There is a basic tenet of the Constitution. Law enforcement enforces the law and the judicial branch metes out punishment for those who break the law. This is intended by the founding fathers of this country to avoid putting too much power in the hands of one branch of the government. When the police both arrest and punish they act unlawfully. This Taser case ruling outlines a disturbing set of facts and ends with a boy dying after suffering a heart attack. Society has to think about the limits of a tool of law enforcement that can have the effect of being able to subdue, but also the ability to quickly and quietly punish while eliminating any testimony that would demonstrate improper use.

Let us look at the facts in Mitchell v. City of Warren.

In April 2009 a 16-year-old boy resisting arrest was shot with two Taser darts into his chest. The boy experienced cardiac arrest and died shortly thereafter. On his behalf his mother filed a lawsuit against the officer and the City that employed the officer. The officer shot the Taser darts just above and below the boy’s heart causing him to fall to the ground and for his heart to go into “v-fib”, a condition of highly disorganized heart rhythm. Apparently the officer had stopped a car with expired tags, the boy as a passenger ran away from the car and into an abandoned house where the officer confronted him.

So what went wrong?

Training of how to properly use the Taser X26 indicated the best location to sink the darts into the person’s body in the back, as opposed to the front or the head. [This is a lengthy decision which discusses in depth the different theories. Any lawyer contemplating filing a lawsuit involving the Taser should read it. Most of my readers don’t need to know the basis for the dismissal, because today’s lesson has more to do with when the use of a Taser is not appropriate.]

This rendition of the facts from the Justice demonstrates why this lawsuit was filed.

“Taser does not dispute the following facts. On April 10, 2009, two Warren Police Department (“WPD”) officers initiated a traffic stop of a motor vehicle with an expired license plate. The stop occurred on a stretch of road between Warren, MI and Detroit, MI. Robert, who was 16 years old, was a passenger in that vehicle. Robert, “frightened” and “panicked,” jumped out of the passenger seat of the stopped car and ran from the scene. Robert’s reasons for fleeing remain unknown. Neither he nor the other occupants of the vehicle had committed any crime, nor were they wanted for any crime. No evidence of any crime was ever recovered.

Robert ran into a nearby abandoned house and up a flight of stairs. Six police officers soon cornered Robert, ordering him to come downstairs. Robert immediately complied, and came downstairs with his hands extended and outstretched in front of him. He was “obviously unarmed.” Robert, an asthmatic, was “sweating profusely and breathing very heavily[,] . . . out of breath and panting.” Robert—at just 5’2” and 128 pounds—was substantially smaller than and clearly outnumbered by the six officers who surrounded him. He did not resist or attempt to flee again. At this point, the events in question were no longer tense, uncertain, or rapidly evolving. No use of force beyond the officers’ hand-holds was necessary to bring the incident to a peaceful close. Nonetheless, without any verbal warning or opportunity for Robert to respond, Officer Jesse Lapham instructed two other officers to step aside and deployed his Model X26 taser at the left side of Robert’s chest. The two electronically charged darts that were shot from the X26 penetrated the left side of Robert’s chest—five and one quarter (5 ¼) inches apart— “creating a lethal trans cardiac vector.” Robert fell to the floor and officers handcuffed him. Thereafter, WPD officers noticed Robert was unresponsive, not breathing, and had no pulse. Resuscitation efforts failed and Robert was later pronounced dead. An autopsy listed Robert’s cause of death as “arrhythmogenic right ventricular cardiomyopathy (dysplasia) with use of a conducted energy device being a contributory factor.”

One has to ask why the Taser was even removed from the holster. I can’t even get to it being taken out, let alone to its use.

Claims were based on use of excessive force, racial discrimination, inadequate officer training, interference with familial relations and wrongful death. The petition was later amended, some of the claims were settled and the case proceeded against the manufacturer.

“Meanwhile, she amended her complaint to add claims against Taser. Through the amendment, she sought additional liability on two grounds: that the company negligently failed to warn end-users about the risk of cardiac arrest from an X26 discharge to the chest, and that the company’s training program negligently assured end-users that the device was safe when aimed at the chest.”

The United States Court of Appeals for the Sixth Circuit (Docket No. 14-2075) ruled against the Plaintiff, and held Taser had no duty to warn either pre or post sale from 2006 until 2009.

“Meanwhile, she amended her complaint to add claims against Taser. Through the amendment, she sought additional liability on two grounds: that the company negligently failed to warn end-users about the risk of cardiac arrest from an X26 discharge to the chest, and that the company’s training program negligently assured end-users that the device was safe when aimed at the chest.”

Pointing out numerous shortcomings in the evidence the Court upheld the lower court’s ruling in favor of Taser. Taser did not train the Warren Police Officers on the use of the Taser. It was an independent contractor-distributor. There is a concurring and dissenting opinion.

“BERNICE BOUIE DONALD, concurring in part and dissenting in part. I concur in the majority’s decision to affirm the district court’s dismissal of Mitchell’s post-sale duty-to-warn and negligence claims. I dissent with respect to the majority’s finding that Mitchell’s pre-sale duty-to-warn claim fails as a matter of law.”

Mitchell v. City of Warren

Court: U.S. Court of Appeals for the Sixth Circuit Docket: 14-2075

Opinion Date: August 21, 2015

Areas of Law: Injury Law, Products Liability

Officer Lapham responded to a call for backup; another officer had stopped a car with expired tags when a passenger—16-year-old Robert—ran from the car, broke into an abandoned house, and hid. Lapham arrived as an officer began to arrest Robert, who then tried to evade the officer’s grasp. A struggle ensued. Lapham de-holstered his taser and shot Robert. One dart hit inches above Robert’s heart, the other inches below. Robert fell to the ground. A medical team could not resuscitate him. In training, officers had been told that, “even when the taser’s darts land on the chest, the weapon is safe.” Robert’s mother settled claims against the officers and the city, then added claims against the weapon’s manufacturer, Taser. The Sixth Circuit affirmed summary judgment for Taser, finding no duty to warn the Warren Police Department about any cardiac risks at the time of sale in 2006, Michigan law precluded any post-sale duty to warn, Taser had not assumed a duty to warn by virtue of its training regimen, and plaintiff could not prove that Lapham would have ever seen a warning even if Taser had issued one.

http://j.st/4mKB other links aove are to the case on the Lombardi Law Firm website. 

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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