A MEASURED APPROACH TO CONDUCTED ENERGY WEAPONS

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1 A MEASURED APPROACH TO CONDUCTED ENERGY WEAPONS THE CANADIAN CIVIL LIBERTIES ASSOCIATION January 2010

2 1) INTRODUCTION THE CANADIAN CIVIL LIBERTIES ASSOCIATION The Canadian Civil Liberties Association (CCLA) is a national organization with the paid support of more than 6,500 individuals drawn from all walks of life, several affiliated chapters across the country, and many associated group members that in turn represent several thousand Canadians. The CCLA was constituted to promote respect for and observance of fundamental human rights and civil liberties and to defend and foster the recognition of those rights and liberties. The CCLA s major objectives include the promotion and legal protection of individual freedom and dignity against unreasonable invasion by public authority, and the protection of procedural fairness. For over 40 years, the CCLA has worked to advance these goals. The CCLA s interest in the policy framework surrounding the use of conducted energy weapons (CEWs) by police stems from our general commitment to ensuring that state force is only used where necessary and appropriate. In our view, the manner in which police use any weapon should be determined through thorough, credible research and open public debate. To this end, the CCLA has addressed both government and media over the past several years to press for more carefully considered CEW policies. While we accept that there may be circumstances under which the use of CEWs by law enforcement can be appropriate, we have long advocated for stricter deployment guidelines, more effective training for officers equipped with CEWs, and detailed monitoring and oversight of CEW use. 2) BACKGROUND ON CEWS A CEW applies direct electrical current to incapacitate a subject. Over the past decade, CEWs have gained international prominence due to the perception that they provide a less lethal tool where police would otherwise be forced to use firearms. CEWs have, however, been employed in many situations where police would not traditionally consider using firearms, including incidents involving unarmed subjects. A 2007 report by the Canadian Press, for example, reviewed 563 incidents involving RCMP deployment of CEWs, finding that 79 percent of subjects were unarmed 1. In addition, the Braidwood Commission found that out of 1,397 deployments by municipal police 1 Tasers necessary, Day says Canadian Press (19 November 2007) online: Toronto Star < 1

3 agencies across British Columbia, 160 incidents involved subjects who were either being cooperative or displaying passive resistance 2. Without clear policies setting out an appropriate role for CEWs in policing, uncertainties surrounding their use will persist. The range of possible injuries related to deployment further underscores the need for policies that substantially circumscribe CEW use. Beyond wounds associated with the weapon s probe darts, including burns and eye damage or loss, many injuries can occur when a subject falls after being hit by a CEW, such as cuts, bruises, broken bones, and head injuries. With the elderly and pregnant women, these risks are starker still. In addition, 27 people have died in Canada relatively soon after being subjected to a CEW. While the role that CEWs may have played in these deaths is a matter of ongoing research and debate, the Braidwood Commission recently concluded that the most probable explanation for deaths proximate to CEW deployment is cardiac arrhythmia 3, meaning a chaotic functioning of the heart triggered by the weapon s electrical current. Despite the absence of a conclusive explanation for CEW-related deaths, video evidence of Robert Dziekanski s 2007 death made the serious risks associated with CEW deployment clear to viewers the world over. Beyond the tragedy of an untimely death, this incident also did significant damage to the public image of Canada s national police force. A poll by Harris-Decima found that 36 per cent of those surveyed had decreased confidence in the RCMP as a result of Mr. Dziekanski s death 4. As the Commission for Public Complaints Against the RCMP (CPC) has stated of CEWs, Failure to draft and adhere to strict protocols on the weapon s use will continue to have a corrosive impact on public support for the police 5. 3) TOWARDS AN APPROPRIATE CEW POLICY Intergovernmental efforts to develop uniform national standards for the use of CEWs by law enforcement are welcome. In his report on CEW use in British Columbia, 2 Braidwood Commission on Conducted Energy Weapon Use, Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons (British Columbia: 18 June 2009) at Supra note 2 at James Keller, Taser incident eroded trust in RCMP, poll suggests Canadian Press (10 March 2009) online: Toronto Star < 5 Commission for Public Complaints Against the Royal Canadian Mounted Police, RCMP Use of the Conducted Energy Weapon (CEW): Final Report (Ottawa: 12 June 2008) at 4. 2

4 Commissioner Braidwood noted a troubling lack of consistency among the policies of B.C. s various police agencies, which he attributed to a lack of leadership at the provincial level in developing province-wide standards for all aspects of weapon use 6. Governments are now well-positioned to develop CEW policies that take advantage of the weapon s potential utility as a policing tool, without exposing the public to unnecessary risk. And while policy-makers in this area must still confront knowledge gaps, as Commissioner Braidwood wrote, we as a society know enough about conducted energy weapons to make important decisions relating to their use ) General deployment The CCLA believes that CEWs should only be used where there is an imminent risk of death or serious bodily harm to a police officer or member of the public. Until further scientific research can conclusively identify exactly when the use of CEWs can be lethal, their deployment should only be permitted where physical safety is already at risk. Standards such as active resistance do not describe situations of adequate risk, and leave police with vague direction to determine when CEWs may be used. Indeed, civil disobedience in the form of a sit-in might arguably amount to a form of active resistance, though it is hard to imagine when such a protest would ever warrant the use of a CEW. Similarly, verbal aggression, walking or running away from police, and other types of non-violent non-compliance would not meet the threshold for CEW use. Limiting the use of CEWs to situations in which significant physical danger is a reasonably perceived risk would establish a deployment standard that appropriately protects police and the public alike. And while CEW use would be acceptable at the point where physical harm becomes a real concern, police should always be trained to first consider whether options of lesser force, including crisis intervention techniques, might achieve a similar purpose. Recommendation #1: Police should only use conducted energy weapons against an individual when there is an immediate risk of death or serious bodily harm to police, the public, or that individual. 6 Supra note 2 at 9. 7 Supra note 2 at 16. 3

5 Recommendation #2: Police should only use conducted energy weapons if alternatives requiring less force would not be effective in reducing the risk of death or serious bodily harm. In view of the significant dangers posed by CEWs, the House of Commons Standing Committee on Public Safety and National Security (SECU) recommended in a June 2008 report on the RCMP s CEW policy that the agency modify its training on Taser gun use to place more stress on the potential risks of death and injury that such use may entail 8. Critical to this aspect of training is an emphasis on the elevated risks associated with repeated cycling, meaning multiple discharges against the same subject. Preliminary research by Professor Pierre Savard, a biomedical engineer from Montreal s École Polytechnique, revealed a linear relationship between multiple discharges and death proximal to CEW use 9. Robert Dziekanski, for example, died in the Vancouver International Airport after the RCMP deployed a CEW five times for a total of 31 seconds. If officers cannot therefore contain the subject soon after initial deployment, they must carefully reassess the situation to ensure that subsequent discharges only take place in the interests of officer and/or public safety. In his own report, Commissioner Braidwood recommended that discharges after the initial five-second deployment be prohibited except where police have reasonable grounds to believe that the first discharge failed to eliminate the threat to bodily harm, and where it is probable that a second deployment will remove that risk 10. Where repeated cycling is inescapable, having a medical doctor examine the subject as soon as possible could help reduce potential health risks, and serve as an additional accountability and record keeping mechanism. Accordingly, subsequent medical attention should be provided whenever a CEW is deployed repeatedly against a single individual. 8 House of Commons, Standing Committee on Public Safety and National Security, Study of the Conductive Energy Weapon Taser (Ottawa: June 2008) at Jim Bronskill and Sue Bailey, Mounties relax rules for multiple Taser jolts Canadian Press (26 March 2009) online: Toronto Star < 10 Supra note 2 at 20. 4

6 Recommendation #3: After a CEW has been deployed, police should reassess the situation to determine whether the first discharge failed to remove the risk of death or serious bodily harm, and whether a second discharge would be likely to eliminate that risk. Recommendation #4: Following multiple deployments against the same person, police should ensure that the affected individual receives prompt medical attention. A CEW review committee in Quebec has also noted a concern that the weapon may have the capacity to ignite flammable materials 11. This may increase the operational risks of CEW deployment in narcotics laboratories, where alcohol or petroleum are present, or if pepper spray is also used 12. The Quebec committee therefore recommended that police avoid using a CED in the presence of flammable or explosive substances 13. In light of this potential danger and in absence of conclusive scientific evidence to the contrary, police should at least be made aware of this potential risk in order to best protect themselves and the public. Recommendation #5: CEW training should brief police on the possibility that the weapons may ignite flammable materials. 3.2) At-risk populations Police are frequently charged with the difficult job of dealing with individuals in the midst of various crises. They must attempt to swiftly work out the cause of the crisis mental illness, drug abuse, even sheer exhaustion and the potential risks to the safety of officers, the public, and the individual. Under such circumstances, police must also consider a range of intervention options, and determine which approach will bring the situation under control most safely and require the least amount of force. 11 Standing Advisory Subcommittee on the Use of Force, Analysis and recommendations for a Quebec police practice on the use of conducted energy devices (Quebec: 17 December 2007) at See also: Richard C. Dujardin, The latest Taser threat? Alcohol The Providence Journal (1 March 2009) online: The Providence Journal < 09_M1D5VLH_v f21.html>. Police in Seattle, Washington, tested CEWs on a mannequin that had been separately doused in alcohol and various chemical sprays. Some chemical sprays labeled nonflammable by their manufacturer burst into flames, as did two of three alcoholic beverages. 13 Supra note 11. 5

7 CEWs have often been used in situations involving individuals in crisis. In 2007, for example, the Toronto Police Service reported that 22 per cent of CEW deployments were against individuals with a mental disorder, while another 77 per cent of deployments took place in response to some other crisis 14. Concerns about the risks associated with CEW deployment are heightened in this context, as the available evidence suggests that individuals who show signs of psychological crisis may be particularly vulnerable to the physical effects of CEWs. According to an external review commissioned by the RCMP to analyze its CEW policies and use, there is sufficient indication from the literature and the known electrophysiological characteristics of the heart (and the effects of certain drugs) to express a view that excited, intoxicated individuals or those with pre-existing heart disease could be more prone to adverse effects from a CEW 15. Signs of acute agitation or extreme intoxication such as profuse sweating, imperviousness to pain, superhuman strength, etc. suggest that an individual s heart is already functioning at an accelerated rate. In such circumstances, the added shock of a CEW may be perilous 16. This risk also applies to individuals who have pre-existing heart conditions. 17 In its report on CEWs, SECU noted that 31 per cent of service calls received by Vancouver Police involved individuals with mental disorders 18. To varying degrees, the consciousness or cognitive functioning of these individuals may be impaired, and it may therefore not be possible for them to respond rationally to officer requests. While police across the country must consistently confront such difficult circumstances, it is not always clear that they are appropriately trained to do so. In some cases, this absence of training has extended into CEW policies. For example, as the CPC observed of the RCMP, No CEW deployment policies examined substantively touched on CEW deployments against at-risk groups Toronto Police Service, 2007 Annual Report Use of Tasers, online: Toronto Police Services Board < (27 March 2008 meeting minutes) at John Kiedrowski et al., An Independent Review of the Adoption and Use of Conducted Energy Weapons by the Royal Canadian Mounted Police (Ottawa: 5 June 2008) at 65. Commissioned by the RCMP, the Kiedrowski Report can be obtained under Access to Information legislation. 16 Supra note Supra note 2 at Supra note 8 at Supra note 5 at 12. 6

8 A comprehensive training program should therefore impart to police the increased risks of discharging CEWs against individuals whose excited behaviour may indicate a heightened susceptibility to the weapon s effects. Officers should also be trained to first consider the use of recognized crisis intervention techniques to manage situations involving acutely agitated people. According to the submissions of the Canadian Mental Health Association at the Braidwood Inquiry, De-escalation techniques [...] include a non-threatening approach with problem-solving communication and require an understanding of the nature, symptoms and experience of mental illness 20. As police may not be comprehensively trained to deal with individuals in crisis, officers should utilize the assistance of psychiatric support staff (where such resources are available) if they anticipate that an intervention will involve an individual with a mental disorder and/or addiction issues. If a CEW must be used, post-deployment medical attention should be provided. Recommendation #6: CEW training should address the risks of deployment against acutely agitated individuals. Recommendation #7: Police should be trained to use de-escalation techniques as a primary option when confronting emotionally disturbed people. Recommendation #8: If available and practicable, police should utilize the assistance of psychiatric support staff when they anticipate that a service call involves a person with a mental disorder and/or addiction problem. Recommendation #9: When a CEW is deployed against an acutely agitated person, police should ensure that the affected individual receives prompt medical attention. 3.3) Monitoring and oversight Comprehensive reporting, monitoring and oversight are necessary whenever a new weapon is introduced into the arsenal of police. As acknowledged in SECU s recommendations on the RCMP s CEW policy, police agencies should closely monitor 20 Nancy Hall & Camia Weaver, Submission to the Braidwood Inquiry into the use of Tasers: A perspective from the Canadian Mental Health Association BC Division (British Columbia: 10 May 2008) 7

9 CEW use. At a minimum, police agencies should track the following facets of CEW use: the number of officers accredited to carry, and equipped with, CEWs; the number and nature of incidents involving CEW use (suicide attempts/self-injurious behaviour; violence/threat of violence; disturbance; drug/alcohol intoxication; emotionally disturbed persons 21 ); the type of use (demonstration/display; push-stun mode; probe mode 22 ); the effectiveness of the CEW in subduing the subject; the number and nature of any injuries that were sustained by the subject, including efforts to obtain medical attention by the officers involved; the number of deaths proximal to CEW use; and the number and nature of complaints received related to CEW use, including any civil actions launched as a result of the use of a CEW 23. The collection of this data would entail standard-form reporting following any incident in which a CEW was either drawn or deployed, culminating in quarterly or semi-annual usage reports completed by police agencies. The resulting information could then be analyzed to discern meaningful usage trends in order to fine-tune existing CEW policies. This information would also be invaluable if a national database on CEW use were created. To ensure that this vital information is gathered, the CPC recommended administrative disciplinary measures 24 against any officer who fails to properly report CEW use. Such policies will help foster a culture of accountability around police use of CEWs. Recommendation #10: Police should be required to complete standard-form reports following any incident in which a CEW used. Recommendation #11: Information detailed in CEW incident reports should be compiled in quarterly/semi-annual CEW usage reports for further analysis. 21 Supra note 2 at 11. This list reflects the most frequent uses of CEWs reported by the Braidwood Commission. 22 Demonstration/display: A laser beam targets a subject, or a spark is demonstrated; Push-stun mode: CEW is directly applied to a subject s body in order to discharge the weapon; Probe mode: CEW is fully deployed at a distance from the subject. 23 Supra note 8 at 19; supra note 14 at 60. This list combines the recommendations of the Parliamentary Subcommittee on Public Safety and National Security, the current reporting requirements of the Toronto Police Service, and the CCLA s own recommended reporting criteria. 24 Supra note 5 at 14. 8

10 The CCLA further believes that the use of CEWs by police warrants a degree of independent oversight that is presently lacking. In our view, public confidence in how police are using CEWs would benefit greatly from independent auditing of all aspects of the weapon s use. In addition to CEW data, auditors should be given ongoing access to police records, facilities, and personnel particularly people and places involved in CEW deployment and training in order to conduct self-generated studies of CEW use. Auditors need not be given decision-making power over how CEWs are used. Rather, their role would be to disclose information and propose policy solutions through public reports. Recommendation #12: The use of CEWs by police should be subject to independent auditing. Given concerns flowing from a CBC/Radio-Canada study which found that some Tasers deliver a higher level of electricity than the manufacturer promises 25, the weapons themselves should be subjected to periodic testing to ensure continuing compliance with manufacturer specifications. In testing 41 CEWs, the CBC s study revealed that nine per cent of the weapons discharged more electrical current than their manufacturer suggests is possible. With some of the tested CEWs, the current exceeded manufacturer specifications by up to 50 per cent. While not counted in the study, several tested weapons also apparently failed to fire at all, giving rise to further safety concerns for officers in the field. In addition to ensuring that CEWs are functioning according to standards, testing should also be promptly conducted on any CEW that is deployed against a subject who suffers unexpectedly severe medical consequences, including death. This would help illuminate whether, and the extent to which, divergence from manufacturer specifications may create greater risks in deployment. Recommendation #13: CEWs should be tested regularly to ensure ongoing compliance with manufacturer specifications. 25 Some tested Tasers fire stronger current than company says: CBC/Radio Canada probe CBC News (4 December 2008) online: CBC News < 9

11 Recommendation #14: Immediate testing should be carried out on any CEW that is deployed against a subject who suffers severe medical consequences, including death. 4) CONCLUSION The CCLA is pleased to see steps being taken to formulate uniform national standards for CEW use. Nationwide, Canadians are concerned that CEW deployment guidelines in many jurisdictions do not sufficiently circumscribe the conditions under which police can use CEWs. Building the above recommendations into forthcoming uniform national standards will help ensure that the prevailing concerns surrounding CEW use are substantially allayed. 10

SUBMISSIONS OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION

SUBMISSIONS OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION CANADIAN CIVIL LIBERTIES ASSOCIATION SUBMISSIONS TO: Saskatchewan Police Commission RE: The Use of Conducted Energy Weapons by Municipal Police Services