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and CivU Rights
LAW REPORT

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Number 18

Volume 9

November/December 2010

The Anatomy of a Post-Tasering Death
By Lynne Wilson*
The Government of British Columbia's independent inquiry
into the circumstances surrounding Robert Dziekanski's death on
October 14, 2007, is the most comprehensive and illuminating
investigation conducted to date into the dangerousness of
Tasers or "conducted energy devices or weapons" ["CEDs
or CEWs"]. We in the United States will never see such an
enlightening window into a tragic death following police use
of Tasers and we can learn much from it. The British Columbia
["BC] Government appointed former British of Columbia
Supreme Court and Court of Appeals Judge Thomas Braidwood
to conduct a public inquiry into Dziekanski's death.' It gave
Judge Braidwood wide latitude as well as sufficient resources to
conduct it thoroughly and well. Mr. Dziekanski was a 40-yearold Polish man who was immigrating to Canada and waiting
for his mother at the Vancouver BC Airport. He died after police
used aggressive restraint procedures on him, including five
Taserings. His death was videoed and broadcast widely over
international media, creating a great public outcry2
Phase I of Judge Braidwood's inquiry into Dziekanski's
death issued on June 18, 2009, made 19 recommendations
concerning police use of CEDs. The Executive Summary of
those recommendations was published in Volume 9, Number

*The author is a Seattle attorney who contributes
frequently to PMCRLR.
Police Miscondud and Civil Rights Law Report is published by
Thomson Reuters. 50 East Broad Street, Rochester NY 14694
ISSN 0738-0623

40835436

13 of Police Misconduct and Civil Rights Law Report (January/
February 2010). Phase II of Judge Braidwood's inquiry was
issued on June 18, 2010, and dealt with the circumstances
surrounding and cause of Dziekanski's death. It was issued after
61 days of publicly conducted evidentiary hearings, including
91 witnesses who testified under oath, and five days of closing
oral submissions. 3
Phase II also included Judge Braidwood's recommendation
that all police incidents involving death or serious harm be
investigated by an entirely civilian run Independent Investigation
Office ["110"] operated under the jurisdiction of the provincial
Ombudsperson, an office completely removed from the
police. 4 BCs Attorney General announced that the 110 will be
established and the Vancouver Police Chief is now asking that
its jurisdiction extend to all police complaints. 5
By far the most illuminating section of the Braidwood
Commission's Phase II Report is Part 7 entitled "The Cause of
Mr. Dziekanski's Death. "6 This is because of the light it sheds on
the medical mysteries and controversies surrounding the over
500 deaths that have occurred after police use of CEDs in North
America. 7
The only comparable publicly funded independent inquiry
into these deaths in the United States is the" Study of Deaths
Following Electro Muscular Disruption," an interim report of
a study conducted by the National Institute of Justice ["NW]

November/December 2010

I Volume 9 I Number 18

published in June 2008. 8 The NIJ interim study was
conducted by a panel of medical examiners, cardiologists,
emergency medicine experts, pathologists, and a
toxicologist. Although the NIJ panel admitted that many
aspects of the effects of CEDs on so-called" at-risk" (other
than normal healthy) individuals remain unknown, its
interim conclusion is that "there is no conclusive medical
evidence within the state of current research that indicates
a high risk of serious injury or death from the direct
effects of CED exposure" as long as law enforcement
uses the weapons in accordance with nationally accepted
guidelines. 9
The NIJ panel noted that many of the deaths following
CED exposure involved "repeated or continuous exposure
of CED to an actively resisting individual" who may also
have been" under drug intoxication or in a state of excited
delirium." However, the panel declined to postulate as to
the role of CEDs in causing death in these cases, simply
noting that the associated risks are unknown and urging
caution in using "multiple activations of CED as a means
to accomplish subdual. "10
The Braidwood Commission's investigation into the
death of Robert Dziekanski gives us much additional
knowledge about the causes of these tragic deaths. What
follows is a summary of the facts and circumstances
surrounding Mr. Dziekanski's last few hours as presented
in the Phase II report and an edited version of Part 7, "The
Cause of Mr. Dziekanski's Death."

Mr. Dziekanski's Pre-Tasering Status
and Entry into Canada ll
That Robert Dziekanski was an "at risk" person before
police approached him at the Airport is well documented
in the report. He had lived his entire life in Poland before
deciding in 2007 to move to Canada after his mother
immigrated there. He spoke only Polish and had never
flown in an airplane. In the days preceding his departure,
he grew increasingly anxious about flying and on the night
before his departure, he began to panic. Friends described
him as "shaking, vomiting and clinging to a heat radiator
in the apartment." He was nervous about turbulence
and his inability to speak English. He did not sleep for 48
hours before departing for Canada. Friends described him
as physically fit, a moderate smoker, and a social drinker
who used no drugs. Trained as a typesetter, Mr. Dziekanski
planned to start his own construction business in Canada
once he learned English.

2

Police Misconduct and Civil Rights Law Report
Mr. Dziekanski calmed down when he finally arrived at
the airport. He had two unremarkable flights to Canada,
although it was not clear whether he had been drinking
before or during the flights. Airline personnel on the 10hour flight from Frankfurt to Vancouver described him as
"a little bit helpless" but very polite and thankful. One
passenger noted that he slept a lot and was otherwise
totally inconspicuous.
Mr. Dziekanski arrived at the Vancouver Airport at
3:15 p.m. on Octooer 13, 2007. A "customer service"
greeter attempted to speak with him as he got in line to
go through Customs. He seemed calm but had "a small
sheen of perspiration over his lips." A Customs officer
helped him locate a Polish translation of the customs
form and he spent time attempting to understand it while
wiping perspiration from his face repeatedly. Another
employee described him as having a "disturbed look
on his face" but he showed no signs of impairment,
aggression, or agitation. Finally, a Border Services officer

*

Police Misconduct and Civil Rights Law Report
is prepared under the auspices of the
National Police Accountability Project
Published bimonthly by Thomson Reuters
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Subscription: $571.00 for six issues
© 2010 Thomson Reuters ISSN 0738-0623

Editorial Board
Ben Elson, G. Flint Taylor, Clifford Zimmerman
Issues and Recent Cases Co-Editors
Ben Elson, G. Flint Taylor, Clifford Zimmerman
Publisher's Staff
Andrea Nadel, Attorney Editor
Specialty Composition
Thomson Reuters, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered.
However, this publication was not necessarily prepared by persons licensed
to practice law in a particular jurisdiction. Thomson Reuters are not engaged in rendering legal or other professional advice, and tis publication is
not a substitute for the advice of an attorney. If you require legal or other
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other professional.

© 2010 Thomson Reuters

Police Misconduct and Civil Rights Law Report
helped him fill out the form, scanned his passport and
visa, and motioned for him to proceed to "secondary
immigration and customs processing." This second level
of processing was necessary when there was a language
issue. The officer recalled that he had "sweat rolling down
and dropping off his chin" but that he was courteous. She
completed her processing of him at 4:09 p.m.
For the next six hours, Mr. Dziekanski apparently hid
himself somewhere in the Customs Hall of the Vancouver
Airport, an area that is closed to the public, to catch
some sleep. None of the closed circuit cameras in the Hall
showed him wandering around during that time. Around
10:30 p.m., a Secondary Customs officer finally interacted
with him. He was not sweating at that time. About
two hours later, the Border Services officer saw several
other Customs officers standing with Mr. Dziekanski. He
appeared calmer and was not sweating.
In the meantime, Mr. Dziekanski's mother arrived at the
airport at 1:20 p.m. with a neighbor. She and the neighbor
anxiously waited in the Public Meeting Area of the airport,
attempting numerous times to find out where he was
from various information officers. No one was able to give
her any information. After an immigration officer told her
that her son was not at the airport, she and the neighbor
left at around 10:00 p.m., planning to return the next day.
A few hours later, as Mr. Dziekanski was being
processed through Secondary Customs, an officer paged
for his mother in the Public Meeting area but there was
no response. She also called his mother at her home and
left a message. Mr. Dziekanski repeatedly asked for a glass
of water and appeared distracted and visibly fatigued. He
was perspiring but otherwise calm.
Another officer who saw Mr. Dziekanski at this time
stated that he appeared to be drunk. Another noted that
he looked tired, his eyes were red and he would talk to
himself and pace around the room. Numerous officers
attempted to communicate with him but without an
interpreter present, they could not do so.
Mr. Dziekanski did not clear Canadian Immigration and
leave the Customs Hall until 12:40 a.m. on October 14,
2007. An officer led him to the International Reception
Lounge, a secured area just before the Public Meeting
Area that his mother had just left a few hours before. At
this point Mr. Dziekanski was unsteady and stumbling. At
about 2:00 a.m., his mother called the immigration officer
who had left the message and an attempt was made to
locate Mr. Dziekanski. By this time, he was lying on the

© 2010 Thomson Reuters

November/December 2010

I Volume 9 I Number 18

floor and paramedics were attempting to revive him.
Thirty seconds later, they pronounced him dead.
Judge Braidwood concluded based on the testim6ny
and evidence he received that by the time he reached
Vancouver, Mr. Dziekanski was fatigued, confused, and
stressed. He also found that although some witnesses
claimed that he appeared to be intoxicated, the evidence
confirmed that Mr. Dziekanski was not intoxicated.
Similarly, although some of his behaviors were unusual,
none of those:~ho attempted to interact with him felt
threatened by him. He was aware of time and place, and
appeared to understand what people were telling him or
asking of him.

lay Witness Testimony Regarding Police
Restraint of Mr. Dziekanski 12
Between 12:40 a.m. and about 1:30 a.m. when police
officers arrived, Mr. Dziekanski wandered about between
the International Reception Lounge and the Public Meeting
area of the airport with his suitcases on a luggage cart.
He appeared to be disheveled, looking for something and
was hitting the glass doors between the two areas with
his hands. A cart attendant tried to help him and then
asked a limo driver to call security when Mr. Dziekanski
would not respond. The security guards came and tried to
help but could not so they called the police.
Mr. Dziekanski, who by this time appeared angry and
distraught, smashed achair against the glass doors. He also
barricaded himself into the secured area with chairs and
suitcases. A corporate valet who was waiting for a client
called 911 to tell them that a man was "freaking out."
He later told Judge Braidwood that he did not personally
feel threatened. One witness described him as sweating,
with perspiration all over his face and making "rrr, rrr,
rrr" sounds, but basically not in a threatening manner.
Witnesses reported that he was throwing computers and
chairs around and breaking glass.
Four Royal Canadian Mounted Police ["RCMP"] officers
arrived. Bystanders informed them that Mr. Dziekanski did
not speak English, that he appeared to be drunk and to
also be asking for the police. Some of the officers vaulted
over a handrail to approach him.
One bystander heard a police officer say something
about "Taser" and another respond "Okay." The officers
formed a half circle around Mr. Dziekanski and he looked
relieved. One officer approached Mr. Dziekanski and said
"Hi, how are you, sir? How's it going, bud?" Another
officer motioned that he wanted to see his identification

3

November/December 2010

I Volume 9 I Number 18

and Mr. Dziekanski made a tentative gesture toward his
suitcases. Then another officer told him to "stop." The
Corporal in charge then motioned toward the counter to
get him to put his hands there.
Mr. Dziekanski moved away from the officers and then
toward the counter. He then held both arms up in the
air. In one hand was a stapler and the other hand was
clenched into a fist. According to one civilian witness,
he did not make a movement toward the officers and
according to another, he moved away.
At that point, one of the officers deployed his Taser
on Mr. Dziekanski and he fell to the ground. Three other
officers moved in and struggled with him to get the
handcuffs on. He was lying on his stomach with his head
turned. One officer had his knee on Mr. Dziekanski's neck
and upper back between his shoulder blades. His hands
began to turn blue. A security guard manager stepped in
when he saw Mr. Dziekanski banging his legs extremely
hard on the floor. He moved in and held his legs with his
hands to prevent him from hurting himself further.
A few seconds later, Mr. Dziekanski stopped making
any movement. One of the officers rolled him onto his
side into the "partial recovery position." By 1:35 a.m., an
ambulance had been called by airport security. Because
police reported that Mr. Dziekanski was now unconscious,
the call was upgraded to a "Code 3" emergency. The
security guard manager checked Mr. Dziekanski's carotid
artery pulse three times. By the time the paramedics
arrived, Mr. Dziekanski had turned from blue to grey.
Judge Braidwood made a number of conclusions
concerning the situation the police faced when they
encountered Mr. Dziekanski based on the testimony
received. Among them was that even though Mr.
Dziekanski was distraught and acting in a bizarre manner,
no one who approached him felt threatened or afraid. In
addition, Mr. Dziekanski did destroy two items of Airport
property, a small wooden table and a computer monitor.

RCMP, Firefighter, and Paramedic
Testimony Regarding the Incident
and Taserings 13
According to testimony from the officers, the videotape
of the incident taken by a young man in the waiting area
and the data ports of the Tasers used that night, Mr.
Dziekanski was Tasered five separate times. No one recalls
that warnings were given and Mr. Dziekanski would not
have understood them in any event. The officers described
him as being "combative" and "resistive" although they

4

Police Misconduct and Civil Rights Law Report
later admitted that his behavior could be explained as
simple fear. The officers did not recall smelling liquor on
his breath.
One officer stated that he thought Mr. Dziekanski
was experiencing "excited delirium," given his extreme
behavior and what appeared to be superhuman strength.
He indicated that he had been trained to use a Taser in
these circumstances, to subdue the person as quickly
as possible with the "lowest level of force possible, in
order to give this p~1son the best chance of surviving."
The Corporal on the scene later used the term "excited
delirium" to justify deployment of the Taser.
RCMP Constable Millington was the only officer who
had a CED with him, although two other officers had been
trained in their use. Mr. Dziekanski was standing in front
Df the officers with his fists clenched and a stapler in one
hand, allegedly "yelling and screaming." Officers testified
that they considered the stapler a weapon, that he had
the intent to use it against them, was aiming it at them,
"advanced" toward them with it, and that they needed
to act accordingly. Four seconds after Mr. Dziekanski
picked up the stapler, Constable Millington Tasered him in
"probe" mode for six seconds. One of the probes lodged
in his chest area and the other attached to the lower part
of his jacket which was flapping against his body.
On the first Tasering, Mr. Dziekanski did not immediately
fall to the ground although the video reveals that he
did fall by the end of the first six second Tasering. One
officer described him as "fighting through" the effect of
the Taser. One second after the first Tasering, Constable
Millington Tasered him again for five seconds. By this time,
Mr. Dziekanski had released the stapler and was on the
ground writhing and screaming.
The three other RCMP officers who arrived at the scene
then moved in to subdue and restrain Mr. Dziekanski. He
was lying on his chest with both arms underneath his body,
kicking his legs. One of the officers said "Hit him again,
hit him again." Constable Millington Tasered him a third
time for five seconds. He then Tasered him in "push-stun"
mode twice on the back of his shoulder in an attempt
to get pain compliance, once for nine seconds and once
for six seconds. The three officers were eventually able to
handcuff Mr. Dziekanski.
After the handcuffing, Mr. Dziekanski continued kicking
with his legs for five to 15 seconds and then stopped. He
was lying on his chest, breathing heavily. One of the officers
rolled him onto his right side to do a pat down search.
At this point, he was still breathing heavily and making a

© 2010 Thomson Reuters

Police Misconduct and Civil Rights Law Report
snoring sound. His face had turned blue. Firefighters and
then paramedics arrived and the handcuffs were removed.
One of the RCMP officers realized that Mr. Dziekanski was
unconscious and called for Emergency Health Services.
Firefighters arrived to the scene 12 minutes after the
last Tasering. The firefighter who arrived first found Mr.
Dziekanski lying motionless on his chest in the prone
position with his face turned to the left. He was handcuffed
behind his back. The RCMP officers were standing about
10-15 feet away but no one was at his head. A firefighter
assessed that he was unconscious, not breathing and had
no pulse. Firefighters were not informed that he had been
Tasered multiple times or had turned blue. They asked to
have the handcuffs removed but were told by one officer
"He's been violent. We're not going to take the cuffs off."

o

Paramedics then arrived and were informed that he had
been Tasered three times. They insisted that handcuffs be
removed in order to properly assess the patient. When Mr.
Dziekanski was finally rolled over, a paramedic assessed
that he was in "cardiac arrest" and that he did not think
he was alive. The firefighters started CPR. A defibrillator
was activated but the device announced "no shock
advised," indicating that there was no heart rhythm.
CPR was continued for another 20-25 minutes until Mr.
Dziekanski was pronounced dead.

Non-Medical Expert Testimony14
Judge Braidwood also heard extensive testimony from
experts. These included three video analysis experts, a
Polish translator, a Taser expert, and four use-of-force
experts.
A video expert gave an opinion that based on a short
excerpt from the video taken by a civilian witness in the
waiting area, Mr. Dziekanski did move towards the officers
with the stapler. However, the other two video analysis
experts stated that his opinion was not "technically
supportable. "
The Taser expert concluded based on the data port entries
and the video that the first two Taserings did not have a
full impact on Mr. Dziekanski. The Taser expert agreed that
Mr. Dziekanski's "flailing and hyperactive reactions" while
on the floor "were consistent with involuntary spasm
caused by the deployment of the weapon."
The Polish translator testified regarding his translation
of what Mr. Dziekanski said during portions of the video.
During his agitated state while throwing a table and
computer monitor around, he made statements such as
"I will trash this office. Fuck off. I will smash the glass. 1

© 2010 Thomson Reuters

November/December 2010

I Volume 9 I Number 18

will smash the entire desk. Leave me alone everybody. Go
away I said. For fuck's sake." As security officers arrived, he
asked "So you will not let me go? You will not let me out
of here?" As the police are approaching him, he can be
heard saying "Police, police" and then "Leave me alone,
leave me alone! Have you gone insane? Why? Why?"
One use-of-force expert concluded that the "actions
of the officers in this incident represent a reasonable
escalation and de-escalation of force based upon the
actions of the su'~ect." Their use of the CED was consistent
with their training under "the Force Options Theory
contained within the Incident Management/Intervention
Model (I Mil M), which advocates that officers are not
required to incrementally escalate through all categories
of force options before they determine the appropriate
use-of-force response."
The second use-of-force stated that officers were trained
to use a CED when a subject was demonstrating active
resistance. However, officers are also taught that "there's
no medical information that is available that supports that
it's a cause of death or that it has a direct relationship on
core body functions such as cardiac care or respiration, [or]
that increased exposure does carry increased risk."
The third use-of-force expert was a retired RCMP
sergeant who had testified as an expert witness in
numerous BC court cases. He indicated that a major factor
in assessing use of force is the ratio between officers and
subject which in this case was four to one. This expert
also stated that he did not see the reason for the second
through fifth deployments of the CED. He also pointed
out the confusion created when more than one officer
is communicating with a suspect about what is expected
even if there is no language barrier.
Finally, Judge Braidwood heard from apolice psychologist
who has acted as a consultant to the FBI and the RCMP.
He was accepted as an expert in the use-of-force from
a crisis intervention perspective. Given Mr. Dziekanski's
state of hyper-arousal, the officers' objective should have
been to start out with low intensity to help him regain his
cognitive organization. Forming a semi-circle around him
and putting their hands on their weapons was not only
inconsistent with getting him to calm down but bound
to "stimulate reactive behavior." Using a Taser repeatedly
was going to a force level "designed to overwhelm,
dominate, or destroy."
Judge Braidwood made a number of factual findings
based on this testimony. One of them was that Mr.
Dziekanski's movement of throwing his hands up, then

5

November/December 2010

I Volume 9 I Number 18

moving toward the counter and away from the officers
was not made in defiance of them. Rather, he was simply
acting out of frustration at being given contradictory
instructions by two of the officers.
Another was that Mr. Dziekanski did not" brandish" the
stapler either by placing it above his head or motioning
with it in an aggressive manner toward any of the officers.
These actions did not appear on the video. He further did
not believe that any of the four officers actually thought
that Mr. Dziekanski was brandishing the stapler.
In addition, Mr. Dziekanski did not step towards one
or more of the officers while clenching the stapler.
He found the testimony of one forensic video analyst
that Mr. Dziekanski did so not supportable because
his methodology was flawed and because he did not
have the technical expertise necessary to make such a
determination.
Further, Judge Braidwood found that Constable
Millington was not justified in deploying the CEW against
Mr. Dziekanski, given the totality of the circumstances
he was facing at that time. Similarly, the Corporal on the
scene was not justified in instructing him to do so. He
found that neither officer honestly perceived that Mr.
Dziekanski was intending to attack them or the other
officers. He found unsupportable two of the use-of-force
expert opinions that the force used was justified in part
because the video did not support a conclusion that Mr.
Dziekanski was aggressive or combative. Even if it is true
that he had damaged some property before the officers
arrived, he had not shown any aggression toward any
person and showed no signs of aggression or hostility to
the officers.
Judge Braidwood also found the model used by these
experts to evaluate the officers' conduct was a "forcecentric" one that invited officers to evaluate a situation
entirely from a "what type of force should I use to respond
in order to control the situation" perspective. The model
has no room for whether the person was emotionally
disturbed or mentally ill and contained no expectations of
officer empathy or use of nonforce intervention.
With respect to the multiple Taser deployments, Judge
Braidwood rejected the officers' justification that they were
necessary because Mr. Dziekanski appeared to be fighting
through the electrical discharge. Rather, any reasonable
viewer of the video would conclude that he was reacting
to the extreme pain of the weapon's discharge. This was
not resistive behavior that could justify repeated Taserings.

6

Police Misconduct and Civil Rights Law Report
Judge Braidwood also found that one of the officers
did apply force to Mr. Dziekanski's neck when he was on
the ground "when such force was not justified, given the
totality of the circumstances he was facing at that time."
He made this finding based on what is shown in the video
and in spite of the officer's adamant denial that he did so.

The Cause of Mr. Dziekanski's Death 15
Judge Braidwood heard opinion testimony or reviewed
....
written opinion testimony from 13 medical experts: Four
forensic pathologists (Drs. Charles Lee, Vincent De Maio,
Michael Pollanen, and John Butt), three cardiologists (Drs.
Charles Swerdlow, Charles Kerr, and Zian Tseng), three
emergency department physicians (Drs. Christian Sloane,
Jeffrey Ho, and William Bozeman), two psychiatrists (Drs.
Shaeo-Hua Lu and Paul Janke), and an epidemiologist (Dr.
Keith Chambers). He also heard from an electrical engineer
(Dr. Dorin Panescu). Two of these experts (Drs. Ho and
Panescu) are paid consultants for TASER International, Inc.
Dr. Lee performed an autopsy on October 16, 2007.
Dr. Lee found that Mr. Dziekanski had a very fatty liver,
atrophy in the cerebrum and cerebellum parts of his brain,
and a partially enlarged heart with some cardiomyopathy.
These findings were consistent with chronic alcohol use
but could not alone explain his death. The toxicology
analysis was negative for any drugs or alcohol. There was
thus no anatomical or toxicological cause of death. When
he was asked about the significance of one of the officer's
knees being placed on the back of Mr. Dziekanski's neck,
he said: "I don't think that played a significant role since
he was still struggling, he was still moving around, and
he was still somewhat vocalizing, which indicates that he
was still able to breathe." Overall, Mr. Dziekanski was in
reasonable health.
Dr. Lee listed as the principal cause of death "Sudden
Death During Restraint" due to or as a consequence
of "Chronic Alcoholism." Dr. Lee stated that although
Mr. Dziekanski had no alcohol in his blood at the time
of his death, "the changes to his organs due to chronic
alcoholism could have made him more susceptible to the
development of a lethal arrhythmia." The cardiomyopathy
also would not have caused death by itself. although
it would have put him at greater risk of an arrhythmia
and sudden death. It also would have made him more
susceptible to other stressors such as lack of food, water,
or sleep, recent cessation of smoking or alcohol and being
alone at the airport for eight or more hours.
Dr. Lee stated that two types of restraint contributed
eventually to Mr. Dziekanski's death, the Taser and the

© 2010 Thomson Reuters

Police Misconduct and Civil Rights Law Report
"tackling of the individual by the RCMP officers." He also
stated that there was no single cause of death: The stress
of the physical restraint along with the decreased ability to
breathe as a result of being pinned in the prone position
may have been enough to elicit a fatal arrhythmia. He may
also have been suffering from alcohol withdrawal, which
may partly explain his agitation. It was likely a combination
of these factors that led to his death. Therefore, the cause
of death is best described as sudden death following
restraint.
Dr. Lee agreed that there are known behaviors and
patterns that are associated with "sudden death during
restraint." These include: subjects who are males between
20 and 50 years of age, agitated behaviour, collapse
shortly after restraint, sweating, wide eyes, irrational
behaviour, and barricading. Dr. Lee had not been told that
Mr. Dziekanski had been Tasered multiple times, although
he indicated that the information would not have changed
his findings.
After hearing and carefully weighing all of the medical
expert testimony and submissions, Judge Braidwood
came to far different conclusions. The following is an
edited version of Judge Braidwood's findings of fact and
conclusions concerning the cause of Mr. Dziekanski's
death. The full version is located at pp. 320-338 of Part 7
of his Phase II Report.
Judge Braidwood concluded that Mr. Dziekanski died
at most 75 seconds after he was handcuffed, and at most
two minutes after the completion of the third probemode deployment of the conducted energy weapon.
"Mr. Dziekanski went into cardiac arrest first, then went
unconscious, and finally showed signs of cyanosis [blue
coloration of skin due to lack of oxygen in the blood], all
within 75 seconds of being handcuffed."
Judge Braidwood went through four separate "likely
mechanisms" that might have led to Mr. Dziekanski's
tragic death: (1) pre-existing heart disease plus
accumulated stress; (2) weapon-induced direct capture of
Mr. Dziekanski's heart; (3) "sudden death during restraint"
and/or "excited delirium"; and (4) the hyperadrenergic
state arising from the weapon deployment and physical
altercation.
Pre-Existing Heart Disease Plus Accumulated Stress.
Some of the experts suggested that Mr. Dziekanski's
accumulated stress and agitation could have triggered
(before the arrival of the RCMP officers) a hyperadrenergic
effect, whereby his system was flooded with adrenaline
and catecholamines [stress hormones], and that this

© 2010 Thomson Reuters

November/December 2010

I Volume 9 I Number 18

reaction, coupled with his pre-existing medical condition,
could have overwhelmed his heart, leading to cardiac
arrest. While Judge Braidwood was satisfied that the
hyperadrenergic effect is crucial to an understanding of his
death, he was not persuaded that the scenario adequately
explains his death, for several reasons.
First, Judge Braidwood was not convinced that Mr.
Dziekanski had alcohol cardiomyopathy [weakening of
the heart muscle]. Microscopic examination of sections
of the heart d~ not confirm it. Second, he was not
persuaded that Mr. Dziekanski was experiencing alcohol
withdrawal after his arrival in Vancouver. Third, he found
more persuasive one psychiatrist's opinion that based
on the evidence, Mr. Dziekanski was not experiencing
delirium tremens. Fourth, the accumulated stresses and
any pre-existing medical conditions did not on their own
cause a fatal arrhythmia.
Weapon-induced Direct Capture of Mr. Dziekanski's
Heart. There was no dispute that an externally originating
electrical current can capture a person's heart. This can
sometimes result in ventricular fibrillation where the
ventricles beat chaotically at about 300 beats per minute.
Blood is not pumped throughout the body, the person
inevitably collapses into unconsciousness within 5-15
seconds, and if the heart is not defibrillated within a few
minutes, the person will die. In recent years an intense
debate has developed around whether the electrical
current from a conducted energy weapon can trigger
ventricular fibrillation.
At the evidentiary hearings, several medical experts
testified that no human volunteer studies have
documented this phenomenon. To the contrary, other
medical experts cited anecdotal cases and extrapolated
from animal studies where anesthetized swine went into
ventricular fibrillation under certain conditions. It is fair to
say that if capture of the heart and ventricular fibrillation
can result from a conducted energy weapon's electrical
current, three preconditions are likely necessarydeployment in probe-mode, placement of the two probes
across the cardiac axis, and a relatively small skin-to-heart
distance.
A recent study by Dr. Swerdlow (who testified at the
evidentiary hearings) included a significant finding that
supports the proposition that the electrical current from a
conducted energy weapon is capable of capturing the heart
and triggering ventricular fibrillation. 16 He determined
that one out of 56 subjects collapsed immediately after a
conducted energy weapon was deployed across his chest,
and the first cardiac rhythm presented was ventricular

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November/December 2010

I Volume 9 I Number 18

fibrillation. The subject had no drugs or cardiac pathology.
This is the first reported fatality suggestive of CEWinduced ventricular fibrillation.
For the purposes of his analysis, Judge Braidwood
assumed that the electrical current from a conducted
energy weapon is capable of triggering ventricular
fibrillation. The question to be addressed was whether it
in fact did so, leading to Mr. Dziekanski's death.
From his consideration of all the relevant evidence, Judge
Braidwood concluded that it is unlikely to have happened
in this case, for three reasons. First, the only relevant
deployments of the conducted energy weapon were the
probe mode deployments, and the time between the
completion of the third and final probe mode deployment
and Mr. Dziekanski's collapse into unconsciousness was
too long a time period. Second, it is not clear whether the
placement of the two probes was across the cardiac axis.
Third, even if the placement of the probes was across the
cardiac axis, it is not known how deeply the one below
the sternum embedded into his chest (if at all) or what
the distance was between the tip of this probe and Mr.
Dziekanski's heart.
"Sudden Death During Restraint" and/or "Excited
Delirium. " Several medical experts testified about a
phenomenon whereby a person exhibiting bizarre behavior
will sometimes die soon after being restrained, for no
apparent reason. Typically, such a person will act irrationally,
will be unaware of their surroundings, will not be capable
of complying with demands, will be hyperthermic, will
often disrobe in public, will be impervious to pain, and
will exhibit superhuman strength. Almost always, they will
be intoxicated with an illicit stimulant such as cocaine and
will have a history of serious mental illness. The medical
experts indicated that the mechanisms of such deaths
are not well understood, and that the terms "sudden
death during restraint" and" excited delirium" have been
coined as a way of clustering such similar deaths for future
research purposes.
In Judge Braidwood's view, neither term was of much
assistance in attempting to ascertain how Mr. Dziekanski
died. They are at best descriptive of the cluster of physical
symptoms and actions that often surround such deaths,
but do not provide any insight into the mechanism of
such deaths. For example, ascribing a death to "sudden
death during restraint" gives no greater insight into the
underlying medical cause of death than would "sudden
death during a car accident." The same can be said for
"excited delirium." It may be a convenient label to cluster
frequently recurring physical conditions and activities,

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Police Misconduct and Civil Rights Law Report
but offers no guidance as to the underlying physiological
mechanisms that caused the death.
In addition, Judge Braidwood did not think that either
of these postulated conditions had any application to this
case, since Mr. Dziekanski was aware of his surroundings,
complied with directions, was neither impervious to pain
nor intoxicated with an illicit drug such as cocaine, and
had no history of serious mental illness.
The Hyperadrenergjc State Arising from the Weapon
Deployment and Physical Altercation. Since the stress and
fatigue that accumulated before, during, and after Mr.
Dziekanski's trip to Canada, and any pre-existing medical
condition, did not collectively trigger his cardiac arrest, the
logical question is then whether his subsequent interaction
with the four RCMP officers did. "Interaction" refers
to the multiple deployments of the conducted energy
weapon and the physical wrestling that culminated in Mr.
Dziekanski being handcuffed. The interaction with the
officers took 75 seconds, and he likely went into cardiac
arrest within the next 25 seconds.
Many of the medical experts discussed the
"hyperadrenergic effect." After reviewing their evidence,
Judge Braidwood concluded that there was a refreshing
degree of consensus that the hyperadrenergic effect plays
a pivotal role in understanding how Mr. Dziekanski died.
The effect refers to the adrenaline that flows through the
body whenever the body is in a stressful or dangerous
situation. Pain can significantly increase the adrenergic
response. The outflowing of adrenaline increases blood
pressure and heart rate, which can potentially lead to an
arrhythmia. Any cofactor that increases agitation or induces
additional stress exacerbates the mechanisms leading to
death. The mechanism precipitating the fatal arrhythmia
in Mr. Dziekanski was most likely a hyperadrenergic state
due to elevated levels of catecholamines produced by
autonomic hyperactivity, psychomotor agitation, anxiety,
and the struggle.
Another dimension to this hyperadrenergic effectacidosis-must also be considered. Respiratory acidosis
develops when metabolic activity results in a build-up of
carbon dioxide, but the body is unable to exhale it because
of a cessation of breathing. The carbon dioxide builds up
in the blood and the subject can die. In metabolic acidosis,
lactic acid is generated when muscles work very hard and
do not get sufficient oxygen transported to them. Normally
a body gets rid of lactic acid by transporting it to the liver,
where it is converted into carbonic acid, which is the acid
that the lungs can then breathe out as carbon dioxide.
However, if the person has liver disease, it will take longer

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Police Misconduct and Civil Rights Law Report
for the liver to convert the lactic acid to carbonic acid. In
addition, if the person is not breathing well, the potential
for being acidotic is greater.
Judge Braidwood was satisfied that the hyperadrenergic
response, which was significantly exacerbated by Mr.
Dziekanski's interaction with the RCMP officers, was
the most likely cause of Mr. Dziekanski's death. He also
concluded that acidosis played a part as well.

November/December 2010
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I Volume 9 I Number 18

The NIJ study is found at http://www.ncjrs.gov/pdffiles1/nij/222981 .

.Pdf. A final report has not yet been issued.
9. NIJ Interim Report at pp. 2-3 referencing Electronic Control Weapons,
a model policy of the International Association of Chiefs of Police referenced
at pp. 11.
10. NIJ Interim Report at p. 4.
11. This section is a partial summary of Phase II of Braidwood Commission
Inquiry Report at Part 3 [Mr. Dziekanski's Trip to Canada] at pp. 47-52 and Part
4 at pp. 49-79
12. This section is a partial summary of Phase II Part 5 at pp. 85-112.

Judge Braidwood commented that it would defy
common sense to conclude from all the evidence that the
physical altercation exacerbated the hyperadrenergic state
that led to Mr. Dziekanski's fatal cardiac arrhythmia, but
that the multiple deployments of the conducted energy
weapon played no part. It is beyond dispute that a single
five-second deployment of the weapon causes intense,
extreme pain, as well as emotional trauma. Multiple
deployments, even if intermittent, only compound that
pain and trauma.
The evidence did not allow him to conclude, with
mathematical exactitude, how much the weapon and the
physical altercation contributed to the hyperadrenergic
state that led to Mr. Dziekanski's death. However, Judge
Braidwood considered it to be a reasonable inference
to be drawn from all the evidence that the multiple
deployments of the conducted energy weapon played the
more prominent role.

ENDNOTES
1. The BC Government appointed Judge Braidwood under Be's" Public
Inquiry Act," S.B.C. 2007, c 9.
2. The entire 1O-minute video and audio of Dziekanski's difficulties at the
Airport, encounter with police and subsequent death can be viewed at http://
www.youtube.com/watch 7 v-1CR k-dTnDU.
3. All of the Braidwood Commission reports, public hearing transcripts,
videos, and submissions can be downloaded from www.braidwoodinguiry.ca.
4. Braidwood Commission on the Death of Robert Dziekanski Phase II
Report at Part 1o-Postscript: Police Investigating Themselves at pp. 413 et.
seq. (Proposals for a Civilian-Based Investigative Body).
5. "Vancouver Police Chief Calls for More Oversight," CBC News (October
6, 2010) at http://www.cbc.ca/canadalbritish-columbia/sto[y!2010/10/06/bcvancouver-police-civilian-oversight.html. The 110 will have the authority to
appoint a Special Prosecutor in every case involving death or serious harm
who will make independent charging decisions.

13. This section is a ~rtial summary of Phase II Part 6 at pp. 125-193.
14. Supra n. 13 at pp. 193-269.
15. This section is a summary of Phase II Part 7 [The Cause of Mr.
Dziekanski's Death] at pp. 275-338.
16. Swerdlow, Charles, et al., "Presenting Rhythm in Sudden Deaths
Temporally Proximate to Discharge of TASER Conducted Electrical Weapons,"
(2009) 16 Academic Emergency Medicine, 1 at p. 8.

Disorderly (mis)Conduct:
The Problem with
"Contempt of Cop"
Arrests
By Christy E. Lopez*
The following article was originally published by the
American Constitution Society for Law and Policy as its June
2010 Issue Brief. The Police Misconduct and Civil Rights Law
Report is re-publishing the article in two parts. The first half
of the article appeared in Volume 9, Number 16 of PMCRLR
(July/August 2010). This issue includes the second halfof the
article, which outlines a meaningful response to the problem
of abusive enforcement of disorderly conduct-type laws.
*Christy E. Lopez is a civil rights attorney with a practice
focusing on police and criminal justice reform. She is
a former Senior Trial Attorney in the U.S. Department
of Justice Civil Rights Division and recently completed
a seven-year term as court-appointed monitor of the
Oakland (California) Police Department.

6. Located at www.braidwoodinguiry.ca/reportlP2 pdf/07-CauseOfMr
DziekanskiDeath .pdf#zoom-1 00.

V. Reducing or Eliminating Contempt of
Cop and Cover Arrests

7. A comprehensive list of all such deaths is maintained at the "Truth
Not Tasers" blog at http://truthnottasers.blogspot.com. Details of each death
were obtained from news reportS and from Amnesty International's December
2008 report detailing 334 such deaths found at http://www.amnesty.org. The
blog is maintained by the father and brother of Robert Bagnell who died
moments after being Tasered by police in Vancouver, BC in June 2004.

If we agree that contempt of cop and cover arrests are a
destructive and costly harm, the question then is whether
we can do anything to reduce or eliminate such arrests.
The answer is yes, but fixing this problem is not simple: it

© 2010 Thomson Reuters

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