An ECW should only be used against subjects who are actively resisting in a manner that, in the officer's judgment, is likely to result in injuries to themselves or others, including the officer. - Photo: Mark W. Clark

An ECW should only be used against subjects who are actively resisting in a manner that, in the officer's judgment, is likely to result in injuries to themselves or others, including the officer.

Photo: Mark W. Clark

Law enforcement use-of-force practices are being examined under the microscope of public scrutiny. Now, more than ever, we should expect that any action we take will not only be reviewed, but most likely will be captured on someone's cell phone camera. While I challenge any of you to show me any use of force that "looks good" there are important factors we must remember in our applications of force, including non-deadly force such as electronic control weapons (ECW).

Within the Daigle Law Group Policy Center policies concerning non-deadly force, we break down each non-deadly force option into its own directive. Each non-deadly force option comes with its own set of conditions, needs for medical attention, and report writing requirements.

Let's look at a few of the operational considerations and constitutional concerns that come with the use of ECWs, most commonly Axon's TASERs.

Active Resistance

First and foremost, an ECW should only be used against subjects who are actively resisting in a manner that, in the officer's judgment, is likely to result in injuries to themselves or others, including the officer.

What does that mean? Simply put, it means that an ECW is not the appropriate tool against a suspect who is passively resisting or who may simply be questioning the officer's actions.

Actively resisting is defined as those situations where:

A subject makes physically evasive movements to interfere with an officer's attempt to control that subject. Evasive movements include, but are limited to, bracing, tensing, pulling away, or pushing.

There are many videos online where a subject is tased for simply questioning an officer's authority. This is not an appropriate use of the ECW. We cannot forget that an officer's ability to talk to subjects and gain compliance through verbal commands is still the best "weapon" for resolving many confrontations without use of force.

If the ECW is to be deployed against an actively resisting suspect, several actions need to be taken by the deploying officer. First, if it is safe to do so, give the subject time to comply with your verbal commands. This serves a dual purpose. If the subject complies, it negates the need to deploy the ECW. It also provides notice to other officers that the TASER may be deployed. You should also make an announcement that you plan to deploy the ECW such as "TASER—TASER." After deployment, the suspect should be handcuffed and brought under control as soon as possible. Quick control of the suspect reduces the need for multiple ECW applications.

Multiple Applications

In those circumstances where multiple applications of the ECW are required officers need to be able to articulate and document the following important elements:

1. The need for each—let me emphasize that, EACH—application of the ECW must be supported and documented. The fact that the suspect was tased for initially actively resisting does not necessarily justify the third, fourth, and fifth applications or "rides." Each application of the TASER must be justified by continuous active resistance.

2. Is the subject able to comply with the officer's commands? Multiple applications of the TASER given over a very short period of time may give credence to the subject's claim that he or she was not given an opportunity to comply. Remember, you will be downloading the ECW activity statistics including the time between applications and including that information within your report.

When Not to Use

We've discussed that the ECW will only be used in those circumstances where the subject is actively resisting. What about those circumstances where the use of the ECW is prohibited?

Your agency's policy should prohibit the use of ECWs in a number of circumstances, including:

• Against a female subject who the officer reasonably believes is pregnant;

• A subject located in a place where, once incapacitated, could be injured or injure others. Examples include a subject standing on a ledge who could fall or a subject operating a vehicle who could crash, causing injury to themselves or someone else;

• Subjects under the age of 10 or over the age of 70;

• In a fire danger situation where there is a presence of gasoline or where the subject has been sprayed with an alcohol-based OC spray; and

• To rouse an unconscious or incapacitated person

The purpose of the ECW is to gain compliance. It is not to be used as a punishment device. It is important to remember that your use of the ECW will be reviewed and improper use of this important tool can expose you to administrative and criminal liability.

After ECW Use

There are some specific steps that need to be taken after an ECW has been used—notably, removal of the probes, collection of the ECW evidence, and downloading of the ECW statistics.

How and where the probes are located may require the attention of an EMT for removal. However, if the probes have disengaged or are superficially attached to the skin they can be removed by the officer.

As anyone in law enforcement knows, when an ECW is activated it emits AFID (anti-felon identification) tags. As part of the post-force process, the officer needs to collect at least two of the AFIDs, along with the probes, wire leads, and cartridge or cartridges. These items need to be properly bagged and tagged and placed in evidence.

Next, the ECW needs to be turned in to the supervisor to download the ECW statistics and any video, if applicable. This information also needs to be secured and included with the case.

ECW Basics

Finally, let's review a few administrative and safety matters.

• It is each individual officer's responsibility to check the ECW at the beginning of your shift, making sure that the battery is charged and the cartridge is properly loaded;

• Carry the ECW in the authorized holster; and

• Carry the extra cartridge in an approved carrier. Do not carry the cartridge in your pocket. A static charge could cause an unintended discharge of the cartridge in your pocket.

Review your agency's policies concerning the ECW, its lawful use, when its use is prohibited by agency policy or law, and what evidence must be collected after use. When used correctly and in the right circumstances an ECW can limit injury to the suspect and to you, the officer. But incorrect or unlawful use can lead to liability and even criminal prosecution.

Eric Daigle is founder of Daigle Law Group, LLC, a firm that specializes in law enforcement operations. A former Connecticut State Police officer, Daigle focuses on civil rights actions, including police misconduct litigation. He is a legal advisor for police agencies across the country. www.daiglelawgroup.com.

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