Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices - Part I: 4th Amendment claims for excessive force. 2007 (3) AELE Mo. L. J. 101
     Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices - Part II: Use Against Juveniles, and Inadequate Training Claims, 2007 (4) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Use of Force and the Hollywood Factor, by Jeffry L. Johnson, 2007 (4) AELE Mo. L.J. 501.
     Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices--Part III: Use Against Detainees and Disabled or Disturbed Persons, 2007 (5) AELE Mo. L.J. 101.
     Monthly Law Journal Article: Electronic Control Devices: Liability and Training Aspects, by Edmund Zigmund, 2007 (5) AELE Mo. L.J. 501.
     Officers were not entitled to qualified immunity on claims that they used excessive force in deploying a Taser on a 6-year-old, 53-pound minor, allegedly causing permanent and severe injuries. The child was placed in a school principal's office after being disruptive in a class. He broke a picture frame in the office, and police officers allegedly found him standing with a piece of glass in his hand. One officer kneeled in front of the child while the other sat in front of him, and then moved within one foot of him just before using the Taser. At the time of the incident, which was 2003, it was "obvious" that the Fourth Amendment prohibited the use of the Taser under these circumstances, according to the appeals court. Moretta v. Abbott, No. 07-10795, 2008 U.S. App. Lexis 11749 (Unpub. 11th Cir.).
     Jury awards more than $5 million against manufacturer in lawsuit over death of man subjected to multiple Taser shocks, but rejects claims that police officers used excessive force in deploying Tasers against the decedent. Heston v. City of Salinas, No. C 05-03658, U.S. Dist. Court for the Northern District of California, San Jose Division (June 6, 2008). Details follow:
     In a lawsuit over the death of a man who died after being subjected multiple times to Taser shots, a federal court jury has returned a verdict in favor of defendant police officers and the city which employed him on all claims, including federal civil rights and negligence claims, while awarding damages, including $5.2 million in punitive damages, on a negligent failure to warn theory against Taser International, Inc., the manufacturer of the Tasers used by the officers.
     Police in the case responded to a 911 call from the decedent's father reporting that his son was acting "strangely," and that he suspected that his son, who had a history of substance abuse, might be under the influence. When the son later started throwing household items out of the front door, police officers, having previously left, returned, and fired Tasers at him. They allegedly discharged their Tasers multiple times. He became unconscious and paramedics were able to restore his breathing and heartbeat. He was taken to a hospital, did not regain consciousness, and died the following day.
    The jury rejected any claim that an act or omission by one or more of the four defendant police officers caused the decedent to be subjected to excessive force during his arrest or detention "by deployment" of Tasers against him.
     The jury answered "yes" on a jury verdict form to the question whether a "reasonably prudent manufacturer of an electronic control device knew or reasonably should have known that the Taser ECD [electronic control device] was dangerous or likely to be dangerous because prolonged exposure to electric shock from the device potentially causes acidosis to a degree which poses a risk of cardiac arrest in a person against whom the device is deployed?" The jury further found that the manufacturer failed to adequately warn Taser purchasers of that risk, and that the failure to provide such warnings of the "risk of prolonged deployment" was a "substantial factor in causing the officers to use the device in such a way" against the decedent.
     The jury rejected, however, a strict products liability claim, stating that at the time of the manufacture and sale of the Tasers, the manufacturer did not know and/or it was not knowable "by the use of available scientific knowledge" that prolonged exposure to shocks from Taser ECDs "potentially causes acidosis to a degree which poses a substantial danger, namely of causing a person against whom the device is deployed to have a cardiac arrest."
     The jury awarded $21,000 in compensatory damages to the decedent's estate for injuries he suffered prior to his death, along with $200,000 in punitive damages. The jury also awarded $1 million in compensatory damages to the parents of the decedent for losses resulting from the death of their son, along with $5 million in punitive damages. Finally, the jury found that the decedent's own negligent conduct contributed to causing his death, and found that the decedent was 85% at fault for his death, with Taser International 15% at fault. Taser International was therefore found 15% responsible for the $1,021,000 in compensatory damages, as well as for a total of $5,200,000 in punitive damages.
     In a case where a police officer accidentally shot and killed a suspect, drawing her gun while thinking it was her Taser, a federal appeals court upheld summary judgment for the Taser manufacturer on a products liability design defect claim. The court noted that the Taser and holster were not "used" when the injury occurred, and such use was necessary for the design defect claim. The court also found that the manufacturer exercised reasonable care in choosing a gun-shaped design for the Taser, when the only evidence presented on the decision-making process indicated that a handgun-shape was better for accuracy and feedback from training officers indicated that they preferred a handgun-shaped design. The court also rejected failure to warn, negligent warning, and training claims. Torrest v. City of Madera, No. 05-16468, 2008 U.S. App. Lexis 10169 (Unpub. 9th Cir.).
     In an excessive force lawsuit by a man shot with a Taser six times after he became violent following taking excessive amounts of anti-seizure medication, the trial court did not act erroneously in barring the jury from considering the use of the Taser against him as the cause of his kidney failure. There was not sufficient evidence to prove that the use of the Taser caused rhabdomyolysis in the arrestee. The appeals court upheld the denial of the plaintiff's motion for a new trial on damages after he was awarded a total of $1,000 against one officer for his use of the Taser. The appeals court vacated an attorneys' fee award of $10,616, and ordered reconsideration of the amount of that fee. Lash v. Hollis, No. 07-2356, 2008 U.S. Lexis 10247 (8th Cir.).
     When the evidence showed that a DUI arrestee was kicking, spitting, and refusing to cooperate with officers just before he was accidentally shot by an officer in the left buttock, the officer was entitled to use reasonable force. The officer intended to draw and fire his Taser, but mistakenly pulled out and fired his gun instead. The court found that the plaintiff's claim that the officer was not entitled to use any force at all was barred. Additionally, the fact that the arrestee was convicted for resisting the officers was inconsistent with his claim that he had offered no resistance to them, so that they were unjustified in any use of force. The plaintiff could, however, pursue his claims arising out of the accidental use of deadly force. Yount v. City of Sacramento, No. S139762, 2008 Cal. Lexis 5426.
     A deputy's use of a Taser against an arrestee when she was handcuffed and in foot restraints was unnecessary and excessive if the arrestee's version of the incident was true. While the Taser was only applied for 1.5 seconds, it was allegedly applied in a wanton, and sadistic manner, and not as part of a good faith effort to restore discipline. The use of the Taser caused the plaintiff to experience pain and electric shock, and to develop a scar. Use of a Taser to intimidate or punish an arrestee is not objectively reasonable and violates clearly established law, so that the deputy was not entitled to qualified immunity. Orem v. Rephann, No. 07-1696, 2008 U.S. App. Lexis 9178 (4th Cir.).
     Officer who intended to use a Taser holstered near her gun against a suspect, but instead drew and fired her gun, killing the suspect was not entitled to summary judgment. At the time, the suspect was seized for purposes of the Fourth Amendment and was handcuffed and in the back of a patrol car.  Torres v. City of Madera, No. 05-16762, 2008 U.S. App. Lexis 9648 (9th Cir.).
     Federal court rules that it is clearly established that it is unreasonable to Taser a person who was suspected of a minor, non-violent offense, and to do so without a prior warning, In this case, the court found, the plaintiff had not attempted to flee, gave no indication of violence, and was not warned before the Taser was used against her. Additionally, there were four officers present at the time, and the female plaintiff's husband had already been secured in the squad car at the time. The plaintiff merely allegedly disobeyed orders to cease talking on a phone to a 9-1-1 operator. The officer was not entitled to summary judgment. Brown v. City of Golden Valley, No. 06-3141, 2008 U.S. Dist. Lexis 11300 (D. Minn.).
     A federal appeals court overturned a trial court's summary judgment for police officers, their police chief, and the city that employed them in a lawsuit brought by an arrestee who was subjected to an arm-lock, a tackling, a Tasering, and a beating after he allegedly committed a misdemeanor in the officers' presence. The incident occurred when the plaintiff, after unsuccessfully attempting to defend himself against a traffic ticket, took the court file with him while walking to a courthouse parking lot to get money from his vehicle to pay his fine. The officers used force against him while he was on his way back to the courthouse. The appeals court found that the force used was not reasonable, given that the plaintiff was only suspected of "innocuously" engaging in conduct constituting a nonviolent misdemeanor, and did not resist arrest or attempt to flee. Under these circumstances, the court stated, a reasonable officer would not have taken these alleged actions.  Casey v. City of Federal Heights, No. 06-1426, 2007 U.S. App. Lexis 28537 (10th Cir.).
     When a coroner's report indicated that a man had died as a result of excited delirium and the presence of cocaine in his system, and that the application of a Taser did not cause or contribute to the man's death, the manufacturer could not be held liable under Louisiana state law. The man was being transported in an ambulance from a bar after he became ill. He was stunned by police with the Taser once after he began waving a knife at paramedics and shaking it violently. Smith v. Louisiana State Police, Civil Action No. 07-1189, 2007 U.S. Dist. Lexis 73689 (E.D. La.).
     If the facts were as the plaintiff alleged, the decedent was knee deep in water, unarmed, surrounded by police, and had ceased trying to escape arrest when he was shocked with a Taser five times, struck with a baton multiple times, and pushed into a position that submerged his head in water, causing him to drown. Under those circumstances, officers were not entitled to qualified immunity on an excessive force claim. The officers should have known that striking the arrestee with a baton after he was no longer resisting violated clearly established constitutional rights. Prior case law indicating that the unwarranted use of pepper spray was excessive force was sufficient to put officers on notice that improper use of a Taser could be excessive force. Additionally, the officers should have known that it is almost always an excessive use of force to restrain an arrestee in a manner that places his head under water for a long period of time. Landis v. Cardoza, Civil No. 05-74013, 2007 U.S. Dist. Lexis 74838 (E.D. Mich.).
     Police officers who came to a home in response to a 911 call reporting a disturbance there did not violate a man's rights by entering the residence, using a Taser to subdue him when they found him naked in an attic-like storage area armed with a handgun, and taking him to a hospital where he was involuntarily committed for a psychiatric evaluation. Testimony indicated that the officers believed that they were entering a home where there was a potentially violent situation and where they might need to aid a potentially injured occupant, so that the officers were entitled to qualified immunity. Nero v. Baltimore County, Md., Civil No. AMD 06-1687, 2007 U.S. Dist. Lexis 74710 (D. Md.).
     There were genuine issues of fact as to whether a police officer's use of a taser twice against an arrestee was reasonable, when the arrestee claimed that he was not resisting and laying on the hood of a police car at the time. Additionally, prior to the officer's second use of the taser, a state trooper on the scene allegedly urged the officer, "Don't do it." Money damage claims against the State of Delaware and the state trooper in his official capacity were barred by the Eleventh Amendment. Yarnall v. Mendez, No. 05-527, 2007 U.S. Dist. Lexis 66639 (D. Del.).
     Following a bench trial, a federal judge entered judgment in favor of arresting officers in a lawsuit brought by a residential burglary arrestee who was tased five times during the course of his arrest. Each use of the taser lasted five seconds, and all five uses of the taser took place within an 85 second time period. The first use of the taser was clearly justified to stop the suspect from fleeing, at a time when the first officer was alone with the fleeing suspect. The court further held that, at the time of the arrest, the law concerning excessive force claims involving the use of tasers would not clearly indicate to a reasonable officer that multiple tasings under these circumstances violated the arrestee's rights. Beaver v. City of Federal Way, No. C05-1938, 2007 U.S. Dist. Lexis 64665 (W.D. Wash.).
     An officer's mistaken use of his handgun, rather than the taser, which he allegedly intended to shoot an arrestee with, did not change the fact that the shooting constituted a seizure for purposes of the Fourth Amendment. Further proceedings were ordered on the issue of whether the seizure was unreasonable v. Henry v. Purnell, No. 06-1523, 2007 U.S. App. Lexis 22436 (4th Cir.).
     Jury's award against officer on motorist's claim that the officer used excessive force in subjecting him to two Taser shots was adequately supported by the evidence. The plaintiff claimed that the Taser was used against him after the officer denied his request to get up when he was the victim of a rear-end vehicle collision, and while he was partially restrained, unarmed, and "visibly" suffering from claustrophobia and begging the officer not to shoot him. The officer was not entitled to qualified immunity. Further proceedings were also ordered on the issue of whether an award of punitive damages was appropriate. Wakefield v. City of Escondido, No. 05-56769, 2007 U.S. App. Lexis 18270 (9th Cir.).
     Officer's use of Taser to restrain an uncooperative epileptic who had just suffered two seizures and was resisting medical personnel was not an excessive use of force. In fact, the court reasoned, it may have prevented much greater harm to him or to other people present. Stanley v. City of Baytown, #4:04-cv-02106, 2005 WL 2757370 (S.D. Tex. 2005). [2005 LR Dec]
     Arrestee's conviction for obstructing an officer did not bar his federal civil rights lawsuit for excessive force by an officer who shot him in the buttocks with his handgun while intending to draw and fire his Taser gun instead. Yount v. City of Sacramento, No. C046869, 2005 Cal. App. Lexis 1732 ( Cal. App.). [2005 LR Dec]
     Federal court grants summary judgment to Taser International in lawsuit filed by city attempting to obtain indemnification on a products liability basis for the death of an arrestee killed by a police officer who mistakenly shot him with her Glock semiautomatic weapon when she intended to use her Taser. Court rejects argument that Taser was liable because of a "design defect" making the Taser look too much like a gun, or on the basis of several other theories. Torres v. City of Madera, #02-6385, U.S. District Court, E.D. Cal. (July 11, 2005). [2005 LR Sep]
     Inoperable tag light on truck gave officer a basis for a traffic stop, and subsequent "belligerent and confrontational" behavior by motorist provided probable cause for a custodial arrest. Officer's use of Taser gun to accomplish the arrest was not excessive force under the circumstances. Draper v. Reynolds, #03-14745, 2004 U.S. App. Lexis 9498 (11th Cir.). [2004 LR Jun]
     Arrestee could not recover damages from defendant officers in civil rights suit for use of excessive force when officers' testimony, police records, and arrestee's own deposition all indicated that these were not the officers with whom arrestee claimed to have been involved in an altercation with prior to his arrest. Russell v. Eldridge, 832 F.Supp. 535(D.Conn 1993).
     Federal appeals court holds that use of stun gun to subdue man who was resisting arrest by kicking and biting was an appropriate use of force. Hinton v. City of Elwood, Kansas, 997 F.2d 774 (10th Cir. 1993).
     Three-four hour training on use and effect of stun guns was negligence at worst, appeals court finds, and could not be the basis for a civil rights claim for inadequate training, which requires "deliberate indifference" to arrestee's rights; plaintiff awarded $19,680 for state law negligence claim. Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1991).