The Target Zone, Policy & Training
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Analysis by Jack Ryan, Attorney
It is undisputed, however, that at some point shortly before Mr. Thomson was killed, he was aiming the gun in the direction of the officers. Both Deputies Morrical and Shire perceived Mr. Thomson's conduct as physically threatening to them and prepared to shoot him based upon that conduct. Before Deputy Shire fully pulled his partially depressed trigger, Deputy Morrical fired one shot into Mr. Thomson's head, killing him. Events were unfolding extremely quickly; the entire sequence of events from when the officers entered the backyard and could see Mr. Thomson until the time that he was shot took place in perhaps as little as ten seconds.
Both Deputies Shire and Jarvis initially believed that Mr. Thomson had killed himself and reported as much to Lieutenant Wardle via radio. Deputy Morrical requested and received permission from Lieutenant Wardle to secure his dog, Chaos, in the police car; it was not until after Deputy Morrical had done so that he informed Lieutenant Wardle that he had fired one shot at Mr. Thomson.”i
The United States Court of Appeals for the 10th Circuit in its analysis cited to the model penal code definition used by the other circuits in asserting: “Deadly force is such force that "create[s] a substantial risk of causing death or serious bodily harm.”ii
The court continued:
“It is no secret that many tools in law enforcement can potentially inflict serious bodily harm or even death. See Robinette, 854 F.2d at 912 (noting that an officer's nightstick and vehicle both "possess the potential for being deadly force"). Some of these tools, however, also have great potential to resolve situations without resort to comparatively more lethal force. The Sixth Circuit has opined that police dogs often can help prevent officers from having to resort to deadly force: ‘[t]he use of dogs can make it more likely that the officers can apprehend suspects without the risks attendant to the use of firearms in the darkness, thus, frequently enhancing the safety of the officers, bystanders and the suspect.’ Id.; cf. Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir.1994) (acknowledging the truth in the argument that the release of a police dog in lieu of firing a gun at a suspect might have led to a better result for the suspect). ‘[T]he mere recognition that a law enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force.’ Robinette, 854 F.2d at 913. We see no need to deprive police officers of the benefit of these useful tools (i.e., police dogs) solely because they carry the potential to cause serious harm. Cf. id. at 914 (‘[W]e are not persuaded ... that the remote possibility that the use of a police dog to apprehend a felon might, under extraordinary circumstances, cause death, outweighs the dogs' proven benefits for effective law enforcement.’).”
Perhaps most important is the United States Court of Appeals for the 10th Circuit’s recognition that just because a tool is dangerous does not make it per se deadly force. Equally important is the court’s recognition that although a tool may have the potential to cause serious bodily harm or death they also may resolve a situation short of deadly force.
Although the foregoing cases deal with the use of canines as a law enforcement use of force tool, the application of the law to electronic control devices should be the same. Language from a new case out of the Federal District Court for the Middle District of Alabama further supports the conclusion that TASER™ ECDs are not deadly force.iii In rejecting a training claim against the agency the court asserted:
“The use of a firearm against a person is presumptively the use of deadly force, while the use of a TASER™ is not presumptively the use of deadly force. Indeed, TASER™s are marketed by their manufacturer and purchased for use by police departments precisely because they are a nonlethal alternative to firearms. In this respect, TASER™s are more similar to police batons than firearms: although a rogue police officer might unreasonably apply a TASER™ with deadly force, when used properly by a reasonable police officer, a TASER™ is designed to avoid death and not cause it.”iv
Conclusion and Expectations
In accordance with the current state of the law related to use of force under the Fourth Amendment, the deployment of an electronic control device or TASER™ ECD is not deadly force since no court has made such a finding as a matter of law.
It is unlikely that a court will find that a TASER™ deployment to the chest is deadly force based on a remote possibility that a deployment may result in death. Simply stated, even if one were to adopt the findings of all of the studies conducted, a TASER™ ECD has not been found to “create a substantial likelihood of serious bodily harm or death.”
Notwithstanding the foregoing, it must be recognized by officers that in a lawsuit involving the deployment of a TASER™ ECD where the probes have struck the chest, an issue will be made with respect to whether the officer properly used this tool.
In light of the recommended preferred targeting change, officers can be assured that plaintiff’s attorney will be prepared to cross-examine the officer on proper targeting in an effort to show a jury that the officer acted unreasonably by failing to follow the preferred targeting in such deployments.
In cases where a deployment strikes the chest, irrespective of injury, officers should be prepared to document why the deployment struck the chest rather than the recommended preferred targeting zone in the lower center of mass. In some cases, deadly force would have been justified under the facts but the officer utilized a TASER™ ECD instead of transitioning to deadly force. In such cases, clearly the deployment would be legally justifiable irrespective of the preferred targeting zone.
In some cases the officer may be targeting the lower center mass but due to the dynamic and fluid nature of the event including the suspect’s movement; the probes may strike the chest. Again, officers should ensure, irrespective of whether there is injury or not, why the deployment struck the chest rather than the recommended preferred targeting zone.
These suggestions are made, not because a deployment to the chest is deadly force, but simply because an officer is likely to be confronted with the targeting zone in any case where the probes strike the chest and a lawsuit follows.
Agency Policy & Training Recommendations
Agency policy and training should be changed to reflect the new targeting area recommended by TASER™ International. Immediate training should be conducted for all officers who are allowed to carry these devices.
The Legal & Liability Risk Management Institute will be monitoring the case law to determine if this new change to the targeting zone has any impact on the liability of officers and their agencies.
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ii Id. At footnote 3: (The origin of the quoted language is the Model Penal Code ("MPC"). See Model Penal Code § 3.11(2) (1985) (defining "deadly force"). The MPC's definition of "deadly force" includes an alternative subjective element, focusing on whether an individual used the force "with the purpose of causing ... a substantial risk of ... death or serious bodily injury." Id. (emphasis added). Although we have recited the full MPC definition of deadly force in the § 1983 context, we do not appear to have relied on the subjective component of the definition. See Jiron v. City of Lakewood, 392 F.3d 410, 415 n. 2 (10th Cir.2004); Ryder v. City of Topeka, 814 F.2d 1412, 1417 n. 11 (10th Cir.1987) (noting simply that defendant police officer's actions in shooting plaintiff "clearly constitute the 'use of deadly force' in the constitutional sense"). The en banc Ninth Circuit has suggested that such reliance would be inappropriate. See Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir.2005) (en banc). Smith has "attribute[d] the inclusion of an alternative subjective component in the Model Penal Code definition to the fact that the Model Penal Code is primarily designed to govern criminal liability," instead of the civil liability at issue under § 1983. Id. Further, it contends that our sister circuits have embraced the MPC's definition of "deadly force," in the § 1983 context, but deviated--albeit more or less tacitly--to the extent of eschewing reliance on that definition's subjective element. Id. ("[T]he definition of deadly force used in the other circuits in § 1983 cases, while frequently labeled the Model Penal Code definition, is designed for use in implementing the Fourth Amendment and necessarily differs in one minor respect from the Model Penal Code's definition. For Fourth Amendment purposes, the objective part of the test must be employed. In short, courts do not use the subjective alternative when they apply the 'deadly force' test in § 1983 cases." (emphasis added) (citation omitted)); see also Floyd R. Finch, Jr., Comment, Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. C.R.- C.L. L.Rev. 361, 363 (1976) (citing the MPC's definition of "deadly force" in excessive force context but describing the concept in objective terms, as "such force as under normal circumstances poses a high risk of death or serious injury to its human target"); cf. Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir.1988) (describing the MPC's objective deadly force inquiry as the "[m]ore important[ ]" one). Although we focus in the text of this opinion on the objective component of the MPC's "deadly force" definition, we need not definitively opine on whether the subjective component has a role to play in the qualified immunity context. Even if the subjective component was not categorically inapposite, on the facts of this case we would reach the same ultimate disposition concerning the deadly force questions. As detailed infra, Plaintiffs argue that deadly force was unconstitutionally used when Deputy Morrical (1) released his police dog Chaos, and (2) fatally shot Mr. Thomson. As to the latter, the precise contours of the deadly force definition are not at issue because there is no dispute that Deputy Morrical's shooting of Mr. Thomson was an act of deadly force. Rather, the question presented is whether that use of force was excessive (i.e., unconstitutional); we conclude infra that it was not excessive. As to the former, the definitional boundaries of "deadly force" are implicated by the release of Chaos because Plaintiffs argue that such a release constituted an act of deadly force. However, even if we employed the subjective component, we would conclude that Plaintiffs have not carried their burden of establishing that Chaos's release was an act of deadly force. For the reasons noted infra, we determine that it was not an act of deadly force under the objective component. And, specifically as to the subjective component, Plaintiffs have offered no evidence that Deputy Morrical released Chaos with the purpose of causing a substantial risk of death or serious bodily injury; accordingly, the release cannot be found to be an act of deadly force under the subjective component. Therefore, application of the subjective component of the MPC's "deadly force" definition would not alter the outcome as to the deadly force questions in this particular case. According, we may leave for another day the determination of whether that component is categorically inapposite in the qualified immunity context.)
iii Estate of Gilliam v. City of Prattville, 2009 U.S. Dist. LEXIS 99616 (Middle District, Alabama 2009) (decided 10/26/09) It is noted that the officers who used the TASERs in this case were denied qualified immunity based on the facts viewed in the light most favorable to the plaintiff.
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