Chapter 7. Taser use issues and the adequacy of SOPs and training
7.6 Using Tasers in drive-stun mode
The use of a Taser in drive-stun mode alone does not achieve NMI. Its use in this mode is to achieve the compliance of a subject by inflicting pain. The Taser SOPs (version 1.16) state that drive-stun should only be considered in exigent circumstances.
5.5.3 Drive-stun: The drive-stun can only be achieved by direct contact of the electrodes to a subject with or without a cartridge attached to the TASER device. Drive-stun mode may cause pain and will NOT achieve Neuro Muscular Incapacitation (NMI). Therefore it should only be considered in exigent circumstances.17
This important qualification is included in the ‘methods of use’ section rather than the ‘criteria for use’ section of the Taser SOPs. In the current Taser SOPs (version 1.18) the qualification remains in section 6 and includes a new sentence as follows – ‘Where only one probe has made good contact with a subject, drive-stun may be successful in achieving NMI’.18
In the current version, there is also a new section called ‘Methods of Use – Exigent Circumstances’ which includes a statement that given the limited effect of a Taser in drive-stun mode, it is a tactical option that should only be used in exigent circumstances.
The Taser SOPs (past and current) do not provide a definition of ‘exigent circumstances’. During training, officers are taught to use drive-stun in the following circumstances:
• if they are too close to the person for the firing of Taser probes to be practicable
• if the discharge of probes has been ineffective, drive-stun may be used on a different pressure point to achieve a closed circuit – resulting in NMI.
The NSWPF Taser training material also includes the following statement:
The Taser is capable of being discharged using a drive-stun without firing probes by removing the live cartridge—however this is not recommended nor is it considered NSWPF policy.19
Between 1 October 2008 and 30 November 2010, 3.6% (82) of Taser incidents involved a single Taser use in drive- stun mode. From the 556 cases we reviewed, there were 38 incidents in which a Taser was used in drive-stun mode. This included:
• 11 incidents in which the Taser was used in drive-stun mode only for one cycle • 3 incidents in which the Taser was used in drive-stun mode only for multiple cycles
• 24 incidents in which drive-stun was used in conjunction with a Taser used in probe mode.
During our review, we noted that the Taser Cam is often of little assistance in determining whether the use of the Taser in drive-stun mode was both in accordance with one or more criteria for use and was in a situation where exigent circumstances were present. This means that the assessment must be done based on the COPS record and
the Sitrep – and, in most incidents, the COPS and Sitrep records did not specify what the exigent circumstances were that justified the use of the Taser in this mode. For these reasons, it was difficult to assess whether the drive- stun use was appropriate or not.
In the one incident that was clearly a breach of the criterion for use and a use in the absence of exigent circumstances, the Taser Cam had been activated well before the use in drive-stun mode so this footage was available to allow an assessment – see Case study 7. However, in the majority of cases we examined, the Taser was activated immediately before the drive-stun use so the Taser Cam footage has little or no value. In these cases, all that can be seen is body mass and the Taser Cam operates for only a short timeframe.
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 7 – Drive-stun without exigent circumstances
A single-unit officer pulled over a man driving a car for traffic-related matters. The COPS record states the driver was immediately aggressive and refused to comply with directions to produce his driver’s licence. The Taser Cam footage showed the officer repeating directions to the man to get on the ground under threat of being subjected to Taser use for not complying – and showed the man passively resisting these repeated directions. The officer said ‘if you don’t get on the ground I’ll Taser you’. The man said he would not kneel down and dirty his clothes. He also called out to a security guard to be a witness and told the police officer that he was aggravating the situation. Although the man was noncompliant, he made no threats and did not appear to be physically intimidating the officer. The man again called to a security guard to witness the exchange, and said he feared the officer. The officer re-holstered the Taser to make an arrest. The COPS record notes that the man resisted violently. The officer then removed the Taser cartridge and did a spark test, which he stated brought no reaction from the man. The officer then used the Taser in drive-stun mode. Police assessment of the Taser use
The TRP noted that the man did not appear aggressive but failed to comply with directions, and ultimately found the deployment was justified – after seeking advice from a weapons trainer. After receiving this advice, the monthly TRP minutes stated the officer required ‘remedial action as he removed the probes during the incident and conducted a field spark test’ and said that a weapons trainer should email the officer to remind him to only use the SOPs that are applicable to general duties police, even though he is PORS trained. Our assessment of the Taser use
We were not satisfied that the use of the Taser in drive-stun mode was appropriate. There were no details in the COPS record or the Sitrep about what exigent circumstances justified the use of the Taser in this mode. In our view, the Taser Cam footage suggested that the police officer used the Taser to get the man to comply with directions to get on his knees.
We asked the TEC for a response to our concerns and they advised that:
The TEC does not accept that the drive-stun met exigent circumstances. The officer has breached the SOPs by removing the cartridge and arcing the weapon. Subsequently, the device could not be used in probe mode, if required.20
In our view, and that of the NSWPF as is evident in the Taser SOPs, a Taser should generally not be used in drive- stun mode. This important qualification is not under the section on criteria for use, but is under another section about method of use. We have a general concern about the structure and headings used in the current Taser SOPs in terms of clarity and being easily understood. Information about using a Taser in drive-stun mode should be in a section that is specifically concerned with describing circumstances and situations where a Taser should generally not be used.
We also noted that the Taser SOPs do not define ‘exigent circumstances’. We asked the NSWPF how they defined it and they provided the following:
Exigent circumstances is a common term utilised by many police organisations throughout the world. For instance USA Police Executive Research Forum 2011 ECW guidelines define exigent circumstances as ‘circumstances that would cause a reasonable person to believe that prompt and unusual action is necessary to prevent physical injury to self or others’.
This definition is consistent with the NSWPF interpretation. The prompt and unusual action is the Taser in drive-stun mode.21
In other correspondence from NSWPF, it was described as follows:
Exigent circumstances in a policing sense refers to matters requiring immediate action. As per the dictionary definition ‘requiring immediate action or aid, urgent; pressing’… “Exigent circumstances” is a term common to a number of SOPs within the NSWPF and is understood by the TRP and officers generally.22
A definition of exigent circumstances should be included in the Taser SOPs. Exigent circumstances is also a threshold that can be used to justify Taser use in particular situations where Taser use would ordinarily be inappropriate and a breach of the Taser SOPs. Given the importance of this term, it is essential that it is clearly and formally defined. Furthermore, when an officer cites exigent circumstances to justify the use of a Taser (in any mode or in any circumstance) they should be required to set out or describe the exigent circumstances that were present so that the TRP can assess whether this threshold has in fact been met.