Also: Truths & Myths of CEWs 

— New Court Decision on Handcuffing Injured Subjects

Earlier this year a federal district court in Indiana offered some important reminders about the usually mundane procedure of handcuffing a subject

In this case, two officers and their municipality were denied a favorable summary judgment on charges of excessive force and battery because of the way one officer handcuffed an injured subject and because the other allegedly stood by and failed to prevent the infliction of “extreme pain.”

The plaintiff in this matter was arrested for being involved in a fistfight at a filling station. In his lawsuit, he explains that his right arm is unable to bend or stretch normally because it is notably shorter than his left. At the time of the brawl, this impaired arm was in a brace and sling because it had been fractured a few weeks earlier by another officer who bent it during handcuffing after a different altercation.

In his decision, Federal District Judge Joseph Van Bokkelen notes that the subject explained to officers at the gas station that his arm was broken and “frail” and that handcuffing him behind his back would inflict severe pain. But one of the defendant officers, “disbelieving him,” handcuffed him behind anyway, removing his sling and brace and threatening him with CEW deployment if he did not submit. The other defendant officer, a corporal who had arrived as backup, watched without interceding. In the end, the subject did experience extreme pain, according to the court.

In explaining his decision to send this case to trial rather than grant the defendants’ summary judgment motion to dismiss it, Van Bokkelen offers several points worthy of roll-call review:

— “The mere act of handcuffing a subject can be unreasonable if done with excessive force.” In determining what’s reasonable, under standards established by the landmark case Graham v Connor, courts must be mindful of “the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight.” In this case, all these factors weighed in the subject’s favor.

— “Officers must consider [pre-existing injuries] in determining whether it is appropriate to handcuff a suspect.” An officer “cannot be expected to accommodate an injury that is not apparent or that otherwise has not been made known to him,” Van Bokkelen writes. But in this case, the subject’s injured arm was “visibly obvious” and specifically described to the defendant officers. Under that circumstance, a pre-existing injury “could render an otherwise reasonable use of force unreasonable.” In other words, “a reasonable jury could conclude that [the officer] used excessive force in handcuffing plaintiff instead of securing him in a manner that would accommodate his injury.”

— A bystanding officer “can be held liable” for a civil rights violation if he or she “had reason to know that a fellow officer was using excessive force and had a realistic opportunity to prevent” it. The corporal was “present and watching” when the plaintiff explained his injury, when he “pleaded not to be put in handcuffs,” and when the first officer still “knowingly handcuffed [him] in a manner that caused extreme and unnecessary pain.” A reasonable jury “could conclude” that the corporal was “on notice” of impending excessive force, with the opportunity for preventive intervention, Van Bokkelen determined.

— Even if an officer violates a subject’s constitutional rights, he “may still be entitled to summary judgment…if those rights were not ‘clearly established.’ ” But here, Van Bokkelen states, the officers were clearly on notice by well-established case law that “grabbing a non-resisting suspect by his fractured arm, bending it behind his back, and handcuffing him constitutes excessive force.” And “doing nothing to stop it” is clearly established as unacceptable as well.

[Read the full Wendell Manuel v City of Elkhart decision.]

Incidentally, approximately six years have passed so far since this incident occurred. And the case creeps on….

— Must Read: First Comprehensive Review of Truths & Myths of CEWs

Every trainer, investigator, PIO, administrator, and police attorney should have a reference copy of a newly published paper about handheld conducted electrical weapons (CEWs), of which the TASER® brand is the best-known.

This paper, said to be “the first comprehensive review of the positives and negatives of CEWs,” presents a clearly crafted, science-based, layman’s explanation of how these devices work, what they can and can’t do, the myths and misunderstandings commonly advanced by plaintiffs’ attorneys and activists, and the true risks associated with their deployment in the field.

In short, it’s a foundational document for training, investigations, and educational conversations with civilians, the media, and government decision-makers.

The review is the work of an international team that includes two bioelectricity scientists, two cardiologists, a forensic pathologist, and an attorney specializing in use-of-force issues. Lead authors are Dr. Mark Kroll, a biomedical engineering professor at the University of Minnesota, and police attorney Michael Brave. Both are professionally affiliated with Axon Enterprise, Inc., manufacturer of the TASER® CEW, but the paper is based on findings reported in 125 cited references from objective, peer-reviewed scientific literature.

Here’s a limited sampling of the paper’s content, beyond the introductory explanation of how a CEW functions in both probe and drive-stun mode:

— Presentation Compliance. Studies from a variety of countries consistently show that in up to 85% of confrontations, just the display or arcing of a CEW, with no actual discharge of the weapon, persuades resistant subjects to submit.

— Injury Reduction. In studies involving thousands of uses of force, CEWs are documented to reduce injuries to subjects by some 65% compared to batons, manual control techniques, and pepper spray.

— Reduced Shootings. The number of shootings and non-firearm deaths associated with arrests also tend to drop by significant percentages in agencies that are “not overly restrictive” in their CEW policies.

— Electrocution Myth. The claim that CEWs can electrocute subjects is countered by extensive scientific experiments and millions of street applications in over 100 countries. In reality, these weapons pack less electrocution potential than electric fences, according to the paper, which discusses the mortality myth in detail.

— Legitimate Risks. The greatest risks of serious injury from CEWs come from suspects falling once they temporarily lose muscle control, from burns caused by a discharge spark igniting flammable fumes in the environment, and from an errant probe penetrating a subject’s eye. And these dangers are minuscule statistically. Out of approximately 4,000,000 field uses of CEWs, only 26 fatalities and 25 major injuries from these causes have been documented.

The paper, titled “Benefits, Risks, and Myths of TASER® Handheld Electrical Weapons,” is published in the peer-reviewed journal Human Factors & Mechanical Engineering for Defense & Safety and available for a fee at. An abstract and a full list of the paper’s references can be viewed at that site free of charge.

Dr. Kroll can be reached at: mark@kroll.name