National Police Accountability Project Skills Seminar, October 19, 2006

Tasers: evaluating claims of excessive force
Mark Silverstein 1
I.
II.
III.

IV.
V.

VI.

VII.

VIII.
IX.

1

The M26 and X26 tasers
The controversies over tasers
Physical effects, potential injuries, and in-custody deaths
A. Pain and physical injuries
B. “Excited delirium,” asphyxia, and multiple shocks
C. New warnings from Taser International
Training
Law enforcement policies for tasers
A. Continuum of force
B. Vulnerable populations
C. Repeated or successive discharges of the taser
The legal standards for evaluating claims of excessive force
A. Eighth Amendment: Convicted prisoners
B. Fourth Amendment: Detention or arrest of persons at liberty
C. Due Process Clause: Pretrial detainees
Applying excessive force standards to use of tasers
A. Degree or severity of the force applied
B. Whether tasers pose a risk of death or serious bodily injury
1. Can tasers be considered deadly force?
2. The risk of significant injury under Graham
a. Early cases’ discussion of risk of injury
b. Recent and future cases
C. Multiple or long-duration shocks
D. Whether a warning was given
E. Defendant’s opportunity for deliberation
F. Whether the use of force complies with policies or safety warnings
G. Continuum of force
H. Plaintiff’s degree of threat
I. Availability of alternatives to use of tasers
J. Defendant’s effort to temper a forceful response
Municipal Liability
Punishment vs. compliance: using tasers to overcome passive resistance
A. Using tasers to enforce compliance with lawful orders
B. Distinguishing punishment from compelling compliance
C. Fourth Amendment cases on pain compliance
D. Analyzing tasers as a pain-compliance technique

Legal Director, American Civil Liberties Union of Colorado. Lynne Wilson, Lorie Fridell, Joan
Crumpler, Carol Watson, and Mark Schlosberg assisted with emails, telephone consultations, resource
suggestions, and other brain picking. Research assistance was provided by law students Alan Roughton
and Jessica White, and Mindy Barton, a volunteer attorney working at the Colorado ACLU.

I.

The M26 and X26 tasers
The first tasers were developed and marketed to law enforcement agencies in the 1970s.

Like the modern versions, they shot a pair of dart-like probes connected to the weapon by thin
wires. They discharged a five-second-duration high-voltage, low-ampere current that was
intended to incapacitate a suspect.

The early versions, which featured seven watts of power, did

not achieve wide acceptance in law enforcement agencies.
In the 1990s, Rick and Tom Smith started the company that is now known as Taser
International. They purchased the existing taser patent and worked on an improved model.
Their first product, marketed in 1994, was called the Air Taser.
In 1999, the company began marketing the first of the modern tasers, the M26 Advanced
Taser. This 26-watt weapon is far more powerful than its predecessors. In 2003, Taser
International began marketing the X26 Taser, which it promoted as having 5% more “stopping
power” than the M26.2
According to Taser International, there is a critical difference between the earlier tasers,
(which it calls first generation and second generation tasers), and the M26 and X26, (which it
calls third generation and fourth generation respectively). The earlier tasers affected only the
sensory nervous system and functioned solely as pain-compliance devices. Suspects who were
extremely focused or insensitive or impervious to pain, such as persons on PCP or individuals in
the midst of a psychosis, were less likely to become fully incapacitated when subjected to the
lower-power tasers. In contrast, the M26 and X26 tasers achieve what the company has called
electro-muscular disruption (EMD):
EMD weapons use a more powerful 18 to 26 Watt electrical signal to completely
override the central nervous system and directly control the skeletal muscles. This
EMD effect causes an uncontrollable contraction of the muscle tissue, allowing
2

Taser International, Instructor Certification Lesson Plan, version 12.0, at 19.

1

the M-Series to physically debilitate a target regardless of pain tolerance or
mental focus.3
A press of the trigger propels the wires with the dart probes and produces a default five-second
discharge. Subsequent trigger presses will produce additional five-second discharges as long as
the probes remain connected to the suspect.

If the trigger remains depressed, the taser will

produce a continuous discharge, until the battery runs down.4 Depending on the cartridge that is
loaded, the wires will extend from fifteen to twenty-one feet, although Taser International says
that firing from seven to fifteen feet away is the most effective.5
According to the company’s literature, the electricity flows between the two probes. The
larger the distance between the probes, the greater the electro-muscular disruptive effect. 6 When
the taser is used as a contact stun gun, in what the company calls “drive stun mode,” the distance
between the electrical contacts is less than two inches. As a result, the taser functions only as a
pain-compliance device when used as a contact stun gun. 7
Both the M26 and the X26 feature a computer chip that records limited information about
each discharge. The information is accessible, however, only if the law enforcement agency has
and uses the software to download the information. The M26 records the time and date of each
press of the trigger, but it does not record duration. Thus, one continuous 30-second shock
would be recorded as a single discharge. If the trigger is depressed a second time while the taser
is delivering the default 5-second discharge, the computer chip will record that second trigger

3

Taser International, Owner’s Manual, from Taser Training CD version 4.1. Taser International has now
abandoned the term “electro-muscular disruption” and instead refers to “neuro-muscular incapacitation.” The
company also discarded the term “conducted energy weapons” and now refers to tasers as “electronic control
devices.” Taser International, M26 and X26 Instructor Course, version 13, slide 21.
4
Taser International, Instructor Certification Lesson Plan, version 12.0, at 58.
5
Id. at 90. The company recently began selling a cartridge that extends the range to 35 feet.
6
Id.
7
Id. at 192.

2

pull, even though it does not affect the already-discharging taser.8 The X26 records duration as
well as the date and time.9
II.

The controversies over tasers
Taser International hawked the new M26 Advanced Taser as a nonlethal magic bullet that

instantly and safely incapacitated suspects without physical struggle. The company’s aggressive
marketing has reaped tremendous success. In the last several years, thousands of law
enforcement agencies have purchased M26 and X26 tasers. Over two thousand have equipped
each officer with the device (which Taser International refers to as “full deployment”).
As tasers have become more widely used, they have become controversial. Critics have
accused the manufacturer of overstating its claims for safety.10 Those concerns have gathered
force as a steadily-increasing number of deaths—now more than 200—have occurred shortly
after law enforcement officers have used tasers.11
A series of investigative reports by the Arizona Republic and the New York Times raised
further questions about Taser International’s safety claims, the reliability of the studies the
company cites, and questionable marketing practices.12 The Securities and Exchange
Commission and the Arizona Attorney General launched inquiries about allegedly deceptive

8

Id. at 71.
Id. at 119.
10
ACLU of Northern California,: How the Lack of Taser Regulation Endangers Lives, September, 2005 (hereafter
“Stun Gun Fallacy”); Amnesty International, “Excessive and lethal force? Amnesty International’s concerns about
deaths and ill-treatment involving police use of tasers,” November 30, 2004, (hereafter “Amnesty International,
2004), available at http://web.amnesty.org/library/index/engamr511392004; Amnesty International, Amnesty’s
continuing concerns about taser use, March 28, 2006, (hereafter “Amnesty International, 2006”), available at
http://web.amnesty.org/library/Index/ENGAMR510302006.
11
Mark Silverstein and Mindy Barton, Taser maker defends product even as bodies pile up, Speakout, Rocky
Mountain News, Aug. 19, 2006.
12
Alex Berenson, As police use of tasers rises, questions over safety increase, New York Times, July 18, 2004;
Robert Anglen, Taser safety claim questioned; medical examiners connect stun gun to 5 deaths, Arizona Republic,
July 18, 2004; Alex Berenson, Claims over tasers’ safety are challenged, New York Times, Nov. 26, 2004.
Additional articles in the Arizona Republic’s series are available at http://www.azcentral.com/specials/taser/.
9

3

statements. Taser International agreed in 2005 to tone down some of its “nonlethal” claims, and
in 2006 it agreed to pay $20 million to settle a stockholder’s lawsuit.13
Critics have also expressed concern that law enforcement officers resort to tasers too
quickly, relying on them as a first resort against persons who pose no threat and in situations
where their use is excessive and abusive.14 Taser International has confirmed that in over onethird of the cases in which police officers have discharged tasers, the reported level of resistance
is “verbal non-compliance.”15 Critics have also raised concerns about the use of tasers on
vulnerable populations, such as children, pregnant woman, and persons who are already
handcuffed or otherwise restrained.16
For a long time, spokespersons for Taser International scoffed at the questions raised
about the safety of tasers. In 2004, when the death count was less than 100, Taser International
maintained that each of the deceased would have died anyway. Until relatively recently, the
company’s training materials continued to proclaim confidently that tasers had never been
implicated in any deaths, and they continue to maintain that they are safe and effective in
virtually any situation requiring use of force.
Proponents of tasers argue that the weapons have reduced the number of injuries to both
officers and suspects. They contend that tasers are appropriately used in the early stages of a
potential confrontation, in order to incapacitate the suspect and prevent the situation from leading
to escalated force that could result in injuries. They believe that tasers have saved hundreds of
lives in situations where police would otherwise have used deadly force.

13

Taser International News Release, TASER International Reaches Agreements to Settle Securities Class Action and
Derivative Litigation, Aug. 9, 2006.
14
Amnesty International 2004, supra note 10.
15
Advanced Taser M26 Field Report Analysis, May 1, 2003 (compiling information from 2590 reports).
16
Amnesty 2004, supra note 10, at 22-29, 60-61; Stun Gun Fallacy, supra note 10.

4

III.

Physical effects, potential injuries, and in-custody deaths
A.

Pain and physical injuries

The electric shock from an M26 or X26 produces strong involuntary muscle contractions
that induce what Taser International has described as “temporary paralysis.”17 The suspect will
sometimes freeze in place with legs locked or will fall immediately to the ground.

Although the

experience is extremely painful, some subjects do not remember the pain, a phenomenon that
Taser International calls “critical stress amnesia.”18 After a standard five-second shock, the
subject will be dazed for up to several minutes.19
In addition to injuries that may be sustained in a taser-induced fall, the muscular
contractions themselves can cause serious physical injuries, including stress fractures to
vertebrae or other bones. 20 A number of police officers have sued Taser International for
injuries they sustained when they submitted to a taser shock during training exercises.21
Tasers can cause permanent scarring and electrical burns, especially when used in the “drive
stun” mode.22

17

Advanced Taser M-Series On-line Owner’s Manual, at 1.
Taser International, Instructor Certification Lesson Plan, version 12.0, at 39.
19
Recovery time is “generally several minutes.” Advanced Taser M-Series On-line Owner’s Manual, at 13; see also
Taser International, Instructor Certification Lesson Plan, version 12.0, at 39 (subject is dazed “for several
seconds/minutes”).
20
Taser International now acknowledges that its devices can cause injuries such as “hernias, ruptures, dislocations,
tears, or other injuries to soft tissue, organs, muscles, tendons, ligaments, nerves, and joints.” It states that
“[f]ractures to bones, including vertebrae, may occur. These injuries may be more likely to occur in people with
pre-existing injuries or conditions such as pregnancy, osteoporosis, osteopenia, spinal injuries, diverticulitis, or in
persons having previous muscle, disc, ligament, joint, or tendon damage.” Taser International, Product Warnings,
August 28, 2006, at 4 (hereafter “TI Product Warnings”), available at http://www.taser.com/safety/LG-INSTLEWARN-001%20REV%20K%20Law%20Enforcement%20Product%20Warnings.pdf.
21
Robert Anglen, “Police in 5 states sue Taser in past 2 weeks,” The Arizona Republic, August 20, 2005; Robert
Anglen, “Officers Injury Tied to Taser,” Arizona Republic, December 26, 2004.
22
TI Product Warnings, supra note 20, at 4.
18

5

There are also reports that tasers can prompt seizures,23 blackouts,24 and involuntary
urination or defecation.25 Taser International advises police officers who submit to voluntary
shocks during training to drink and have a snack first if they have low blood sugar or are
dehydrated. It also advises them to use the bathroom first.26 There is some evidence that taser
shocks may pose a special risk to patients taking certain psychiatric medications.27 Tasers have
also been said to be responsible for causing permanent nerve damage,28 as well as a ruptured
colon, hearing and vision problems, and certain auto-immune disorders.29
Additional reports assert that taser shocks can harm a fetus and cause pregnant women to
miscarry.30 Although Taser International advises that police should not use tasers on women

23

William J. Everett, League of Minnesota Cities Risk Management Memo, Police Use of Conductive Energy
Devices (Tasers), October, 2005, (hereafter “Risk Management Memo”), available at
http://www.lmnc.org/pdfs/LMCITMemos/Tasers.pdf; Taser International, Instructor Certification Lesson Plan,
version 11.0, at 35.
24
Taser International, Instructor Certification Lesson Plan, version 11.0, page 35 (dehydration and low blood sugar
combined with taser exposure).
25
Victoria Police, Taser Technology Review & Interim Recommendations, September 2004, at 19, available at
http://www.cprc.org/docs/bcopcc_interm.pdf.
26
“Students should relieve themselves prior to exposure in order to not have stress related urination. Also, students
who are dehydrated or have low blood sugar should hydrate or eat a light snack prior to exposure.” Taser
International, Instructor Certification Lesson Plan, version 11.0, at 36.
27
Coleman v. Wilson, 912 F. Supp. 1282, 1321-23 & n.58 (E.D. Cal. 1995).
28
Paula Woodward, Colorado Man Has Permanent Nerve Damage from Taser, KUSA-TV, May 5, 2005. Text
found at http://www.firstcoastnews.com/news/usworld/news-article.aspx?storyid=36713, last viewed 09/05/2006.
29
Robert Anglen, Police in 5 states sue Taser in past 2 weeks, The Arizona Republic, August 20, 2005; Robert
Anglen, Officers Injury Tied to Taser, Arizona Republic, December 26, 2004. Multiple reports written by police
officers discussing injuries they attribute to taser shocks can be found at
http://www.policemag.com/forum/topic.asp?topic_id=715. See also Wylie v. Overby, 2006 U.S. Dist. Lexis 29845,
*8 (E.D. Mich. Apr. 14, 2006) (plaintiff alleged that taser shocks to the head caused continuing headaches,
sensitivity to light, and blurred visions that interfered with reading). In letters written to the ACLU of Colorado,
individuals shocked by tasers have attributed additional medical problems to the taser experience, including
uncontrolled defecation, vision problems, intermittent shaking, chest pains, severe headaches, and insomnia.
30
See Risk Management Memo, supra note 23, at 9 (“Pregnancy contraindicates CED use because of the risk of
miscarriage”); Lewis E. Mehl, Electrical injury from tasering and miscarriage, Acra Obstet Gynecol Scand, vol.
71, 118-23 (1992) (“Ethical questions should be raised about criteria for use of Taser on women of childbearing
age”); Amnesty International 2004, supra note 10, at 30-31, 60-61 (discussing jury awards to two plaintiffs alleging
that taser shocks caused miscarriages); see also Valdez v. Farmon, 766 F.Supp.1529 (N.D. Cal. 1991) (prisoner
alleged that taser shock caused miscarriage).

6

who are visibly pregnant, the only rationale acknowledged is the possible harm from muscle
contractions and the secondary injuries from a fall.31
Taser International maintains that its weapons pose no risk to the heart, but there are
experts who disagree.32 Taser proponents cite various studies that conclude that tasers pose a
low risk of adverse cardiac effects.33 Critics point out that these studies consider only the risk to
healthy populations and that most studies note the absence of evidence that tasers are safe when
used on persons with underlying heart problems.34 Studies released in 2006 provide additional
ammunition for the taser critics.35
B.

“Excited delirium,” asphyxia, and multiple shocks

One author has argued that critics who focus too closely on total numbers of “taserassociated” deaths may be overemphasizing the possible role of the electroshock weapons. She
explains that many of the fatalities can be explained as cases of restraint-associated or positional
asphyxia, especially in the frequent cases in which the deceased exhibited symptoms of what has
been called “excited delirium.” 36
“Excited delirium,” sometimes called “Sudden In-Custody Death Syndrome,”37 is a
controversial term38 that appears in the coroners’ reports of many taser-associated fatalities. 39 It
31

Taser International, Instructor Certification Lesson Plan, version 12.0, at 43.
Stun Gun Fallacy, supra note 10, at 8; Amnesty International, 2004, supra note 10.
33
See, e.g., Taser International, Deadly Rhetoric: How the ACLU of Northern California’s Fight Against Law
Enforcement Control Tools Endangers Communities, Jan. 20, 2006, available at
http://www.taser.com/savinglives/documents/Deadly%20Rhetoric%20V12.pdf.
34
Amnesty International 2004, supra note 10, at 61-67; Stun Gun Fallacy, supra note 10, at 10-11; Amnesty
International, 2006, supra note 10; ACLU of Northern California, ACLU of Northern California Answers to Taser
International’s Attacks and Challenges, April 2006, available at http://130.94.233.45/police/060928-aclunc_respti_paper.pdf.
35
See Alex Berenson, The Safety of Tasers Is Questioned Again, New York Times, May 26, 2006; Kumaraswamy
Nanthakumar et al., Cardiac electrophysiological consequences of neuromuscular incapacitating device discharges,
48 J Am Coll Cardiol. 798-804, Aug. 15, 2006, available at
http://www.acc.org/media/releases/highlights/2006/aug06/Stun_Gun_1.pdf.
36
Lynne Wilson, Police Prone Restraint Methods and Taser-Related Deaths, Police Misconduct and Civil Rights
Law Report, Vol. 8. No. 1, at 229-40, January/February, 2005.
37
Debra Robinson, Shelby Hunt, Sudden In-Custody Death Syndrome, Topics in Emergency Medicine, Vol. 27 No.
1, pp. 36-43 (2005), available at http://www.charlydmiller.com/LIB08/2005JanMarchSICDS.pdf.
32

7

refers to a set of symptoms that may be the product of mental illness or may follow heavy or
prolonged use of stimulant drugs.

The symptoms, as listed in a Taser International product

warning, include “extreme agitation, bizarre behavior, inappropriate nudity, imperviousness to
pain, paranoia, exhaustive exertion, ‘superhuman’ strength, hallucinations, sweating profusely,
etc.”40
Even in cases in which death is attributed to restraint asphyxia, however, tasers may well
play a contributing or exacerbating role. This may be more likely in cases in which officers
administer repeated taser shocks to a subject who is agitated, has been struggling with officers,
has taken large quantities of drugs, and/or is exhibiting the signs of excited delirium. All of
these individuals already have an increased need for oxygen, and persons restrained in a facedown position may be unable to inhale the extra oxygen they need, especially if police officers
place their weight on the suspect’s back. The effects of the taser’s electric shocks on the muscles
and blood chemistry may increase the need for oxygen while, at the same time, suppressing the
ability to breathe.41 Long-duration or repeated shocks may exacerbate the problem, especially
when successive shocks are administered before the individual has recovered fully from the
previous ones.42 Based on the foregoing concerns, a Canadian study released in final form in
2005 warned against multiple or long-duration taser discharges. 43

38

Julia Glick, ‘Excited delirium' cited in deaths, Associated Press, Sept. 25, 2006.
Amnesty International 2004, supra note 10, at 43 & n.112.
40
TI Product Warnings, supra note 20.
41
See Wilson, supra note 36 at 234; Raymond Fish and Leslie Geddes, Effects of Stun Guns and Tasers, Lancet,
Vol. 358, pp. 687-88, Sept. 1, 2001; British Columbia Office of the Police Complaint Commissioner, Taser
Technology Review, Final Report, June 14, 2005, at 31-32, 38 (hereafter “Taser Technology Review”), available at
http://www.victoriapolice.ca/papers/taser/finalreport.pdf.
42
Police officers could compound the problem if, mistakenly interpreting a suspect’s natural reaction to oxygen
deficiency as continued resistance, they either increase the pressure on the suspect’s back or resort to additional taser
shocks. See Dept. of Justice, Positional Asphyxia, National Law Enforcement Technology Center Bulletin, June
1995; Taser Technology Review, supra note 41, at 38 (“Police may be misled by the fact the subject can still speak,
indicating a clear airway, which does not necessarily mean they can breathe at an adequate rate.”).
43
Taser Technology Review, supra note 41, at 31-32, 38. Similarly, a study conducted by the Department of
Defense noted that “repeated or constant activation” would result in “sustained muscle contraction with little or no
39

8

Relying in part on the Canadian study, the International Association of Chiefs of Police
concluded that multiple or continuous taser discharges could lead to the death of persons
exhibiting the symptoms of excited delirium:
Persons experiencing severe cocaine, methamphetamine, or other forms of serious
drug or alcohol intoxication are among those at highest risk of sudden death.
Unfortunately, they are often the very individuals most likely to come into contact
with police because of their uncontrolled and irrational behavior (e.g., erratic and
frantic activity, screaming, disrobing in public, irrationality, aggressiveness,
superior strength). It is not difficult to postulate that the use of an ECW on
such individuals, who are often already in a precarious physical state, could
precipitate unexpected negative consequences, including death.44
C.

New warnings from Taser International

On June 28, 2005, Taser International issued a training bulletin that, for the first time,
warned that warning that “repeated, prolonged, and/or continuous TASER device exposure(s)”
may contribute to a suspect’s death. It warned that the taser “may cause strong muscle
contractions that may impair breathing and respiration.” It specifically advised officers to
“minimize the uninterrupted duration and total number” of taser discharges.

The training

bulletin further advised that if multiple discharges fail to produce compliance, the officer should
consider whether “transition to a different force option is warranted.”45
Media reports about the new training bulletin regarded the announcement as a major
change.46 Taser International has now removed the training bulletin from its web site, but its

muscle recovery period.” It warned that the consequent risk of cardiac arrhythmia, impairment of respiration, or
widespread metabolic muscle damage (rhabdomyolysis) “could be severe.” Human Effects Center of Excellence,
Human Effectiveness and Risk Characterization of Electromuscular Incapacitation Devices, March 1, 2005, at 19,
available at http://www.theiacp.org/research/CuttingEdge/HECOEReport.pdf.
44
International Association of Chiefs of Police, Electronic Control Weapons Concepts and Issues Paper, August,
2005, at 4 (hereafter “ECW Concepts and Issues”) (emphasis added).
45
Taser International Training Bulletin 12.0 –04, June 28, 2005. This Training Bulletin is no longer available on
Taser International’s web site, but it can be found at
http://www.charlydmiller.com/LIB06/2005JuneTASERIntTrainBulletin.pdf.
46
Lateef Mungin, Company: Taser can be lethal; Maker backtracks about effects of multiple shocks, Atlanta Journal
Constitution, July 31, 2005, available at
http://www.ajc.com/search/content/auto/epaper/editions/today/news_24cee7339084209f00b8.html (visited 10-0306).

9

current product warnings continue to advise that multiple or continuous discharges may pose
risks, although they no longer state expressly that multiple or sustained discharges might
contribute to a suspect’s death.
IV.

Training
Many law enforcement agencies rely solely on training materials produced by Taser

International.

These training materials may be the only source of information that police

officers receive about the potential risks and the appropriate or inappropriate use of tasers.
In a report released in September, 2005, the Northern California ACLU questioned
whether police departments can reasonably rely on the powerpoint presentations that Taser
International produces to train police officers. Reviewing the two most recent editions of the
training materials, the report concluded that they “exaggerate overall safety, encourage multiple
uses of the weapon, downplay the risk of using Tasers on people under the influence of drugs,
and misrepresent the few medical reviews that have been done on Tasers.”47
The latest version of the company’s training materials, version 13, dated May, 2006,
now advises more caution with regard to multiple shocks than previous versions.48
While this change partially addresses one criticism, the new warnings are not necessarily
communicated to police officers. In its survey of 56 California police departments, the Northern
California ACLU study found that only thirteen were training their officers with the then-mostrecent version of the Taser International training materials.49

47

Stun Gun Fallacy, supra note 10, at 8. The ACLU reviewed versions 11 and 12 of the training materials. Version
11 was released in 2004. Version 12 is dated November, 2004.
48
Although Taser International has now included at least some cautions about multiple discharges, the most recent
training materials continue to repeat assertions that have been criticized as misrepresentations of medical studies and
unsupported claims of safety.
49
Stun Gun Fallacy, supra note 10, at 8.

10

Even if, despite the critics, it were reasonable for police departments to rely solely on
Taser International’s training materials, a department’s failure to ensure that its officers have
received the most recent training may be a basis for municipal liability. Older versions of the
Taser International powerpoint presentations encourage officers to administer multiple taser
shocks without fear of possible harm to the suspect and without regard to whether they are on
drugs or exhibiting symptoms of “excited delirium.” One slide shows that officers applied
multiple shocks in 32% of field applications. Police officers are advised to “anticipate using
additional cycles to subdue suspects,”50 and to “use as many cycles as necessary” to gain
compliance or allow other officers to restrain the suspect.51 To extend the life of the device,
training materials issued in early 2005 suggest limiting the number of back-to-back discharges to
10, but add that “this limitation does not apply to field use.”52
A Colorado case illustrates the potential for liability if police officers rely on Taser
International’s now-outdated training materials.

A Glendale police officer cited her taser

training in the report she wrote to explain the multiple taser shocks she applied to Glenn Leyba,
whose subsequent death the coroner attributed to “excited delirium” caused by ingesting large
quantities of cocaine. The officer arrived to assist paramedics, who had been called to provide
medical assistance. The paramedics found Mr. Leyba lying face-down on the floor, flailing about
and unresponsive to questions and requests to turn over. As several officers and paramedics
attempted to restrain Mr. Leyba, the officer discharged her taser either three or four times:
Based on my training, I believed that the taser was the safest (no documented
50

Taser International Instructor Certification Lesson Plan and Support Material, version 11.0, at 116, 152.
Taser International Instructor Certification Lesson Plan, version 12, M/X 26 Instructor Review Questions, No. 14.
52
Taser International Instructor Certification Lesson Plan, version 12, at 58. Similarly, officers trained in earlier
years were taught that drive stuns should be delivered directly to the groin, and that officers should “drive the taser
aggressively into the subject for best result.” Taser International, Advanced Taser M26 Certification Lesson Plan,
version 8.0, at 12. The most recent version now cautions that officers should use the drive stun to sensitive areas of
the body only when officers “are defending themselves from violent attacks.” Taser International, M26 and X26
instructor course, version 13, slide 225.
51

11

cases of permanent injury or death caused by taser use) and obvious level of
necessary force I needed to gain control.53
Mr. Leyba died shortly afterwards. Although the actions of the officer may have been
consistent with the training materials Taser International issued several years ago, the
most recent training materials now caution officers against multiple discharges in such a
situation.54

V.

Law enforcement policies for tasers
Evaluating potential claims of excessive force involving tasers should include a review of

the law enforcement agency’s policy. Three important issues are 1) where the agency places
tasers on the continuum of force; 2) whether the policy prohibits or authorizes use of tasers on
certain vulnerable populations; and 3) whether the policy prohibits or limits multiple or longduration taser shocks.
A.

Continuum of force

The policies and training curricula of law enforcement agencies usually describe an
escalating continuum of force options that officers may apply to overcome various levels of
resistance. At one end may be officer presence and use of verbal commands; at the other is
deadly force. There is no standard universally-adopted description of the various resistance
levels, and law enforcement agencies differ about the appropriate location of specific tools or
tactics.

53

Letter from ACLU of Colorado to Gerry Springer, Glendale City Attorney, March 11, 2004 (summarizing and
quoting reports on file with Colorado ACLU).
54
Taser International, M26 and X26 Instructor Course, version 13, slide 195.

12

A typical use-of-force continuum might look like this:
Level of resistance
Psychological intimidation
Verbal or nonverbal noncompliance
Passive physical resistance

Active aggression

Authorized force
Officer presence
Verbal commands
Touch control, handcuffs, pain
compliance (use of pressure points)
Chemical agents (pepper spray), emptyhand tactics
Impact weapons

Aggravated aggression

Deadly force

Active resistance

A government survey found that police departments have authorized use of electroshock
weapons anywhere from the second level, passive resistance, to the fourth level, active
aggression.55 Many departments regard tasers as a use of force that is equivalent to pepper
spray.56 Some departments authorize their officers to use tasers but do not provide any further
guidance with regard to the weapon’s appropriate placement in the use-of-force continuum.57
There is a definite trend to stop authorizing use of tasers to overcome passive resistance.
Numerous police departments that formerly authorized such use have revised their policies to
rescind that authorization.58 Both the International Association of Chiefs of Police (IACP) and
the Police Executive Research Forum (PERF) issued model taser policies in 2005 that state that
tasers should not be used to overcome passive resistance.

55

United States Government Accountability Office, Taser Weapons: Use of Tasers by Selected Law Enforcement
Agencies, May, 2005, at 9, available at http://www.gao.gov/new.items/d05464.pdf; Stun Gun Fallacy, supra note
10, at 12-14.
56
ECW Concepts and Issues, supra note 44, at 3. Although Taser International states that each police department
must decide for itself where tasers should be placed on the use-of-force continuum, the training materials state that
86% of police departments place it at the level of pepper spray or below. Taser International, Instructor
Certification Lesson Plan, version 12, at 143.
57
E.g., Stun Gun Fallacy, supra note 10, at 14 (discussing policy of police department of San Jose, California).
58
Amnesty International 2004, supra note 10, at 12 n.36

13

PERF’s model policy and training guidelines, issued in October, 2005, state that tasers
should only be used against persons “who are actively resisting or exhibiting active aggression,
or to prevent individuals from harming themselves or others.”59

The terms are defined in a

companion document that defines seven levels of resistance:
1.
2.
3.
4.
5.
6.
7.

psychological intimidation
verbal noncompliance
passive resistance
defensive resistance
actively resisting
active aggression
aggravated active aggression60

Consistent with the PERF guidelines, a number of law enforcement agencies have moved
tasers toward the upper end of the continuum of force. For example, the Denver Police
Department’s use-of-force policy originally authorized officers to use tasers to overcome
“defensive resistance.” In response to concerns about taser safety and reports of abusive use of
tasers in Colorado, Denver amended its policy. Now, tasers are not authorized unless the suspect
displays “active aggression,” defined in a manner that tracks the PERF definition.61 Several
Florida law enforcement agencies made similar changes.62
Whether more agencies will moves tasers higher on the force continuum depends in part
on the nature of the still-emerging information about the degree to which tasers pose a risk of

59

Police Executive Research Forum, Conducted Energy Device, Policy and Training Guidelines for Consideration,
October 25, 2005, (hereafter “PERF Model Policy”), available at http://www.policeforum.org/upload/PERF-CEDGuidelines-Updated-10-25-05%5B1%5D_715866088_1230200514040.pdf.
60
Police Executive Research Forum (PERF), Conducted Energy Device (CED) Glossary of Terms, available at
http://www.policeforum.org/upload/PERF-CEDGlossary%20of%20Terms%5B1%5D_715866088_12302005140311.pdf. PERF defines “actively resisting” as
“physically evasive movements to defeat an officer’s attempt at control, including bracing, tensing, pushing, or
verbally signaling an intention to avoid or prevent being taken into or retained in custody.” It defines “active
aggression” as “a threat or overt act of an assault (through physical or verbal means), coupled with the present
ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is
imminent.” Aggravated active aggression is a “deadly force encounter.”
61
Brian D. Crecente, Chief rewrites Taser rules; New policy allows use only in cases of active aggression, Rocky
Mountain News, Sept. 4, 2004.
62
Pedro Ruz Gutierrez, Taser use reined in by Policy Changes, Orlando Sentinel, Jul. 15, 2004.

14

injury or death in situations where deadly force is not legally authorized. Michael Berkow,
Deputy Chief of the Los Angeles Police Department, reportedly predicted that the tasers will
ultimately end up as “only a specific alternative to lethal force.”63
B.

Vulnerable populations

The IACP has advocated that in addition to specifying when tasers may be used, law
enforcement policies “should also be explicit as to when its use is inappropriate.”64
The available studies about the risks that tasers pose to health or safety often distinguish
between healthy persons and certain more vulnerable populations.65 Often the studies note an
increased risk—or the lack of sufficient information to rule out such a risk—if tasers are used on
pregnant women, children, elderly persons, persons with underlying heart problems, and persons
who have ingested large quantities of stimulant drugs.
The PERF model policy states that tasers “should not generally be used against pregnant
women, elderly persons, young children, and visibly frail persons unless exigent circumstances
exist.”66 The IACP model policy states that officers “should be aware of the greater potential for
injury” when using tasers against “children, the elderly, persons of small stature irrespective of
age, or those who the officer has reason to believe are pregnant, equipped with a pacemaker, or
in obvious ill health.”67 Most police departments, however, have not incorporated these
recommendations into their taser policies.68

63

Canadian Press, Victoria police chief says public should be part of Taser use discussion, Sept. 14, 2006, available
at http://ca.news.yahoo.com/s/14092006/2/national-victoria-police-chief-says-public-part-taser-use-discussion.html
(last visited Sept. 20, 2006).
64
International Association of Chiefs of Police, Electro-Muscular Disruption Technology, A Nine-Step Strategy for
Effective Deployment, at 13(undated, but released in April 2005), (hereinafter “IACP, EMD Technology”) available
at http://www.theiacp.org/research/CuttingEdge/EMDT9Steps.pdf
65
Id. at 5.
66
PERF Model Policy, supra note 59, para. 7.
67
IACP Model Policy, Electronic Control Weapons, Section IV.C.2 (hereafter “IACP Model Policy”).
68
Stun Gun Fallacy, supra note 10, at 13 (reporting on a survey of California police department policies).

15

C.

Repeated or successive discharges of the taser

With increasing recognition that multiple or sustained discharges of tasers may pose
special dangers, several organizations and reports have recommended policies that limit the
duration of continuous taser discharges and the number of successive times that officers can
apply the taser to a suspect. The PERF model policy states that officers should stop to reevaluate if a single five-second discharge does not bring the situation under control.69 The
IACP model policy simply states that “the officer shall energize the subject the least number of
times and no longer than necessary to accomplish the legitimate operational objective.”70 The
policy also requires officers to “specifically articulate” in their report the rationale for
discharging a taser more than 3 times or for more than 15 seconds.71 An ACLU survey of 54
California police departments reported that only four provided any warning or restriction on
multiple taser shocks. 72
VI.

The legal standards for evaluating claims of excessive force
The legal standard for evaluating whether law enforcement officers have used excessive

force depends on the status of the plaintiff. For convicted prisoners, the standard derives from
the Eighth Amendment’s ban of cruel and unusual punishment.73 For pretrial detainees, the Due
Process Clause controls.74 The Fourth Amendment applies when a police officer uses force to
detain or arrest a person who is at liberty.75

69

PERF Model Policy, supra note 59, para. 3.
IACP Model Policy, Section IV.C.3.
71
Id., Section IV.E.2.
72
Stun Gun Fallacy, supra note 10, at 12.
73
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).
74
Id.
75
Id. at 395. Graham left open the question whether the Fourth Amendment continues to apply between the time of
arrest and the initial appearance before a judge. Id. at 395 n.10. Many lower courts have held that the Fourth
Amendment applies after arrest until the initial appearance before a judge. See, e.g., Luck v. Rovenstine, 168 F.3d
th
323, 326 (7th Cir. 1999); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10 Cir. 1992).
70

16

A.

Eighth Amendment: Convicted prisoners

In Whitley v. Albers,76 the Supreme Court announced the legal standard for evaluating
whether a prisoner shot during a prison disturbance had been subjected to excessive force that
violated the Eighth Amendment. Adopting a test that Judge Friendly had employed years earlier
in Johnson v. Glick,77 the Court held that the critical question is “whether force was applied in a
good faith effort to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.”78 Borrowing additional elements of Judge Friendly’s analysis, the
Court identified relevant factors as including “the need for the application of force, the
relationship between the need and the amount of force that was used, [and] the extent of injury
inflicted.”79 Analysis of those factors, the Court said, could provide “inferences” as to “whether
the use of force could plausibly have been thought necessary, or instead evinced such
wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur.”80 Additional relevant factors are the extent of the threat to the safety
of staff or prisoners, and “any efforts made to temper the severity of a forceful response.”81
In Hudson v. McMillian,82 the Court held that the Whitley standard is not limited to riots
or other emergencies but applies in every case in which prison officials are accused of using
excessive physical force.83 The Court also held that the Eighth Amendment does not require a

76

475 U.S. 312 (1986).
481 F.2d 1028 (2d Cir. 1973) (analyzing pretrial detainee’s claim of unjustified assault by a guard).
78
475 U.S. at 320-21, quoting Johnson, 481 F.2d at 1033.
79
Id. at 321 (brackets in original), quoting Johnson, 481 F.2d at 1033.
80
Id.
81
Id.
82
503 U.S. 1 (1992).
83
Id. at 6-7.
77

17

prisoner to demonstrate “significant injury.” Although the extent of the prisoner’s injury may be
relevant, the absence of significant injury is not dispositive.84
B.

Fourth Amendment: Detention or arrest of persons at liberty

In Tennessee v. Garner,85 the Supreme Court held that the Fourth Amendment prohibits
law enforcement officers from using deadly force to apprehend a nonviolent fleeing felon.
Deadly force is prohibited “unless it is necessary to prevent the escape and the officer has
probable cause to believe that the suspect poses a significant threat of death or serious physical
injury to the officer or others.”86
In Graham v. Connor, 87 the Supreme Court held that all claims that a law enforcement
officer used excessive force in the process of making an arrest or a detention must be analyzed
under the objective reasonableness standard of the Fourth Amendment. Courts must carefully
balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing government interests at stake. The Court emphasized that the test of
objective reasonableness “is not capable of precise definition or mechanical application,” thus
requiring “careful attention to the facts and circumstances of each particular case.”88 The Court
said the analysis should consider the severity of the crime, whether the suspect posed an
immediate threat to the safety of the officers or others; and whether the suspect was actively
resisting arrest or attempting to evade arrest by flight. These three factors are clearly not
intended as an exhaustive list, as the Court noted the need to consider “the totality of the
circumstances.”89
84

The Court noted that “de minimis” uses of force are excluded from Eighth Amendment analysis as long as the use
of force is not of a type “repugnant to the conscience of mankind.” Id. at 9-10.
85
471 U.S. 1 (1985).
86
Id. at 3.
87
490 U.S. 386 (1989).
88
Id. at 396.
89
Id. citing Tennessee v. Garner, 471 U.S. at 8-9.

18

In Graham, the Supreme Court said that the analysis of reasonableness must take into
account the fact that “police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.”90
The Fourth Amendment analysis is objective; the officer’s subjective intent, motives or
good faith are not relevant. “An 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.” 91
C.

Due Process Clause: Pretrial detainees

The claims of pretrial detainees are governed by the substantive protections of the Due
Process Clause, which “are at least as great as the Eighth Amendment protections available to a
convicted prisoners.”92 The Court has not decided a case that clearly explains whether the
claims of pretrial detainees alleging excessive force should be analyzed under a more protective
standard. Many courts have simply analyzed the excessive force claims of pretrial detainees
under the Eighth Amendment standard.93
Some portions of the Court’s decision in Graham v. Conner, however, may provide an
argument that the claims of pretrial detainees should be evaluated under a more plaintiff-friendly
standard. Citing Bell v. Wolfish, 94 the Court in Graham said that “the Due Process clause
protects a pretrial detainee from the use of excessive force that amounts to punishment.”95

90

Id.
Id.
92
County of Sacramento v. Lewis, 523 U.S. 833, 848-50 (1998), quoting City of Revere v. Mass. Gen. Hosp., 463
U.S. 239, 244 (1983).
93
th
E.g., Valencia v. Wiggins, 981 F.2d 1440, 1446 (5 Cir. 1993); United States v. Walsh, 194 F.3d 37, 48 (2d Cir.
1999); Riley v. Dorton, 115 F.3d 1159, 1167 (4th Cir. 1997).
94
441 U.S. 520 (1979).
95
490 U.S. at 395 n.10, citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979).
91

19

The Court’s citation to Bell v. Wolfish provides an argument for plaintiffs’ attorneys. In
Bell, the Court explained how to analyze whether a particular measure amounts to
unconstitutional punishment of a pretrial detainee:
Absent a showing of an expressed intent to punish on the part of detention facility
officials, that determination generally will turn on "whether an alternative purpose
to which [the restriction] may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose assigned [to it].
Thus, if a particular condition or restriction of pretrial detention is reasonably
related to a legitimate governmental objective, it does not, without more, amount
to “punishment.” Conversely, if a restriction or condition is not reasonably related
to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly may
infer that the purpose of the governmental action is punishment.96
Thus, Graham and Bell together suggest that pretrial detainees establish at least an inference of
unconstitutional punishment when the use of force is arbitrary, purposeless, or sufficiently
excessive that it is not reasonably related to a legitimate government interest.
Graham also suggests that after pretrial detainees establish excessive force that amounts
to punishment, they should not also be required to make the additional showing that the force
was “imposed maliciously and sadistically for the very purpose of causing harm.”97 The lower
court in Graham had imposed that requirement in a case that Graham held must be analyzed
under the Fourth Amendment. In explaining its disagreement with the lower court’s analysis, the
Graham Court said that the “malicious and sadistic” standard of Johnson v. Glick (and the Eighth
Amendment) “puts in issue the subjective motivations of the individual officers.”98 In
discussing the difference between the Fourth Amendment’s objective standard and the
“malicious and sadistic” prong of the Eighth Amendment standard, Graham noted that the terms
“cruel” and “punishment” in the Eighth Amendment suggest in inquiry into state of mind, but the
term “unreasonable” does not. The Court further noted that “the less protective Eighth
96

Bell, 441 U.S. at 538-39 (brackets in original; internal quotations and citations omitted).
Whitley, 475 U.S. at 320-21.
98
490 U.S. at 397.
97

20

Amendment standard” applies ‘only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions.’”99 Thus Graham suggests that
pretrial detainees, whose prosecutions are not complete, can argue that they meet their burden by
establishing unconstitutional punishment, without the additional burden of proving that the
punishment was imposed “maliciously and sadistically.”
VII.

Applying excessive force standards to the use of tasers
Because Graham v. Connor emphasized that claims of excessive force must be evaluated

according to the totality of the circumstances, the three specific factors mentioned in that
decision are not exclusive. Courts have also considered factors that the Supreme Court
identified as relevant to Eighth Amendment excessive force cases, such as the relationship
between the need for force and the force actually used,100 and they have identified additional
relevant factors as well. The following discussion identifies some of those factors and how they
have applied in cases discussing tasers, and, in some cases, other forms of less lethal force.
A.

Degree or severity of the force applied

With regard to less lethal weapons, an important factor is the degree or the severity of the
force applied, which the Ninth Circuit has also called the “quantum” of force.101 This factor
clearly requires considering the number of taser shocks and the duration of those shocks. It also
requires considering the unbearable and excruciating pain that tasers inflict.
Police officers who have submitted to taser shocks as part of their training have described
the pain in graphic terms: “like a finger in a light socket many times over.” “It’s like getting
punched 100 times in a row.” “It is the most profound pain I have ever felt.” “They call it the
99

Graham, 490 U.S. at 398, quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (emphasis added).
th
E.g., Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11 Cir. 2004).
101
Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc) (“it is necessary to assess the quantum of
force used”); Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (explaining that Graham factors must be analyzed
“in relation to the amount of force used”).
100

21

longest five seconds of their life … it’s extreme pain, there’s no question about it. No one would
want to get hit by it a second time.” “It just takes your legs out. It’s like a jackhammer going
Kaboom, Kaboom, Kaboom!”102
Cases considering taser-related claims of excessive force often do not discuss whether
tasers inflict significant pain.

Not surprisingly, the cases that rule in favor of plaintiffs seem

more ready to acknowledge that tasers are extremely painful.103 Cases that rule against plaintiffs
have downplayed the significance or degree of pain.104
B. Whether tasers pose a risk of death or serious bodily injury
1.

Can tasers be considered deadly force?

If the use of a taser in specific circumstances can be considered “deadly force,” then it is
analyzed under the more plaintiff-friendly legal standard of Tennessee v. Garner. The Garner
Court did not hold that its rule is restricted to use of firearms, nor did it define “deadly force.” In
an en banc decision in 2005, the Ninth Circuit joined seven others in holding that for purposes of
applying the rule of Garner, “deadly force” is force that “creates a substantial risk of causing
death or serious bodily injury.”105 The court held that use of police dogs could amount to deadly

102

Amnesty International 2004, supra note 10, at 1, 5-6.
See, e.g., DeSalvo v. City of Collinsville, 2005 U.S. Dist. Lexis 23180, *13 (S.D. Ill. Oct. 7, 2005) (“[a] taser is
capable of inflicting a great deal of pain upon a person—shocking, burning, and even rendering numb its target”);
Preston v. Pavlushkin, 2006 U.S. Dist. Lexis 14357, *4 (D. Colo. Mar. 16, 2006) (video showed plaintiff “writhing
in obvious pain”); Hickey v. Reeder, 12 F.3d 754, 757, 758 (8th Cir. 1993) (“a painful and frightening blow, which
temporarily paralyzes the large muscles of the body, rendering the victim helpless”; “a painful and incapacitating
shock”); Maiorano v. Santiago, 2005 U.S. Dist. Lexis 40879, at *17 (M.D. Fla. May 19, 2005) (rejecting defendant
officer’s argument that a single discharge of a taser, as a matter of law, is “de minimis” force).
104
E.g., Draper v. Reynolds 369 F3d 1270, 1278 (11th Cir. 2004) (characterizing being tased as “unpleasant”);
Alford v. Osei-Kwasi, 418 S.E. 2d.79, 85 (Ga. App.1992) (“minor” pain ). One case rejecting a plaintiff’s claim
included an alternative holding that the two-second taser shock was a de minimis injury that could not amount to a
Fourth Amendment violation. Stanley v. City of Baytown, 2005 WL 2757370, *6 (S.D. Tex. Oct. 25, 2005); see
also Bronson v. Mitchell, 1995 U.S. Dist. Lexis 21651, *12 (N.D. Miss. 1995) (questioning whether a single taser
shock implicates the Fourth Amendment).
105
th
Smith v. City of Hemet, 394 F.3d 689, 706 (9 Cir. 2005) (en banc). The standard is adapted from the Model
Penal Code, which also defines “serious bodily injury” as “bodily injury which creates a substantial risk of death or
which cases serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Model Penal Code § 210.0(3). The Code does not define “substantial risk.”
103

22

force, and several courts have held that certain restraint techniques meet the deadly force
standard.106
Plaintiffs have the best chance of invoking the deadly force standard in cases where the
specific circumstances pose an elevated risk that tasers will cause serious injury or death. This
could include cases where tasers are applied to vulnerable areas of the body, such as the head or
eyes. It might include claims on behalf of pregnant women who assert an elevated risk that the
taser will cause a miscarriage. Another possibility is cases where officers use tasers against
suspects who are standing in places where the taser-induced collapse poses a substantial risk of
serious bodily injury.107 Sustained or multiple taser discharges might amount to deadly force
when applied in combination with face-down restraint to an agitated suspect who is displaying
symptoms of “excited delirium.”
2.

The risk of significant injury under Graham

Even when the deadly force standard does not apply, a relevant factor in the Graham
equation is “whether the use of force poses a risk of permanent or significant injury.”108

In

some early cases, courts expressed concern about the possible health or safety risks posed by the
first generation of tasers.
a.

Early cases’ discussion of risk of injury

In Mitchenfelder v. Sumner,109 a Nevada prisoner sought an injunction to stop prison
authorities from using tasers to compel prisoners to submit to strip searches. The district court
106

th

Id. at 706 (police dog); Gutierrez v. City of San Antonio, 139 F.3d 441, 446-47 (5 Cir. 1998) (hog-tying can be
th
deadly force); Cruz v. City of Laramie, 239 F.3d 1183, 1188 (10 Cir. 2001) (recognizing that hog-typing a suspect
with diminished capacity is “likely to result in . . . significant risk to the individual's health or well-being”). See
th
also Deorle v. Rutherford, 272 F.3d 1272, 1279 (9 Cir. 2001) (holding that cloth-encased lead-filled rounds were
“obviously enough to cause grave physical injury”).
107
See Amnesty International, 2004, supra note 10, pages 29-30 (describing case of man tasered while standing in a
tree and subsequently paralyzed from the fall).
108
th
Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199 (9 Cir. 2001), vacated 534 U.S. 801
(2001), aff’d on remand, 276 F.3d 1125 (2002).
109
th
860 F.2d 328 (9 Cir. 1988),

23

denied the injunction, and the prisoner appealed. The Ninth Circuit noted that there was very
little information in the record about the potential adverse effects of using tasers on humans.110
The district court had said “it seems safe to assume” that prison authorities received adequate
input from experienced and knowledgeable persons before authorizing taser use. In a footnote,
the Ninth Circuit said that “[s]uch assumptions can never be made safely.”111 The court then
cited earlier cases from New York and Georgia that acknowledged concerns that tasers could be
deadly.112
The Ninth Circuit first determined that the tasers were used not for punishment but for a
legitimate purpose: to compel compliance with a reasonable security measure. The permissible
purpose, however, was not dispositive. The court recalled an earlier decision considering
prisoners’ challenge to the use of tear gas, which the court characterized as “a demonstrably
dangerous and painful substance.” The court said it had approved “limited use” of tear gas
“when used to contain disturbances that threatened an equal or greater harm.” Implicit in its
earlier holding in the tear gas case, the court reasoned, were three principles: First, tasers cannot
be used as punishment. Second, that they must be used only “in furtherance of a legitimate
prison interest.” Third, they must be used “only when absolutely necessary.”113
The Michenfelder court noted that “long-term effects of tasers are currently unknown.” It
affirmed the denial of relief because the prisoner had not produced enough evidence of tasers’
dangers. The court left open the possibility that research might uncover “evidence of adverse
110

The Ninth Circuit stated that the district court had, as evidence, “the manufacturer’s literature regarding testing
on animals, which the court credited.” Michenfelder, 860 F.2d at 336.
111
Id. at 335 n.4.
112
The Ninth Circuit cited a New York case and quoted it in a parenthetical: “although the [taser] was introduced in
1971, there has been great concern about the impact on people with heart problems and its use has been outlawed in
this State.” Id., quoting People v. Sullivan, 500 N.Y.S. 2d 644, 647 (1986). The Ninth Circuit’s footnote then cited
a Georgia case, and quoted it as saying: “Apparently, at the time of the incident at issue, taser guns were not
considered by prison officials to constitute deadly force. They have, however, since been classified as such at the
[Georgia State] prison.” Id., quoting McCranie v. State, 322 S.E.2d 360, 361 n.1 (Ga. App. 1984).
113
860 F.3d at 335.

24

long-term effects that would call into question the use of tasers.”114 In a later case, the Ninth
Circuit characterized Michenfelder as “upholding the use of taser gun where plaintiff had failed
to establish long-term health risks, but leaving open the question whether the use of tasers would
be unconstitutional in the event that further research should ‘uncover evidence of adverse longterm effects.’”115
A few years later, in Coleman v. Wilson,116 the court relied on expert testimony and
concluded that “use of tasers on inmates on psychotropic medication causes physical harm.”117
The court further concluded that use of tasers causes “serious and substantial harm” to even
mentally ill inmates who are not taking psychotropic medication, and that this harm “can be both
immediate and long lasting.”118 In another California prison case, the court noted that concerns
about “significant health risks” had led some prisons to ban tasers.119
b.

Recent and future cases

Although tasers have become more powerful, the recent court cases usually include little
or no discussion of any possible risk of injury to health or safety. Some cases dismiss the risk or
appear to have accepted, without question, the content of promotional materials.120
Even when plaintiffs are not able to present evidence that use of tasers poses a general
risk of injury to health or safety, they may be able to demonstrate that the use of tasers in a
particular situation or in a particular manner poses such a risk. Even if the scenarios described
above do not qualify as deadly force, they may nevertheless pose a sufficient risk of significant
114

Id. at 336.
th
Walker v. Sumner, 917 F.2d 382, 388 n.4 (9 Cir. 1990).
116
912 F. Supp. 1282 (E.D. Cal. 1995).
117
Id. at 1322 n.58.
118
Id. at 1322.
119
Madrid v. Gomez, 889 F. Supp. 1146, 1175 n.43 (N.D. Cal. 1995). The court also noted that a taser “inflicts
significant pain” that a lieutenant compared to “being hit on the back with a ‘four-by-four’ by Arnold
Schwarzenegger.” Id. at 1174-75.
120
Wylie v. Overby, 2006 U.S. Dist. Lexis 29845, *23 (E.D. Mich. Apr. 14, 2006) (stating that proper use of a Taser
involves no “serious risk of lasting injury”)
115

25

injury to merit consideration in the Graham analysis. Plaintiffs have especially solid support for
arguing that multiple or sustained taser shocks pose a risk of significant injury. In analyzing the
nature or severity of the force applied, it is the risk of injury that is important, not whether that
risk was realized in a particular case.121
C.

Multiple or long-duration shocks

The studies and product warnings regarding multiple taser shocks are relatively new, and
it does not appear that any court decisions have considered evidence that a series of shocks may
represent a qualitatively different level of force with an elevated risk of physical harm. Some
courts have regarded multiple shocks as unimportant as long as they are administered while the
suspect’s resistance is continuing.122 Even in cases where the initial taser shocks may regarded
as reasonable, the decision to administer subsequent shocks may be unreasonable, even if the
initial shocks did not produce the desired compliance or incapacitation.123
D.

Whether a warning was given

In an alternative statement of its holding, the Garner decision requires that
officers provide a warning, when feasible, before they may constitutionally use deadly
force.124 Similarly, whether the plaintiff received a warning is a factor to be considered

121

th

Cf. Ryder v. City of Topeka, 814 F.2d 1412, 1417 n.11 (10 Cir. 1987) (“the use of deadly force does not occur
only when the suspect actually dies”); Shillingford v. Holmes, 634 F.2d 263, 266 (5th Cir. 1981) (“That the results of
the attack on Shillingford's person were not crippling was merely fortuitous. That same blow might have caused
blindness or other permanent injury.").
122
th
See, e.g., Hinton v. City of Elwood, 997 F.2d 774, 781 (10 Cir. 1993) (holding that officer’s alleged repeated
use of stun gun is not excessive force when the officer stopped once the plaintiff was handcuffed); Nichols v.
Davison, 2005 WL 1950361, *2 - *3 (W.D. Okla. July 26, 2005) (police used reasonable force when they subjected
an actively resisting suspect to “five or six strikes” of the taser after two bursts of pepper spray failed to stop him
from struggling).
123
See, e.g., Russo v. City of Cincinnati, 953 F.2d 1036, 1045 (6th Cir. 1992) (acknowledging that officer’s
subsequent firings of the Taser, after the first shock was ineffective, “present a closer question than his initial use of
the Taser”).
124
Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).

26

in analyzing whether use of a less lethal weapon constitutes excessive force.125 In
several rulings in which plaintiffs prevailed, the court noted the officer’s failure to give a
prior warning.126 Similarly, in cases holding for the defendant, a warning has been cited
as a factor in the officer’s favor.127
E.

Defendant’s opportunity for deliberation

In light of Graham’s statement that the split-second judgments of police deserve
deference, some courts have suggested that police deserve less deference when split-second
judgments are not required.128 Thus, plaintiffs can argue that courts should consider this factor
in cases when law enforcement had ample opportunity to reflect before deciding when, whether,
and what kind of force to apply. Potential examples are cell extractions in jails and prisons,129
cases in which suspects are surrounded and cannot escape,130 and cases involving protesters
engaging in nonviolent trespass or other forms of passive civil disobedience.131 In some cases,
plaintiffs may be able to argue that what appears initially as a split-second decision should be
analyzed from an earlier point in time, when the officers first arrived at the scene. In such cases,

125

See Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001). In Eighth Amendment cases, whether the
plaintiff received a warning may be relevant to evaluating “any efforts made to temper the severity of a forceful
response.” Whitley v. Albers, 475 U.S. 312, 321 (1986).
126
See DeSalvo v. City of Collinsville, 2005 U.S. Dist. Lexis 23180, *16 (S.D. Ill. Oct. 2, 2005) (“little, if any,
warning”); Maiorano v. Santiago, 2005 U.S. Dist. Lexis 40879, *23 (M.D. Fla. May 19, 2005) (holding that under
the circumstances alleged it was unreasonable “to use a taser against Plaintiff, without advance warning or a verbal
command to desist”). The lack of warning has also figured in Eighth Amendment rulings in favor of prisoners. E.g.
th
Treats v. Morgan, 308 F.3d 868, 873 (8 Cir. 2002) (pepper spray). But see Caldwell v. Moore, 968 F.2d 595, 597,
600 (6th Cir. 1992) (prison guards were not required to issue warning before using stun gun multiple times on
prisoner who refused orders to stop kicking cell door).
127
th
E.g. Monday v. Oullette, 118 F.3d 1099, 1104-05 (6 Cir. 1997) (pepper spray); N.A. v. Inabinett, 2006 U.S.
Dist. Lexis 68003, *22 (M.D. Ala. Sept. 20, 2006).
128
Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1203-04 (9th Cir. 2001); Chew v. Gates, 27
th
F.3d 1432, 1443 (9 Cir. 2994) (explaining that “[t]his was not an occasion on which the police were forced to make
‘split-second judgments’ in circumstances that were ‘rapidly evolving.’ There was time for deliberation and
consultation with superiors”).
129
Coleman v. Wilson, 912 F. Supp. 1282, 1322 (E.D. Cal. 1995) (discussing prison policy requiring correctional
officers to check with medical staff before using tasers on prisoners taking psychotropic medications).
130
Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (police dogs).
131
th
Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1203-04 (9 Cir. 2001) (pepper spray).

27

plaintiffs may be able to argue that the officers’ objectively unreasonable approach to a
potentially volatile situation may have created the emergency that prompts the use of force.132
F.

Whether the use of force complies with policies or safety warnings

Applying a less lethal weapon in a manner that violates the manufacturer’s safety
recommendations is evidence of objectively unreasonable force and also informs the qualified
immunity analysis.133 Similarly, a policy that sets limits on officers’ use of force or the
treatment of prisoners in come cases may constitute fair notice of the constitutional standard.134
Courts have also considered the policies of other law enforcement agencies when analyzing
whether officers used excessive force or are entitled to qualified immunity.135 One court held
that a prison’s policy on taser use was relevant evidence of the “evolving standards of decency”
that inform the Eighth Amendment.136 In a case involving repeated or long-duration taser
shocks, plaintiffs may be able to rely on the warnings that Taser International began issuing in
June, 2005.
G.

Continuum of force

In McKenzie v. City of Milpitas,137 the Ninth Circuit upheld a jury verdict against the City
on a theory that the police department’s policy authorized police to use tasers too soon-132

Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of Circumstances
Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 Colum. Hum. Rts. L. Rev.
261 (2003).
133
Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (after remand) (pepper
spray).
134
Hope v. Pelzer, 536 U.S. 730, 743-44 (2002) (hitching post).
135
th
Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1208 (9 Cir. 2001) (supervisors may have
ordered use of pepper spray under circumstances they knew violated policies of California Department of Justice
and California Highway Patrol); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1131 (after
remand) (“regional and state-wide police practice and protocol clearly suggest that using pepper spray against
nonviolent protesters is excessive”).
136
Valdez v. Farmon, 766 F.Supp.1529, 1537-38 & n.8 (N.D. Cal. 1991). Cf. Jolivet v. Cook, 1995 U.S. App. Lexis
th
3950, *5 (10 Cir. 1995) (although defendants admitted violating prison policy on use of tasers, such a violation
th
does not give rise to an Eighth Amendment violation). In Caldwell v. Moore, 968 F.2d 595, 597, 600 (6 Cir.
1992), the court approved a guard’s use of a stun gun on a prisoner despite the absence of any training and the lack
of any policy authorizing use of the weapon.
137
th
1992 U.S. App. Lexis 1786 (9 Cir. Feb. 7, 1992), discussed infra in Section VIII, discussing municipal liability.

28

immediately after voice commands failed to achieve compliance. In other cases, however, courts
have held that police officers acted reasonably when they decline to attempt hands-on techniques
and instead choose the taser as a first resort. In such cases, courts have suggested that the taser
was a reasonable choice to avoid a physical conflict that might result in injuries to the suspect or
the officer.138
In Draper v. Reynolds,139 for example, a roadside stop of a truck driver for a
burnt-out license plate light escalated into a verbal confrontation and subsequent
discharge of a taser. The plaintiff truck driver became agitated and complained that the
officer was harassing him.140 The court characterized the plaintiff as “hostile, belligerent,
and uncooperative.”141 The officer characterized the plaintiff’s demeanor and belligerent
verbal accusations as “threatening” and putting the officer “on the defensive.” The
officer asked the plaintiff four times to go to the truck to retrieve documents for the
officer’s inspection. As soon as the officer issued the order for a fifth time, he discharged
a taser at the plaintiff’s chest.142
The Eleventh Circuit held that the officer’s discharge of the taser “was reasonably
proportionate to the difficult, tense and uncertain situation” that he faced in this traffic stop. It
explained that because the plaintiff refused to comply with verbal commands, the officer was not
required to state first that the plaintiff was under arrest.
138

The court added that the single use of

E.g., Alford.v.Osei-Kwasi, 418.S.E 2d.79, 84 (Ga. App.1992) (“If used properly it avoids the physical injuries
th
associated with other means of force.”); Caldwell v. Moore, 968 F.2d 595, 602 (6 Cir. 1992) (“It is not
unreasonable for the jail officials to conclude that the use of a stun gun is less dangerous for all involved than a hand
to hand confrontation”); Draper v. Reynolds 369 F3d 1270, 1278 (11th Cir. 2004) (officer’s single use of the taser
“may well have prevented a physical struggle and serious harm”).
139
th
369 F3d 1270 (11 Cir. 2004).
140
The truck driver, who was African American, attempted to argue that he had been subjected to racial profiling.
The court declined to consider whether the initial stop was a pretext, id. at 1275, and it also held that the plaintiff
had failed to support his equal protection claim with evidence that white truck drivers received different treatment.
Id. at 1278 n.14.
141
Id. at 1278.
142
Id. at 1273.

29

the taser “may well have prevented a physical struggle and serious harm” to either the plaintiff or
the officer. 143
H. Plaintiff’s degree of threat
Whether the plaintiff presented an immediate threat to the safety of officers or others is
“the most important single element” of the factors identified in Graham.”144 Rulings for
plaintiffs often state that the plaintiff presented little or no threat.145 Some decisions portray
plaintiffs as more vulnerable or less threatening because of their youth, small size, age, or
gender.146
Pregnancy, however, has not worked in plaintiffs’ favor. An appellate court approved
use of a taser on a prisoner who was seven and one-half months pregnant and refused orders to
stop banging on her cell. The court noted with approval that the guard “used the Taser to
minimize possible injuries to all concerned, including [the plaintiff] and her unborn child.”147
Courts have not been reluctant to uphold use of tasers against handcuffed prisoners, either
because they resist being searched,148 continue to pose a threat, 149 or because they are
noncompliant with verbal commands.150 One court held that a jailer used objectively reasonable

143

Id. at 1278; see Devoe v. Rebant, 2006 U.S. Dist. Lexis 5326, *21-*22 (E.D. Mich. 2006) (following Draper, and
approving taser use on handcuffed suspect who disobeyed verbal commands to enter squad car, as physical force
might have escalated into a struggle that caused injury). See also Russo v. City of Cincinnati, 953 F.2d 1036, 1048
(6th Cir. 1992) (noting that officer used taser “to stun and to disable temporarily rather than to inflict more serious or
more permanent injury”).
144
Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).
145
Preston v. Pavlushkin, 2006 U.S. Dist. Lexis 14357, *5 (D. Colo. Mar. 16, 2006) (Plaintiff “did not present any
threat of physical violence. The device was used to shock him three times while he was on the ground and
th
obviously incapacitated”); Hickey v. Reeder, 12 F.3d 754, 758 (8 Cir. 1993) (no physical threat); Autin v. City of
th
Baytown, 2005 U.S. App. Lexis 29098, **9 (5 Cir. Dec. 29, 2005) (plaintiff was “objectively unthreatening”).
146
E.g., Maiorano v. Santiago, 2005 U.S. Dist. Lexis 40879, *17 (M.D. Fla. May 19, 2005) (high school student);
Autin v. City of Baytown, 2005 U.S. App. Lexis 29098, **7 (5th Cir. Dec. 29, 2005) (court emphasized that
plaintiff was a fifty-nine year old woman and five foot two inches tall).
147
Alford v. Osei-Kwasi, 418 S.E. 2d.79, 85 (Ga. App.1992).
148
Johnson v. City of Lincoln Park, 434 F.Supp.2d 467, 469-71, 480 (E.D. Mich. 2006).
149
Moore v. Novak, 146 F.3d 531, 534-35 (8th Cir. 1998).
150
Devoe v. Rebant, 2006 U.S. Dist. Lexis 5326, *21-*22 (E.D. Mich. 2006).

30

force when she discharged a taser on a prisoner’s neck while he was strapped in the jail’s
restraint chair.151
I. Availability of alternatives to the use of tasers
In Fourth Amendment cases, the availability of alternative methods of capturing or
subduing a suspect may be a factor.” 152 This factor worked against the plaintiff in a Michigan
case in which the court granted summary judgment to the officers. Because the plaintiff had
“twice broken from the officer’s grasp,” the court said police were justified in escalating to some
form of non-lethal force. The court reviewed various options such as tackling the plaintiff, or
using fists, batons, pepper spray, or tasers. The court concluded that tasers were less risky for
the officer and posed “no serious risk of lasting injury to the subject.” 153
J. Defendant’s effort to temper a forceful response
The defendant’s effort to temper a forceful response is a factor in the Eighth Amendment
analysis. In a pro se prisoner case, the court awarded summary judgment to prison guards who
were accused of twice discharging a taser on a prisoner who asserted that he had already become
compliant. In holding that the guards did not use excessive force, the court relied on the fact
that the defendants employed two separate discharges of the taser “rather than a continuous
trigger.” The court also cited the defendants’ “decision not to Taser Plaintiff a third time.”154
VIII. Municipal liability
In McKenzie v. City of Milpitas,155 two plaintiffs contended that police officers’ use of
tasers against them constituted excessive force. They sued the City, arguing that its use-of-force
151

McBride v. Clark, 2006 U.S. Dist. Lexis 9143, *64 (W.D. Mo. Mar. 8, 2006); see also Carroll v. County of
Trumbull, 2006 U.S. Dist. Lexis 23009, * 39 (N.D. Ohio Apr. 25, 2006) (plaintiff did not demonstrate that it
violated clearly established law to shock him twice with a taser while he was already handcuffed behind his back
and his legs were bound with a leather strap.)
152
Smith, 394 F.3d 689, 703; Chew v. Gates, 27 F.3d at 1441 n.5.
153
Wylie v. Overby, 2006 U.S. Dist. Lexis 29845, *22 - *24 (E.D. Mich. 2006).
154
Manier v. Cook, 394 F. Supp. 2d 1282, 1288 (E.D. Wash. 2005).
155
738 F. Supp. 1293 (N.D. Cal. 1990).

31

policy placed the taser too low in the continuum of force. They contended that “using the taser
after voice commands and before use of physical arrest techniques such as wrist locks, mace or
batons, is improper and condones the use of constitutionally excessive force.”156 They also
alleged that the City’s training left officers “unaware of the dangers associated with prolonged
continuation of the taser current, and fosters the practice of administering the taser current
continuously until the desired result is achieved.”157
In denying the City’s motion for summary judgment, the district court noted factual
disputes about whether the officers’ use of tasers was objectively reasonable in the
circumstances. The district court further explained that the City’s policy authorized officers to
resort to tasers immediately after verbal warnings had failed to achieve compliance.158

It also

noted that pursuant to the City’s policy, tasers were supplied to inexperienced officers; 159 officers
could carry tasers on investigatory stops; officers were not required to holster their tasers;160 and
officers were not adequately trained about the potential health risks of using tasers.161
The plaintiffs won a jury verdict, and the Ninth Circuit affirmed in an unpublished
opinion.162 The court noted that the City’s written policy states that “the Taser may be used
when . . . attempts to subdue the suspect by . . . verbalization . . . have been, or will likely be
ineffective.”163 The court concluded that “[t]he broad permissive language of the Milpitas
policy, combined with the fact that it does not require officers to holster their tasers, makes it

156

Id. at 1297-98.
Id. at 1297. One plaintiff was tased once and the other twice. Id. at 1296. The district court’s opinion provides
no information about the duration of the taser discharges.
158
Id. at 1301.
159
According to the plaintiffs’ evidence, Milpitas was the only police department in California to allow patrol
officers to use tasers. Other departments restricted use of tasers to supervisory staff. Id.. at 1297.
160
Plaintiffs argued that allowing officers to carry the taser unholstered leaves them only one free hand, thereby
preventing officers from using physical arrest techniques and encouraging use of the taser. Id.
161
Id.
162
McKenzie v. City of Milpitas, 1992 U.S. App. Lexis 1786 (9th Cir. Feb. 7, 1992).
163
Id. at *7 (elipses in original).
157

32

reasonably likely that Milpitas officers will resort to their tasers immediately after verbalization
fails.”164
In a more recent case, the plaintiff survived summary judgment on two theories of
municipal liability. First, the court concluded that the defendant officer’s 16 prior uses of a taser
in a four-month period raised a question as to whether the City had “a policy or custom
pertaining to taser usage that violated Plaintiff’s Fourth Amendment rights.”165 The court also
held that there was a material issue of fact whether a deliberately indifferent failure to train and
supervise caused the excessive use of force, because an officer’s pattern of taser use was not
necessarily known during officers’ supervisory reviews, thus allowing that “rogue taser usage
could go virtually unchecked.”166
IX.

Punishment vs. compliance; using tasers to overcome passive resistance
Tasers have been especially controversial when law enforcement officers have used them

overcome nonthreatening persons who passively and nonviolently decline to comply with orders.
There is universal agreement that electric shocks cannot legitimately be used to impose summary
corporal punishment. Nevertheless, courts have distinguished the impermissible goal of
punishment from a permissible goal of compelling compliance with legitimate orders. In
addition, courts have also held that refusal to comply with some orders is not sufficiently serious
to justify use of tasers or other less lethal force to compel compliance. As the following
discussion demonstrates, the distinction between punishment and compliance is not always clear.
A. Using tasers to enforce compliance with lawful orders
1.

Order to submit to strip search

164

Id. at *8.
Chaney v. City of Orlando, 2005 U.S. Dist. Lexis 30580, *56 (M.D. Fla. Dec. 2, 2005).
166
Id. at *58 - *59.
165

33

In Michenfelder v. Sumner,167 discussed earlier, the Ninth Circuit denied relief to a
prisoner who challenged the use of tasers to enforce a Nevada prison policy requiring prisoners
to submit to strip searches. The plaintiff was a housed in a maximum security unit reserved for
the state’s 40 most dangerous prisoners. The strip searches were conducted every time a
prisoner left or returned to the unit and every time a prisoner moved within the unit escorted by
guards, such as for sick call, visits, or yard time. In describing the prisoner’s allegations, the
court said that correctional officers “have threatened and in some instances actually fired tasers
to enforce compliance with the strip searches and have also used the tasers in other disciplinary
situations in the prison.”168 The plaintiff alleged that he was threatened with a taser when he
refused to submit to a strip search in the public hallway when he returned from the recreation
yard. He further alleged that guards told him that another prisoner who had just returned from
the recreation yard had been tasered twice because he insisted that he be strip searched in his cell
instead of the hallway.
The Michenfelder court started with the premise that administering electric shocks as
punishment would violate the Eighth Amendment.169

In this case, however, the court said that

the taser “was used to enforce compliance with a search that had a reasonable security purpose,
not as punishment.”170 The court said that “the legitimate intended result of a shooting is
incapacitation of a dangerous person, not the infliction of pain.”171

167

th

860 F.2d 328 (9 Cir. 1988).
Id. at 330.
169
Id. at 335, citing the Supreme Court’s discussion of the “Tucker telephone” in Arkansas prisons in Hutto v.
Finney, 427 U.S. 678, 682 (1978).
170
860 F.2d at 335. In a later case, a pregnant female prisoner alleged that she was tasered for refusing an order to
submit to a strip search with a male officer present. The court held that the jury could find that use of a taser to
enforce an illegitimate order violated the Eighth Amendment. Valdez v. Farmon, 766 F.Supp.1529, 1535 n.6 (N.D.
Cal. 1991).
171
860 F.2d at 335. The court did not discuss or explain why a prisoner who passively declines an order to strip
becomes a “dangerous person” in need of “incapacitation.” Nor did it explain how the prison’s legitimate need to
conduct a strip search is furthered by the “incapacitation” of a prisoner who has passively resisted.
168

34

2.

Order to clean prisoner’s cell

While Michenfelder upheld the use of tasers on a prisoner who refuses to submit to a strip
search, in Hickey v. Reeder,172 the Eighth Circuit held that correctional officers violated the
Eighth Amendment when they discharged a stun gun on a prisoner who had simply refused a
direct order to clean his cell. Relying on the testimony of the defendant correctional officers, the
court concluded that “the stun gun was used on Hickey to cause enough pain and harm to force
him to sweep his cell, and to make an example of him.”173
Responding to the defendants’ contention that they can use summary force to compel
compliance with any direct order, the court responded that “[t]he law does not authorize the dayto-day policing of prisons by stun gun.”174 The court distinguished cases, including
Michenfelder, where the use of physical force is motivated by a concern for the safety or
prisoners or correctional officers or the security of the institution. The court concluded, “as a
matter of law, that use of a stun gun to enforce the order to sweep was both an exaggerated
response to Hickey’s misconduct and a summary corporal punishment that violated Hickey’s
Eighth Amendment right to be free of cruel and unusual punishment.”175
3.

Additional orders

The Eighth Circuit followed Hickey in a 2002 case.176 A correctional officer twice
ordered a prisoner to take his copy of a form he had signed, and the prisoner refused. The officer
then squirted the prisoner with pepper spray. In affirming the district court’s denial of qualified
immunity, the court explained that a correctional officer can violate the Eighth Amendment by
172

th

12 F.3d 754 (8 Cir. 1993).
Id. at 758.
174
Id. at 758-59.
175
Id. at 759. See also Preston v. Pavlushkin, 2006 U.S. Dist. Lexis 14357 (D. Colo. Mar. 16, 2006) (Relying on
Hickey and denying summary judgment to jail guards who tasered a prisoner four times until he complied with an
order to pick up the food tray he had thrown).
176
Treats v. Morgan, 308 F.3d 868 (8th Cir. 2002).
173

35

spraying OC spray on a prisoner who may have questioned the officer’s actions but otherwise
poses no threat to safety or prison security.177 The court further explained that it was “clearly
established that force may be justified to make an inmate comply with a lawful prison regulation
or order, but only if the inmate’s noncompliance also poses a threat to other persons or to prison
security.”178
B.

Distinguishing punishment from compelling compliance

In analyzing what constitutes impermissible corporal punishment, some courts have
noted a distinction between physical pain or some other physical deprivation that is imposed as a
penalty for past misconduct, and pain or other deprivation is imposed in an effort to coerce
present or future actions.179
Thus, in Ort v. White,180 the Eleventh Circuit held that a prisoner assigned to a work crew
on an Alabama prison farm was not subjected to cruel and unusual punishment when he was
deprived of water while refusing to work. All he needed to do to obtain water was resume his
assigned work. Comparing this coercive rather than punitive deprivation of water to civil
contempt sanctions, the court said the prisoner “essentially had the keys to the water keg in his
own pocket.”181 The court stated that its result would have been different if, after the work crew
returned to the prison, the prisoner been deprived of water as a penalty for refusing to work.182

177

Id. at 875.
th
Id. In Caldwell v. Moore, 968 F.2d 595, 597 (6 Cir. 1992), the court held that prison guards did not violate the
Eighth Amendment when they used a stun gun on a prisoner who refused orders to stop yelling and kicking his cell
door. In response to the argument that the prisoner posed no threat to himself or prison security, the court said that
"[i]nmates cannot be permitted to decide which orders they will obey, and when they will obey them.” Id. at 601,
th
quoting Soto v. Dickey, 744 F.2d 1260, 1267 (7 Cir. 1984).
179
See, e.g., Ort v. White, 813 F.2d 318, 322 (11 Cir. 1987) (distinguishing between punishment “in the strict sense”
and “coercive measures undertaken to obtain compliance with a reasonable prison rule or regulation.”);
Michenfelder v. Sumner, 860 F.2d 328, 335 (9th Cir. 1988) (distinguishing between administering taser shocks as
punishment for misconduct and used a taser “to enforce compliance with a search that had a reasonable security
purpose, not as punishment”).
180
th
813 F.2d 318 (11 Cir. 1987).
181
Id. at 326.
182
Id. at 326.
178

36

The Supreme Court noted this distinction in Hope v. Pelzer.183 In that case, the Court
considered an Alabama prisoner’s claim that he was subjected to cruel and unusual punishment
when guards transported him from his work site back to the prison and handcuffed him to a
“hitching post,” where he was forced to stand shirtless for hours in the hot sun.184 In denying
qualified immunity to the prison guards, the Court held that the Eleventh Circuit’s decision in
Ort provided fair warning that the Eighth Amendment prohibits “physical abuse directed at [a]
prisoner after he terminates his resistance to authority.”185 The Court noted that the prisoner was
“not restrained at the worksite until he was willing to return to work. Rather, he was removed
back to the prison and placed under conditions that threatened his health.” This was not a case,
the Court explained, in which the prisoner could end his ordeal by agreeing to end his resistance.
This was not a case in which he effectively had “the keys to the handcuffs that attached him to
the hitching post.”186
C. Fourth Amendment cases on pain compliance
The distinction discussed in Ort and Hope appears in Fourth Amendment cases
discussing when and whether police may permissibly inflict pain to force passive nonviolent
protesters to comply with lawful orders. In Forrester v. City of San Diego,187 the plaintiffs
asserted that police officers used excessive force when arresting peaceful but passively
noncompliant anti-choice demonstrators who blocked the entrance to an abortion clinic. Instead
of dragging or carrying noncompliant arrestees from the clinic entrance, police intentionally

183

536 U.S. 730 (2002).
Id. at 734-35, 743-44.
185
Id. at 743.
186
536 U.S. at 744. The Court’s did not hold that prison officials could constitutionally employ the hitching post as
a valid coercive measure so long as prisoners could be released when they agreed to comply with orders. The Court
relied on the distinction in Ort to demonstrate that prior case law made apparent the impropriety of the punitive use
of the device.
187
th
25 F.3d 804 (9 Cir. 1994),
184

37

applied pain by using Orcutt Police Nonchakus (OPNs) and painful pressure-point holds.188 The
officers forced the protesters to move by tightening OPNs around their wrists until they complied
with orders to stand up and walk to the waiting police vehicles. The jury ruled for defendants,
and the Ninth Circuit affirmed in a 2-1 decision.
The court rejected the dissent’s argument that the pain-compliance techniques were the
equivalent of applying lighted cigarettes to the protesters’ skin:
“Unlike the use of a lighted cigarette, which would create immediate and searing
pain, the discomfort produced by the OPNs was gradual in nature. . . . [T]he
police first applied a loose grip and then progressively tightened their hold until
the demonstrators stood and ceased resistance. The moment the demonstrators
complied, the police released the OPNs.”189
Thus, in Forrester, the force that was applied, and the accompanying pain inflicted,
increased only gradually, and the protesters had the power to end the pain immediately by
complying with police orders.
The Ninth Circuit distinguished Forrester in a later case where police applied OC
spray as a pain-compliance technique to force environmentalist protesters to comply with
police orders to release themselves from lock-down devices called “black bears.”190
Police used Q-tips to apply pepper spray directly to protesters’ eyes and also sprayed
them directly in the face from a few inches away.191 Unlike the pain-compliance
technique in Forrester, the use of pepper spray caused “’immediate and searing pain’ that
could not be moderated by the officers at their discretion or terminated by them the

188

Id. at 805. The Court explained that OPNs are “two sticks of wood connected at one end by a cord, used to grip a
demonstrator’s wrist.” Id.
189
Id. at 808 n.5.
190
th
Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199-1201 (9 Cir. 2001). Without
protesters’ voluntary compliance, police had to forcibly remove the “black bears” by using a hand-held electric
grinder that can cut through steel. Id. at 1191.
191
Id. at 1192-95.

38

moment the protesters complied with their demands.”192
D.

Analyzing tasers as a pain-compliance technique

How would courts apply these decisions to a case in which law enforcement officers use
tasers to overcome passive resistance or passive noncompliance to orders?

There is nothing

gradual about the tasers. They pain they inflict is not only “immediate” and “searing,” but is
probably more intense and overwhelming than the pain imposed by OC spray. On the other
hand, the recovery period with tasers is normally short. In contrast, the pain inflicted by pepper
spray lasts longer, until there is an opportunity to flush the chemical from the face.193
When tasers are used as a pain-compliance technique, the default five-second discharge
means that subjects do not have the “keys to the handcuffs.” They cannot terminate the pain
immediately by deciding to comply with orders. To the extent that the taser prevents the subjects
from exercising voluntary control over their muscles, they will be unable to comply with
orders.194 They may also unable to communicate their willingness to comply.
If the tasers are used in drive stun mode, however, they don’t cause the subjects to lose
control of their muscles. In addition, police can terminate the shock before the full five seconds
elapses, either by flicking a switch or, in drive stun mode, by removing the taser from the
subject’s body. Even so, using direct-contact stun guns to prompt compliance by means of
searing pain (and accompanying electrical burns) seems closer to the use of lighted cigarettes
that the Forrester court seemed to assume was impermissible.

192

Id. at 1200. The court concluded that the use of OC spray as a pain compliance technique to arrest nonviolent
demonstrators “can only be deemed reasonable force if the countervailing governmental interests at stake were
particularly strong.” Id. at 1205.
193
“Persons exposed to an ECW [an electroshock weapon] will typically recover in seconds or minutes, as compared
to a recovery time of almost one hour for pepper spray.” ECW Concepts and Issues, supra note 44, at 3.
194
Persons subjected to a taser shock “may not be able to respond to commands during or immediately following
exposure.” IACP Model Policy, supra note 67, Section IV.C.4.

39