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October 31, 2014

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LAW ENFORCEMENT:

Cops raise Taser safety claims

Metro officers hurt during training sue company, say warnings didn’t suffice

Taser Video Footage

Footage from a police training video.

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  • Metro Police Deputy Chief Gary Schofield on why the police department's endorsement on Taser's Web site was removed.
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  • Schofield discusses the separation between Metro and Taser.
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  • Schofield talks about Metro officers filing civil suits against Taser.
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  • Schofield on the number of times a Taser was used by Metro in 2007.
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  • Detective Marcus Martin, Master Taser Instructor for Metro, on being Tasered during training and why it's been stopped.
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  • Martin on why officers don't need to be Tasered during training.
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Court documents filed by three Metro officers

Beyond the Sun

Most cases against Taser have been dismissed

Law enforcement officers across the country have sued Taser International Inc. for accidents that occurred during Taser training. Most of the cases were dismissed. Whether police collected money in settlements that led to dismissals is unclear. For many settlements, the parties often agree to keep the terms confidential and the payment is not part of the court record.

Here is a sample of the lawsuits, culled from media accounts and news releases from the Taser company.

Tina Stevens: The Ohio police officer said she suffered permanent shoulder injuries after Taser training. Newspapers reported Stevens’ right rotator cuff was torn after she and “two other officers she had locked arms with were shocked ... ” The 2004 suit was dismissed two years later. It was reported that the parties involved entered into a “settlement and confidentiality agreement.”

Victor Lee Wright: The Ohio sheriff’s deputy was shocked during Taser training and, according to his lawsuit, suffered deep vein thrombosis in his right arm and a general “loss of enjoyment of life” among other ailments. An attorney told the media Wright’s arm was “fried.” Court records indicate the parties met for a settlement conference in 2007. The case was dismissed shortly thereafter.

Nick Kerchoff: The Michigan police officer claimed a Taser jolt burned him and caused nerve injury. A case Kerchoff filed in his home state against Taser was dismissed without prejudice in 2005. A second case was dismissed again the following year, the latter suit preventing Kerchoff from ever suing the company again.

David Howard: The retired Kansas cop said he experienced muscle contractions so severe during a 2004 Taser training shock that vertebrae were fractured. Court documents indicate Howard and Taser were “conducting private mediation” in January 2007, according to media accounts. The following month, the lawsuit was dismissed and Howard’s attorney told reporters he could not comment on the case.

Jacob Herring: A police chief in Missouri, Herring said he suffered heart damage and strokes after demonstrating the Taser’s safety to fellow officers. The chief also claimed he experienced hearing and vision loss, as well as painful injury. The case was dismissed in June 2007.

Ronald Lipa: The Michigan police officer hurt his arms during Taser training class. Taser said the case had been “dismissed with prejudice” in a January 2006 news release. Lipa’s attorney told reporters, “They can call it whatever they want, but we didn’t lose ... It was a secret settlement.’’

Ray Gray: The Utah sheriff’s deputy said a Taser shock caused him multiple injuries, including hypertension of the head and neck, herniation of at least two cervical discs, permanent nerve damage and muscle atrophy, according to the Salt Lake Tribune. Gray sued his employer, Davis County, for wrongful termination after the injury. He also sued Taser. The case was dismissed in November 2006.

David Wilson: The Georgia state trooper said Taser training left him with a debilitating back injury. In June, a federal court judge granted the Taser company’s motion for summary judgment and dismissed the lawsuit.

Salvatore Dimiceli: The federal customs agent claimed his arms were injured during a Taser training class in Miami. Dimiceli sued the company for failure to provide adequate safety warnings. The case was dismissed in May 2006.

Dan Husband: The Royal Canadian Mounted Police constable claimed he experienced neck, back and leg injuries, as well as a herniated disc that required surgery, after Taser training. The suit is ongoing.

Several cops got on their knees on a rubber gym mat. Kneeling in a line, they linked arms, interlaced hands, and looked up. All they knew of what comes next is this: It’s going to smart.

This was called the “daisy chain.” It was part of the Metro Police Taser training program, the alternative to hitting a single individual with thousands of volts from the weapon. It was the option officer Lisa Peterson chose, a decision she regrets.

The officers were at a training seminar in November 2003 to learn how to use the newest weapon on their belts, a device the manufacturer claimed would incapacitate a person but not do permanent harm. You can’t really comprehend the Taser, students were told, until you’re Tasered.

So an instructor attached alligator clips to each end of the daisy chain. Two officers became electrical bookends, strung at the shoulder by wires feeding back into a Taser gun. Pull the trigger and the daisy chain shudders, seizes and pitches forward, the pile of police officers becoming a portrait of Taser’s selling point: neuromuscular incapacitation.

In the middle of the chain, hands locked at her sides, Peterson had only her face to absorb the impact. She fell hard on her neck and fast into the rabbit hole — traumatic internal disc disruption, steroid injections, surgical reconstruction, temporomandibular derangement, persistent dizziness, cognitive defects, numbness, vertigo.

Officer Peterson sued Taser International Inc.

So did two other Metro cops who were seriously injured after being shocked with Tasers during other training sessions in 2003. In their lawsuits they say Taser failed to adequately warn the police department of the potential for injury and minimized the risks of being shocked, which officers had been assured was not only safe but advisable.

Peterson is still in litigation. The second officer, Chad Cook, settled with the company last year for an undisclosed amount.

The third officer, John Lewandowski, is dead, but his estate’s lawsuit against Taser does not allege that the jolt he volunteered for had anything to do with his death.

Lawsuits over Tasers are not uncommon. Police departments across the country are routinely sued by citizens who wound up on the wrong end of an officer’s Taser. Seldom, however, is a police officer the injured party. Even more seldom does that officer take Taser to court. Peterson, Cook and Lewandowski are among about a dozen across the country who, through private attorneys, without the help of their police departments, have sued Taser International Inc.

Collectively, the officers’ lawsuits call into question safety claims made by the company.

Metro, a champion of the device, has quietly changed its policy to reflect the risks of being Tasered. This is a perilous position for the department. Metro cannot have officers injured during Taser training, yet the department cannot come out swinging against Taser either — Metro must defend use of a weapon its patrol officers carry. Moreover, when Tasers are used in the field, and a citizen sues the department because of a resulting injury, Metro hires the Taser company to provide expert witness testimony on the device.

The changes Metro made in Taser training policies — which include ceasing the practice of shocking officers during training — may speak louder than any public defense the police, or Taser, have made for the device.

Even more revealing is that Metro has distanced itself from the company. In the past, police officials say, Metro was featured on the Taser Web site in an online endorsement of the product. Within the past year, however, the department asked to have Metro’s name removed from the site, police officials say.

In April, former Sheriff Bill Young supplied a court with a written document stating, “It is my professional opinion that Taser intentionally downplayed the risk of Taser M26 shocks to sell its product to police officers ...”

•••

Officer John Lewandowski wanted the full “five-second ride.” Hooked to the Taser like a fish on the line, Lewandowski told lawyers, he hit the ground screaming when the trigger was pulled. Then he got up again. No problem. Not yet.

It took Lewandowski a day to notice a rash developing on his left shoulder, where a Taser probe had been clipped to his clothing, according to his lawsuit. Then he began feeling flu-like symptoms. Then his arm started swelling. Then he became feverish and lost his appetite. Ten days after Taser training, Lewandowski collapsed. Emergency room doctors determined the officer had an advanced case of necrotizing fasciitis — flesh-eating bacteria.

Surgeons performed a “radical” removal of dead flesh from the 32-year-old officer’s body. By then, the bacteria had spread through his circulatory system. He had septic shock and kidney failure. More tissue was removed. His body was rotting around him.

Lewandowski’s attorneys have said in court documents that the Taser probe burned his shoulder, and that this burn became infected with bacteria. They have medical experts, some of whom treated Lewandowski, confirming it, even suggesting it was a third-degree electrical burn.

Taser’s attorneys say there is no way to know how Lewandowski contracted a the bacterial infection. Their medical experts note that Lewandowski was a bodybuilder who regularly shaved his torso. They say he could have introduced the bacteria by way of razor blade. Maybe Lewandowski was injected with a dirty needle, they said.

There is no way to absolutely prove, medically, scientifically, that the flesh-eating bacteria were born from a Taser burn.

But frankly, even though attorneys on the two sides have fought these points for more than three years, how Lewandowski landed in the hospital after he was Tasered really isn’t the issue.

Neither is how it came to be that Peterson cannot drive for more than 45 minutes without pain, cannot chew tough foods, and has lost 29 pounds since the injury — nine more than doctors advise her to lift, according to court documents.

Neither is the fact that Chad Cook, who also took a five-second Taser “hit,” allegedly had muscle contractions fierce enough to dislocate and fracture his arm by forcing it “through the back of his shoulder and shearing off part of the ball joint,” requiring total shoulder replacement, according to court documents.

All of these police officers alleged in their lawsuits that these injuries were the result of being Tasered.

The real question, however, is not whether officers were hurt during Taser training but whether they were adequately warned of the potential for injury.

The local firm that represents Peterson — Harrison, Kemp, Jones & Coulthard — also represents Lewandowski’s estate, and represented Cook until his case was settled. Like the lawyers representing Taser, attorneys from the Vegas firm would not speak to the Sun, nor would they allow their clients to be interviewed.

But court filings show that the injured officers’ argument, at its core, is this: Taser minimized the risks of being shocked and presented insufficient safety warnings, giving cops a false sense of security before they were jolted.

The premise is simple, the cases are complicated.

•••

In early 2003, Metro’s command staff met in a large, fluorescent —-lit room, seated at tables that looked onto a floor of blue gym mats. The department was thinking about buying Tasers for the first time, and the top brass had gathered to watch Taser’s then-chief instructor, an ex-Marine named Hans Marrero, give a product seminar. His presentation was videotaped.

Marrero made four members of Metro’s ranks get on their knees for a daisy chain. He told them he had personally been hit with a Taser 37 times. Moreover, Marrero added, “My boy has taken a few hits, my oldest boy. My youngest boy has taken a couple of hits. Everyone in my family has taken hits.”

Metro’s initial approach to Taser instruction can be summed up like this: Almost everything the police knew about Tasers, and taught officers about Tasers, they learned from Taser.

The sergeant who wrote Metro’s first Taser lesson plan testified it was essentially a mirror copy of training materials supplied by the company. Young, the former sheriff, called it a “canned program” — the safety warnings cops heard were Taser’s warnings, regurgitated by a police department that took the manufacturer at its word.

When Peterson, Cook and Lewandowski were learning how to use the weapon, Metro instructors were cribbing their curriculum from Taser’s version 10 and 10.1 certification plans, according to the Peterson and Lewandowski lawsuits. These plans, long-since out of use, today serve as a sort of time capsule, showing what officers were, and weren’t, warned of.

In 2003, Taser training materials said the device might cause “slight signature marks that resemble surface burns,” but not actual burns, the officers’ attorneys noted in their court filings. A risk of infection was never mentioned. The training materials never made any mention of the “daisy chain.”

Marrero testified that the Taser company had stopped recommending the kneeling group shock one year earlier, in 2002, before the chief instructor Tasered a chain of department heads, before Metro took Marrero’s cue and started daisy chaining its own.

The group shocks had no tactical value, Marreo explained. He just did it for demonstration purposes. He also testified that putting a “big guy” next to a “little guy” and then hitting them with Tasers them was “not a good idea.”

Officers were warned in 2003 that being incapacitated by a Taser could be “dangerous and even fatal under specific circumstances,” such as Tasering someone in a pool and causing him to drown. Still, students were told the risk of injuries was remote — 1 in 4,000, meaning you are more likely to get hurt playing basketball than being hit with a Taser.

The 2003 certification plan also said: “There have been no long term injuries caused by the Taser.”

Taser’s counterargument to the officers’ claims is made clear in court filings: The safety warnings were adequate, the officers just failed to heed them.

In the five years since Metro created its training program, Taser has updated its guidelines several times.

Today, Taser warns that the device can cause burns. Moreover, the company acknowledges these burns can become infected. It warns that people who are shocked by Tasers can suffer bone fractures, hernias, ruptures and dislocations. Today, Taser suggests students be Tasered while lying facedown on the floor, eliminating falling hazards and stray Taser probes to the eye.

Taser still maintains the risk of injuries is comparable to “athletic/sports type injuries” but the company now adds a blanket warning: “... use of force and physical incapacitation, by their very nature, involve risk that someone will get hurt or may even die from factors that include, but are not limited to: physical resistance, exertion, individual susceptibilities, and/or unforeseen circumstances.”

This differs from Taser’s assurances five years ago that being shot with a Taser had no long-term effects.

Metro abolished the practice of Tasering officers during training because of numerous injuries, Young noted in a written statement he provided for the Lewandowski case. After five months of trying, the educational value just wasn’t worth the injuries that occurred, Metro Deputy Chief Gary Schofield told the Sun. Now officers just watch videos of people being hit with Tasers.

Metro’s rule book now incudes a number of Taser policies that weren’t there in 2003: Avoid hitting anyone in the head, face, neck or groin; avoid hitting women’s breasts; avoid jolting someone multiple times; do not Taser a person in handcuffs, or just because he’s fleeing, or if she’s pregnant, unless deadly force is the only other option. And after a subject is stunned, screen him for injuries.

Metro officers fired Tasers in the field 432 times last year. They are one of the department’s preferred weapons. Even Young, in his court testimony, credited the Taser with reducing injuries. And Metro sees eye to eye with Taser when it comes to the most controversial question of all: Can Tasers kill people? Both say no.

If you read the fine print, however, all this means is that Taser’s electrical output isn’t deadly. Injuries that are “secondary in nature,” however, such as falling on your neck after you’ve been Tasered, are a different matter.

Lewandowski died in August. The coroner’s office determined the cause was a tear in the wall of the his aorta and multi-organ failure. He was 37. It’s unclear whether the flesh-eating bacteria had anything to do with his death. His attorneys, now essentially representing Lewandowski’s widow, haven’t begun to explore the issue in court.

Before he died, Lewandowski, like Cook and Peterson, was working permanent light duty for the department. This meant never patrolling the streets again.

His obituary asked that donations be sent to the Injured Police Officers Fund.

•••

The Taser company points anybody who questions the safety of the device — and many people do — to numerous studies proving that it is. It chides anyone who suggests that studies funded by the Taser company — as many are — are biased.

In an e-mail to the Sun, company spokesman Steve Tuttle said, “We stand firm in our belief in the life saving value of Taser technology and will rigorously and aggressively defend such claims.”

And the company, with more than $100 million in net sales last year, has done so in court. Only once, in June, was Taser found partly liable for a death, in Salinas, Calif. Tuttle told the Sun that Taser has a “77-1 product liability record with wins, judgments in favor and/or dismissals.”

Cook’s case is one of those 77 because a settlement can be categorized as a dismissal — the plaintiff is paid, the case is dismissed. The Sun could not, however, determine how many of those 77 successes are settlements, and Taser would not say.

Tuttle did acknowledge there could be more cases like Cook’s.

“From time to time we have settled for nuisance value certain lawsuits brought by police officers for training injuries,” he wrote in an e-mail.

Metro has been sued by civilians 12 times for use-of-force incidents where Tasers played a role. The police department’s legal team, while adamant they have rejected Taser’s offers of legal assistance, regularly farms out these lawsuits to private attorneys. How heavily these private lawyers have relied on Taser’s assistance is unclear.

This record is no surprise to Gary Peck, executive director of the American Civil Liberties Union of Nevada. He notes that Taser even sued an Indiana coroner who ruled that a Taser caused a man to die in 2004.

“Taser International has been exceedingly aggressive in its efforts to stifle criticism and discourage independent scientific research into the potential lethality of the weapons it manufactures,” Peck said.

In May, the president of the National Association of Medical Examiners told The Arizona Republic that Taser’s efforts to sue medical professionals for their opinions is “dangerously close to intimidation.”

Metro has won five of the 12 civilian lawsuits against the department. Five are pending, and two ended with settlements.

Deputy Chief Schofield insists the police officers’ lawsuits haven’t put the department in an awkward position. The police and the company have a business relationship. As with any product the department purchases, he said, liability falls squarely on the shoulders of the vendor.

“We didn’t manufacture Tasers, we don’t build Tasers, we didn’t do the engineering on the Tasers,” he said. “We can only rely on what Taser told us.”

But one of Taser’s principal arguments is that Metro is a sophisticated buyer of weapons, and that the department was “in the best position to warn its officers about the risks of the M26 Taser.”

It looks like each side is blaming the other.

Metro does not comment on ongoing litigation — but now it doesn’t Taser its officers.

That doesn’t keep cops from asking, or being upset, when Metro’s master Taser instructor, Marcus Martin, has to tell them no.

“There are several people that express disappointment,” he said. “They want to know what it feels like, absolutely.”

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