No On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

Transcription

1 No CITY AND COUNTY OF SAN FRANCISCO, KIMBERLY REYNOLDS, AND KATHERINE HOLDER, v. Petitioners, TERESA SHEEHAN, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF AMICUS CURIAE EUGENE DE BOISE, SR. IN SUPPORT OF RESPONDENT John Burton 4 East Holly St, Suite 201 Pasadena, CA jb@johnburtonlaw.com Counsel of Record W. Bevis Schock 7777 Bonhomme Ave. Suite 1300 St. Louis, MO wbschock@schocklawcom Attorneys for Amicus Curiae Eugene De Boise, Sr.

2 i QUESTIONS PRESENTED 1. Whether a Public Entity violates the Americans with Disabilities Act when its officers violate their training by using potentially lethal force on a mentally-ill person they were dispatched to transport for psychiatric evaluation and treatment. 2. Whether police officers violate clearly established Fourth-Amendment law when they violate their training by using potentially lethal force on a mentally-ill person they were dispatched to transport for psychiatric evaluation and treatment.

3 ii TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 4 THE DEATH OF SAMUEL DE BOISE... 4 THE SURVIVORS OF MENTALLY-ILL PERSONS INADVERTENTLY KILLED BY POLICE OFFICERS WHO FAIL TO FOLLOW TRAINING SHOULD BE ABLE TO PRESENT ADA CLAIMS TO A JURY... 7 POLICE OFFICERS WHO VIOLATE TRAINING WHEN APPREHENDING A MENTALLY ILL PERSON, CAUSING DEATH OR GREAT BODILY INJURY, SHOULD NOT BE ENTITLED TO QUALIFIED IMMUNITY CONCLUSION APPENDIX INDEX... i A. TASER TRAINING SLIDE... 1 Controlling/Cuffing Under Power B. TASER TRAINING SLIDE... 2 Avoid Extended or Repeated TASER Device Applications Where Practicable

4 iii TABLE OF AUTHORITIES CASES Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005)... 3 Anderson v. Creighton, 483 U. S. 635 (1987) Bahl v. Cnty. of Ramsey, 695 F.3d 778 (8th Cir. 2012)... 9 Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009) Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004)... 3 Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001)... 3 De Boise v. TASER Int l, Inc., 760 F.3d 892 (8th Cir. 2014)... passim Deorle v. Rutherford, 272 F.3d 1272, (9th Cir. 2001) Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003)... 3, 18 Graham v. Connor, 490 U.S. 386 (1989)... passim Hickey v. Reeder, 12 F.3d 754 (8th Cir. 1993)... 12

5 iv Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995) Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999)... 8 Sanders v. City of Minneapolis, 474 F.3d. 523 (8th Cir. 2012)... 9 Saucier v. Katz, 533 U.S. 194 (2001) Tennessee v. Lane, 541 U.S. 509 (2004)... 8 Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) CONSTITUTIONAL PROVISION United States Constitution, Fourth Amendment... passim STATUTES 42 U.S.C U.S.C , Americans with Disabilities Act (ADA)... passim RULE U.S. Supreme Court Rule

6 v OTHER MATERIALS 28 Code of Federal Regulations (b)(7)... 8 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 Col. Hum. Rts. L. Rev. 261 (2003)... 7, John Burton & Peter M. Williamson, Representing Clients Injured by TASER International Electrical Control Devices, 26 C.R. Lit. & Att y Fees Annual Handbook 27, (2010) Amnesty International, Less than Lethal? The Use of Stun Weapons in US Law Enforcement (2008)

7 1 INTEREST OF AMICUS CURIAE Amicus curiae is Eugene De Boise, Sr. Mr. De Boise is a petitioner in De Boise v. St. Louis County, Supreme Ct. No , along with his grandson T.E.R., a minor represented by his next friend, Anneliese Hubbard, and his granddaughter, A.N.D., a minor represented by her next friend, Sheena Marie Perry. 1 Mr. De Boise s son, Samuel De Boise, who is the father of T.E.R. and A.N.D., died while being taken into custody by St. Louis County police officers. Like the San Francisco officers who shot Respondent Teresa Sheehan, the St. Louis County officers were summoned to assist with taking a mentally-ill subject into custody for psychiatric evaluation and treatment. Mr. De Boise submits this brief, which parallels his petition for certiorari, to bring to the Court s attention another scenario where law enforcement officers have ignored training, instead resorting to deadly force when dispatched to assist with a person disabled by mental illness. 1 Pursuant to U.S. Supreme Court Rule 37, the parties have lodged consents for the filing of amicus briefs on behalf of Petitioners or Respondent. No counsel for a party authored this brief in whole or in part. No person or entity, other than counsel for amicus curiae, have made a monetary contribution to the preparation or submission of this brief.

8 2 SUMMARY OF ARGUMENT As mentioned above, amicus curiae Eugene De Boise, Sr. seeks to bring to the Court s attention an example of another too common scenario where law enforcement officers, summoned to assist a person disabled by mental illness, instead either inadvertently kill that person or cause great bodily injury by not following training or common sense. Samuel De Boise, age 29, was mentally ill and in the throes of a deep and unexpected psychosis. His frightened mother left him alone in the family home while calling 911 for assistance. Six St. Louis County police officers and two paramedics responded to transport Samuel for psychiatric evaluation and treatment. Samuel walked out the front door naked, proclaiming to be God and Allah. Surrounded by six officers, Samuel obeyed orders to lie down on the lawn, and even put his hands behind his back for cuffing, interlacing his fingers. When no officer moved in with handcuffs, however, Samuel stood up, exclaiming Yup, Jesus, Got to go! Two officers fired tasers, shocking Samuel repeatedly over the course of more than two minutes, killing him. The officers were trained specifically on how to use tasers to control the mentally ill without endangering the subject s health. Each five-second cycle of electricity is designed to create a window of opportunity for handcuffing, precisely to avoid the dangerous, multiple cycles that killed Samuel De Boise.

9 3 The district court granted summary judgment against Samuel De Boise s family, ruling that the officers had qualified immunity from the 42 U.S.C excessive-force claim, and that St. Louis County did not violate the Americans with Disabilities Act (ADA). A divided panel of the Eighth Circuit affirmed, De Boise v. TASER Int l, Inc., 760 F.3d 892 (8th Cir. 2014), and rehearing en banc was denied, with four of the ten qualified judges voting in favor. There are no national data compiled on the number of mentally-ill people inadvertently killed or injured by police officers summoned, often by family members, to transport patients for psychiatric evaluation and treatment. Some involve circumstances similar to Samuel De Boise s death, which, unlike Sheehan, did not involve an allegation of a weapon in the hand of the mentally-ill subject, or a decision by an officer to use deadly force. Deaths or great bodily injury also occur because of non-lethal techniques such as tasers, chokeholds, pepper spray, hogties, and compression during prone restraints. See, e.g., Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004) (pepper spray and chest compressing killing autistic man); Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005) (restraint compression asphyxia of PTSD victim); Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001) (hogtying death of naked and delirious man); Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003) (chest compression leaving bi-polar schizophrenic in permanent vegetative state).

10 4 Amicus curiae Eugene De Boise is familiar with the arguments relating to Ms. Sheehan s ADA and Fourth-Amendment, qualified-immunity claims made in Respondent s Brief and by other amici curiae in support of Respondent. This brief is filed solely for the purpose of illustrating to the Court how the failure to follow procedures by law enforcement officers can, on occasion, cause death or great bodily injury to disabled persons the officers were dispatched to assist. Amicus curiae Eugene De Boise urges the Court to bear in mind that such scenarios occur when establishing the legal parameters governing Ms. Sheehan s claims under the ADA and the Civil Rights Act. ARGUMENT THE DEATH OF SAMUEL DE BOISE Samuel De Boise was afflicted with schizophrenia. On July 8, 2008, he roamed the neighborhood near his family home in St. Louis County, Missouri, wearing no clothes, beating on houses with a stick, and claiming to be God. When he returned home, Samuel held his mother down, and demanded that she worship him. After Samuel let her go and walked to the back of their house, the mother went to a neighbor s home and called 911 for help with her mentally-ill son. The first officer to arrive watched Samuel walk out the front door, still naked and claiming to be God, and walk back inside, tearing off the screen door in the process. Five more officers arrived. All were told Samuel was schizophrenic.

11 5 Two of the officers had a 40-hour course in Crisis Intervention Training (CIT), and were certified by St. Louis County specifically to deal with the mentally ill. They knew that to avoid confusion only one officer should talk to the mentally-ill person, and that the communicating officer should use soothing words to defuse the situation. For reasons not readily apparent, these six officers ignored their training, as well as common sense, and acted as if they had cornered a homicidal desperado rather than a pathetic, mentally-ill naked man who thought he was a deity rather than a mortal. One armed himself with an AR-15 assault rifle, another a shotgun, a third with a less-lethal shotgun loaded with a sock filled with lead shot, two drew handguns, and the sixth a Model X26 taser. Samuel walked out the front door, again calling himself God. Still naked, and therefore obviously unarmed, Samuel followed the instructions shouted by multiple officers. Two were in ideal positions 15 to 25 feet away with four covering officers to handcuff Samuel quickly and safely. Instead, they delayed until Samuel jumped to his feet and said, Nope, Jesus, got to go! One officer fired taser darts into Samuel s torso, delivering five seconds of electric current that caused him to fall backwards, paralyzed, with the electrical current causing his arms to clench to his chest. According to the training the officers received: Emotionally disturbed, focused, intoxicated, excited delirium individuals,

12 6 etc. may not comply with verbal commands following the TASER cycle. Each cycle should be used as a window of opportunity to attempt to establish control/cuff while the subject is affected by the TASER cycle. The need for multiple cycles may be avoided by controlling/cuffing under power if contact officers are available. Apx A, App 1, Controlling/Cuffing Under Power (emphases added). Instead of following this training and handcuffing during this first window of opportunity, however, the first officer subjected Samuel to five additional five-second taser cycles, as well as a twosecond cycle, before a second officer shot another pair of taser darts into Samuel and discharged four more five-second cycles. According to the X26 s dataport, the computer chip that records discharges, the two officers shocked Samuel with about fifty seconds of electrical current in just over two minutes. Little wonder that he died as a result.

13 7 THE SURVIVORS OF MENTALLY-ILL PERSONS INADVERTENTLY KILLED BY POLICE OFFICERS WHO FAIL TO FOLLOW TRAINING SHOULD BE ABLE TO PRESENT ADA CLAIMS TO A JURY Examples of personal tragedies that have resulted when police officers, who are heavily armed and trained to deal with violent criminals, disregard training and common sense while taking custody of the mentally ill for psychiatric treatment are described in the literature. See, e.g., 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 Col. Hum. Rts. L. Rev. 261 (2003) (describing several lethal and nearlethal encounters). Sheehan, the De Boise family s petition, and many other cases and news reports demonstrate the ongoing problem of police overreaction to people who, through no choice of their own, are not capable of processing police commands. Amicus curiae Eugene De Boise urges that the Court affirm that Title II of the Americans with Disabilities Act, 42 U.S.C , applies to apprehensions of the mentally ill, and provides the injured with a meaningful remedy in damages where officers violate rules and training designed to protect the mentally ill from death or great bodily injury when being taken into custody for psychiatric evaluation and treatment.

14 8 Because there is no argument that the ADA does not apply to law enforcement activities, including arrests, the threshold question is the extent to which officers, when apprehending a mentally-ill person for psychiatric evaluation and treatment, must take into account the fact that due to a psychiatric disability the person may act out to varying degrees, and may defy commands that a sane person would obey. A literal reading of the ADA suggests that officers should comply with the reasonable accommodation requirement imposed by Title II. See Tennessee v. Lane, 541 U.S. 509, (2004); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, (1999); 28 Code of Federal Regulations (b)(7). Once one accepts that the ADA applies to apprehensions of persons police officers know to be mentally ill and in need of involuntary psychiatric evaluation and treatment, what remains is a jury issue whether officers fail to accommodate a mental disability as required by the statute. In cases such as De Boise a failure to accommodate can be established with evidence that the officers failed to follow training or other objective police standards governing contacts with the mentally ill. In De Boise v. TASER Int l, the Eight Circuit held that whether officers reasonably accommodated the individual is highly fact-specific and varies depending on the circumstances of each case, including the exigent circumstances presented by criminal activity and safety concerns and that we will not second guess [an officer s] judgments, where

15 9... an officer is presented with exigent or unexpected circumstances. 760 F.3d at 899 (quoting Bahl v. Cnty. of Ramsey, 695 F.3d 778, (8th Cir. 2012). Second guessing, however, does not arise where, as in De Boise, there is evidence that the officers unreasonably failed to accommodate a known disability by disregarding the applicable training. The ADA, of course, should not require an officer to accommodate the disability of someone who is driving a car directly at him, as in Sanders v. City of Minneapolis, 474 F.3d. 523 (8th Cir. 2012), but in De Boise a jury could determine no such deadly threat existed when the lethal tasings occurred. The officers needed only to follow their training to accommodate Samuel De Boise s mental illness and to avoid ADA liability. There was nothing unexpected in De Boise. Calls to assist with transportation of the mentally ill are a routine, albeit a challenging and sometimes unpleasant, aspect of a police officer s job. Officers, like psychiatric nurses, are trained to handle psychotic persons in ways that minimize the risks of injuries to both the officers and the patients. When officers disregard training by, for example, failing to anticipate that a mentally-ill person might have trouble complying with commands, and failing to minimize taser exposures through use of the window of opportunity, they do what the ADA forbids, that is deny a mentally disabled person the benefits of the services, programs or activities of a public entity. 42 U.S.C

16 10 Accordingly, amicus curiae Eugene De Boise urges that the Court affirm the Ninth Circuit on Ms. Sheehan s claim for damages under the ADA. POLICE OFFICERS WHO VIOLATE TRAINING WHEN APPREHENDING A MENTALLY ILL PERSON, CAUSING DEATH OR GREAT BODILY INJURY, SHOULD NOT BE ENTITLED TO QUALIFIED IMMUNITY When affirming qualified immunity in favor of the officers who killed Samuel De Boise, the Eighth Circuit did not resolve whether tasing a mentally-ill man to death violated the Fourth-Amendment s prohibition against excessive force. Instead, the court addressed only the second prong, whether the right asserted by amicus curiae Eugene De Boise was clearly established at the time of his son s death. De Boise, 760 F.3d at The Court held last term, however, Our qualified-immunity cases illustrate the importance of drawing inferences in favor of the nonmovant, even when, as here, a court decides only the clearly-established prong of the standard. In cases alleging unreasonable searches or seizures, we have instructed that courts should define the clearly established right at issue on the basis of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001), see also Anderson v. Creighton, 483 U. S. 635, (1987).

17 11 Accordingly, courts must take care not to define a case s context in a manner that imports genuinely disputed factual propositions. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). In De Boise, the Eighth Circuit majority upheld qualified immunity on the clearly established prong, while acknowledging that the officers conduct may have violated the Fourth Amendment. 760 F.3d at 896 ( Though the outcome of this encounter was tragic, and even if the reasonableness of the officers actions was questionable, Appellants cannot defeat the officers defense of qualified immunity. ) In so doing, the Eighth Circuit failed to take into account the appropriate context of the case police officers summoned to take custody of a schizophrenic family member for psychiatric evaluation and treatment. The Eighth Circuit gave undue weight to the use of newer technology, the Model X26 taser, first marketed in 2003 by TASER International, Inc. See John Burton & Peter M. Williamson, Representing Clients Injured by TASER International Electrical Control Devices, 26 C.R. Lit. & Att y Fees Annual Handbook 27, (2010). Even so, the Eighth Circuit disregarded its own precedent denying qualified immunity for a single unnecessary taser cycle, holding that each discharge inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless. Brown v. City of Golden Valley, 574 F.3d

18 12 491, 500 (8th Cir. 2009) (quoting Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993)). Amicus curiae Eugene De Boise contends that the qualified-immunity context of excessive-force claims arising from encounters with mentally-ill people such as Teresa Sheehan and Samuel De Boise should be determined more broadly under the standard for objective reasonableness set forth in Graham v. Connor, 490 U.S. 386 (1989), with particular attention paid to the specific problems posed by their mental disability. Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment, under Graham, requires a careful balancing of the nature and quality of the intrusion on the individual s Fourth Amendment interests against the countervailing governmental interests at stake. Id. at 396. Graham enumerates three factors bearing on the magnitude of the governmental interests at stake when the decision whether to use force is being made: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer and whether he is actively resisting arrest or attempting to evade arrest by flight. Id. at 396. In the ordinary encounter with a mentally-ill person, each Graham factor will generally cut in favor of minimizing the use of force. In both Sheehan and De Boise the officers knew they were confronting a mentally-ill person rather than a criminal. They knew that they were dispatched to take someone to a hospital for psychiatric evaluation and treatment, rather than to

19 13 jail for incarceration and prosecution. [S]tandard police procedure regarding emotionally disturbed persons differs greatly from that regarding emotionally stable persons, and such status may be relevant to the trial court s determination of objective reasonableness. Ludwig v. Anderson, 54 F.3d 465, 472 (8th Cir. 1995). The Court should fashion a rule along the lines articulated by the Ninth Circuit when addressing the application of Graham to police confrontations with the mentally ill. The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense. In the former instance, increasing the use of force may, in some circumstances at least, exacerbate the situation; in the latter, a heightened use of less-than-lethal force will usually be helpful in bringing a dangerous situation to a swift end. In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis... Even when an emotionally disturbed individual is acting out and inviting officers to use

20 14 deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual. We do not adopt a per se rule establishing two different classifications of suspects: mentally disabled persons and serious criminals. Instead, we emphasize that where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed. Deorle v. Rutherford, 272 F.3d 1272, (9th Cir. 2001). The second Graham factor, threat to an officer or others, is highly fact specific. In both De Boise and Sheehan the officers disregarded the specific training they had received to minimize those risks. In cases such as these, Courts and juries do not need to second guess, with the 20/20 vision of hindsight, split-second decisions of police officers that are consistent with their training. But when officers act contrary to training, in the specific context of encounters with persons known to be mentally ill, they are not being second guessed, they are being held responsible for violating the rule that govern their conduct. That is what the law should do.

21 15 Generally, qualified immunity will not be supported by the third Graham factor. Neither Samuel De Boise nor Teresa Sheehan posed flight risks. 2 Moreover, the officers were trained to counter such a subject s resistance clearly the result of mental illness rather than any mens rea without using deadly force. As Professor Avery has explained: Modern training materials are remarkably consistent in the approach they recommend to officers who respond to calls involving emotionally disturbed persons. The training is designed to protect the safety of the public, minimize the risks to the safety of the responding officer, and deal with the disturbed person in a humane manner, recognizing that he is ill. One such strategy... emphasizes the following: (1) safety, (2) non-threatening approach, (3) control of the scene, (4) defusing the situation, and (5) problem solving Samuel De Boise was on his front lawn, surrounded by six armed officers, and so could not escape. Ms. Sheehan was in her second-floor apartment, with officers at her door and backup officers able to prevent escape through the only window (assuming Ms. Sheehan wanted to escape). A photograph of that window, available at (accessed February 11, 2015), shows too long of a drop to the parking lot below for an escape. In both cases, there was no flight risk.

22 16 In many of the reported cases encounters became violent after a subject refused to comply with police directions. In fact, training materials advise officers to be aware that the response of a person of diminished capacity to their orders may be delayed or inappropriate because of his condition. Unreasonable Seizures of Unreasonable People, 34 Colum. Hum. Rts. L. Rev. at In addition to such training, many modern police department provide officers electrical weapons to control mentally-ill people who are irrational and cannot comply with commands. But the taser itself, if used improperly, can be deadly. Amnesty International identified 334 deaths associated with electrical weapons in the United States from June 2001 through August 2008, most due to cardiac arrests like the one suffered by Samuel De Boise. Amnesty International, Less than Lethal? The Use of Stun Weapons in US Law Enforcement, (2008). In response to mounting death reports, starting in 2005 TASER International, Inc., the X26 s manufacturer, promulgated specific instructions to minimize exposures, especially to the mentally ill. Police Departments use those TASER materials to train officers. These instructions state that officers should avoid extended or repeated TASER Device applications where practicable because the application of the TASER device is a physically stressful event. Apx B, App 2, Avoid Extended or

23 17 Repeated TASER Device Applications Where Practicable. Especially when dealing with persons in a health crisis such as excited delirium, according to TASER training, it is advisable to minimize the physical and psychological stress to the subject to the greatest degree possible. Id. Officers should only apply the number of cycles reasonably necessary to allow them to safely restrain the subject. Id. The TASER materials explain exactly how police officers should minimize exposures: Move in and control the subject while the TASER device is cycling and the subject is incapacitated. Emotionally disturbed, focused, intoxicated, excited delirium individuals, etc. may not comply with verbal commands following the TASER cycle. Each cycle should be used as a window of opportunity to attempt to establish control/cuff while the subject is affected by the TASER cycle. The need for multiple cycles may be avoided by controlling/cuffing under power if contact officers are available. Apx 1, App 1, Controlling/Cuffing Under Power, (emphases added). Such training materials are relevant not only to whether the force employed in [a given case] was objectively unreasonable,... but also to whether reasonable officers would have been on notice that

24 18 the force employed was objectively unreasonable. Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003). CONCLUSION For the foregoing reasons, amicus curiae Eugene De Boise, Sr., respectfully requests that the Supreme Court rule in favor of Sheehan and affirm the decision of the Ninth Circuit. February 17, 2015 Respectfully submitted, John Burton The Law Offices of John Burton 4 East Holly Street, Suite 201 Pasadena, CA jb@johnburtonlaw.com Counsel of Record W. Bevis Schock Attorney at Law 7777 Bonhomme Ave., Ste St. Louis, MO wbschock@schocklaw.com

25 i APPENDIX INDEX A. Taser Training Slide Controlling/Cuffing Under Power... App 1 B. Taser Training Slide Avoid Extended or Repeated TASER Device Applications Where Practicable... App 2

26 App 1 A. TASER TRAINING SLIDE Controlling/Cuffing Under Power Move in and control the subject while TASER device is cycling and the subject is incapacitated when it is reasonably safe to do so. EDPs, focused, intoxicated, excited delirium individuals, etc. may not comply with verbal commands following the TASER cycle. Each cycle should be used as a window of opportunity to attempt to establish control/cuff while the subject is affected by the TASER cycle. The need for multiple cycles may be avoided by controlling/cuffing under power if contact officers are available TASER X26 User Training Version 14, released December 1, 2007, slide 142.

27 App 2 B. TASER TRAINING SLIDE Avoid Extended or Repeated TASER Device Applications Where Practicable The application of the TASER device is a physically stressful event. Especially when dealing with persons in a health crisis such as excited delirium, it is advisable to minimize the physical and psychological stress to the subject to the greatest degree possible. Officers should only apply the number of cycles reasonably necessary to allow them to safely restrain the subject. Current human studies have concluded that TASER applications directly across the chest do not impair normal breathing patterns. If circumstances require extended duration or repeated discharges, the operator should take care to observe the subject and provide breaks in the TASER stimulation when practicable. TASER X26 User Training Version 14, released December 1, 2007, slide 144.