Fourth Circuit upholds multi-million dollar award in Taser death | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    The Fourth Circuit Court of Appeals, which has jurisdiction over North Carolina, last week returned a major decision that has significant implications for law enforcement agencies in North Carolina, and especially in Beaufort County.

    The case is Fontenot vs. Taser International, Inc. You can read the decision by clicking here.

    The Court upheld a judgment of liability against Taser resulting from the use of a product they made, known as a Model X26. A Charlotte police officer used an X26 on a seventeen year old male who was acting in a disruptive manner in a Food Lion after being fired by the store's management. The youth died of cardiac arrest as a result of being tasered in the chest. The evidence showed that the office used an abnormally prolonged dose of electrical current because the subject failed to be debilitated from the initial shock.

    The jury awarded the mother and father of the young man ten million dollars. While the amount was later reduced to $5.5 million the significance of the case is that it shows that Tasers are deadly weapons when used as the company recommended, and as the evidence showed the officer was trained to use it. The court remanded the case back to District Court for a determination of the precise amount of the award.

    There has been a widespread debate in recent years about how dangerous Tasers are. The company and most law enforcement agencies have contended they are not deadly weapons. This case refutes that argument.

    The implication for law enforcement policy now is whether the training officers receive in the use of Tasers will be changed and whether by policy they will be treated as deadly force, just as a firearm is.

    Many police officers have been operating under the belief that Tasers are not lethal weapons. Thus, they are often used when deadly force would not otherwise be warranted. A close reading of the facts in the Charlotte case, for example, shows that the subject was not presenting imminent danger of harm, but rather was simply belligerent. The standard typically applied in the use of deadly force is that it is necessary to remove the threat of death or injury to the officer or others. It is worth noting that the police officer did not attempt to arrest the subject. He did tell him to "calm down" and he failed to do as instructed. But the mother contend that was not sufficient reason to use deadly force to subdue. Most training protocols in such situations call for the officer to await backup unless the subject present an imminent threat and then to use only the necessary force to abate the threat. The Court found, in this case that the officer used the force he did because he did not believe, based on his training, that it would be lethal. The decision blows that position away.

    The decision of the Fourth Circuit is consistent with previous rulings by the N. C. Court of Appeals in holding that stun guns are dangerous weapons.

    For the Legal Eagles among our readers we would note that the Court upheld the District Court's prohibition of TI using contributory negligence as a defense when they contended that the subject brought on his own death by failure to comply with the officers instructions.

    Commentary

    The case has, we believe, significant implications for Beaufort County. The use of Tasers is very prevalent apparently based on complaints we receive against the Sheriff's Office. Even the use of such devices in schools. After we received one such complaint we inquired of the Sheriff's Office what their policy was on the use of Tasers and specifically whether they were considered lethal weapons. We got no response. Thus, we assume they have no policy.

    But clearly this case says all law enforcement agencies should have a policy, protocol and adequate training of officers that is predicated on the assumption that the devices can be lethal and that this should be taken into consideration in their use.

    We would suggest that the policy should be simple. Tasers should be treated the same as a firearm. They should not be used as an alternative to other methods of restraint, including handcuffing, pepper spray and superior physical force (backup). Law enforcement officers need Tasers. And they need to be able to use them when appropriate. But that use should be in accord with the same standard that would apply to the use of a firearm. There is, in our judgment, no question but that they are lethal weapons. All one has to be is look at news reports of the number of deaths that have been coincidental with their use. Just search this site for "taser" to see several examples. They should be used, but only as would a firearm.