Use of force, civil litigation, and the taser: one agency's experience.

Law enforcement's mission--to maintain peace and order--is a tenuous one complicated by a myriad of factors that seem unique to every situation officers must handle, whether quelling a disturbance or apprehending a suspect. This being the case, officers of the law sometimes are required to use force in the course of their duties, whether during an arrest or while protecting citizens, themselves, or other officers from harm. This force, when legitimately and properly applied, represents an essential element in maintaining an ordered society.

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THE PROBLEM

Use of force has tremendous implications for law enforcement officers and their agencies. Some of the unintended consequences may include civil disturbances, riots, property damage, political jeopardy, and civil liability for all interested parties. (1) Thus, use of force frequently may impact the development of public policy and how it is administered in practice. Current public policy requires officers in the field to use the minimum amount of force necessary to effect an arrest or quell a disturbance. However, even when such uses of force are ruled justifiable, they still, nonetheless, are subject to litigation, which appears to be on the rise.

A common theme in the extant literature concerning lawsuits against the police is that citizens are filing such legal actions more than ever before. Due to a number of court decisions, the litigious contemporary society, and a trend of holding public officials more accountable for their actions, lawsuits against the police have continued to rise since 1961. (2) According to the National Center for State Courts, between 1984 and 2000, the number of lawsuits filed nationally increased 40 percent in some courts and 21 percent in others. (3) It ranked Florida fourth nationally behind only California, Texas, and New York in total number of civil filings for 2000. And, between 1975 and 2000, the center reported that the number of torts filed in Florida Circuit Courts doubled. Other research has contended that police administrators and local government units are plagued by the likelihood of lawsuits and should expect this trend to continue. (4)

Contributing factors include legal and social changes over the past 20 years that have made lawsuits against the police more commonplace. (5) The growth of civil litigation against the police is attributed to two North American trends: 1) higher standards of accountability for public institutions and 2) an increasing willingness on the part of the public to file lawsuits. Society as a whole expects law enforcement to be more accountable, and legal changes have broadened the definition of police negligence. Law enforcement's response has varied, from adding new or rewriting existing policies to hiring full-time lawyers on staff. These responses, however, have failed to reduce the number of lawsuits filed against the police.

The city of Miami, Florida, has paid more than $19 million in civil liability claims to constituents since 1990 to resolve more than 110 federal and state lawsuits for actions by its officers. (6) This figure, however, represents a conservative estimate as another 70 currently are pending. Less quantifiable costs of lawsuits include salaries for legal staff; legal fees paid to outside lawyers; and other costs, such as court reporters and copying charges. Lawsuits fall into five general categories: false arrest, excessive force, shootings, wrongful death, and federal civil rights violations. (7) The city has responded by changing procedures to improve documentation of events and increasing training for its officers.

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Some agree that lawsuits and associated verdicts against officers across the country are growing. (8) For many decades, juries were predisposed to believe the police. High-profile incidents that cast the law enforcement profession in a negative light, however, have increased the public's skepticism. Those events, as well as the increased use of handheld video cameras by citizens, have contributed to jurors holding law enforcement officers increasingly accountable for personal injuries, deaths, and civil rights violations. The trend of disbelieving the police also appears to have led to swifter and larger pretrial settlements.

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One study traced the evolution of lawsuits against the police and attributed their rise to several court decisions stemming from the 1960s, 1970s, and 1980s that effectively peeled away the layers of protection afforded individual officers, their supervisors, law enforcement agencies, and municipalities. This, in turn, opened the door for a dramatic increase in the number of lawsuits filed against the police and in the resultant monetary awards, with the amount of damages reaching as high as $42 million. (9) One example lies in the U.S. Supreme Court decision of 1971 regarding Webster Bivens, wherein a search of his apartment was considered unconstitutional, thus allowing the officers to be held personally accountable for a constitutional tort. (10) As for monetary settlements, "the average award for the wrongful death of an adult male reached an all-time high of $3.5 million in 2000." (11) With so much at stake, research in this area will continue to be not only a worth-while endeavor but also a necessary tool for criminal justice agencies to make sound policy decisions.

The public's perception of the law enforcement community historically has been negatively impacted by the profession's use of force. (12) As the perceived level of force increases, public support significantly decreases. This reiterates the supreme importance of the development of policy because it frequently comes under public scrutiny, more often than not as a result of a use-of-force incident. While a substantial amount of literature on police use of deadly force exists, much less attention has been given to less lethal force. Use of force is the core role of policing and is the "distribution of nonnegotiated coercive remedies." (13) This force can take several forms, including "a simple verbal command or a light touch on the arm to encourage someone to move along or comply with an order, the use of a baton or Mace to control an individual, the use of the carotid restraint, or the use of deadly force." (14)

One problematic aspect of law enforcement involves dealing with individuals or groups where more than a show of force is required, yet deadly force is not the appropriate method of resolution. (15) To fill this gap, many agencies have turned to the development and use of less lethal technology. According to the British Home Office, less lethal technology "is a term carefully defined to encompass weapons and equipment, which, although less likely than firearms to result in a serious or fatal injury, nevertheless carry some degree of risk." (16) The growing unacceptability of deaths and injuries caused by or inflicted on law enforcement officers require new ways of handling conflict situations. Innovations in technology in the realm of less lethal weapons have become a significant part of the response to this trend. (17) One popular response has been the implementation of the Taser.

TASER AS AN ALTERNATIVE

The Taser (Thomas A. Swift's Electric Rifle) administers an electric charge that causes muscular dysfunction and temporarily incapacitates a suspect. An officer can fire two darts from the pistol-like weapon, causing 50,000 volts of electric current to pass into the subject's body. (18) The darts can reach from 15 to 21 feet. Early studies indicated that this weapon's effectiveness ranged from 50 to 85 percent. (19) However, significant improvements in design appear to have increased the weapon's effectiveness significantly because it does not rely on the conventional pain compliance approach of police tactics. (20) Currently, several models of the Taser with varying power levels exist in the law enforcement marketplace.

Rise in the Use of Taser

Today, 5,400 law enforcement agencies employ this electro-muscular device as a less lethal weapon. (21) The state of Florida has followed this trend. In the Orlando area alone, the majority of the law enforcement agencies, including the University of Central Florida Police Department, employ this technology.

In the Orange County Sheriff's Office (OCSO), the rise in the application of the Taser has been dramatic. Since its implementation in 2000, it has become the agency's most frequently used less lethal weapon. For example, chemical agents, physical force, and impact weapons accounted for less than 13 percent of the weapons used in 2003, while Taser use rose to almost 78 percent. This is important to note because the other less lethal tools were available, yet officers chose the Taser. Although no current studies exist that explain this shift, it seems that officers may have perceived the Taser as more effective and less likely to cause injury. (22) An analysis by OCSO reported a reduction of 50 percent in officer injuries, as well as 23 incidents where officers did not have to use deadly force to bring a confrontational situation to a peaceful resolution.

OCSO policy allows Taser use at a level three (passive physical) resistance, such as when a subject refuses to comply with a verbal command. However, the agency noted only a small number of deployments at this level. This begs the question: Is the Taser an appropriate response to a level three threat? (23)

The majority (69 percent) of OCSO Taser deployments occurred in response to level four (active physical) resistance. This suggested that officers might not have believed that the Taser was an appropriate response to level three (passive physical) resistance, but, instead, most advisable in situations involving level four (active physical) resistance. Unexpectedly and of great importance, 18 Taser deployments by OCSO personnel in 2003 took place when suspect resistance merited the use of deadly force, authorized both by law and OCSO policy. It remained unclear whether these deployments were a result of conscious decision or by opportunity (i.e., already having a Taser drawn), but they certainly warrant further research. Clearly, even in deadly force situations, officers considered the Taser an effective weapon. This bodes well for law enforcement professionals who, along the same line as medical doctors, take an oath to protect lives, not take them.

Recent Research

In an attempt to examine student perceptions of local law enforcement and its effectiveness, the University of Central Florida Police Department conducted a study in the spring of 2004 as part of its annual assessment of services. The study included key questions examining student perceptions of the use of force, including less lethal weapons. (24)

The researchers obtained a total of 1,200 completed surveys from the student population of approximately 41,000. In addition to the basic assessment of service, a number of questions relating to the appropriateness of specific less lethal force responses to a hypothetical law enforcement encounter were offered. One example stated, "A suspect violently resists arrest and attempts to injure law enforcement officers. How appropriate are the following responses on the part of the police?" The students reviewed the options and selected a number on the scale of 1 (very appropriate) to 9 (very inappropriate) that best reflected their opinions or checked a box indicating their unfamiliarity with the particular weapon employed in the scenario.

Perceptions toward less lethal weapons varied considerably. Students tended to consider the use of Mace and the Taser as more acceptable when compared against other less lethal force options. Surprisingly, this seemed to support the placement of the Taser at a level three resistance category, which remained consistent with its application by the OCSO. The researchers could not determine why students viewed other force options in a negative light. It may result from cultural or psychological perceptions that the "hands-on" approach, either with baton or empty hand, may possibly inflict more serious injuries. This finding will require additional study.

CONCLUSION

In this time of community-oriented policing, the use of less lethal technology clearly is the most socially acceptable and humane means of maintaining peace and order. In the event that officers employ less lethal technology and an injury results, the least offensive type of injury would be one of minimal severity. The use of the Taser and its placement on the force continuum appears consistent with public perception and law enforcement application. Both seem to view this technology as a proverbial "magic bullet," which has the ability to solve a wide range of law enforcement's problems.

Along with the rise in the use of the Taser, however, comes criticism. Because a number of suspects have died in custody after a Taser deployment, agencies must acknowledge the limitations and inherent liability associated with the technology, despite its ability to reduce deadly force scenarios and confrontations to less lethal engagements and situations. While this effective tool offers more flexibility to the officer in the field, it also carries the same potential hazards of chemical and impact weapons and, thus, the need for appropriate officer restraint.

While current studies have provided a degree of justification for a number of policy choices, substantial quantitative research must occur for proper policy analysis on this complex issue. This article constitutes a precursor to future less lethal research findings that the authors currently are examining. They hope that their endeavors will offer insight to the nuances of the force continuum and the resulting impact on law enforcement officers and their agencies.

Breakdown of Weapons

                        2001         2002          2003

    Weapon Type      No.  Percent  No.  Percent  No.  Percent

Chemical agent       221  41.9     103  14.1      51  7.76
Physical force        52  9.87      49  6.73      29  4.41
Impact weapon         13  2.47       8  1.10      13  1.98
Firearm                4  0.76       0  0.00       9  1.37
Impact munitions       2  0.38       0  0.00       3  0.46
K9                    48  9.11      57  7.83      67  10.2
Taser                228  43.3     535  73.5     510  77.63

Total uses of force  527           728           657

Note: Weapon type does not add to total uses of force because more than
one weapon may have been employed in the incidents.

Source: Orange County, Florida, Sheriff's Office

Taser Deployments by Level of Resistance

                                    No.  Percent

Level three:  passive physical      31      6
Level four:   active physical      332     69
Level five:   aggressive physical  100     21
Level six:    deadly force          18      4

Total Incidents                    481

Source: Orange County, Florida, Sheriff's Office

Student Perceptions of Less Lethal Weapons

Weapon       No.   Mean  Median

Mace        1,112  3.33   3.0
Taser       1,090  3.66   3.0
Dog trap    1,102  4.18   4.0
Choke hold  1,098  4.47   4.0
Baton       1,104  4.47   4.0
Beanbag     1,006  4.55   4.0
Empty hand  1,109  4.57   5.0
Dog bite    1,113  5.58   6.0

Note: Mean scores do not correspond to force continuum resistance
levels. Response categories range from 1 (very appropriate) to 9 (very
inappropriate).

Source: University of Central Florida Police Department Student
Assessment (2004).

Endnotes

(1) Mark Blumberg, "Police Use of Deadly Force: Exploring Some Key Issues," in Thomas Barker and David Carter, Police Deviance (Cincinnati, OH: Anderson Publishing, 1993).

(2) J. Bell, "Lawsuits Against Police Rising," The Hamilton Spectator (Ontario, Canada), April 18, 2001, sec. A, p. 8; D. Christensen. "Blood Money," Miami Daily Business Review. November 15, 2001, sec. A, p. 1; M. Fisk, "Juries Turning Sour Toward Police," Broward Daily Business Review, July 5, 2001, sec. A, p. 12; and C. McCoy, "Lawsuits Against the Police--What Impact Do They Really Have?" Criminal Law Bulletin 20, no. 1 (1983): 49-56.

(3) B. Ostrom, N. Kauder, and R. LaFountain, Examining the Work of State Courts, 2001: A National Perspective from the Court Statistics Project (Williamsburg, VA: National Center for State Courts, 2001).

(4) D. Ross, "Emerging Trends in Police Failure to Train Liability," Policing: An International Journal of Police Strategies and Management 23, no. 2 (2000): 169-193; A.R. Stafford, "Lawsuits Against the Police: Reasons for the Proliferation of Litigation in the Past Decade," Journal of Police and Criminal Psychology 2, no. 1 (1986): 30-34; and R. Worrall, "Administrative Determinants of Civil Liability Lawsuits Against Municipal Police Departments: An Exploratory Analysis," Crime and Delinquency 44, no. 2 (1998): 295-313.

(5) Supra note 2 (Bell).

(6) Supra note 2 (Christensen).

(7) Supra notes 2 (Christensen) and 4 (Ross); and M.R. Smith, "Integrating Community Policing and the Use of Force: Public Education, Involvement, and Accountability, American Journal of Police 13, no. 4 (1994).

(8) Supra note 2 (Fisk).

(9) Supra note 2 (McCoy).

(10) 403 U.S. 388 (1971).

(11) Cincinnati Enquirer, June 23, 2002; retrieved on August 5, 2004, from http://www.enquirer.com/editions/2002/06/23/loc_settlements_in.html.

(12) Supra note 7 (Smith); A. Pate and L. Fridell, Police Foundation, Police Use of Force: Official Reports, Citizen Complaints, and Legal Consequences (Washington, DC, 1995); and P. Montgomery, "Anger Long Is Rising Among Miami Blacks," New York Times, May 19, 1980, sec A., p. 1.

(13) E. Bittner, National Institute of Mental Health, The Functions of the Police in Modern Society (Chevy Chase, MD, 1970), 36.

(14) K. Peak, Justice Administration: Police, Courts, and Corrections Management (New York, NY: Prentice Hall, 2000), 248.

(15) National Institute of Justice, National Security Research, Inc., Department of Defense Nonlethal Weapons and Equipment Review: A Research Guide for Civil Law Enforcement and Corrections (Washington, DC, 2002); retrieved on June 29, 2004, from http://www.ncjrs.org/pdffiles1/nij/grants/200516.pdf.

(16) T. Donnelly, Less Lethal Technologies Initial Prioritization and Evaluation (Hertfordshire, UK: Police Scientific Development Branch, 2001), 1.

(17) B. Rappert, Nonlethal Weapons as Legitimizing Forces? Technology, Politics, and the Management of Conflict (London, UK: Frank Cass Publishers, 2003).

(18) D. Laur, Canadian Police Research Center, Taser Technology Research Paper (Victoria, BC, 2000).

(19) Supra note 16.

(20) Supra note 18; and Taser International Web site at http://www.taser.com.

(21) Taser International; retrieved on August 5, 2004, from http://www.taser.com/pages/pr/pr.html.

(22) The authors recognize that controversy recently has arisen regarding safety issues surrounding Taser use. However, such concerns fell outside the parameters of their research, which focused primarily on the type of force used, deadly versus less lethal, in response to the level of resistance.

(23) Recently, a number of chiefs of police in Orange County decided to raise the level of resistance from three to four for Taser use. See Pedro Ruz Gutierrez, "Taser Use Reined in by Policy Changes: Bar Raised on When to Use Stun Guns," Orlando Sentinel, July 15, 2004, sec. B, p.1.

(24) In some cases, OCSO provides service to the University of Central Florida, which is located in Orange County.

By STEVE HOUGLAND, Ph.D., CHARLIE MESLOH, Ph.D., and MARK HENYCH, Ph.D.

Captain Hougland serves with the Orange County, Florida, Sheriff's Office.

Dr. Mesloh, a former law enforcement officer, currently is an assistant professor at Florida Gulf Coast University in Fort Myers.

Dr. Henych works with a private research firm in Orlando, Florida.