Fayetteville (NC) police recalling Tasers to examine their safety

"The Fayetteville Police Department is the second in North Carolina in the past six weeks to pull the Tasers from use. The Charlotte-Mecklenburg Police Department did so in July after a 21-year-old man died after a Taser was used on him. The day before that man's death, a federal jury awarded $10 million to the family of a 17-year-old Charlotte teen who died in 2008 after he was stunned with a Taser. The suit was filed against Taser International, the Scottsdale, Ariz.-based manufacturer of the stun guns."

August 29, 2011
Nancy McCleary, Fay Observer

The Fayetteville Police Department is taking its Taser weapons off the streets so officials can determine whether it's safe to use them, authorities said Monday.

The decision comes almost a week after a Fayetteville man died after police used a Taser as they tried to take him into custody.

"I feel it was the responsible and prudent response to issues with the use of Tasers in the law enforcement profession in general," Police Chief Tom Bergamine said Monday in an email.

All officers have been ordered to turn in their Tasers at the department's training facility where the weapons will be inspected to make sure they are functioning properly, Bergamine said in a news release earlier Monday.

Bergamine said he has no reason to believe that the Taser used in last week's incident malfunctioned.

"The Fayetteville Police Department believes that it is imperative that we immediately verify that all of our Tasers are in proper working order to protect both the citizens and officers," the statement said.

The department also plans to review its policies and procedures regarding the use of Tasers, the statement said.

The department's use-of-force policy addresses the use of Tasers and cites conditions in which the weapons should be used.

Among them are controlling violent subjects when deadly force is not necessary, when conventional tactics and/or self-defense techniques are ineffective, when there is a reasonable expectation that it will be unsafe for officers to get close to a subject and to keep a person from committing suicide or a self-inflicted injury.

Michael Wade Evans, 56, of the 1100 block of Simpson Street, died Wednesday after a Fayetteville police officer used a Taser on him.

Police were trying to arrest Evans about 2:30 p.m. in front of Fuller's Old Fashion Barbecue at 113 N. Eastern Blvd. Evans was reported to have been acting erratically and trying to jump on vehicles as they passed him on the road.

When Evans resisted arrest, an officer used a stun gun. Evans became unresponsive and was pronounced dead at Cape Fear Valley Medical Center.

Fayetteville police have used Tasers since 1996, according to spokesman Gavin MacRoberts.

Evans is the second person to die in Fayetteville since 2008 after city police used a stun gun during an arrest.

In January 2008, Otis C. Anderson, 36, stopped breathing after a Taser was used to subdue him. The incident happened on Murchison Road. An autopsy later revealed that Anderson had a lethal amount of cocaine in his system and that the cause of death was an overdose of the drug.

Second to pull Tasers

The Fayetteville Police Department is the second in North Carolina in the past six weeks to pull the Tasers from use.

The Charlotte-Mecklenburg Police Department did so in July after a 21-year-old man died after a Taser was used on him.

The day before that man's death, a federal jury awarded $10 million to the family of a 17-year-old Charlotte teen who died in 2008 after he was stunned with a Taser.

The suit was filed against Taser International, the Scottsdale, Ariz.-based manufacturer of the stun guns.

The city of Charlotte denied any wrongdoing but settled with the victim's family and paid them $625,000 in 2009, according to reports.

Taser International makes the stun guns used by Fayetteville police.

A company spokesman said there have been no reports of malfunctioning Taser weapons in the company's 17-year history.

"The vast number of these cases (deaths) tend to be caused by a drug overdose or delirium or some are simply unexplained," Steve Tuttle said.

It's not unusual, he said, for a law enforcement agency to review its policies and procedures for use of Tasers.

"We'll have lots of situations in which departments want to get to the bottom of what happened in an event like this," Tuttle said. "You want to make sure the weapons are in normal operating order."

Tuttle also cited a Department of Justice study published in May that showed no increased risk of an irregular heartbeat caused by a Taser gun.

Sheriff's response

Sheriff Moose Butler said he had no plans to pull the Tasers his deputies carry.

"We have, as the usual course and practice, reviewed all of our policies regarding use of force, and we have found them to be appropriate," said Debbie Tanna, a Sheriff's Office spokeswoman.

"We have also inquired as to whether there have been any product warning, recalls or notices of defects in the Taser devices, or any reports of them, which would tend to impact the use of the devices," Tanna said. "We have found none."

Cumberland County Commissioner Charles Evans has been critical of the Police Department's use of Tasers. He commended Bergamine's decision but said it should have been done earlier.

"Actually," Evans said, "I don't think Tasers should be used at all. I think our leadership under the current administration should have looked at this a long time ago."

The three officers involved in the incident that resulted in Michael Evans' death have been placed on administrative duty pending the outcome of an investigation by the State Bureau of Investigation, which is routine in uses of police force resulting in death.

Police have identified the officers as Alexander Leviner, 35; Christopher Crews, 25; and Travis Smith, 22, all assigned to the Campbellton Bureau.

The SBI is continuing to investigate, a spokeswoman said Monday.

EDITORIAL: Zap happy?

July 2, 2011
HOUSTON CHRONICLE

The Taser stun gun has proven to be an effective police alternative to the use of deadly force. Studies document its ability to reduce injuries to both officers and suspects in dozens of cities and counties where it has been deployed. But its safe use requires extensive training and adherence to guidelines to protect both user and target.

As the Chronicle's James Pinkerton reported last week, the use of stun guns by the Harris County Sheriff's Department has frequently diverged from national safety guidelines formulated by the Police Executive Research Forum (PERF) and the U.S. Department of Justice's National Institute of Justice. Among 621 incidents where Tasers were used by deputies to subdue people from 2009 through early June, Pinkerton documented numerous cases where the application of the 50,000-volt shocks countered the best practices recommendations.

According to the 2011 guidelines, officers should use a Taser for only one cycle, or five seconds, before evaluating whether more shots are needed. According to the DOJ-PERF document, use of one weapon for more than 15 seconds or multiple Taser stuns "may increase the risk of death or serious injury. Any subsequent applications should be independently justifiable, and the risk should be weighed."

In Harris County, deputies stunned 43 suspects three or more times. In 10 incidents, two or more officers used Tasers on a person at the same time. A DWI suspect was Tasered 24 times. In 2006 deputies stunned a mentally ill African-American man, 31-year-old Herman Barnes, 32 times. He subsequently died, and his survivors are suing the county. The Taser manufacturer was dropped from the suit because its training manual for officers included a warning against multiple stuns.

A 17-year-old auto-theft suspect was shocked six times, including a final jolt applied to his groin. That gets us to federal guideline 28: Personnel should not intentionally target sensitive areas (e.g., head, neck, genitalia).

Although the Taser manufacturer warns agencies to avoid applying shocks to the chest because of widespread, and unproven, claims that they can trigger heart attacks, deputies zapped at least 30 people in that area.

Whereas the guidelines advise the use of Tasers only when suspects are actively aggressive or resisting arrest, deputies stunned 79 suspects who were passive or verbally aggressive, including some who were fleeing. According to the guidelines, fleeing should not be the sole justification for stunning suspects, because of the risk of serious injury.

In spite of all these incidents where the use of Tasers seems questionable, only one county deputy has been disciplined, and in that 2005 case it was because the officer hadn't informed superiors that he had stunned a suspect.

Sheriff Adrian Garcia responded to Pinkerton's story by claiming that the department "gives grave consideration and attention" to the federal guidelines. He cited the acknowledgment in the federal report that guidelines are flexible and subject to modification in particular circumstances. There's a huge difference between Sheriff's Department deputies being flexible in specific circumstances and blatantly ignoring safety rules for Taser use outlined by both the federal government and equipment vendors.

Multiple stuns applied in numerous cases, including shocking a teenager's genital area, don't strike us as flexible law enforcement. Words like "inhumane" and "irresponsible" come to mind. The fact that no officer has even been reprimanded in these incidents is an indication that much tighter supervision of county Taser use is needed.

ACLU: Rules vary on police Taser use

June 29, 2011
JJ Hensley, The Arizona Republic

A patchwork of policies governing the use of Tasers has left some Arizona police officers reaching for the electronic weapon at the first sign of trouble and others using the weapons when lives are threatened, according to a study by the American Civil Liberties Union of Arizona.

The varied regulations mean officers in Phoenix might try to subdue a disobedient suspect with a baton or pepper spray before reaching for the Taser, but a suspect taking the same actions might receive an incapacitating electric charge if confronted by police in another jurisdiction, according to the ACLU report made public Tuesday.

Citing its research, the ACLU is now pushing for more uniformity in police training in use of the weapon.

Steve Tuttle, Taser's vice president of communications, responded, "While we all agree that good policies and recurring training are crucial for successful Taser programs, the position of the Arizona chapter of the ACLU appears to be at odds with U.S. Department of Justice's recently released report which supports the use of Taser devices based upon the study of 24,000 field uses showing Taser technology protects law-enforcement officers, reduces injuries to suspects, and may prevent injuries to bystanders."

The ACLU report examined data from 20 police agencies on their use of force from 2000 to 2008.

The study found:

- Police agencies do not have consistent and clear guidelines on using Tasers on the young, elderly or ill.

- Arizona police agencies are inconsistent when it comes to use of Tasers on handcuffed, threatening or fleeing suspects.

- Arming more officers with Tasers did not equate to fewer deadly encounters with police. Agencies rolled out the product quickly in the early 2000s, and Taser use increased before reaching a plateau and declining in the latter half of the decade as questions arose about its use. The number of encounters that turned fatal for suspects remained the same in many agencies. That raises questions about whether Tasers were deployed in favor of batons or guns, ACLU said.

"Tasers should be placed higher on the use-of-force continuum and should be used as appropriate," said Annie Lai, an ACLU attorney who wrote the report and invited police agencies to work with the ACLU on more uniform training.

"We're not trying to handcuff officers, we're trying to give them more tools," she said.

Establishing uniform guidelines in Arizona would also make it easier for cash-strapped and rural police departments to provide training tailored for Arizona police officers, Lai said, in addition to whatever training comes with the weapon.

But declaring a blanket Taser policy for law-enforcement agencies throughout Arizona might not be feasible because an officer working patrol in Phoenix and handling a domestic-violence call would encounter different scenarios than a state Department of Public Safety officer dealing with an uncooperative driver along the side of a highway, said DPS Capt. Steve Harrison.

DPS officers receive Taser training every other year, Harrison said, from DPS officers who have been certified as instructors through the weapon's manufacturer. The training DPS officers receive is tailored to fit scenarios DPS frequently encounters, Harrison said.

But even the agency's tailored training cannot prepare officers for every situation they encounter, which is why officers are encouraged to look at the "totality of circumstances" before deploying any less lethal use of force such as a Taser, baton or bean bag, Harrison said.

Sheriff's Office, feds agree to new Taser rules

When the U.S. Justice Department announced its inquiry into the Orange County Sheriff's Office use of stun guns in 2007, it was a first of its kind review.

October 13, 2010
By Walter Pacheco, Orlando Sentinel

After a three-year Department of Justice probe into the Orange County Sheriff's Office use of Tasers, an agreement has been reached that calls for Sheriff Jerry Demings to implement more than a dozen new policies for Taser stun gun use by his deputies.

The DOJ agreement with the Sheriff's Office, which was formalized in September, lists 19 policy, training and accountability provisions that include new procedures and amendments to their current rules on Taser use.

They include:

*The Sheriff's Office must develop a policy requiring that deputies give a verbal warning before deploying a Taser.

*It must alert medical personnel before deploying Tasers at subjects suspected of being under an extreme state of mental and physiological excitement.

*It must develop a policy that prohibits the use of Tasers on passive subjects, those in handcuffs or otherwise restrained.

*Tasers cannot be used in a "punitive or reckless manner," such as using it to awaken a person or as a "prod."

*Only one deputy can deploy a Taser at a time.

The report also shows tweaks to some of the Sheriff's Office existing training and accountability procedures.

When the U.S. Justice Department announced its inquiry into the Orange County Sheriff's Office use of stun guns in 2007, it was a first of its kind review.

The changes to the Sheriff's Office policies on Taser use stemmed from that federal investigation, into "an alleged pattern or practice of excessive force" by sheriff's personnel, according to a 2008 report from the DOJ's Civil Rights Division.

That report included 35 recommendations which have been folded into the recently-crafted agreement.

In the 2008 report the DOJ had warned the Sheriff's Office against using Tasers on someone under the influence of drugs or showing signs of extreme agitation, bizarre or violent behavior and imperviousness to pain, among other symptoms — known as "excited delirium."

It also advised the Sheriff's Office not to stun suspects who are restrained or in handcuffs, or to stun them more than once, which increases the chances of harm.

Those two recommendations are included in the final agreement.

Critics of Tasers contend they are dangerous, particularly when used on suspects who use drugs or suffer from heart problems.

The stun guns have been controversial since Taser International started selling its product to thousands of law-enforcement agencies across the United States in 1999.

The devices, which deliver electrical jolts of 1,200 to 5,000 volts, have been connected to more than 70 deaths across the country, including five who died after being stunned by Orange County deputies.

Several incidents involving the deployment of stun guns placed the Sheriff's Office under scrutiny:

*José Aníbal Amaro, 45, died in Oct. 1, 2008 after deputies shocked him three times with a Taser. Reports show he was foaming at the mouth and running in and out of traffic.

*A deputy sheriff on Oct. 13, 2008 stunned a man who was threatening to jump off a 25-foot embankment onto State Road 408. The deputy, who was standing in a fire-rescue bucket truck, caught the man after shocking him.

*John Mattiuzzi, an out-of-state filmmaker, was stunned twice and struck with a baton on Sept. 21, 2008 after taking pictures of a crime scene with his phone. Police warned him twice to move back, then chased and subdued him after he ran from officers.

*A deputy sheriff working as a resource officer at Moss Park Middle School stunned an unruly 11-year-old girl injuring her nose, after she swung at the deputy in March 2008.

Officials at the American Civil Liberties Union of Florida also had launched their own inquiry of Taser use by the Sheriff's Office, but the results of that probe are not known.

‘Excited delirium’ theory barred from Zehm trial

June 4, 2010
Thomas Clouse, The Spokesman-Review

After years of Spokane Police officials claiming that Otto Zehm suffered from “excited delirium,” a defense attorney said today that he will avoid offering any evidence or expert testimony about the disputed medical condition often cited by police agencies to explain controversial in-custody deaths.

Defense attorney Carl Oreskovich said he could no longer include testimony about excited delirium following rulings by U.S. District Court Judge Fred Van Sickle barring the defense from using medical records showing Zehm suffered from paranoid schizophrenia or that he’d had a physical confrontation with a Spokane County deputy sheriff in 1990.

Oreskovich is representing Officer Karl F. Thompson Jr. in a trial set to begin Monday. Thompson faces the federal felony charges of using excessive force and lying to investigators regarding the March 18, 2006, confrontation with Zehm, who died two days later.

“I don’t know how I can offer excited delirium without getting into issues of mental health or medications,” said Oreskovich. “I will not offer excited delirium evidence.”

What wasn’t clear is how attorneys will handle the autopsy by Spokane County Medical Examiner Dr. Sally Aiken who included a reference to “excited delirium” in her findings that Zehm died as a result of homicide caused essentially by a lack of oxygen to his brain.

Thompson and other officers struggled with Zehm, hit him with police batons, shocked him with Tasers and hogtied him for about 17 minutes before he stopped breathing. He was erroneously accused of taking money from a nearby cash machine.

Van Sickle pointed out that Thompson will be judged on what he knew at the time he confronted Zehm. Therefore, any prior mental illness, medications and the confrontation with a deputy that didn’t lead to charges in 1990 would all be excluded at trial.

However, Victor Boutros — a U.S. Department of Justice trial attorney based in Washington D.C. — argued that prosecutors should be allowed to provide the jury evidence that showed Zehm was innocent on the night of the fatal police confrontation.

Van Sickle initially ruled that Thompson could not have known Zehm was innocent, and therefore, that information would be excluded.

But Boutros argued Thompson has claimed all along that Zehm saw him coming, took an aggressive stance, picked up a 2-liter soda bottle and held it in a way where it could be used as a “significant weapon” against him.

“The conduct of Zehm has become central to the case,” Boutros said. Without evidence of Zehm’s innocence, the jury may get the “perception that (Zehm) was ambushing (Thompson) when he had no information that the officer would be coming at all.”

Van Sickle cited a ruling in an unrelated case of a police shooting where attorneys were allowed to bring in evidence that the suspect had committed previous crimes because it may have shown that the police’s version of events was more believable.

Boutros said that ruling should apply to information explaining Zehm’s reactions.

“The ruling goes both ways. (Zehm) had no reason … to target Officer Thompson,” he said.

Stephen Lamberson, who works in the same firm as Oreskovich and also has been appointed to defend Thompson at taxpayer expense, argued that rulings in other federal courts clearly show that any evidence of guilt or innocence that was learned after the fact is inadmissible.

Van Sickle said he would study the issue and rule on that and several other issues prior to jury selection on Monday.

In other rulings, the judge barred any reference to Thompson’s divorce, which prosecutors alleged in court records was a fraudulent transfer of assets. The judge also ruled to exclude the 911 recording of two young women who reported they saw Zehm at an ATM machine, because Thompson acknowledged that he never heard most of what was recorded.

Along that same line, Van Sickle said the testimony of Makenzie Murcar and Alison Smith — who made the 911 call that night — would be limited to what they saw of the confrontation between Thompson and Zehm.

Van Sickle said he will allow the government to show the jury a 3-dimensional, computer-generated video showing the confrontation between Zehm and Thompson.

The jury pool will be called from the entire Eastern District of Washington, which essentially includes all of the state east of the Cascade Mountains. Van Sickle said he expects the jury will be seated by Monday afternoon and opening arguments to begin on Tuesday.

“Is there any potential resolution without a trial in this case?” Van Sickle asked.

“There have not been discussions of that nature for some time,” said Assistant U.S. Attorney Timothy Durkin. “So it appears no.”

Feds told RCMP to consider skipping Taser inquiry

February 25, 2009
Chad Skelton, Canwest News Service

VANCOUVER - Senior RCMP officers were advised to consider skipping the Taser inquiry into the death of Robert Dziekanski because B.C. has no authority to investigate a federal police force, according to internal e-mails obtained by the Vancouver Sun.

However, Deputy Commissioner Gary Bass, the RCMP's top cop in B.C., dismissed the idea, saying the force should voluntarily participate, regardless of jurisdictional concerns.

"Frankly, I don't care what Ottawa's position on it is at this stage," Bass wrote in an e-mail on Feb. 19, 2008, the day after B.C. Attorney General Wally Oppal announced the inquiry. "The provincial force will co-operate."

In an interview Wednesday, RCMP spokesman Sgt. Tim Shields said Bass's reference to Ottawa referred to the Department of Justice, which advised the Mounties they were not legally required to attend.

Two weeks before Bass's e-mail, on Feb. 1, 2008, B.C. RCMP Chief Supt. Dick Bent - deputy head of criminal operations - sent an e-mail to federal Deputy Commissioner Bill Sweeney, the RCMP's second-in-command in Ottawa.

The e-mail, obtained by the Vancouver Sun through the Access to Information Act, outlined Bent's concerns about the RCMP participating in a provincial inquiry.

"The obvious question is with respect to the jurisdiction of the province to have an enquiry into any federal government agency/department," Bent wrote.

The e-mail, which was copied to Bass, noted that Bent had recently had a meeting with RCMP Complaints Commissioner Paul Kennedy when the issue of jurisdiction came up.

"It was Paul Kennedy who said that there are a number of court cases which are clear that the provinces have no authority to investigate or hold enquiries into federal departments," the e-mail said. "He went on to say that it is his belief that even if we wished to co-operate, that the RCMP, or any other government entity, may not be able to waive that jurisdictional issue."

Bent closed his e-mail by writing: "Part of me feels that we need to be as transparent and co-operative as possible and hate to be seen as saying, ‘Sorry province, but you don't have jurisdiction.' " However, he added, "There are, as you well understand, larger issues here which potentially affect other federal government agencies, not just the RCMP."

Despite those concerns, Bass ordered the release of a statement the day after Oppal's announcement, confirming the RCMP would co-operate.

In an internal e-mail attached to that statement, Bass wrote: "I think we should avoid any legalistic jargon which leaves any room for suggestion that we may opt out at some point or under some circumstances."

Shields said Wednesday that Bass was always committed to participating in the inquiry, and Bent's e-mail was meant only to outline the legal issues involved.

"There was never a question that we would not participate," he said.

Shields added it is the B.C. RCMP's policy to participate in any provincial inquiry it is asked to attend.

"Technically, as it's written under the law, because we're a federal agency, we (don't) have to participate," he said. "But we . . . have a moral duty to be transparent, open and accountable to the citizens of British Columbia."