The Lombardi Law Firm Blog

Will the Iowa Courts determine multiple taserings to be constitutional?

Iowa’s North Liberty police department sued for multiple Tasering of arrestee.

The Courts define what force is legitimate police power and when the use of force becomes punishment. It is the court's that mete out punishment sanctioned by state law; whereas police enforce the laws. Police are not authorized by the Constitution to punish. It's all about the separation of powers under the United States Constitution.

Once under control would repeated Tasering be considered an abuse of police power?

This Iowa case may answer the question of whether it is justified police action or an unconstitutional abuse of police power to use multiple Tazing of a person under arrest. As you can imagine once a person is under control further Tasering is akin to torture. The police are supposed to enforce the laws, but are not authorized to act as judge and jury as far as punishment goes.

What this case may answer may also demonstrate the difficulty of proving damages in a civil case for the manner in which the Taser was used. If it’s legal to Taser a person at least once, then what pain and suffering does a second, third and fourth Taser event add? If at least one Tasering is legal then you won’t be allowed damages for that first event; only for the 2nd, 3rd and 4th events. But if the Taser makes your nerve pulses ineffective can a person continue to feel painful stimulus? If not how then can you suffer pain? Perhaps the experts will be able to tell us if the Tasered suspect can still feel pain but is simply unable to respond. This damage case will require medical experts on the issue of the Taser and a person’s ability to feel pain after undergoing a Taser event.

I have to wonder how, if the Taser is so effective, can anyone justify multiple Tasering events?

Canadian authorities have been analyzing the use of the Taser by it’s own police forces and seem more concerned than is American law enforcement.    

The ACLU of Florida petitioned the SCOTUS to review a case involving multiple Taser events on the same person during an arrest. You can download the 67 page Petition for Review by following the link.

QUESTIONS PRESENTED

1. Whether a deputy sheriff violated the Fourth Amendment by administering three separate five-second-long direct contact “drivestun” Taser shocks, over a two minute period, to a handcuffed, nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

2. Whether a reasonable police officer had fair notice in 2004 sufficient to deprive him of qualified immunity that it violated the Fourth Amendment to administer three separate  fivesecond-long direct contact “drive stun” taser shocks, over a two minute period, to a handcuffed nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

PARTIES TO THE PROCEEDING

Petitioner is Jesse Daniel Buckley, plaintiff-appellee below.

Respondent is Jonathan Rackard, Deputy Sheriff of Washington County, Florida, in his individual capacity, defendant-appellant below.

Amnesty International USA covers the use of Tasers multiple shocks in a single arrest. See Canada: Inappropriate and excessive use of tasers.

2.1 Multiple or prolonged taser discharges
Amnesty International's research into deaths following taser use in the USA and Canada indicates that many of those who have died had been subjected to multiple or prolonged shocks. In Canada alone, all six of the deceased in 2005 and 2006 were shocked multiple times with a taser; in one case up to 12 times in three minutes.

Amnesty International believes that repeated shocks should be avoided unless absolutely necessary to avoid serious injury or death and prolonged shocks beyond the five-second discharge cycle should be prohibited.

The Canadian Police Research Centre noted in its 2005 Technical Report that "police officers need to be aware of the adverse effects of multiple, consecutive cycles of a CED on a subject" because "the issue related to multiple CED applications and its impact on respiration, pH levels and other associated physical effects, offers a plausible theory on the possible connection between deaths, CED use and people exhibiting symptoms of CED.(12)

In April 2005, the US Department of Defense released a report which concluded that while available data suggests that healthy adults would not be at significant risk from the taser, "if long periods of uninterrupted EMI [Electromuscular Incapacitation Device] activation did occur, the risk of unintended adverse effects such as cardiac arrhythmia, impairment of respiration or widespread metabolic muscle damage could be severe".(13)

Taser International is the main manufacturer of taser stun guns. In June 2005, in light of a number of lawsuits by relatives of those who died after being shocked by tasers, and the fact that the use of their product was being listed in autopsy reports, the company included a warning that there were potential health risks in the use of its product in a training bulletin.

Taser International on May 3, 2004 issued a Memorandum of Law concerning the Taser Conducted Energy Weapons.

The legal concerns usually raised regarding the TASER conducted energy weapon generally fall into two categories:

1. What are the legal restrictions on the use of a TASER conducted energy weapon; and

2. What is the impact of a TASER conducted energy weapon on legal liability in a use of force incident. The purpose of this Memorandum of Law is to address these issues in the context of U.S. Federal and State regulations and case law.

Watch this video and ask yourself whether these six officers were using force to effectuate an arrest or whether the force is in fact punishment. This is not the Iowa arrest that resulted in the lawsuit.

The Courts define what force is legitimate police power and when the use of force becomes punishment. It is the court's that mete out punishment sanctioned by state law; whereas police enforce the laws. Police are not authorized by the Constitution to punish. It's all about the separation of powers under the United States Constitution.

Father arrested for supplying steroids to his son

Here is the example that Major League Baseball sets when they allow players like A-Rod to play after admitting he used and then misled the press about steroid use.

A Mason City, Iowa father was arrested for supplying his son steroids. The father and mother are divorced and child visitation is being exercised. The AP reports the son was given the drugs when he was on a visitation weekend.

“Court records show that boy told investigators his father gave him the pills during an earlier weekend visitation. The records also show that Gerleman admitted to giving his son the needle and the pills.”

The Gilbertville police were called when the son allegedly assaulted the mother who phoned the police. Officers found a syringe and 105 pills in the child’s bedroom. The boy is 14-years old.

In a statement issued Saturday but the MLB, Executive Vice President of Labor Relations Rob Manfred said, "We are disturbed by the allegations... Because the survey testing that took place in 2003 was intended to be non-disciplinary and anonymous, we can not make any comment on the accuracy of this report as it pertains to the player named."

In December 2007 A-Rod said on 60 Minutes he never took steroids, but then in February 2009 when confronted with new evidence he admitted to the truth.

"For the record, have you ever used steroids, human growth hormone or any other performance-enhancing substance?" Couric asked.

"No," Rodriguez replied.

Asked if he had ever been tempted to use any of those things, Rodriguez told Couric, "No."

"You never felt like, 'This guy's doing it, maybe I should look into this, too? He's getting better numbers, playing better ball,'" Couric asked.

"I've never felt overmatched on the baseball field. I've always been a very strong, dominant position. And I felt that if I did my work as I've done since I was, you know, a rookie back in Seattle, I didn't have a problem competing at any level. So, no," he replied.

I don’t know who the MLB thinks they are fooling but it’s not the kids who play sports and want to play ball in the Major Leagues.  The MLB isn’t fooling the fathers whose expectations father’s place on their kids.

Disease Transmission From the Transplantation of Organs

According to the United States Department of Health and Human Services, in the year 2006 there were a total of 98,263 patients listed on the organ donation waitlist within the United States, but only 14,756 organ donors. To make the situation even bleaker, there are a small number of organ recipients who receive more than just their desperately needed organ; they also receive life-threatening disease.

Within the United States, there are significantly more patients waiting for organ donation than there are organ donors. High demand causes organ procurement groups, such as the Indiana Organ Procurement Organization, to race against time in order to determine which organs are safe. However, due to increased demand, the desperate need for organs, and time restraints corner-cutting has also increased, which leads to increased instances of failure within the organ-sharing network.

Dr. Michael Nalesnik, Vice Chairman of the Disease Transmission Advisory Committee of the United Network for Organ Sharing and a professor of pathology at the University of Pittsburgh Medical Center, claims that transmission of disease from donor to recipient occurs less than one percent of the time. This means that with the more than 28,000 transplants nationwide per year, there are fewer than 280 instances where disease is transferred from donor to recipient.

There are minimum procurement standards that outline the appropriate medical tests and examinations before an organ is accepted for transplantation. However, the nature of the standards leave wide discretion to over 50 organ procurement groups that assess organs used for transplantation. Another problem is that these assessments are made with the clock ticking, in order to ensure that they reach the recipient in as little time as possible and to prevent the organs from perishing. This could result in organs being rushed through tests and examinations, or organs skipping tests and examinations, which could result in further injury to patients that are already in dire straits. Transplant surgeons also have the discretion to reject and organ, which is a decision that is sometimes made when there is limited information about a donor.

The United Network for Organ Sharing reports that malignant cancer was the cause in 14.5 percent of kidney recipients five to ten years after the transplant operation.

CAT Scans Lead To Radiation Exposure

A computed tomography scan ("CT scan" or "CAT scan"), which is a procedure that takes no more than a few minutes, is a medical imaging method that is used to create three-dimensional x-ray images. CT scanning has a number of benefits over traditional medical radiography. For example, CT scanning eliminates superimposed structures outside the area of interest and tissues that differ in physical density can be more easily identified. The most crucial part of the scan is usually completed in under a minute, but prolonged scanning could result in a number of severe health risks due to high radiation exposure.

A typical dose of radiation for a CT scan that includes the head and chest would result in exposure to 7.3 mSv (millisievert) of radiation. For comparison, the average survivor of the Hiroshima and Nagasaki bombings were exposed to 40 mSv of radiation, and the average radiation exposure from natural sources to an individual within the United States is about 3 mSv. Additionally, the effects of low doses of radiation-less than 100 mSv-are observed on a cellular level and may not be detected for up to twenty years after exposure.

According to the United States Nuclear Regulatory Commission, the exposure to radiation can have three effects: 1) cells are injured or damaged and then later repair themselves, resulting in no enduring damage; 2) cells could be killed, which happens on a large scale every day; or 3) cells incorrectly repair themselves, which results in a biophysical change.

Genetic effects and the development of cancer are the primary adverse effects attributed to radiation exposure. Cancer is five times more likely to occur after radiation exposure than a genetic effect.

With CT scanning technology on the rise, the likelihood for public exposure to harmful levels of radiation increases. Traditionally, it was a physician's decision whether or not to scan a patient; but today, an individual may undergo a scan of their entire body without consulting a primary care physician.

There exists a lack of awareness of the risks of radiation exposure. Patients who undergo CT scanning, as opposed to other imaging techniques, are exposed to higher levels of radiation. For example, MRI is safer, but more expensive and has limited availability. As CT technology increases, the necessary dose of radiation also increases. Therefore, there is an increase in radiation exposure to the public, as well as its adverse health effects.

Toxic Substances: What are PCB's?

            PCB production was banned in the 70s because of its high toxicity, and is classified as a persistent organic pollutant that bioaccumulates, or is absorbed by organisms at a faster rate than the rate at which it is lost, in animals.

            There has been a number of large-scale environmental contamination incidents linked to PCBs. In New York, between 1947 and 1977, GE Company released over a million pounds of PCBs into the Hudson River. This resulted in high levels of PCBs in the local fish, which put fish consumers at an unacceptably high level for health problems.

            Beginning in the late 1950s and continuing through 1977, Westinghouse Electric dumped rejected capacitors containing PCBs into area landfills and salvage yards. PCB was also dumped down factory drains, causing contamination of the Bloomington, Indiana sewage treatment plant.

            Humans exposed to PCBs can develop a number of adverse health effects. Workers exposed to levels of PCBs have shown blood and urine changes consistent with liver damage. In Japan, PCB contamination of rice bran oil led to a mass poisoning of over fourteen thousand people. Other results consist of irregular menstrual cycles, lowered immune response, and, in children, poor cognitive development.

            PCB has also been linked to specific kinds of cancer within humans, such as liver cancer and cancer of the biliary tract. According to the Department of Health and Human Services (DHHS), the United States Environmental Protection Agency (EPA), and the International Agency for Research on Cancer (IRAC), as well as a number of other institutes and organizations, PCBs may reasonably be anticipated to be carcinogens.

            PCBs are regulated under the Toxic Substances Control Act, which was enacted into law on October 11, 1976. 40 CFR 761.

            PCBs are different that DDT. DDT is a synthetic pesticide, whereas PCBs are man-made organic compounds used

A fall from 20 feet is enough to cause trauma to the spinal cord.

Davenport firefighter, Capt. Bob Juarez only 43 fell 20 feet from a ladder suffering below waist paralysis.

We’ve talked a lot about fall protection while working as a construction worker. What occurred last week to Capt. Bob Juarez, 43, while 20 feet up a ladder demonstrates the importance of fall protection. Falling just 20’ might in the abstract seem like a not too dangerous predicament, but in this instance it has resulted in below-the-waist paralysis. His medical care includes surgery and being on a ventilator. This firefighter, who is widely liked for his community service and involvement, is married with two children.

If you think it won’t happen to you, think again.