U.S. Department of Justice
Civil Rights Division

SYC:DHW:GG:WEN
DJ 207-17M-4

Special Litigation Section - PHB
950 Pennsylvania Avenue, NW
Washington, DC 20530

August 20, 2008
Via FedEx and U.S. Mail
Sheriff Kevin Beary
Orange County Sheriff’s Office
2500 West Colonial Drive
Orlando, FL 32804
Re:	 United States Department of Justice Investigation of
the Orange County Sheriff’s Office Use of Conducted
Energy Devices
Dear Sheriff Beary:
As you know, the Civil Rights Division of the Department of
Justice has been conducting an investigation of the Orange County
Sheriff’s Office (“OCSO”), pursuant to the Violent Crime Control
and Law Enforcement Act of 1994, 42 U.S.C. § 14141. We would
like to take this opportunity to express our appreciation for the
cooperation we have received thus far from the OCSO.
At the beginning of our investigation, we committed to
provide the OCSO with technical assistance, where appropriate, to
improve OCSO practices and procedures and ensure compliance with
constitutional rights. In this letter, we convey our
recommendations regarding OCSO’s written policies, training, and
accountability processes pertaining to the use of conducted
energy devices (“CEDs”).1 We view the technical assistance
provided below as recommendations and not mandates. These
recommendations were developed in close consultation with our
police practices consultants and follow the productive dialogue
we had with deputies under your command. We strongly urge the
OCSO to closely review and consider these technical assistance
recommendations in revising its policies and procedures. We hope
this letter will assist in our mutual goal of ensuring that OCSO

1

We note that OSCO policies use the term electronic
control weapons (“ECWs”) to describes CEDs.

- 2 

provides the best possible law enforcement services to the people
of Orange County. We look forward to continued cooperation
toward this goal.
To date, we have reviewed relevant OCSO policies, audited
OCSO training classes, participated in ride-alongs, and conducted
interviews with a cross-section of OCSO command staff,
supervisors, and deputies. We also spoke with a local community
representative and the chairman of the Orange County Citizens’
Review Board.
Important aspects of our fact-gathering process remain
outstanding, most notably reviewing documents related to specific
use of force incidents. This process is ongoing and we hope to
conclude our review shortly. Therefore, this letter is not meant
to be exhaustive, but rather focuses on recommendations we can
provide at this stage of our investigation.
I.

Constitutional Standard of Review

Pursuant to 42 U.S.C. § 14141, the United States is
authorized to initiate a civil investigation into allegations
regarding systemic violations of the Constitution by law
enforcement agencies. As stated above, the investigation of OCSO
is focused solely on an alleged pattern or practice of excessive
force in OCSO’s ECW use.
In Graham v. Connor, 490 U.S. 386, 394-95 (1989), the
Supreme Court held that claims of excessive force are to be
judged by Fourth Amendment standards.2 See also Kesinger v.
Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004);
Garrett v. Athens-Clarke County, 378 F.3d 1274, 1279

2

The Fourth Amendment of the United States Constitution

states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
Affirmation, and particularly describing the
place to be searched, and the person or
things to be seized.
U.S. Const. amend. IV.

- 3 

(11th Cir. 2004); McCormick v. City of Fort Lauderdale, 333 F.3d
1234, 1244 (11th Cir. 2003); Vinyard v. Wilson, 311 F.3d 1340,
1347 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1197
(11th Cir. 2002). Applying Fourth Amendment standards to claims
of excessive force requires a court to determine whether the
force employed to effect a particular seizure was “reasonable.”
Graham, 490 U.S. at 396.
In determining whether the use of force was reasonable, a
court must carefully balance the nature and quality of the
intrusion on the suspect’s Fourth Amendment guarantees against
that of the countervailing governmental interests at stake. Id.;
Kesinger, 381 F.3d at 1248 n.3; Vinyard, 311 F.3d at 1347; Lee,
284 F.3d at 1197. The Graham Court specified three factors for a
court to consider when balancing these competing interests:
(1) “the severity of the crime at issue;” (2) “whether the
suspect poses an immediate threat to the safety of the officers
or others;” and (3) “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396;
see also Kesinger, 381 F.3d at 1248 n.3; Garrett, 378 F.3d at
1279; Vinyard, 311 F.3d at 1347; Lee, 284 F.3d at 1197-98.
The Court in Graham noted that the reasonableness of a
seizure “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396; see also Kesinger, 381 F.3d
at 1248; Garrett, 378 F.3d 1279; McCormick, 333 F.3d at 1244.
Moreover, the “reasonableness” analysis is an objective one. The
inquiry is whether the officers acted objectively reasonable “in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motive.” Graham, 490 U.S.
at 397; see also Kesinger, 381 F.3d at 1248; Garrett, 378 F.3d
1279; Vinyard, 311 F.3d at 1347; Lee, 284 F.3d at 1198 n.7. That
is to say, “[a]n officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.” Graham, 490 U.S. at
397; Lee, 284 F.3d at 1198 n.7 (quoting Graham).
Additionally, a claimant in the Eleventh Circuit is required
to prove that the officer employed greater than de minimis force
in effecting the seizure. “The application of de minimis force,
without more, will not support a claim for excessive force in
violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d
1253, 1257-58 (11th Cir. 2000) (“[A] minimal amount of force and
injury. . . will not defeat an officer’s qualified immunity in an
excessive force case.”). At a minimum, this will require a

- 4 

showing of greater force and injury than should be expected in a
typical arrest. Nolin, 207 F.3d at 1258 n.4.
II.

Policies and Procedures

Written policies are the primary means by which law
enforcement agencies communicate their standards and expectations
to their officers. Accordingly, it is essential that the OCSO’s
policies be comprehensive, up-to-date, and consistent with
relevant legal standards and contemporary law enforcement
practices. While OCSO’s current ECW policies3 contain accurate
information, we recommend that OCSO provide additional guidance
on three stages of ECW use: pre-deployment; deployment; and
post-deployment. We also recommend that OCSO review its ECW
policy annually, and update the policy as necessary.
A.

Pre-Deployment Stage

In the pre-deployment stage, a sound ECW policy should
provide deputies with the information necessary to make
appropriate decisions regarding ECW deployment. Such information
should include clearly stated factors to aid the deputy in
determining whether the circumstances are appropriate for ECW
deployment, as well as precise rules regarding circumstances
under which the ECW deployment is inappropriate. The following
twelve ECW policy recommendations will assist in providing OCSO
deputies with the information necessary to make appropriate
decisions regarding the deployment of the ECW:
1.

Reference to Applicable Constitutional Standards

While both OCSO’s ECW and use-of-force policies currently
state that “personnel only use that level of force objectively
reasonable to perform their official duties,” see OCSO G.O. 8.1.6
(2); 8.1.8 (2), the policies do not refer to, nor explain,
constitutional standards regarding uses of force under the Fourth
Amendment. We recommend that the OCSO include reference to the
Fourth Amendment, which mandates that ECW deployment be
reasonable in light of the facts and circumstances surrounding
the deployment. Such a determination requires a balancing of the
physical force exerted upon the subject through the deployment of
3

It is our understanding that OCSO’s policy regarding
ECW comprises two OCSO General Orders: General Order 8.1.6
(OCSO’s general use-of-force policy) effective date February 8,
2008, and General Order 8.1.8 (OCSO’s specific policy on the use
of ECWs) effective date March 4, 2008.

- 5 

the ECW against such factors as the severity of the crime, the
immediate threat to the safety of the deputy and others posed by
the subject, and the level of resistance demonstrated by the
subject. See Graham v. Connor, 490 U.S. 386, 394-96 (1989);
Appendix C.
2.

Verbal Warnings Prior to ECW Deployment

We recommend that OCSO policy require a verbal warning prior
to ECW deployment, unless exigent circumstances exist or the
verbal warning would place an individual at risk. Such warnings,
recommended by our expert consultants and in accordance with
recognized best available practices in this emerging field, will
alert surrounding deputies of the impending ECW deployment and
may achieve suspect compliance, eliminating the need to deploy
the ECW. This procedure will allow the deputies to take proper
safety precautions to “secure [the subject] under power”4 or upon
conclusion of the ECW cycle.
3.

Flight as Justification for ECW Deployment

While a subject’s flight may be considered “active physical
resistance” leading an deputy to deploy an ECW, we recommend that
OCSO clarify its policies to make clear that a subject’s flight
should not be the sole justification for deploying the ECW.
Prior to deploying the ECW against a fleeing subject, the
deputy should consider such factors as:
(a) the severity of the offense;
(b) any immediate threat to the safety of the deputy or
others posed by the subject; and,
(c) the ability of the deputy to safely effectuate the
arrest without ECW deployment.
While OCSO’s current ECW policy5 contains “subject factors” to be
considered by the deputy in making the decision to deploy the ECW
such as “seriousness of crime committed by subject,” and “whether
the subject can be recaptured at a later time,” it does not,

4

OCSO policy defines “secure under power” as “a
technique used to secure a subject during the activation cycle.”
OCSO G.O. 8.1.8 (3)(D).
5

See OCSO G.O. 8.1.8 (4)(C)(1)(a)(2)(a.1) and (a.8).

- 6 

however, expressly instruct deputies that a subject’s flight
should not be the sole justification for ECW deployment.
Although the deployment of the ECW against a fleeing subject
may be reasonable under certain circumstances, the mere act of
fleeing the presence of law enforcement, without more, does not
create circumstances under which a deputy’s deployment of the ECW
would be considered a reasonable use of force. We recommend that
in accordance with the recognized best available practices and
the recommendations of our expert consultants, OCSO revise its
policies to clarify this distinction to prevent potential
unlawful ECW use.
4.	

Prohibiting ECW Deployment Against “Passive”
Subjects

While the OCSO’s use-of-force matrix appropriately
classifies ECW deployment at Level 4, requiring “active physical
resistance,”6 OCSO policy should expressly state that ECW
deployment is appropriate only when encountering Level 4 or
higher resistance and that ECW deployment is inappropriate when
deputies encounter passive resistance as defined in Levels 1
through 3. We also recommend that OCSO policy define “passive
subjects” to include those persons who question a deputy’s
commands in a non-violent and non-threatening manner and persons
who are non-violently participating in public protest.
5.	

ECW use against handcuffed subjects

OCSO policy allows ECW deployment “on handcuffed, or
otherwise secured subjects who present a Level 4 active physical
resistance.” OCSO G.O. 8.1.8 (4)(C)(5). This policy authorizes
identical force responses against both restrained and
unrestrained individuals despite the reduced risk of danger posed
to the deputy or other persons by a subject who is restrained by
handcuffs or other means. Therefore, we recommend that OCSO
revise its ECW policy to prohibit ECW deployment against
handcuffed or otherwise restrained subjects unless the subject is
exhibiting Level 5 or higher resistance.7

6

7

See Appendix A.

In addition, OCSO should train deputies to consider use
of force options other than the ECW, such as a ripp restraint (a
strong velcro cloth) that can be used to secure a subject’s
ankles, when encountering a restrained subject engaging in Level
4 resistance or higher.

- 7 

6.

ECW Deployments Resulting in Collateral Injury

Current OCSO ECW policy states that the ECW should not be
deployed “in any environment where potentially flammable,
volatile, or explosive material (gasoline, natural gas, propane,
flammable chemical sprays, etc.) are present.” OCSO G.O. 8.1.8
(4)(C)(6). In addition, OCSO ECW policy should generally
prohibit deployment of the ECW in an environment where the
subject’s fall may cause substantial injury or death. The policy
should list several examples of such environments (e.g., an
elevated location such as rooftop or building ledge; standing in
or near water or other drowning hazards; or climbing a fence or
wall).
7.	

ECW Deployment Against Suspects Operating Vehicles

We recommend that OCSO ECW policy specifically prohibit the
deployment of the ECW against a subject in physical control of a
vehicle in motion, absent exigent circumstances. In such
situations, successful ECW deployment would incapacitate the
driver, making it impossible for him to maintain control of a
vehicle and increasing the likelihood of injury to the deputy,
subject, or other persons.
8.	

Disciplinary Action Resulting from Inappropriate
ECW Use

While current OCSO ECW policy prohibits its use for
“extracting evidence or contraband” or in any type of “punitive
or reckless manner,” OCSO G.O. 8.1.8 (4)(C)(3) and (4), we
recommend that OCSO supplement these prohibitions with several
other specific examples, including but not limited to:
(a) needless display of the ECW;
(b) careless or haphazard muzzle control8 of the ECW;
(c) using the ECW or threatening to use the ECW during an
interrogation;
(d) using the ECW to awaken a person;
(e) using the ECW as a “prod”;

8

The term “muzzle” refers to the portion of the ECW
where the air cartridge connects to the weapon’s barrel.

- 8 

(f) using the ECW on a helpless person or an individual with
a severe disability;
(g) careless storage of the ECW;
(h) failing to report damage of the ECW; and,
(i) failing to log out an ECW or ECW cartridge in accordance
with OCSO policy.
We note that the current OCSO ECW policy states: “Deputies
shall evaluate other options (e.g., verbal commands, hands on
techniques, OC spray) and use caution before deploying an ECW in
elementary schools, on young children, the elderly, females
reasonably believed to be pregnant, and individuals with apparent
physical disabilities impairing their mobility.” OCSO G.O. 8.1.8
(4)(C)(1)(a.1). We recommend that OCSO amend its ECW policy to
state expressly that the use of the ECW on such subjects is
inappropriate absent exigent circumstances. We further recommend
that OCSO ECW policy expressly warn deputies that such
inappropriate uses of the ECW may result in disciplinary action.
9.

Spark Tests

Testing ECWs allows deputies to identify malfunctions prior
to deployment in the field, allows supervisors to observe the
deputies’ control over the weapon and provide instruction as
necessary, and provides an additional measure of accountability
over a department-issued weapon. While OCSO deputies are trained
to test their ECWs before each shift, the OCSO ECW policy does
not currently require such testing. We recommend that OCSO ECW
policy require deputies to conduct a pre-operation check (or
“spark test”) of the ECW prior to each shift and in the presence
of a supervisor (at the conclusion of shift briefing, for
example).9
In addition, OCSO policy should: (1) set forth procedures
for addressing ECWs that fail to fire or fire slowly;
(2) prohibit deputies from testing the ECW a second time without
a supervisor’s approval; (3) require deputies to report all

9

Spark Tests should include removing the cartridge of
the ECW; pointing the ECW in a safe direction; and running a full
five-second cycle.

- 9 

accidental ECW discharges to a supervisor (to ensure accurate
auditing of the ECW downloaded data).10
10.

Warning Regarding ECW Use Under Extreme Heat

During training, the OCSO warns deputies that exposure of
ECW cartridges to extreme heat or cold may cause malfunctions.
We recommend that the OCSO include such warnings in its ECW
policies, instructing deputies not to store the ECW or ECW
cartridges in vehicles for extended periods of time.
11.

ECW Use and “Excited Delirium”

Studies sponsored by the National Institute of Justice11
suggest that ECW deployment on subjects under the influence of
drugs or presenting behaviors associated with the condition of
“excited delirium”12 may lead to sudden death. As we learn more
about the effects of ECW deployment on the human body, risks of
such deployment may be eliminated, refined, or supplemented.
Nevertheless, we recommend that OCSO’s policy inform deputies of
the findings of these studies, instruct deputies how to identify
behaviors associated with the influence of drugs or the condition
of “excited delirium,” and suggest precautions to be taken to
minimize the risks involved.13

10

We address ECW data downloading in Section III. A. 4 of
this letter.
11

See Appendix B for a listing of ECW studies.

12

A subject said to be in a state of “excited delirium”
will exhibit extreme agitation, bizarre and/or violent behavior,
imperviousness to pain, exceptional strength and endurance,
inappropriate nudity, extreme paranoia, and/or incoherent
shouting.
13

Some precautions that may minimize risk are:
(1) deploying an arrest team with a larger number of deputies;
(2) staging medical personnel to respond to the scene prior to
the deployment of the ECW when practicable; or (3) ceasing ECW
deployment and moving to a different means of force if it becomes
clear that several ECW cycles have not effected the subject’s
aggressive behavior.

- 10
12.

Notification of Emergency Medical Personnel

While the deployment of the ECW rarely results in death or
serious bodily injury, because such incidents can and do occur
OCSO should take proper medical precautions whenever practicable.
Therefore, we recommend that OCSO’s ECW policy instruct deputies
to notify emergency medical personnel when it is anticipated that
the deputy will deploy the ECW against a subject.
While we recognize that many law enforcement encounters
involving the ECW occur rapidly and unexpectedly, in some cases
ECW deployment is predictable. Notification of emergency medical
personnel is particularly important when ECW use is anticipated
involving a subject: (1) under the influence of drugs;
(2) exhibiting behaviors associated with “excited delirium;”
(3) apparently suffering from a mental illness; or (4) posing a
threat to him or herself, but not to others, as in some cases of
attempted suicide.
B.

Deployment Stage

In the deployment stage, OCSO policy should provide deputies
with the technical instruction necessary for successful ECW
deployment and apprehension of the subject with minimal risk to
both the deputy and subject. The following four recommendations
will assist in providing OCSO deputies with the technical
instruction necessary for such deployments:
1.

Multiple Deputies Deploying ECWs

When properly deployed, a single cycle of a single ECW
deployment should be sufficient to overcome a suspect’s
resistance and allow the deputy and accompanying deputies to
safely effectuate an arrest. Absent exigent circumstances,
simultaneous ECW deployment by multiple deputies increases the
risk of excessive force against the subject. Moreover, it is
more effective to have one deputy deploy the ECW and have the
other deputies arrest the subject, than to have multiple deputies
deploying the ECWs against the subject. Therefore, we recommend
that OCSO policy state that, absent exigent circumstances, no
more than one deputy at a time should deploy an ECW against a
person.

- 11
2.

Providing Cover and Arresting Under Force14

While many arrests are often made by a single deputy, when
practicable, each ECW deployment should include a “cover deputy”
and an “arrest deputy” (or “arrest deputies”) to secure the
subject under force. While circumstances do not always allow for
multiple deputies on the scene, OCSO ECW policy should
nevertheless instruct that the standard operating ECW procedure
is to include a cover deputy to provide lethal cover to the ECW
operator. Cover deputies should be armed with OCSO-approved
firearms appropriate for the situation. A cover deputy is
necessary to protect the ECW operator who may not be in a
position to respond effectively to escalating levels of
resistance.
Furthermore, OCSO ECW policy should instruct deputies on
arresting the subject under force. We recommend that OCSO ECW
policy specifically instruct deputies to effectuate the arrest on
the command of the ECW operator and that the arresting deputies
follow standard procedures for effectuating an arrest, which
include securing their weapons in their holsters prior to
approaching the subject.
3.

Multiple ECW Deployment Cycles

Currently, OCSO ECW policy states: “Deputies shall attempt
to secure the subject under power as soon as practical, when
submission/ compliance cannot be achieved through a minimal
number of activation cycles.” OCSO G.O. (4)(C)(8). We recommend
the following revisions to this portion of the ECW policy.
First, the policy should expressly state that deputies
should deploy the ECW for no more than one standard cycle before
stopping to evaluate the situation. During the assessment
period, deputies should clearly give commands to the subject to
achieve compliance. As subjects are often unable to hear or
respond to commands during the cycling of the ECW, it is
ineffective to give commands while deploying the ECW, as deputies
may mistakenly interpret the subject’s failure to respond to
commands as active physical resistence.

14

The term, “under force” means to control or secure the
subject and to effectuate an arrest of the subject upon
deployment of the ECW, which does not necessarily conclude with
the termination of the ECW cycle.

- 12 

Second, the policy should also clearly state that one
standard cycle (a full five seconds) is often unnecessary to
achieve compliance. Compliance can often be achieved two to
three seconds into the deployment cycle, especially with an
arrest team prepared to secure the subject under force. In the
same manner, if (after assessing the situation) the deputy
determines that a second cycle is necessary, the deputy should
restrict the duration of the second cycle to only the time
necessary for the subject to comply and be safely placed under
arrest. If a second cycle has no effect on the subject’s
aggressive behavior, the deputy should consider whether the ECW
is functioning properly, whether the subject is exhibiting
behaviors associated with “excited delirium,” and whether other
use-of-force options may be appropriate.
4.

Proper Use of “Probe Mode” and “Drive Stun Mode”

Current OCSO policy currently allows ECW use in a “touch
stun” or “drive stun mode” in which, the deputy removes the
cartridge and presses the unit against the subject’s body. OCSO
G.O. 8.1.8 (4)(C)(9). Unlike the ECW’s “probe mode” or “dart
mode,” which force compliance through an involuntary contraction
of muscles disrupting neuro-motor control, “drive-stun mode”
forces the subject to comply solely through infliction of pain.
As different subjects exhibit varying levels of pain tolerance,
the “drive stun mode” is not as effective in controlling the
subject as the “probe mode.” Because the “drive stun mode” is
more likely to lead to excessive force than the “probe mode,” we
recommend, in accordance with recognized best practices and the
recommendations of our expert consultants, that deputies be
instructed to use the “drive stun mode” only as a secondary
option.
C.

Post-Deployment Stage

In the post-deployment stage, OCSO policy should provide
deputies with a set of steps to be taken after ECW deployment to
enhance the safety of the deputy and subject, and to ensure
accountability of proper ECW deployment. The following five
recommendations will assist in providing OCSO deputies with such
options:
1.

Proper Restraint Techniques

Absent exigent circumstances, a deputy should not employ
restraint techniques that will impair a subject’s respiration.
We recommend that OCSO incorporate such a provision into its
post-deployment ECW policies because, while the effects of the

- 13 

ECW on the human respiratory system are not fully and
conclusively understood at this time, some studies have suggested
that ECW use leads to death of individuals restrained in such a
manner.15
2.

Medical Evaluation and Monitoring

While ECW deployment will rarely result in death or serious
bodily injury, such risks do exist both immediately following
deployment and some time after deployment. During most ECW
deployment incidents, the deputy has no knowledge of the
subject’s health or medical history, therefore, to avoid serious
bodily injury or death to the subject, we recommend that OCSO
revise its ECW policy to require post-deployment medical
evaluation and monitoring of the subject. The procedure for the
medical evaluation and custodial monitoring should be set forth
in OCSO’s ECW policy, which is currently silent on medical
attention to the subject but for the removal of ECW probes that
have struck the subject’s face, groin, or breasts.
3.

Supervisor Response to ECW Incidents

The presence of a supervisor at the scene following an ECW
deployment ensures accountability regarding pre- and
post-deployment procedures. The supervisor on the scene can also
assist in the arrest-related events at the scene by conducting a
first-hand review of the use-of-force. OCSO does not currently
require supervisors to respond to all incident scenes as soon as
practicable where a deputy deploys an ECW. We recommend that the
OCSO revise its policies to include such a requirement.
4.

Supervisor’s Initial Review of ECW Deployment

We recommend that OCSO ECW policy instruct supervisors to
conduct an initial review of any ECW deployment by a deputy.
This initial review should include, but not be limited to:
(a) the supervisor interviewing the deputy, the subject, and
other witnesses;
(b) completing a use-of-force report;
(c) photographing all relevant evidence, including impact
points of the ECW probes before and after removal from the
subject; and,
15

See studies listed in Appendix B.

- 14 

(d) collecting a sample of the AFID confetti16 from the ECW
cartridge.
Furthermore, the supervisor should ensure that the deputy
place the spent ECW cartridge and probes into evidence control;
secure and review any in-car video if so equipped; and download
the ECW deployment data to assess the time of the deployment, the
number of deployments, and the duration of each deployment. If
upon the supervisor’s review, a violation of law or policy is
suspected, the supervisor’s use-of-force report should be
immediately forwarded to OCSO’s Professional Standards Division
for investigation.
5.

Supervisor ECW Training

An ECW policy that requires that supervisors respond to all
incident scenes where a deputy deploys an ECW, and conduct an
initial review of the deployment, must also require that
supervisors undertake ECW training. We recommend that OCSO ECW
policy expressly state this requirement.
III.

Training

Effective leadership of a law enforcement agency must
prioritize training as a critical component for effective and
constitutional ECW use. Generally, we find that OCSO’s ECW
training course contains accurate information, but does not
provide complete and adequate ECW training. Through proper
training, deputies will learn to make appropriate decisions, and
develop the skills necessary, to effectively deploy the ECW
during the course of their law enforcement duties. Accordingly,
we recommend that OCSO consider the following recommendations:
A.

General Training Course Recommendations
1.

Develop OCSO ECW Training

OCSO conducts its ECW training course almost exclusively
from the training materials provided by the ECW manufacturer.
While it may be appropriate to employ these materials when
discussing the basic functions and operation mechanics of the

16

AFID (“Anti-Felon Identification Device”) confetti is
expelled from the ECW cartridge when the ECW is deployed. An
alpha-numeric identifier unique to the ECW cartridge is printed
on each piece of confetti. See OCSO G.O. 8.1.8 (3)(B).

- 15 

ECW, the materials are inadequate for other aspects of ECW
training. OCSO should create its own training materials;
scenario-based deployment and arrest drills; and testing
procedures to best develop the ECW knowledge and skills of its
deputies as tailored for the needs of OCSO. Training materials
should be distributed to the deputies during the training course,
and deputies should be encouraged to take notes in the materials
during the course.
2.

Seriousness and Professionalism

The ECW is a weapon capable of inflicting great pain, and in
rare instances, contributing to death or serious bodily injury.
Accordingly, OCSO deputies should be trained to respect the ECW
as a weapon, and such training begins with the discipline
instilled in the deputies during the ECW training course. We
recommend that, unlike the ECW training we observed in November
2007, future ECW training courses be conducted with the same
level of seriousness and professionalism as that of a firearms
training course.
3.

Inclusion of OCSO ECW policy

OCSO training briefly addresses ECW policy, specifically
highlighting appropriate environments for ECW use and subjects
upon whom ECWs should not be deployed. OCSO ECW training
instructors also briefly address the subject and deputy factors
to considered prior to ECW deployment. While the emphasis on
such factors is important, OCSO ECW training instructors should
review every aspect of the OCSO ECW policy during the ECW
training course. This recommendation includes ECW training
instructors reviewing the policy issues discussed throughout this
letter. For example, OCSO ECW training instructors should review
such policy aspects as: prohibiting ECW deployment against
passive subjects; deployment of the ECW against handcuffed or
otherwise restrained subjects only when the subject is employing
Level 5 resistance; the risks associated with ECW deployment,
specifically against subjects under the influence of drugs or
exhibiting behaviors associated with “excited delirium;” and the
role of supervisors in reviewing ECW deployments. Such training
may be conducted adequately through a lecture format that allows
deputies to ask questions and discuss policy details.

- 16 

B.

Specific OCSO ECW Training Course Recommendations
1.

Enhanced Pre-Deployment Training

We recommend that the OCSO enhance its ECW training
regarding pre-deployment decision-making. First, OCSO should
incorporate a brief legal training into the ECW training course.
Training instructors should review and discuss Fourth Amendment
standards and application of such standards when effectuating an
arrest and using force against a subject. Second, we recommend
that training instructors discuss the pre-deployment aspects of
the OCSO ECW policy, as well as the policy recommendations
already suggested in this letter.17
2.

Scenario-Based Training Exercises

While we note that OCSO ECW training provides appropriate
training on the functional deployment of the ECW (i.e. “aim and
fire”), we recommend incorporating training exercises on other
steps in the ECW deployment stage. In addition to enhancing
instruction on proper pre-deployment decisions, OCSO should
incorporate practical scenario-based training exercises to drill
deputies on ECW deployment skills. For example, deputies should
be instructed, drilled, and tested on how to:
(a) give a verbal warning to the subject and other deputies;
(b) work together with other deputies as a team;
(c) provide cover, and how to arrest under force;
(d) deploy a standard cycle and assess the situation;

17

For example, OCSO ECW training instructors should
discuss what type of subject action constitutes Level 4
resistance, and what type of actions by a restrained subject will
constitute Level 5 resistance. Moreover, we note that while OCSO
ECW training instructors currently discuss some inappropriate
uses of the ECW, OCSO should expand such discussions to include
additional specific examples of inappropriate uses of the ECW,
such as deploying the ECW against a subject in control of a
vehicle, or fleeing from a consensual encounter. Training
instructors should also provide actual examples of appropriate
(as well as inappropriate) uses of the ECW provided by OCSO
deputies that have properly (or improperly) deployed the ECW to
effectuate an arrest.

- 17
(e) recognize symptoms of mental illness and “excited
delirium”; and,
(f) stage emergency medical services in cases where ECW
deployment is predictable.
3.

Supervisor Review of ECW Use

We recommended above that OCSO ECW policy require a
supervisor to respond as soon as practicable to the scene and
conduct an incident review when a deputy deploys an ECW. We
further recommend that OCSO not only incorporate that
recommendation into its policy, but also develop training
dedicated to supervisor response and incident review. The course
material should cover such aspects of supervisor response and
incident review as:
(a) conducting interviews with the deputy, the subject, and
other witnesses;
(b) completing a use-of-force report;
(c) photographing all relevant evidence, including impact
points of the ECW probes before and after removal from the
subject; and,
(d) collecting a sample of the AFID confetti from the ECW
cartridge.
4.

Risks of Deploying ECW Against a Subject

We recommend that OCSO ECW training instructors explain the
risks involved in deploying the ECW, specifically against
subjects under the influence of drugs or exhibiting behaviors
associated with “excited delirium.” We encourage OCSO ECW
training instructors to discuss recent studies regarding the
ECW’s effect on the human body. Currently, the OCSO ECW training
course does not address such risks, but rather, instructors
emphasize the relatively low rates of serious injuries caused by
ECW use.
Moreover, OCSO ECW instructors spend an inordinate amount of
time offering explanations for ECW-related deaths. During an
OCSO ECW training, we observed instructors state, “the ECW can’t
hurt you, it won’t hurt you,” and “such a small amount of
electricity has no effect on the body,” and “the ECW absolutely
will not hurt someone with a pacemaker.” Such statements provide
deputies with a misunderstanding of the potential dangers

- 18 

involved in ECW deployment, and as a result, can increase the
potential for injury and excessive force against a subject.
Training instructors should provide examples from actual cases in
which subjects received serious injuries as a direct or indirect
result of an ECW deployment.
IV.

Accountability

Accountability of proper ECW use is critical to maintain a
high level of professionalism within a law enforcement agency and
to ensure the trust and respect of the community. OCSO’s
Professional Standards Division (“PSD”) is well-equipped to
handle the accountability issues related to ECW use, and we
recommend that OCSO utilize the PSD to track and address such
accountability. OCSO’s PSD currently employs an Early
Identification System18 (“EIS”) to track instances of uses of
force. Essentially, the EIS is a computer database designed to
identify those deputies with a higher than normal record of using
force in the course of their law enforcement duties. OCSO’s EIS
is a capable and effective tool for the PSD to manage the
accountability of OCSO’s ECW use. Accordingly, we propose the
following recommendations related to accountability of ECW use:
A.

Recommendations For OCSO PSD Related to ECW Use
1.

Incorporation of ECW Data into the EIS

While OCSO PSD currently records ECW-use incidents in its
EIS database, it does not track the data through EIS alert
functions and, therefore, does not identify deputies with an
unusually high rate of ECW deployments. As OCSO uses the EIS
alert functions for all other uses-of-force, it should include
ECW use in its alerts. We strongly urge OCSO to implement this
recommendation to identify deputies with a high rate of ECW
deployments, and take necessary actions (e.g. training,
counseling, discipline) to appropriately address the conduct.
Implementation of such practices will improve OCSO’s ECW
accountability, as well as increase the community’s confidence in
OCSO’s professionalism.

18

The EIS is defined by OCSO as “a proactive,
non-disciplinary system intended to enhance awareness by
employees, supervisors and managers of potential employee
problems before serious events occur.” See OCSO G.O. 285 (3)(A).

- 19 

2.

Use-of-Force Form For ECW Use

Following each ECW deployment, OCSO deputies are required
complete the Use of Defensive Tactics/K-9 Form, and copies of the
form must be forwarded to the PSD. See OCSO G.O. 8.1.8 (4)(E).
This form was not specifically designed to address ECW
deployments. A use-of-force form designed specifically for ECW
use will allow OCSO to record ECW data and statistics. OCSO can
then review and analyze the ECW data collected through the
use-of-force forms and make informed decisions regarding ECW
policy, training, and accountability.
We recommend that OCSO create an ECW use-of-force form that
records information such as, but not limited to:
(a) the serial number of the ECW and ECW cartridge;
(b) information regarding the deployment (e.g. unholstered
only, unholstered and deployed and hit or missed target);
(c) distance from subject; environment, physical and weather
conditions of the location;
(d) number of cycles deployed;
(e) whether a drive-stun was employed;
(f) a description of the resistance demonstrated by the
subject;
(g) statements from the subject;
(h) injuries; and,
(i) names of witnesses.
3.

Automatic PSD Review of Certain ECW Cases

While a supervisor should conduct an incident review of
every ECW deployment, certain serious circumstances should
automatically trigger an independent PSD investigation. For
example, in cases where the subject dies or suffers serious
bodily injury after deployment of the ECW, or in cases where:
a subject experiences prolonged or excessive cycling of the ECW;
the ECW appears to have been used in a punitive or abusive
manner; or there appears to be a substantial deviation from OCSO
ECW policy.

- 20
4.

Download of ECW Data Following Deployment

All OCSO ECWs are equipped to record the date and time of
each deployment, as well as the duration of each deployment
cycle. This data can be downloaded from the ECW into a computer
for examination and analysis. Despite the existence of this
technology, OCSO only downloads this valuable information once a
year during the deputy’s annual inventory at OCSO Material
Control/Supply. Moreover, OCSO makes no use of the data it does
download. We recommend that OCSO PSD download the data from an
ECW after every ECW deployment. By downloading and analyzing the
data after each deployment, OCSO will produce a more accurate
record of the ECW incident. Moreover, supervisors and PSD can
use the downloaded data to compare against the deputy’s
use-of-force and arrest reports to ensure accuracy and identify
errors, unreporting, or false reporting. Additionally,
downloading data following each deployment will clear the ECW’s
memory storage and prevent loss of data that is currently being
erased when the ECW computer memory records over itself upon
reaching its data storage capacity limit.
5.

Random Audits of ECW Deployment Data Downloads

We recommend that PSD conduct random audits of the ECW
deployment data. The audits should compare the downloaded data
to the deputy’s use-of-force reports (or a use-of-force report
completed by the supervisor). Discrepancies within the audit
should be addressed and appropriately investigated.
6.

Statistical Information Regarding ECW Deployments

Analysis of statistical information will allow OCSO to
identify trends regarding ECW use. Identification of the ECW-use
trends will better equip OCSO leadership to make informed
decisions to better provide law enforcement services to the
community. Accordingly, we recommend that OCSO PSD collect the
following statistical information:
(a) date, time, and location of the incident;
(b) subject compliance with or without deployment and number
of deployment cycles;
(c) descriptive information about the subject, witnesses,
and the deputy;
(d) the type and brand of ECW deployed;

- 21
(e) the level of resistance displayed by the subject;
(f) whether the subject possessed a weapon, and whether the
deputy was aware of the subject’s weapon at the time of the
deployment;
(g) the type of crime involved;
(h) a determination of whether deadly force would have been
justified;
(i) the type of clothing worn by the subject;
(j) the point of impact on the subject;
(k) the distance of the deputy from the subject;
(l) whether a cover deputy was employed;
(m) whether a deputy or deputy team arrested the subject
under force;
(n) whether a drive stun was employed;
(o) the environment, physical, and weather conditions of the
location of the incident;
(p) injuries to the deputy or subject;
(q) the medical care provided to the subject; and,
(r) whether the subject was under the influence of drugs or
exhibiting behaviors associated with “excited delirium.”
7.

Civilian Complaints Regarding ECW deployment

We recommend that all civilian complaints regarding ECW use
be forwarded to OCSO PSD, assigned a tracking number, and
investigated appropriately. Currently, it appears that OCSO will
process civilian complaints differently based upon how the
civilian made the complaint (i.e. in writing, directly to PSD, at
the scene of the incident or at the OCSO front desk). All
ECW-related civilian complaints should be processed through PSD
regardless of the circumstances surrounding the initial
complaint.
OCSO should further consider printing a complaint form with
a “tear-off postcard” and PSD’s mailing address. Furthermore,

- 22 

OCSO should notify the complainant in writing upon receipt of the
complaint and upon resolution of the complaint. In addition,
OCSO should update the complainant on progress of the
investigation at regular intervals.
V.

Conclusion

Please note that this letter is a public document. It will
be posted on the Civil Rights Division’s website. While we will
provide a copy of this letter to any individual or entity upon
request, as a matter of courtesy, we will not post the letter on
the Civil Rights Division’s website until 10 calendar days from
the date of this letter.
As noted above, as the OCSO revises its policies and
procedures, we strongly urge the OCSO to closely review and
consider the technical assistance recommendations contained in
this letter. We hope that these recommendations will be received
in the spirit of assisting in our mutual goal of ensuring that
the best possible law enforcement services are provided to the
people who reside in and travel through Orange County. We look
forward to continued cooperation toward this goal. Where
possible, we would be happy to provide examples of policies and
procedures used by other law enforcement agencies that might
address some of the issues we have raised in this letter.

Sincerely,
/s/ Shanetta Y. Cutlar
Shanetta Y. Cutlar
Chief
Special Litigation Section

- 23
APPENDIX A

USE-OF-FORCE MATRIX

The use-of-force matrix is a tool employed in both OCSO’s
use-of-force and ECW policies. The use-of-force matrix is used
to define the various levels of resistance a deputy may encounter
when confronting a subject during the course of law enforcement
duties, and the corresponding levels of a deputy’s response to
the subject’s resistance. See Table 1, below. The matrix
consists of six levels of resistance and six corresponding levels
of response. The highest level of resistance, for example, is
Level 6 or “aggravated physical resistance,” defined as
“attacking movements with or without a weapon with the apparent
ability to cause death or great bodily harm.” The corresponding
level of response for Level 6 is deadly force. On the other end
of the matrix, the lowest level of resistance is Level 1 or
“presence,” defined as being “on the scene, with accompanying
suspicious activity.” The corresponding level of response for
Level 1 is “command presence,” which includes the deputy
employing an authoritative tone of voice and body language.
According to OCSO’s use-of-force policy, the use-of-force matrix
“is meant to be used as a guideline for a deputy to select
effective, reasonable, and legal force options in a verbal or
physical encounter.” See OCSO G.O. 8.1.6 (4)(A)(1).
TABLE 1: OCSO Use-Of-Force Matrix

• • DIIIIOE COUNTY SIElIFFS .meE
USE OF FORCE MATRIK

Use of Force - Levels 01 Resistance

.--

6 AGgravated Phpbl
Agg~

6

,_
3

p~

PhyIicaI

2V_

-_.
...-. ... __ ..

~-.............
",., ,__no. 1ft .ft
_

..... XIt..._ .

.....-._111...

lIrI(NcI'" .... - "

-

_lIlIOll, _ _

1...... \01'........- . .

_

I •

PhyK:af

"'PCUl.lIftO I".

I •

I.

I ... I ...I...I ... I ~ I~ '~
I •
I ...
I •
I ...
< ~
~

ff

:

_.r
§

~

I

H
i'

,....

2

I.

Ilf H
. .I

~

I- [

~

~

~

r ••

1.1 •

11p.... _

•• ! ,• .i'
~i

{

~

~

~

I•

....

3
Respollse Levels

45 6

- 24
APPENDIX A (continued)

USE-OF-FORCE MATRIX

OCSO’s current ECW policy places the deployment of the ECW
at Level 4 on the use-of-force matrix, authorizing ECW deployment
only when the deputy encounters a minimum of “active physical
resistance.” Specifically, the policy states that “the ECW may
be used when Level 4 (Active Physical Resistance) or higher
resistance is encountered.” See OCSO G.O. 8.1.8 (4)(C)(1).
OCSO’s use-of-force policy defines “active physical resistance”
as: “Slight to moderate physical harm: a subject makes
physically evasive movements to defeat a deputy’s attempt at
control. This may be in the form of bracing or tensing, attempts
to push/pull away or not allowing the deputy to get close to
him/her.” Id. at (3)(c).

- 25
APPENDIX B

ECW studies commissioned 

by the National Institute of Justice

1.	

Deaths following electro-muscular disruption. NIJ’s
foremost study on ECWs selected a panel of physicians to
conduct mortality reviews on a number of deaths that
followed ECW deployment. The medical panel is examining
incident data from police reports. Police data are being
combined with findings from an autopsy, toxicological
analysis, medical records of symptoms the subjects
experienced after ECW deployment, and care received
afterward.

2.	

Reconstructing the chain of events surrounding an incident.
NIJ is augmenting medical data by reconstructing scenarios
in which an ECW was deployed. NIJ is partnering with the
International Association of Chiefs of Police (IACP) to
conduct field research to support the reviews.

3.	

ECW’s effect on internal organ systems. A study at the
University of Wisconsin is assessing the effect of electric
current as it moves through the body. The study models the
effects of an ECW on internal organs, including the heart.
In a related effort, the University of California in San
Diego and New Jersey Medical School are studying the ECW’s
effect on metabolic pathways in the body, as well as the
cardiac and respiratory systems.

4.	

Less-lethal monitoring system. Wake Forest University in
North Carolina, is piloting a monitoring system where NIJfunded researchers and medical personnel accompany victims
of an incident where a less-lethal device was applied to a
hospital. Researchers will gather data for each case
attended.

5.

Examining “excited delirium.” Researchers at Wake Forest
University are also examining the condition of “excited
delirium.”

For more information on these studies, please visit:
http://www.ojp.gov/nij/topics/technology/less-lethal/conducted
energy-devices.htm.