nyclu taser final
TRANSCRIPT
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Bttr Rgtn
f Stn Gns
n N Yr
Th Nd fr
NEW YORK CIVIL LIBERTIES UNION
Taking
Tasersseriously:
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aCknoWleDgMenTs
This paper was written by Corey Stoughton, Taylor Pendergrass and Helen Zelon.
It was edited by Mike Cummings, Helen Zelon and Jennier Carnig.
Graphics were created by Sara LaPlante.
It was designed by Li Wah Lai.
aBouT THe neW york CiVil liBerTies union
The New York Civil Liberties Union (NYCLU) is one o the nations oremost deenders o
civil liberties and civil rights. Founded in 1951 as the New York aliate o the American
Civil Liberties Union, we are a not-or-prot, nonpartisan organization with eight chapters
and regional oces and nearly 50,000 members across the state.
Our mission is to deend and promote the undamental principles and values embodied
in the Bill o Rights, the U.S. Constitution, and the New York Constitution, including
reedom o speech and religion, and the right to privacy, equality and due process o law
or all New Yorkers.
For more inormation about the NYCLU, please visit www.c..
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TakiNG TaSeRS SeRiouSlY:Th nd f Btt rt
f st g nw y
2011
neW york CiVil liBerTies union
125 Brd Strt, 19th Fr
N Yr, NY 10004
.nyc.rg
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in 1911, intrepid adventurer
Tom Swit invents an ElectricRife, with which he slays rhinos,
elephants and other earsome
Arican beasts, in Volume 10 o the
beloved science-ction series.
In the late 1960s, physicist John
(Jack) Higson Coverwho earned
his doctorate at the University o
Chicago studying under renowned
nuclear physicists Enrico Fermi
and Edward Tellerinvented a real
electric weapon, and named it or
his childhood hero: He called it
the Thomas A. Swit Electric Rife,
or TASER.
A century ater the novels
release, Tasers are near-
ubiquitous in law enorcement.
How they are used, and howoicers and their superiors
monitor their use, are the
subjects o this report.
Image used under Creative Commons rom Cea. via Flickr.
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NEW YORK CIVIL LIBERTIES UNION
C O N T E N T S
1 exctv smm
5 itdct
7 PaRT i: Tsr Dngrs: a Grng RcgntnConcerns about Lethality
Concerns about Taser Abuse
The Courts Increasingly Serious Approach
Nationwide Calls or Reevaluation
17 Pt ii: T nw y: ov dD Dpmt
The Use o Tasers Where the Suspect Poses No Danger orRisk o Injury to Anyone
Excessive Number and Duration o Shocks
Targeting o Dangerous and Sensitive Areas o the Body
Failure to Warn Prior to the Use o a Taser
Over-Reliance on Drive-Stun Mode
Targeting At-Risk Populations and Using Tasers inDangerous Situations
The Disproportionate Use o Tasers on Peopleo Color
27 Pt iii: rcmmdts
Recommendation 1
Recommendation 2
Recommendation 3
31 ed nt
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New YoRk Civil liBeRTieS uNioN \1
exct Smmry
Tasers 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 Stateand 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)
Ifrst quarter sales
are indicative of sales for the year,
close to 65,000 agencieswill purchase Tasers
in 2011.
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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. Teserecords 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 states
residents and visitors at unnecessary and unjustiable risk.
Th nyClu fd:
Nearly 60 percent o reported Taser incidents did not meet expert-
recommended criteria or justiying aser usecriteria that limit the
weapons use to situations where law enorcement ocers can document
active aggression or a risk o physical injury.
Fifeen percent o incident reports indicated clearly inappropriate
Taser 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 prolongedTaser 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 weapons
manuacturer instructing users to avoid ring asers at the chest area,
citing a risk o potential cardiac consequences.
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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 a
conrontation with police on Southampton
Villages Main Street. Glowczenkis 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 withpolice 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 brothers death.
An independent pathologist conductedan autopsy on Glowczenskis 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.)
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As the NYCLUs 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 weapons manuactureran 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 recognized
expert 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 requireaccurate, complete reporting and robust monitoring o aser use. Such
reporting should be made available to the elected ocials responsible or
oversight o law enorcement agencies and to the citizens whose taxes
support them.n
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New YoRk Civil liBeRTieS uNioN\5
intrdctn
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 model
use-o-orce policies and training recommenda-
tions, but no studies have compared how New Yorks
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 2009
and January o 2010, the New York Civil Liberties Union requested, pursuant
to New Yorks 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
Reformuse-of-force policies
and Taser
training programs.
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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 NYPDs 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 weapons manuac-turer, aser Internationala widely-condemned approach that ails to ully
prepare ocers or when and how to deploy asers. n
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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 notrequire 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.
Cc bt ltht
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, theArizona Republic reviewed
PART I:Tsr Dngrs:
a Grng Rcgntn
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 weresummoned. Jackson experienced
cardiac arrest in the ambulance and
was pronounced dead at St. Josephs
Hospital and Health Center.
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autopsy reports in several dozen aser-related deaths.
In at least 18 cases, the medical examiner listed asersas 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-
ments 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 aseractivations, 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 nativeTony 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 coroners report said Bradways
death was due to cardiac arrest,
although it could not be determined
whether possible cocaine ingestion
or shock-induced ventricular
brillationa disturbance o the
heartbeat linked to Taser usewas
the primary cause.
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New YoRk Civil liBeRTieS uNioN \9
Internationals new targeting guide recommended that
ocers avoid ring in the chest area due to potentialcardiac 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.
Cc bt T ab
Te DOJ recently noted that asers are rapidly
overtaking other orce alternatives. Although injury
ndings suggest that substituting [asers] orphysical 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 Caliornias 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 Bishops riend, whose name
has not been released, reached or a
book, an ocer mistook his gesture
and grabbed his arm, causing a
scue, 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 ChieJames Murley said later o Bishop.
His riend, who weighed 114 pounds
at the time, was let with burns and
signicant bruises.
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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.
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New YoRk Civil liBeRTieS uNioN \11
The young man was Tasered in his
chest and lower torso, despite
Taser Internationals warning that
shocking 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 howocers
often default to using Tasers even
when other options are available.
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A 2006 study by the Louisville Courier-Journalshowed 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
Th Ct ic s appch
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. Connor24 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 causedby, 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.
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New YoRk Civil liBeRTieS uNioN \13
September 2008, Brooklyn. Iman
Morales, 35, had a long history o
emotional disturbance and mental
illness. When police arrived in response
to Morales mothers call or help, saying
he had stopped taking his antipsychotic
medications, a naked and agitated
Morales stepped out o his mothers
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 hes 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
hadnt 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 theassistance she got was her son being killed.
On the day o Morales uneral, Lt. Michael
Pigott took his own lie with another
ocers 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
Pigotts decision. A suicide note ound
near Pigotts body said that he did not
want his three children to see him in
handcus, as he eared arrest. Pigott diedon 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 subjectis in a position where a all may cause
substantial injury or death.
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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 law
enorcement 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
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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 implicitlyor 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 requiresucient reporting on aser use to promptly analyze, identiy and correct
any misuse.
ntwd C f rvt
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
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Some law enorcement agencies have begun to reevaluate the rush to adopt
asers. In Maryland, the Attorney Generals 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 careully
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
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Prt ii:Tsrs n N Yr:
ors nd Dngrs Dpymnt
The NYCLUs 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
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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.
J 2009, s, odCt. Salina 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 anhour 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 Harmonresisted his eorts, he used his Taser to
shock her twice, landing a barb in her
upper let chest, despite Harmons plea
to stop: Dont 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 andhandcued 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 romDeputy Andrews squad car.
(In December, 2009, Onondaga County
legislators unanimously agreed to award
a $75,000 settlement in response to a
lawsuit Harmon led.)
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New YoRk Civil liBeRTieS uNioN \19
Each o these issues is discussed in more details in the sections that ollow.
Th u f T Wh th spct P n D r
f ij t a
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 weapons 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 law
enorcement 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 reportsindicated 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.
Nearly60percent
ofTaseruse
did not meet expert
recommendeduse.
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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 witha police order. But even
these 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-
agewell over halo 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 least
7 percentof
incidents, subjects were
alreadyrestrained.
Inonlyof incidents,
subjects were
armedor thought
to be.
15percent
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New YoRk Civil liBeRTieS uNioN \21
excv nmb d Dt f shc
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 departmentthe 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, withoutprecaution or limitation, until people are compliant or apprehended. Te
policy 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
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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 Yorks policies in
itsel raises serious concerns.
Tt f D d stv a
f th Bd
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 Internationals 2009 warn-
ing against targeting the chest area.58 Even beore this
announcement, expert recommendations encourageddepartments 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 persons chest, the very
area the manuacturer warns against. In 14 in-
cidents, 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 than1 out of 4 incidents,
an ocer red at a
personschest.
J 2008, Hm.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.
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New YoRk Civil liBeRTieS uNioN \23
wo departmentsthe NYPD and the Suolk
County Police Departmentappear to ollow aserInternationals warnings about targeting the chest,
suggesting that most New York State ocers operate
asers with insucient guidance.
F t W P t th u f T
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
ov-rc Dv-st Md
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 surveyedthe Guilderland
Police Department and the NYPDincorporate 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.
sptmb 2009, sc. 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 Stones
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 the
Taser shock. In 2010, the NYCLU led
a suit against the Syracuse Police
Department on behal o A.E.
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Unsurprisingly, among those departments that document the mode o use,
drive-stun mode was used in 47 percent o aser deployments. Probe modeaccounted or 53 percent, suggesting that ocers use the more dangerous,
less eective mode with alarming requency.
Tt at-r Ppt d u T D
stt
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 theelderly are relatively rare, they provide dis-
turbing examples o aser misuse. In a 2005
report rom the Guilderland Police Depart-
ment, 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 indica-
tion that he elt threatened or that the boy had threatened himsel or those
around him. Nonetheless, the ocer deployed a aser and struck the boys
thigh. Te ocers narrative indicated nothing more to justiy the asers 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.
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In a particularly disturbing report rom the Syracuse Police
Department, a total o three ocers each used their asersagainst a mentally ill man. In their individual reports, each
ocer reported ring and applying multiple aser cycles.
Te rst applied ve to six cycles, the second our to ve cy-
cles, 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 beore 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 situations
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.
Th Dpptt u f T
Pp f C
Among departments that track race in their incident
reports, black and Latino New Yorkers accounted or
at 2004, Q. 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 at3:45 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.
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58 percent o aser incidents.67 Closer scrutiny o the
data illustrates precisely how disproportionate thatstatistic 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 incidentsinvolved40percent
children
elderly
inrm
intoxicated
mentally ill
at risksubjects:
Dcmb 2004, gdd.
On the day ater Christmas, Swahiti
S. Chevron Bolden, 34, o Albany,
was outside a Houlihans 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.
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Prt iii:Rcmmndtns
Tese 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 within individual departmentsand 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.
rcmmdt 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 theirpolicies in light o these recommendations and the inadequacies details in
this 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
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have grossly inadequate aser training. Experts recommend that departments
provide their own training curriculum, 70 but o the departments that re-sponded to the NYCLUs Freedom o Inormation request, only the Roches-
ter Police Department reported used independent training materials in addi-
tion 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.
rcmmdt 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 theassistance 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
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indications suggest that MPC is continuing its push to bring more coherence
to aser policies.
rcmmdt 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
unavailable 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 osuch review,74 and say that incident reports should include copious inorma-
tion, such as the acts supporting the ocers 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,
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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
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end Nts:
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 contained in Appendix A to this report.
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, theNassau 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 contained in Appendix B to this
report. Original copies o the incident reports are 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.
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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.
13See 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.
15Police 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, Policing30 (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.
16Police Use o Force, asers and Other Less-Lethal Weapons, supra note 1 at 15.
17Less Tan Lethal?, supra note 9, at 3-4.
18Stun 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.
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20Id.
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.
22Id. at 8.
23 Tis report ocuses on the use o orce by patrol ocers, but excessive use o orce is also
prohibited on persons held in detention. For convicted prisoners, the standard derives
rom the Eighth Amendments 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 manuacturers instructions and saety warnings;
whether there were available alternatives to the use o orce deployed; and the ocers
opportunity or deliberation prior to the use o orce.
25Id. 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).
26See, e.g, Bronson v. Mitchell, 1995 U.S. Dist. Lexis 21651, *12 (N.D. Miss. 1995).
27 471 U.S. 1, 3 (1985).
28Snauer v. City o Springeld, 2010 WL 4875784, *6 (D.Or., 2010).
29See, e.g., Estate o Mathis ex rel. Babb v. Kingston , 2009 WL 1033771, *6 (D.Colo., 2009).
30McKenney v. Harrison, 2011 WL 1104528, 5 (8th Cir. 2011).
31See, e.g., Headwaters Forest Deense v. County o Humboldt, 240 F.3d 1185, 1199 (9th Cir.
2001), vacated534 U.S. 801 (2001), a d on remand, 276 F.3d 1125 (2002).
32People v. Sullivan, 116 A.D.2d 101, 107 (1 Dept 1986).
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33Id. at 1322 n.58.
34C. 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 Shillingords person were
not crippling was merely ortuitous. Tat same blow might have caused blindness or other
permanent injury.).
35DeSalvo v. City o Collinsville, 2005 U.S. Dist. Lexis 23180, *13 (S.D. Ill. 2005).
36Hickey 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).
37Crowell v. Kirkpatrick, 667 F.Supp.2d 391 (2d Cir. 2010).
38Madrid v. Gomez, 889 F. Supp. 1146, 1175 n.43 (N.D. Cal. 1995).
39Roberts v. Manigold, 240 Fed.Appx. 67, (6th Cir. 2007).
40Oliver v. Fiorino, 586 F.3d 898, (11th Cir. 2009).
41Brown v. City o Golden Valley, 574 F.3d 491, (8th Cir. 2009).
42Casey v. City o Federal Heights, 509 F.3d 1278, (10th 2007) .
43Estate o Mathis ex rel. Babb v. Kingston, 2009 WL 1033771, *6 (D.Colo. 2009).
44Id.
45Oliver 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).
47Id. at 9 n.10.
48 Maryland Attorney Generals Oce, Report o the Maryland Attorney Generals 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 Attorneys Oce, October 8, 2009) (conducting
a comprehensive review and recommending changes to Allegheny Countys approach to
using asers).
49Maryland Attorney Generals Ofce Report, supra note 48, at 2.
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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
Generals 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 against the
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 Generals 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
Generals 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 an ocer 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 establisheddepartmental policy.
53 O the policies collected and reviewed by the NYCLU, only the Suolk County
Police Department and the NYPDs policies comport with this aspect o expert
recommendations. All o these policies are contained in Appendix A to this report.
54Study 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
Generals 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 Criminal Justice Services, urge extra caution withconsecutive 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.
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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. See
Appendix A.
57 Such departments include the Rochester Police Department and the Saratoga Springs
Police Department. See Appendix A.
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 Generals recommendations, which were published ollowing aser
Internationals announcement, include a caution against targeting the chest area, in
addition to the other areas mentioned previously. Maryland Attorney Generals Oce
Report, supra note 48, at 4.
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 AttorneyGenerals 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). See Appendix A.
63 DOJ/PERF Guidelines, supra note 5051, Guidelines 16, at 16; Maryland Attorney Generals
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 AttorneyGenerals Oce Report, supra note 48, at 4; MPC Recommended Guidelines, supra note
55, Recommendation IV.G.
65 Maryland Attorney Generals 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.
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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, availableathttp://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 Generals
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 periodic retraining but does not speciy the period. See Appendix A.
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
Generals 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; MarylandAttorney Generals 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 athttp://www.state.nj.us/lps/dcj/pds/NJ-OAG-Stun-
Gun-Policy-10-2010.pd. Last visited Aug. 17, 2011.
77Id.
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neW york CiVil liBerTies union
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