CI: Tagging, Tasers, and the Police State, Part 1

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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

 

Tagging, Tasers, and the Police State, Part 1
by nancy a heitzeg

On Tuesday, August 6, 5:14 a.m, 18 year old Israel Hernández-Llach was doing his thing – about to tag his moniker “ReeFa” on the wall of an abandoned McDonalds. Seeing the arrival of the police, Hernández-Llach and his two friends fled. Israel was confronted by Miami PD Officer Jorge Mercado, who tased  and arrested him. Shortly thereafter, Israel experienced  “medical duress”, and died at a local hospital.

This is a story of “crimes of style”, the increased criminalization and heavy public order policing of minor expressive infractions ranging from graffiti to “‘sagging pants”.

This is a story of another youth of color,  executed in one of the more than 600 extrajudicial police killings of civilians each year. It will not be recorded in any national national database on such violence, but instead documented by citizen watch groups.

This is a story too of police use of “less than lethal force”, and its’ sometimes lethal results. In particular, it is a story that raises again the issue of Tasers, their safety, effectiveness and appropriate use.

And it ultimately is a story about the increased militarization of the police, and the extent to which the citizenry is regarded and treated as enemy combatants in an endless, escalating war.

“Less than Lethal Technologies”

Tasers, originally called ‘stun guns” and now officially described as “Conducted Energy Devices” of CEDs. are just one tool in a a growing police arsenal  that is supposed to be less lethal uses of force than shooting. These devices are marketed to the public as “safer” with claims that injuries are reduced for both suspects and officers.

The National Institute of Justice classifies this range of devices as follows:

There are seven types of less-lethal device technologies:

Some manufacturers integrate multiple effects into one device. For example, a multisensory stun grenade combines noise, light, chemicals and blunt force. Stun grenades disorient people, giving police officers the opportunity to arrest a suspect without harming them unnecessarily.

It should be noted that the protocol and policies for use of less than lethal force/devices is developed at the level of local police departments. There is no national oversight, no database of incidences/outcomes, no required standards of training. Often, as is the case with Tasers, the safety standards for these devices come not from governmental agencies, but from the manufacturers themselves.

What could go wrong?

“Don’t Tase Me Bro”

Tasers have been available to the general public since 1994 and have been sold to police departments since 1998. Currently, there are more than 514,000 Tasers among law enforcers and the military nationwide. Tasers or other CEDs are now deployed in law enforcement agencies in 29 of the 33 largest U.S. cities; a total of 12,ooo departments use it. In addition to police officers, Tasers are used by an untold number of security guards and School Resource Officers, as well as by correctional officers in prisons and jails.

Taser International is the sole source of  protocols for ‘safe use” and indeed much of the research on device safety. Tasers are not regulated by any governmental agency.

Questions about the device’s safety linger at least partly because there are no official standards for its use. Because it isn’t classified as a firearm by the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives, the Taser is exempt from federal firearms requirements and regulations. And while the Consumer Product Safety Commission has jurisdiction over the models sold to consumers, it has done no investigations of its safety.

hernadezWhile Taser International claims that their device has “saved” more than 75,000 lives and reduced injuries to suspects and officers. Without comprehensive national data on the number of taser use incidents., how would we know? How would we know how often officers used Tasers instead of guns to actually defuse potentially deadly encounters? How would we know how often officers used tasers because they had  them, thereby escalating the use of force in encounters where nine was  actually required?

Well, we don’t. What we do know — again from grassroots watch groups and engaged citizens – is that the use of tasers is resulting in a increasing number of deaths, and raising still more questions of civil liberties.

Death by Taser

As noted earlier, there is no nation-wide governmental record-keeping on taser deaths. What we collectively know comes from citizen watch dogs such as The Electronic Village and TNT Truth Not Tasers and human rights groups such as Amnesty International and the ACLU. These sources agree that there have been nearly 550 taser deaths in the USA and nearly 800 in North America, including the deaths of at least 2 unborn children when their pregnant mothers were tased. This is, on average, at least one death per week. As with all extrajudicial police killings, there is the expected racial dynamic. From The Electronic Village:

We track the Race or National Origin information because we sense that these taser-related deaths are happening at a disproportionate level to people of color.

For example, we see that at least 78 (77 men and a 62-year old woman) of these taser-torture killings occurred against African Americans. Black people are only 13.6% of the total population, yet 41% of the 2009-2013 taser-related deaths in America are Black people.

Over 90% of those killed by Tasers were unarmed at the time, and the majority did not represent a real threat to officers immediately prior to their death. Taser has been sued nearly 200 times for causing injury or death; 59 of these cases involved wrongful death. While the company consistently claims that deaths are caused by other factors such as alcohol/drug intoxication or under-lying health conditions, they lost their first product liability suit in 2008.  A jury awarded $6 million to the family of a man who was tased  at least 35 times by police.
Extrajudicial electrocution.

Unnecessary Taser Use as Punishment

From the outset, there was concern that tasers would be over-used and become the “go to weapon of choice.” Do police officers use tasers too quickly – as a first resort rather than last? Are suspects tased too many times, even after they are under control? Are police officers tasing vulnerable subjects — children , senior citizens, pregnant women, physically/mentally challenged persons — that they could otherwise easily control?

Yes. Early fears are verified by a growing number of reported abuses:

Early concerns about Tasers centered on the issue of safety, but the controversy has recently taken a new twist, focusing on the conflict between civil rights and police procedure. Though the device was initially developed as an alternative to lethal force, it has become a go-to weapon in situations of noncompliance even when the use of firearms would not be considered … “I think because it’s electricity, and because of past use of electricity in torture across the world, there’s a thought that law enforcement could use [the Taser] to the same end,” says Lt. Dave Kelly of the Phoenix Police Department. “In other words, not to use it to gain control over somebody but to punish somebody, to create pain for someone.”

There are innumerable accounts of officers tasing suspects up double-digit times, tasing pregnant women, children — just this week a naked 11 year old autistic girl, and recently causing the death of 95 year old John Varna by taser and bean bag rounds. Tasers are increasingly part of the landscape at schools, where “unruly students” are shocked into submission by Security Resource Officers. And, in the midst of the renewed discussion of Oscar Grant and Fruitvale Station, it is important to recall that Officer Johannes Mehserle‘s defense at trial was that he was thought he was merely tasing rather than shooting Grant. That this defense was acceptable — that a subject who was face down about to be handcuffed should also be tased — says much about the police culture around taser use.

42The use of tasers as potentially “excessive force” has been recognized in  Bryan v. McPherson, a 2009 Federal Court decision from the Ninth Circuit. The Court held that tasers are an ” an intermediate, significant level of force that must be justified by ‘a strong government interest [that] compels the employment of such force. ” To use such a level of force, verbal warnings should also be given if at all possible. Most significantly, officers must believe that  the subject “objectively or reasonably poses an immediate threat of harm to the officer, himself or others, evasion, or resistance.”

It is difficult to imagine that school children,  95 year old men, pregnant women, an already restrained Oscar Grant or the slim young tagging skater Israel Hernández-Llach realistically pose such a threat. It is easier to imagine that the authoritarianism already pervasive in police culture has escalated, and that devices marketed to increase safety are now tools for torture, readily applied at the slightest sign of “noncompliance” or perceived disrespect.

Regulating Less than Lethal Technology in the Police State

While individual departments have their own policies regarding use of force, there have been calls for additional restrictions. In a 2006 Report, Amnesty International makes the following recommendation for federal, state and local authorities:

1. Suspend all transfers and use of tasers and other electro-shock weapons pending a rigorous, independent and impartial inquiry into their use and effects. Such an inquiry should be carried out by acknowledged medical, scientific, legal and law enforcement experts who are independent of commercial and political interests in promoting such equipment. They should rigorously assess their medical and other effects in terms of international human rights standards regulating the treatment of prisoners and use of force; the inquiry should include the systematic examination of all known cases of deaths and injury involving the use of such weapons and also consider the mental impact of being subjected to electro-shock. The study should recommend strict rules, safeguards and oversight procedures to prevent misuse of any types of electro-shock equipment that may be viewed as having a legitimate use in law enforcement. A report of the findings of such an inquiry should be made public promptly after completion of the study.

2. International standards recognize that situations will arise in which police officers will have to use force. However, these standards, specifically the (UN) Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, set specific guidelines on when, how and the extent to which force can legitimately be used. All law enforcement agencies should ensure that officers are trained to use force strictly in accordance with these standards. (44)

3. Federal, state and local authorities should ensure that use of force training programs for law enforcement officials include international standards on human rights, particularly the prohibition against torture and cruel, inhuman or degrading treatment or punishment.

4. All allegations of human rights violations and other police misconduct should be fully and impartially investigated. All officers responsible for abuses should be adequately disciplined and, where appropriate, prosecuted.

Where law enforcement agencies refuse to suspend their use of tasers, pending the outcome of the above-mentioned inquiry, Amnesty International recommends that:

5. departments using tasers should strictly limit their use to situations where the alternative would be use of deadly force. Examples would include: armed stand-offs, instances in which a police officer faces a life-threatening attack or injury, or threat of attack with a deadly weapon, or where the target presents an immediate threat of death or serious injury to him/herself or others. In such circumstances, tasers should be used only where less extreme measures are ineffective or without a promise of achieving the intended result.

6. Unarmed suspects should not be shot with a taser for arguing or talking back, being discourteous, refusing to obey an order, resisting arrest or fleeing a minor crime scene, unless they pose an immediate threat of death or serious injury that cannot be controlled through less extreme measures.

7. Operational rules and use of force training should include a prohibition against using tasers on the following groups, except as a last resort to avoid deadly force when no alternatives other than firearms are available: pregnant women; the elderly; children; emotionally disturbed persons or people who are mentally or physically disabled; people in vulnerable positions where there is a risk of serious secondary injury (e.g. in dangerously elevated positions, or near flammable substances); people under the influence of drugs.

8. Repeated shocks should be avoided unless absolutely necessary to avoid serious injury or death.

9. Departments should introduce guidelines which prohibit the application of prolonged shocks beyond the five-second discharge cycle.

10. Tasers should only be used in stun gun mode as a back-up to dart-firing tasers and only when no other options are available to an officer and there is an immediate threat of death or serious injury to the officer, the suspect or another person. The stun gun function should never be used to force a person to comply with an order given by an officer where there is no immediate threat to the life or safety of the officer or others.

11. Whenever an individual has been shot with a taser, police officers or custody staff should be required to call paramedics or other medical professionals to administer treatment. It is advisable to take tasered subjects to hospital to have the barbs removed and to monitor for other adverse effects.

12. Federal, state and local agencies should ensure strict reporting by the departments concerned on all use or display of tasers, with regular monitoring and data made public. In particular:* Departments should download data recorded by officers’ tasers after every incident in which they are used. A summary of this data should be included in all use of force reports.

* Each display, “sparking” or shock administered by a taser should be reported in use of force reports, as well as whether the taser was used in dart-firing or stun gun mode and the reasons why a taser was used. The number of trigger-pulls and duration of the shock should be reported in each instance. The age, race and gender of each person against whom a taser is deployed should also be reported.
* Prisons and other institutional facilities should install remote monitoring equipment to record taser usage automatically as it occurs.
* Each department should provide a detailed break-down of its taser use in regular, public reports.

13. Mentally ill or disturbed individuals should receive appropriate treatment and alternatives to force in line with best practice. Where officers have reason to believe that a disturbed individual may be acting in a violent or threatening manner as a result of mental illness, efforts should be made to involve mental health specialists in dealing with the disturbed person. Policing methods based on force should only be used as a last resort.

14. Dangerous restraint holds such as hogtying and use of carotid neckholds or chokeholds should be banned.

15. There should be strict limitations and guidelines on the circumstances in which pepper spray should be used, with clear monitoring procedures.

ReefaGraffito-thumb-560x405Unsurprisingly, most of these recommendations have not been adopted. Even if they were, additional questions of compliance, enforcement and systematized independent monitoring would invariably arise. The eternal question – Who polices the police? – is always  answered in the very same way.

Ultimately, the issue of tasers and other technologies to subdue the citizenry is perhaps a symptom of a larger problem: the Rise of the Warrior Cop. Law enforcement is increasingly armed with the military tools and the mind set of war, and we, the public, are The Enemy.

More on this in Part 2.

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