlled electronic devices like the Taser X26 can play in law enforcement.  The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike.  We hold only that X26 and similar devices constitute an intermediate, significant level of force that must be justified by a strong government interest [that] compels the employment of force.15

Balancing test

What all this means is that it's ok for a cop to use a taser in certain situations.  If it ever gets to court, the judge or jury will use a "balancing test" to determine whether the tasing was reasonable or not.

They fact finder will look at the "totality" of the circumstance and ask whether the government intrusion (in this case, the tasing) was justified by

  • the severity of crime
  • the threat to public safety and
  • the resistance of the subject16

This balancing test is not a cut and dried formula.  It is a guideline.

Objective standard

The fact finder will make its determination based on how a reasonable officer would act under similar facts and circumstances.

Here is the way the Ninth Circuit summed up the situation:

We also recognize the reality that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.  This does not mean, however, that a Fourth Amendment violation will be found only in those rare instances where an officer and his attorney are unable to find a sufficient number of compelling adjectives to describe the victim's conduct.  Nor does it mean that we can base our analysis on what officers actually felt or believed during an incident.  Rather, we must ask if the officers' conduct is objectively reasonable in light of the facts and circumstances confronting them without regard for an officer's subjective intention.17

We discuss this balancing test in more detail in our related article Police Abuse and Excessive Force. But here are some of the questions the fact finder might ask in evaluating whether a tasing was reasonable under the circumstances:

  • was the subject suspected for something minor and nonviolent, like a traffic infraction, or something more serious, like armed robbery or homicide?
  • was the subject in imminent danger or hurting him/herself or the officer?
  • was the suspect armed or wearing clothes that might conceal a weapon?
  • were bystanders around or was anyone in danger of being taken hostage?
  • did the cop give a warning before firing the taser?
  • were less intrusive means, like pain compliance, available to the cop, even if they were less convenient?
  • was backup available or on the way?
  • was the suspect handcuffed or otherwise restrained at the time of tasing?
  • did the subject appear to be mentally disturbed or high on drugs?
  • did the suspect comply with the officer's instructions, even if slowly or with some confusion?
  • if the subject resisted, was the resistance active or passive?

Let's look at how the balancing test might play out.

Example:  Jason, unarmed and wearing only underwear, is stopped by an officer for a seat belt violation.  He is agitated but complies with the officer's directions and does not physically threaten the officer.  There are no passerby on the street.  Without issuing a warning, the officer fires his taser at Jason and Jason falls to the ground, suffering facial injuries.

The officer's conduct was not reasonable under the circumstances.  A reasonable officer would not feel that the severity of the crime, the public safety implications and the level of Jason's resistance justified use of the electronic control device.

Change the Facts:  Jason is suspected of having just shot and killed a convenience store clerk during a robbery.  He is fleeing the scene.  There are not many people around but he is headed towards a crowded intersection.  After issuing two verbal warnings, a sheriff's deputy tases Jason and proceeds to arrest him without further incident.  Jason has a scar where the taser probe punctured his skin.

The deputy's conduct here would likely be considered reasonable under the circumstances.  The subject is suspected in a homicide.  He is fleeing from the police and heading to a place with innocent people.  He is likely armed and dangerous.  He did not respond to two verbal commands to stop and comply.

It is important to remember that each case is different and it is difficult to predict an outcome of a given case.18

4. Does anyone regulate Tasers?

Some people think that the most pressing problem having to do with tasers is not the use of tasers in theory, but rather the manner in which tasers are used and misused in practice.19

Local police departments can regulate how officers use tasers.  If a department has strict regulations about how and when stun guns can be used, that is one thing.  But if a department has no regulations, or lax regulations, or has regulations but does not train officers about them or enforce them, then that is another thing.

Let's look at an example:

Example:  Late one night Dwayne is stopped in his car near his home.  His car's taillight is broken and the cops claim he was driving erratically.  Dwayne planned to fix the taillight next week and is tired from pulling two shifts back-to-back.  He protests, even as he begins to comply with the request to show identification and vehicle information.  He is not making a big argument or being violent in any way.  One of the cops has just been issued a taser but was not given any instruction on its use.  He does not like it when people argue with him, so he tases Dwayne.  The other cop also wants to try out his taser, and fires his taser twice in the center of Dwayne's chest.  Dwayne suffers sudden cardiac arrest and falls into a coma.

The use of the taser even one time was probably not justified in this case.  The sad outcome may have been avoided all together if the officers had received proper instructions about when it was appropriate to use the taser.  They might have been warned of the dangers associated with multiple firings and with firings in the chest area.  They might have been told that the taser is not a toy or an insignificant device and that the taser need not be used on somebody just because he/she talks back a little bit.

Dwayne may have copped an attitude with the officers. But he certainly was not "resisting" a police officer or an arrest as defined in Penal Code 148(a)(1).20

The Los Angeles Police Department allows for the use of tasers.21 The San Francisco Police Department, on the other hand, does not.22

The Los Angeles County Sheriff's Department recently amended its guidelines to provide that a taser "shall be discontinued once the suspect does not pose an immediate threat to themselves, Department personnel or the public."23

Of course, even the most carefully crafted and comprehensive policies will not help if individual cops on the beat ignore them and get away with it.

5. If I've been tased, can I take my case to court?

If you were improperly tased, you might be able to take your case to court.  If the tasing constitutes a constitutional violation, the cause of action is through the federal statute 42 U.S.C. 1983.

Section 1983, which we discuss in our related article 42 U.S.C. 1983, enables you to sue the government and government officials in certain circumstances when they violate your rights.

You also might have a state tort case for [battery] or [wrongful death], and a product liability case against Taser International.

If the officer's conduct rises to the level of a crime, the district attorney might prosecute the case in criminal court as the crime of battery or assault with a deadly weapon.  (Discussed in section 8, below)

Please remember that you only have a certain amount of time to file your case.  It is important that you take action as soon as possible.  We can help you evaluate what happened to you and what your legal options are.

6. I'm an inmate in jail, can guards tase me?

Just as cops on the street can use tasers in certain situations, corrections officers in jails and California State Prisons also can use electronic control devices.

These cases are sometimes evaluated under the Fourth Amendment, in the manner we have discussed.  This is the case when tasings occur in a pretrial context, because the subject has not yet been convicted of a crime and is still presumed innocent.

Electronic control device and other excessive force claims also are evaluated under the Eighth Amendment constitutional right to be free from cruel and unusual punishment, and under the Fourteenth Amendment constitutional right providing for the due process of law.

We discuss issues pertaining to correctional officer abuse in our related article Prison and Jail Abuse, but in general guards can use tasers when doing so relates to running the prison as opposed to just being malicious or sadistic.

The United States Supreme Court has held that in the prison context, "the core judicial inquiry is . whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."24

Example:  Ben is an inmate upstate.  The prison is on lockdown in the wake of violent riots.  The guards are on the lookout for weapons in order to prevent further disruptions.  Ben, who was involved in one of the riots, becomes recalcitrant when guards come to his cell for a weapons search.  He is uncooperative and combative and hurls himself at a guard when he's told he will be tased if he does not peaceably exit.  After being tased twice, Ben ceases to resist and the weapons search continued.

A court may find the tasing was reasonable in this case because it was related to the safe and efficient running of the prison.

Change the facts:  Ben is compliant with the cell search.  He obeys all instructions and directives and in fact Ben did not have anything to do with the riots at all.  But guards don't much like Ben, and they are fed up with inmates generally.  They decide to teach everybody a lesson.  One guard tases Ben multiple times while others beat and kick him, even as he lies prone and defenseless on the ground.  He suffers bruises, fractures and emotional trauma.

The officers' conduct in this case might well be considered excessive force, and even jailor brutality, motivated by meanness and hostility instead of any legitimate penal interest.
7. Will an officer who tases me have any defenses?

A cop who tases someone may be immune from civil liability even if he/she acts improperly.  The officer will have qualified immunity if he/she really did not know that his/her conduct was unlawful and other cops probably also would not have known.25

The rational behind qualified immunity is that society must strike a balance between holding officers accountable for improper conduct and not getting in the way too much with government officials.

Courts are concerned that if cops are worried about getting sued all the time, they all might choose to do something else.26

8. Can police be prosecuted for misusing tasers?

Yes. Police are given wide latitude to use force to defend themselves, subdue violent suspects and maintain order. They're also issued a variety of weapons, including batons, tasers and firearms.

That's a lot of power. But like all public servants who get entrusted with power and discretion, it can lead to abuse. It's unfortunately not uncommon for some cops to cross the line from proper and reasonable use of these weapons, to excessive force and even outright police brutality.

When police taser a subject without just cause, they commit a crime. Depending on the circumstances, they could be charged with criminal battery or assault with a deadly weapon. If police tase a subject repeatedly just out of a sense of sadistic pleasure, which does happen from time to time, they could be liable for the California crime of torture (Penal Code 206)...a conviction for which carries a life sentence.

9. What can I get if I win my case?

It is serious business when government officials violate your civil rights.  People have won large damage awards when they sued the government and won.

Recall that Rodney King eventually won $3,800,000 in damages in connection with the terrible beating he suffered at the hands of Los Angeles cops.27

But money is not the only concern here.  Holding officers accountable for police brutality, misconduct and excessive force is important because it provides justice for wronged individual and also because it can lead to changes in the system so other people will not be harmed in the future.

You might remember the case a few years ago when a student at UCLA was tased by campus police after he refused in a passive manner to show his identification card.  The case settled out of court for $200,000, but the controversy prompted UCLA to clarify its use of force policy and prohibit tasings in cases of passive resistance.

That case also involved allegations of Racial Profiling, and you might want to see our related article on that issue.

Our California Civil Rights Lawyers Can Help.
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If you or loved one has been wrongfully tasered and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

References

1See 'Less Than Lethal'? The Use of Stun Weapons in US Law Enforcement, Amnesty International, 2008.   According to this Amnesty International study, California is one of the states with the highest number of deaths associated with tasers.  In terms of counties, Maricopa County in Arizona ranked highest, with Sacramento County and Los Angeles County following close behind.  San Jose Police Department ranked fourth highest in terms of law enforcement agencies with the most deaths following electronic control device application.

2Our California Civil Rights Attorneys have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

3Taser International is a public company that trades on NASDAQ.  The company was founded by brothers Rick and Tom Smith in 1993.  It had net sales of $104.3 million in 2009, a 12.3% increase from 2008.  See Taser International press release dated 2/19/10.

4See Taser International press kit.

5California Penal Code sections 243(b) and 243(c)(2) define the crime of battery on a peace / police officer.  Many times officers will claim that a suspect was attacking them, or attempting to attack them, merely as an excuse to justify their use of excessive force.

6Taser International continues to expand its arsenal of products.  The company recently released the X3 model, which has an automatic re-load capacity and can hit multiple parties at once.  The company is adding other products, as well.  The Axon is a lightweight audio-visual recording device that can be worn by law enforcement who, according to the company, "constantly face false allegations and complaints that question their integrity and honor." Stinger Systems also makes electronic control devices for law enforcement.  One of its products is called Band-It, a "prisoner transport and courtroom control system."  The device is strapped on an inmate's body and shocks are administered remotely.

7See Stun Gun Fallacy:  How the Lack of Regulation Endangers Lives, American Civil Liberties Union of Northern California, 2005.  In another case, a Nevada medical doctor died in connection with a tasing that occurred while he was having an epileptic seizure.  The man crashed his car to the side of the road and a highway patrol officer, in response to the man's perceived noncompliance, administered multiple taser shocks.  See http://www.lvrj.com/news/lawsuit-targets-taser-maker-80462172.html.

8http://www.infowars.com/articles/ps/officer_injury_tied_to_taser.htm.

9http://www2.taser.com/legal/Pages/Default.aspx.

10See Amnesty International report, Less Than Lethal, Supra.  Tasings also contain biohazard and hazardous substance warnings.  They can spark explosions when used near flammable materials.  A man in Taxes died after a tasing ignited a can of gasoline on the front seat of his car.  Ibid.

11Ibid.

12http://articles.sfgate.com/2005-01-05/bay-area/17355491_1_fibrillation-taser-international-ventricular.

13The verdict of compensatory and punitive damages was $6,221,000, but the jury reduced it because it found the deceased was partially liable because of drug use.  The punitive damage award was later dismissed by a judge. Heston et al v. City of Salinas, et al, N.D.Cal Case No. C 05-03658 (2008).  Another case, featured by CNN, currently is working its way through the legal system.  In that case, a Watsonville, California man sustained permanent brain damage after being tased three times with the X26. Butler v. Taser International, Inc., Santa Cruz Superior Court Case No. CV 161436.  See also
http://www.cnn.com/2010/CRIME/03/03/taser.cardiac.arrest/index.html.

14See Study of Deaths Following Electro Muscular Disruption:  Interim Report, U.S. Department of Justice, National Institute of Justice, 2008.  See also Use of Tasers by Law Enforcement Agencies:  Guidelines and Recommendations, prepared for City of Mountain View Human Relations Commission, Stanford Criminal Justice Center.

15Bryan v. MacPherson, --- F.3d ---, 2010 WL 2431482 (Case No. 08-55622), internal quotations and citations omitted.

16Graham v. Connor, 490 U.S. 386, 396 (1989).

17Bryan v. MacPherson, supra, WL 2431482, internal quotations and citations omitted. The Ninth Circuit initially held that the tasing in this case (which involved a nonviolent seat belt violator and no warning) was so unreasonable that the cop could not enjoy qualified immunity. But in a superseding opinion the court reaffirmed its excessive force finding while reversing itself as to qualified immunity based on ambiguity in the law in 2005. ("Viewing the facts, as we must, in the light most favorable to Bryan, we conclude, for the purposes of summary judgment, that Officer MacPherson used unconstitutionally excessive force. However, a reasonable officer confronting the circumstances faced by Officer MacPherson on July 24, 2005, could have made a reasonable mistake of law in believing the use of the taser was reasonable.   Accordingly, we reverse the district court's denial of summary judgment on the basis of qualified immunity.")

18A Recent Hawaii case illustrates the fine lines sometimes drawn by courts.  In that case, the Ninth Circuit found that an officer's tasing of a woman during a domestic dispute was reasonable even though the person suspected of being dangerous was the man involved.  The woman's conduct was not blameless, but basically she just got in the way. Mattos v. Agarano, ____F.3d____, 2010 WL 92478, Case No. 08-15567 (9th Cir. (HI) 2010) ("Even though we find that use of a Taser represents a serious intrusion on interests protected by the Fourth Amendment, we recognize that in responding to a domestic violence call, the officers confronted a dangerous and volatile situation.  When an intoxicated Troy began yelling profanities at the officers and demanding that they leave, the officers felt the need to arrest him to finish their investigation and diffuse the situation.  Because Jayzel interfered with Troy's arrest and, in doing so, made contact with Aikala, Aikala was justified in removing her from Troy's side. Although an alternative method of force may have been advisable, the Fourth Amendment does not require an officer
to use the minimum amount of force necessary to move Jayzel and arrest Troy.")

19 See ACLU of Northern California report, Stun Gun Fallacy, Supra (reviewing taser policies of 79 Northern California departments and concluding that "despite the growing number of deaths, increasing concern from medical and other experts about Taser safety, and extensive media coverage of problems associated with Taser use, the weapons remain largely unregulated.")

20See California Penal Code 148(a)(1), making it a misdemeanor to resist, delay or obstruct a peace officer or Emergency Medical Technician engaged in the performance of his/her official duties.

21http://www.laindependent.com/news/local/hollywood/50974072.html (reporting on a policy change that clarifies an officer can now use a taser on a "tall, muscular man standing naked in the middle of an intersection, apparently high on a drug like PCP but not harming anybody-yet.")

22http://articles.sfgate.com/2010-03-04/news/18375047_1_taser-international-stun-guns-suspects.

23See County of Los Angeles Corrective Action Plan filed in connection with proposed settlement of $350,000 in connection with Silva v. County of Los Angeles, C.D.Cal Case No. CV 08-07934 (2010).

24Hudson v. McMillian, 503 U.S. 1 (1992).

25Mattos v. Agarno, supra, 2010 WL 92478.

26Pearson v. Callahan, 555 U.S. ____ (2009) ("Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.")

27http://www.nytimes.com/1994/06/02/us/punitive-damages-denied-in-beating-of-rodney-king.html?pagewanted=1.

28http://newsroom.ucla.edu/portal/ucla/police-approve-new-taser-use-policies-40603.aspx.

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