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Why Taser is fighting to appeal a lawsuit it won

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Taser doesn’t want police to treat its devices as deadly weapons

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Official Police Business is a weekly column and newsletter by reporter Matt Stroud about new developments in police technology, and the ways technology is changing law enforcement think body cameras, cell-site simulators, surveillance systems, and electroshock weapons. Sign up to receive OPB in your email every Wednesday at officialpolicebusiness.com, or check for it here at The Verge.

In January, judges on a federal circuit court instructed police departments to treat Tasers similarly to the way they treat firearms — as deadly weapons that can't be used when someone is merely resisting arrest. Those instructions were a big deal, setting policing precedent for departments in five states, and potentially leading the way for much more stringent rules about how Tasers are used by police nationwide.

Taser International, the company that exclusively produces and sells those electroshock weapons to police departments, filed a court document on June 13th asking the United States Supreme Court to give the circuit court’s instructions a second look. Taser’s move made sense: if the instructions go unchallenged, some police departments could change use-of-force policies to place Tasers more in line with firearms than with less-lethal devices. Taser International would thus risk competing directly with gun manufacturers to provide police departments with weapons, threatening the company’s business model.

Taser International would risk competing directly with gun manufacturers

The case stretches back to April 23rd, 2011. That day, Ronald Armstrong — a man who suffered from bipolar disorder and paranoid schizophrenia — had been off his medications for nearly a week, and began attempting to puncture the skin of his leg "to let the air out." Observing this, his sister convinced him to go with her to nearby Moore Regional Hospital in Pinehurst, North Carolina, to commit himself and get treatment.

At the hospital, Armstrong began the intake process but reconsidered midway through and walked out of the building. Local police were called, and three showed up. But they had no grounds to arrest Armstrong, since he hadn’t actually committed any crime. Still, he was acting strangely: he wandered along a busy road by the hospital’s entrance, and after the officers convinced him to move to the roadside, he sat on the ground and began eating dandelions and grass, and putting lit cigarettes out on his tongue.

Doctors at the hospital had, by that time, decided Armstrong was a danger to himself. North Carolina law requires that involuntary commitment orders need to be written and notarized before taking effect. The officers had been making sure to keep him in one spot, but they didn’t attempt to arrest him before those orders were final. When the orders went through, the three officers approached and surrounded Armstrong, preparing to arrest him. Armstrong resisted by sitting down and wrapping his arms and legs around the post holding up a stop sign.

Before long, Armstrong’s sister noticed that he’d stopped moving

The officers weren’t in the mood to mess around. Within about 30 seconds of the officers being notified that Armstrong’s commitment orders had gone through, an officer shocked him five times with a Taser. This worked to get Armstrong away from the stop sign. The officers then cuffed Armstrong, and set him face down on the ground. Before long, Armstrong’s sister noticed that he’d stopped moving. One officer on scene attempted CPR on Armstrong, and another called emergency medical services. An ambulance arrived shortly thereafter to take him to a local emergency room. He was pronounced dead when he arrived there.

The Armstrong family sued the Village of Pinehurst in the U.S. District Court for the Middle District of North Carolina on May 20th, 2013, accusing the officers of violating Armstrong’s Fourth and Fourteenth Amendment rights by using excessive force. The family also sued Taser International, but Taser was dismissed from the case early on since the company’s training literature has warned, since 2009, that Tasers exposure can "result in death or serious injury."

A judge in the U.S. District Court granted summary judgement in favor of the Pinehurst officers, asserting that they were protected by "qualified immunity" — the legal doctrine that protects police officers from prosecution in most situations. The family appealed, and, in January, a panel of judges on the U.S. Court of Appeals for the Fourth Circuit issued an opinion agreeing with the lower court that the Pinehurst officers were not subject to liability in this case. But the Fourth Circuit added a precedent-setting caveat.

The Fourth Circuit added a precedent-setting caveat

"Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force," the opinion read. "Law enforcement officers should now be on notice that such taser use violates the Fourth Amendment." Clarifying this point, the opinion stated that "taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger," and that "‘physical resistance’ is not synonymous with ‘risk of immediate danger.’"

In other words: From that point forward, police under the Fourth Circuit’s jurisdiction needed to start rethinking — and redefining, in policies — how Tasers are used on the street.

That decision sent shockwaves throughout departments in the region, which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Police departments all over the region were advised to write up new policies taking the Fourth Circuit’s opinion into account. Which isn’t to say they were happy about it.

"Taser use is severe and injurious regardless of the mode to which the taser is set."

"All future TASER use is now subject to the Fourth Circuit’s pronouncement that ‘Taser use is severe and injurious regardless of the mode to which the taser is set,’" read a directive from the North Carolina Justice Academy, which trains police in the state. "Although that statement is not factually true, today the Court said it, and thus it’s now controlling law."

Taser use can indeed be severe and injurious; the company’s own training manuals clearly state as much. And while there is no official tally of deaths connected to Taser use, Amnesty International connected at least 500 deaths to Taser use by 2012. More recent estimates put the number of people who died after being shocked with a Taser close to 1,000.

The insistence that Tasers are safe, despite evidence to the contrary, has inspired a very strange thing, however: The Village of Pinehurst — which technically won in its Fourth Circuit case — is now appealing the Armstrong decision to the U.S. Supreme Court. And among the "friend of the court" briefs filed in favor of that appeal is one from Taser International — which was dismissed from the case nearly three years ago. Taser International argued that the Fourth Circuit’s opinion wasn’t consistent with standards throughout the county.

The U.S. Supreme Court should "resolve the significant conflict between the circuits regarding the propriety of TASER [Conducted Electrical Weapon] use in response to a subject’s active yet non-violent resistance to a lawful seizure," Taser’s filing read. "A single, familiar standard is essential: When a subject actively resists seizure, officers can use a TASER CEW to gain compliance; but when a suspect does not resist, or has stopped resisting, they cannot." It goes on: Taser use should be evaluated "like any other use of force, on a case-by-case basis…."

"I knew that the chances of getting this overturned in my favor were very slim."

That argument — and Pinehurst’s appeal to the Supreme Court — is especially surprising to Karonnie R. Truzy, who represented the Armstrong family. He technically lost — twice; once in district court, then again in the circuit court — and still had no intention of appealing the case. "I knew that the chances of getting this overturned in my favor were very slim," he told me last week, "so there was no way I was going to ask for a rehearing and overturn some very good law that had been established."

Truzy believes that the Supreme Court appeal is being pushed by the company itself. Truzy said that a member of Taser’s legal team contacted him in January, days after the Fourth Circuit opinion was issued, to suggest that he ask the Fourth Circuit to hear arguments in the Armstrong case again. According to Truzy, the lawyer said Taser would file a friend of the court brief supporting Truzy’s appeal for rehearing at the Fourth Circuit level. Truzy declined to file for rehearing, but Taser filed a brief supporting Armstrong anyway. It was rejected by the Fourth Circuit, since Truzy hadn’t filed anything. Truzy didn’t hear anything further until June, when he was informed that Pinehurst would be asking the Supreme Court to hear the case — and that Taser was now filing a friend of the court brief supporting Pinehurst.

Why is Taser so interested in having this case reheard? Truzy reasons that if police departments need to start thinking about Tasers as something closer on the use of force spectrum to deadly weapons, why would they purchase Tasers at all? A Glock G43 firearm, for example — a gun often used by police officers — retails for around $550; a Taser X26P is more than double that price, at $1,199.99. If policies indicate both can only be used in deadly force situations, why would a police department pay double for the weapon that’s less lethal by design?

"Which is why Taser International is screaming very loud," Truzy said. "Because now [the Fourth Circuit] is cutting into Taser’s business model."

"Who would’ve thought the the Fourth Circuit would have had the balls to write what they wrote in their opinion."

"Who would’ve thought the the Fourth Circuit would have had the balls to write what they wrote in their opinion," Truzy continued. "Nobody. No one thought that. And when the Fourth Circuit did that, now Taser International was reeling, along with these other police organizations, because they’re like, ‘Wow, we never thought that they would do that.’ They’re completely caught off script… And, ‘Wow, what’s going to happen if this catches on at other circuits? What’s going to happen if other circuits start quoting Armstrong in their opinions? There’s no way we can let this language stand.’"

Taser’s Vice President of Strategic Communications, Steve Tuttle, disagreed, calling Truzy’s reading "way off."

"TASER’s amicus brief in support of the Village of Pinehurst’s cert petition is based on numerous independent studies clearly demonstrating that an officer’s use of a TASER CEW instead of hands-on physical force results in substantially fewer injuries to officers and subjects alike," he wrote in an emailed statement. "Plaintiffs’ counsel granted blanket consent for any interested party to file an amicus brief in the Supreme Court, which is standard practice."

Does Truzy believe the Supreme Court is going to take up the appeal?

"If you would’ve asked me before the appeal was filed, I would’ve said no — because they’re not in the habit of taking cases from the winning side just to clarify language within a case," Truzy said. But in this case, not only has Taser International filed a friend of the court brief in favor of a rehearing, so has the National Fraternal Order of Police, and the Southern States Police Benevolent Association.

"You ask me right now?" he says. "I would tell you that I have no idea."