Chapter 7. Taser use issues and the adequacy of SOPs and training
7.5 Multiple/continued uses of a Taser
In Chapter 2, we described the recent research literature that highlights the increased medical risks associated with multiple and continued use of a Taser. We noted that Taser International warn that repeated, continued or simultaneous exposures to Taser should be minimised. Their training material also highlights that a number of leading police organisations – including the United States (US) Police Executive Research Forum and the US National Institute of Justice – have identified a 15 second exposure to Taser as a significant safety concern.
It is essential that the Taser SOPs and police training provide clear guidance and adequate warnings about the risks associated with the multiple/continued use of Tasers.
In our view, a multiple/continued Taser use incident can include:
• multiple trigger pulls in probe mode
• multiple trigger pulls in drive-stun mode
• two or more officers subjecting a person to a Taser use in probe and/or drive-stun mode during a single incident13
• holding the Taser trigger continuously to discharge a constant current until the trigger is released (continued use).
There are provisions in the Taser SOPs (version 1.16) that warn against multiple use of Tasers. Section 5.11 (p.16) states that:
Multiple use of the TASER should be avoided where practicable and must be justified in all the circumstances following assessment of the subject and in accordance with the Tactical Options Model.
The SOPs also set limits on the continued use of the Taser at section 5.10 (p.16):
Continued use of the TASER must be justified in all the circumstances following assessment of the subject and in accordance with the Tactical Options Model.
The current version of the Taser SOPs also contains similar provisions.
Current Taser training emphasises that if circumstances require extended duration or repeated discharges the operator should reassess the subject between uses.14
Of the 556 Taser incidents in our sample, we found 63 in which the Taser was used multiple times or continuously on a person. Our review found that police complied with the criteria for use in 46 (73%) of the multiple/continued use incidents. We found 17 multiple/continued use incidents where the initial use of the Taser appeared to be a breach of section 4. We also examined the mode of usage involved in the multiple/continued use incidents which we considered to be unsatisfactory.
Thirteen incidents involved the use of a Taser in probe mode multiple times. This included:
• one incident that involved five cycles of a Taser, two of which were continuous
• two incidents that involved continued use of a Taser for 30 seconds and 10 seconds respectively
• four incidents that involved three cycles of the Taser
• six incidents that involved two cycles of the Taser.
We identified a further four incidents where one Taser was used in both probe and drive-stun mode.
In one incident, one Taser was used for one cycle in probe mode and then two cycles in drive-stun mode. In another incident, a Taser was used once in probe mode and then for eight seconds in drive-stun mode. In the remaining two incidents two Tasers were used on one person including:
• one incident in which both Tasers were use in probe mode for one cycle
• one incident in which one Taser was used for one cycle in probe mode and a second Taser was used for one cycle in drive-stun mode.
It is our view that the NSWPF should amend the Taser SOPs and training to reflect the advice published by Taser International suggesting that police should limit multiple Taser use to a 15 second exposure, either multiple cycle or continued use. This amendment is essential to ensure that the NSWPF are using Tasers in a way that is consistent with the current best practice suggested by the manufacturer and leading police organisations.
Recommendation
2. That the NSWPF amend the Taser SOPs and training to restrict the multiple use of Tasers to
a 15 second exposure during any incident and that use beyond 15 seconds will constitute
a breach of the Taser SOPs.
7.5.1 Failure to restrain subjects following first Taser cycle
If the Taser operates effectively in probe mode it causes NMI and provides a window of opportunity for police to handcuff the person and take them into custody. In some of the multiple/continued use cases, we noted that officers did not restrain the person during or immediately after the first Taser cycle. This seemed to increase the likelihood and need for further cycles as the person having recovered from the effects of the NMI could resume a level of resistance towards police. The Taser SOPs in operation (version 1.15) during the first month of the sample period (June 2010) included a note after the criteria for use (p. 13) that advised:
NB: Once TASER has been used, officers should attempt to restrain the subject as quickly as possible.
The note was amended in version 1.16 released on 1 July 2010 (p. 14) to read:
NB: Once TASER has been used, officers should attempt to restrain the subject as quickly as possible. Once the subject is effectively under control, the use of TASER should be discontinued.
Case study 5 is an example of a matter where we were concerned that a failure by police to restrain a subject resulted in multiple Taser cycles.
The Taser Cam footage for this case study has been released with this report and can be viewed on the Ombudsman’s website.
Case study 5 – Failing to restrain results in multiple uses of a Taser
Police attended a residence at 10:45 pm after a complaint that a 35 year old man had breached an Apprehended Domestic Violence Order (ADVO). The police that attended were advised that the:
Informants brother [man named] is smashing up his room and has mental health issues and informant and her mother are scared [he] could here (sic) male yelling in background.
Police knew that the man had an intellectual disability and a history of mental illness. In the year before this incident, the same man resisted arrest and an officer received a serious shoulder injury. On this occasion,
police tried to arrest him but he refused to comply with directions to leave the premises. At the time the Taser was drawn, the man was sitting in his bedroom on the bed holding a pillow. The COPS record states the Taser was armed after the man ‘pulled away from police grasp and refused to comply with their direction’ to accompany them, after which ‘police had genuine fears’ that he ‘may become violent’. The man was directed to get on the ground with his hands behind his back. The man firmly repeats ‘Stop it, please stop it’. He tried to push away the hands of the officer who was trying to handcuff him. An officer, who appeared to be holding a baton, attempted to grab the man – but he grabbed the officer’s jacket and pulled him off balance. The Taser probes were then discharged and the man became incapacitated and slid to the floor.
The COPS record states that the man ‘continues to act in an aggressive manner towards police’ resulting in a second Taser cycle being administered. The man did not comply with further requests to lie on his stomach and continued to say ‘Stop it please’ and ‘I’ve got a bad heart’ before he was subjected to Taser use the second time. After the second cycle, officers immediately moved in and tried to handcuff him. The Taser user said, ‘Let him go boys’ and issued a third cycle of the Taser, 15 seconds after the previous cycle finished. After this, police moved in again and handcuffed the man.
The man was charged with resisting an officer in the execution of the officer’s duty and contravening a prohibition or restriction in an ADVO. There was also an application to determine whether he had breached his bail conditions. The charges were dismissed because of the man’s mental disorder and he was conditionally discharged into the care of a responsible person under s. 32 of the Mental Health Act 2007.
Our assessment of the Taser use
In this case study, we formed the view that the Taser Cam footage did not show that the man was violent or aggressive when the Taser was first armed by police. Given the history of the man and his initial behaviour toward the police officers, the first Taser use could be argued as being compliant with the Taser SOPS. However, police failure to immediately intervene and remove the man from the bedside or handcuff him resulted in the man being subjected to two further Taser cycles.
The TEC recognised, independently of our concerns, the risks of multiple use of Tasers and amended the SOPs (in July 2010) to specify that police should restrain subjects as quickly as possible. In addition, the NSWPF now emphasise in Taser training that officers should attempt to restrain the subject as soon as possible after the Taser is used, including when the Taser is still cycling.
The Taser Tips & Tricks document, available on the NSWPF intranet since May 2011, states that:
If an offender is Tasered, move in to secure the offender at the earliest opportunity, including whilst the Taser is cycling (if it is safe to do so, and remembering to avoid contact with the wires and any area between them). This will assist in negating the need for a further cycle. OPERATORS give clear instructions regarding this.15
This additional guidance may encourage officers to move in quickly to restrain a person and avoid unnecessary multiple/continued use. However, given the risks associated with unjustified multiple/continued use of Taser, we recommend that this instruction be given additional emphasis by including it in best practice guidelines discussed later in this chapter (see page 146 and recommendation 21).
7.5.2 Failure to record reasons for each Taser use (in a multiple use incident)
In five of the multiple use incidents, the officer did not accurately record and provide reasons for each cycle or discharge of the Taser in the COPS Event or Sitrep. In three of these incidents we identified five cycles of the Taser, but the COPS records were incorrect about the number of cycles that occurred – the number recorded for each of the three incidents was one, two and three cycles respectively.
In these circumstances, we were not satisfied that there was evidence or information that the Taser user had
assessed the subject/situation and considered whether subsequent trigger pulls were justified under the Taser SOPs and in accordance with the TOM.
It appears that the intention of section 5.11 of the Taser SOPs – that multiple use of a Taser is to be justified – is for each cycle of the Taser to both be identified and justified, and that officers must assess the subject and situation and consider the TOM before each additional Taser cycle. We believe that this could be made clearer if the SOPs were to specifically state that each Taser cycle must be identified and separately justified in the COPS Event recorded by the officer that uses the Taser. This should also be specified in the training materials and in training delivery.
Recommendation
3. That the Taser SOPs and training be clarified to emphasise that if Tasers are used multiple
times each discharge or cycle of the Taser must be identified and must meet the criteria for
use, and officers must provide reasons for each discharge or cycle in the written records of
the incident.
7.5.3 Insufficient time to comply with instructions
Our review of multiple/continued use incidents identified a concern about whether sometimes officers do not provide adequate time for subjects to comply with directions after a Taser is used in probe mode – before a decision is made to deploy additional Taser cycles. Case study 6 illustrates our concern.
Case study 6 – Not enough time to comply with instructions
Police attended a residence after a request for assistance from a 56 year old woman in relation to her 21 year old son. The woman threatened to call police after an argument with her son who was sitting in a back garden shed smoking cannabis and playing loud music. The man followed his mother into the house and punched a glass sliding door which fractured the glass. The woman called her husband who then made a call to 000. Police had prior knowledge that the man was wanted on an outstanding warrant and were aware that there were previous COPS warnings that he was suspected to have mental health issues. According to the COPS record, when police arrived the man was at the back of the property sitting in the shed. Police instructed him to exit the shed and he refused. At this point, the man produced a 30cm knife and threatened to kill himself. Police tried to negotiate with the man and gave him numerous opportunities to comply with directions to leave the shed, but he still continued to threaten self-harm. The COPS record indicates that police drew the Taser and discharged probes to stop the situation from escalating further.
The Taser user held the trigger continuously to submit the man to an additional cycle (cycle two). This continued use resulted in a constant electric current of 10 seconds. It is unclear if police attempted to retrieve the knife the man was holding during the first two cycles. Less than one second later, the Taser user applied a third cycle (cycle three). After this, the man was handcuffed. He was clearly shaken by the pain experienced. An officer said, ‘Do you want it again?’ The officer told the man that he was required to stand up and walk out of the shed. An officer stated, ‘If you resist mate, you’re going to cop it again’. The man was compliant, provided no indication of resistance and the Taser was disarmed.
Police assessment of the Taser use
The TRP assessed that the use of Taser was in accordance with the SOPs and no further action was necessary. However it appears that the TRP only assessed whether it was appropriate to discharge the probes. The review records do not indicate if the TRP considered the appropriateness of the continued use, nor whether multiple uses of the Taser was appropriate in the circumstances. We note that the COPS record and Sitrep did not identify or provide reasons for the continued use of the Taser. This was also not identified as an issue by the TRP.
Our assessment of the Taser use
We consider that the initial discharge of probes was consistent with the SOPs criteria for use under criterion 4.1 – which allows Tasers to be used to protect human life, given the person’s:
• history of actual/suspected mental health issues
• escalating threats of self-harm
• possession of a knife.
However, the written records do not explain why cycles two and three were deployed. It is also not clear from any of the available evidence whether these additional cycles were justified under the Taser SOPs or if the Taser user assessed the suitability of, or necessity for, continued cycles in light of the TOM.
We are also concerned that deploying three cycles in quick succession did not give the man any time to comply with police instructions. Although the additional cycles might have been deployed so that police could locate and secure the knife, it does not appear that any action was taken by the TRP to find out if this was the case – and whether it would have rendered the continued and multiple use of the Taser reasonable in the circumstances.
In our view, Case study 3 (see page 112) provides a further example where an officer deployed multiple cycles of a Taser without giving the subject enough time to comply with police directions.
The NSWPF advised us that they consider the instructions in the Taser SOPs about multiple/continued use of Taser are sufficient, and that these instructions are also strongly emphasised in training. We were advised that the TEC does not believe the Taser SOPs should prescribe timeframes to comply with instructions. They also noted:
The TEC believes that in the majority of cases TRPs are correctly identifying instances of officers failing to provide POIs [the people subjected to Taser use] with sufficient time to comply with directions. There are, however, examples where they have not.16
We acknowledge the amount of time that officers should give a person to comply with instructions will vary according to the circumstances. Factors such as the person’s capacity to understand instructions, their level of intoxication, and whether they are engaging in violent actions that may seriously injure themselves or others will be relevant, We believe training for Taser users should emphasise the requirement to allow people enough time to comply with instructions – to avoid unreasonable multiple uses of a Taser.