Special Report - As Taser warns of more risks, cities bear a burden in court

By Tim Reid, Peter Eisler, Jason Szep and M.B. Pell CINCINNATI, Ohio (Reuters) - Officer Richard Haas says he never meant for Everette Howard to die. He just wanted to stop him. A top high-school grad staying on the University of Cincinnati campus for a college prep programme, Howard, 18, had broken no laws that hot August night in 2011. It was about 3 a.m., and he was agitated after a run-in with neighbourhood kids who’d tried to rob his friends. Blocks away, university police officer Haas’s radio crackled with reports of an assault. Nearing the scene, he intercepted several people running away and ordered them to the ground. He unholstered his Taser and panned its red sighting beam over them “to get their attention.” Howard, shirtless, approached from behind with his dorm adviser, Ricky Pleasant, who’d placed the 911 call. Get down, Haas said. “We’re not the ones you’re looking for,” Pleasant replied. Howard stepped forward. Pleasant thought the teen intended to kneel; Haas thought he intended to fight. Haas fired his stun gun. One electrified dart hit below Howard’s lower left chest, the other near his waist. The 18-year-old collapsed, unconscious, and was pronounced dead at the hospital; the coroner ruled the cause “unknown.” “I did not in my wildest dreams expect this kid to die,” Haas, a certified Taser instructor, told Reuters. Howard’s family sued Haas in his official capacity as a member of the university’s police force, contending he did not heed warnings from the weapon’s manufacturer, Taser International Inc, to avoid chest shots because they can pose cardiac risks. The university settled for $2 million; Taser faced no litigation. As Tasers have become a common weapon in U.S. policing, so too have legal cases like Everette Howard’s. And as the human toll mounts, the litigation toll is increasingly borne by the public. At least 442 wrongful death suits have been filed over fatalities that followed the use of a Taser, almost all since the stun guns began gaining widespread popularity with police in the early 2000s, Reuters found in a nationwide review of legal filings. Police departments and the municipalities they represent have faced 435 of these suits. The manufacturer was a defendant in 128 of them. In all, wrongful death lawsuits were filed in at least 44 percent of the 1,000-plus incidents Reuters identified in which someone died after being stunned with a Taser by police. In nearly 75 percent of the suits, the Taser was one factor alleged in a broader array of force applied, such as punches, baton strikes and pepper spray. In more than 60 percent of the resolved cases against municipalities, government defendants paid settlements or judgement. While many settlement amounts are unavailable or remain secret under confidentiality agreements, Reuters documented at least $172 million in publicly funded payouts to resolve the litigation. The claims illustrate the risks and confusion surrounding a weapon embraced by about 90 percent of America’s 18,000 police forces as an alternative to firearms. Yet one party is increasingly absent from the courtroom: Taser International. From 2004 through 2009, the company was named as a defendant in more than 40 percent of the wrongful death suits filed against local governments, Reuters found. Typically, those suits alleged the company failed to warn adequately of the risks posed by its weapons. Late in 2009, as evidence of cardiac risks mounted, Taser made a crucial change: It warned police to avoid firing its stun gun’s electrified darts at a person’s chest. Since then, Taser has been a party to just one in five cases filed, and lawyers who frequently handle Taser-related litigation say the manufacturer’s warnings have made it far more difficult to successfully sue the company. So now, in nearly every case, plaintiffs are suing governments, not the manufacturer. Wrongful death lawsuits filed against Taser have slowed to a trickle: four in 2014, six in 2015, two in 2016 and, according to the company’s latest corporate filings, none so far in 2017. Suits against municipalities also have declined, Reuters found, from a peak of at least 44 in 2009 to at least 31 in 2016. Taser says the Reuters figures show the company’s warnings have reduced liability for police. But the municipalities defending those cases are finding themselves alone in court more often. (To see the interactive graphic, The Taser Cases, click here: http://fingfx.thomsonreuters.com/gfx/rngs/USA-TASER/0100503D07V/index.html) Behind these legal battles is a troubling truth: Many officers aren’t aware Tasers have the potential to kill. Some police struggle with what they see as contradictory messages from the company, Reuters found in an examination of thousands of pages of sworn testimony and dozens of interviews: The weapons carry myriad risks, but remain fundamentally safe. One consequence of that confusion: Some officers still fire their Tasers at the chest. Since the 2009 warning, 44 of the 199 wrongful death lawsuits filed against police, or more than 20 percent, have included allegations that an officer's Taser shot hit that part of the body, Reuters found. After Everette Howard’s death, Officer Haas, who was cleared of any wrongdoing, expressed disbelief that the teen died after the Taser shot. He says he aimed at Howard’s belt line, not the chest. The Taser “is classified as a ‘non-lethal’ weapon,” Haas said. He was using a term the company employed to describe its signature product until the mid-2000s, when it transitioned to “less-lethal.” Many more changes followed. In addition to cautioning police about chest shots and cardiac dangers, the company began warning of the risks of using its weapons on people who are old, young, frail, agitated, exhausted or suffering from an array of health conditions. Some officers and police lawyers say the warnings, now totalling some 4,500 words, have become so broad it’s daunting to follow all the do’s and don’ts. Ed Davis, Boston police chief from 2006 to 2013, said the litany of restrictions helped drive his decision not to issue Tasers. The warnings “made the weapon impractical to use, and it gave a lot of us the impression that we weren’t getting the full story,” he said. “I didn’t want to take the risk. The potential litigation costs absolutely were a factor.” To safeguard itself, product liability specialists say, a manufacturer must warn customers of foreseeable risks, build a defect-free product and make no misrepresentations about its goods. If Taser meets those standards, it can fight a wrongful death suit by arguing a fatality was due not to its stun gun, but to police failing to use the device properly. The regulatory climate is favourable. The Tasers police buy are not considered consumer or workplace products, so the company’s safety declarations and warnings are not regulated by agencies such as the Consumer Product Safety Commission or the Occupational Safety and Health Administration. “There are not a lot of products that escape all safety agency regulation – it really is unusual,” said David Owen, a law professor specializing in product liability at the University of South Carolina School of Law. Taser, which changed its name to Axon Enterprise Inc this year, says its warnings are designed to protect both the company and its police clients from liability. “Taser training and product safety warnings are strong and unambiguous,” said Steve Tuttle, the company’s vice president for communications. No officer certified to carry a Taser “can legitimately claim a lack of awareness or knowledge of risks,” he said. “We do everything we can to ensure that our customers know how to safely operate our products,” Tuttle said. “One purpose of our training and our warnings is to provide agencies with information and smart use guidelines to help them avoid excessive-use-of-force claims.” (To see the graphic Wrongful Death Lawsuits, click here: http://fingfx.thomsonreuters.com/gfx/rngs/USA-TASER/0100503306S/index.html) Taser’s increasingly restrictive warnings were part of “new risk management strategies” it launched in 2009 “to better protect both the company and its customers from litigation,” the manufacturer said in a 2015 filing to U.S. financial regulators. Those changes, it said, were “highly effective.” Many lawyers who handle wrongful death cases involving stun-gun incidents don’t go after the manufacturer. “I have had five Taser-associated cases. I have never sued Taser,” said Al Gerhardstein, the attorney for Everette Howard’s family. Courts have held that police departments, not Taser, are responsible for deciding how and when Tasers are used in the field. But department policies vary widely, Reuters found in a review of the 26 largest departments using stun guns. The differences range from how many times a person can be stunned to which people shouldn’t be targeted at all, such as the pregnant, the elderly and the infirm. When Tasers are handled properly, deaths are rare. Studies have found the weapons can reduce injuries to suspects and officers alike by giving police a way to control violent suspects without physical confrontations. The Taser “has a margin of safety as great as or greater than most alternatives” when used appropriately, a 2011 National Institute of Justice report found. Across the United States, police forces turn to the stun guns as a vital tool in daily policing. Many police chiefs say Tasers’ benefits outweigh their risks. “Anything that we do that reduces the chance of us having to go to lethal force is useful to us,” said Michael Goldsmith, police chief of Norfolk, Virginia. “It’s just a matter of finding the appropriate place for it.” THE FINE PRINT When a Taser-related suit is filed, scrutiny typically falls on police officers like Haas, whose use of the Taser in Everette Howard’s death was deemed justified by the county prosecutor. Now retired, Haas struggles to grasp what went wrong. “I did everything that was supposed to be done,” he said, in his first interview on the case. “It was a tragedy. He had his life in front of him.” Haas said he closely studied Taser’s safety warnings, even as they grew increasingly complex. His role as a police instructor required not only that he teach fellow officers how to use the weapon, but that he alert them each time Taser’s warnings evolved, in some cases multiple times a year. In his 10 years on the University of Cincinnati police force before Howard’s death, those warnings swelled from a handful of paragraphs tucked into Taser’s instructional materials to a stand-alone, eight-page document. “Each year, there would be another change,” and the warnings “would become more stringent,” said Haas, who had never fired the stun gun in the field before that night. “It seemed like it was getting harder and harder to use the Taser.” The difficulty of tracking Taser’s messages surfaced in a federal lawsuit settled in December. In South Boston, Virginia, three officers were accused of ignoring warnings when they shocked Linwood Lambert roughly 20 times during a fatal 2013 encounter. Lambert, who was handcuffed, had confessed to using cocaine and was so agitated he’d run headlong into glass hospital doors. In a 2015 deposition, Corporal Tiffany Bratton, one of the officers involved, said she was aware of Taser’s warnings when she deployed her stun gun on Lambert. But she considered them impractical. “If I read and abided by every single warning,” Bratton testified, “I would not Tase anyone.” Taser wasn’t a defendant in the suit. The South Boston Police Department declined to discuss the case, and the town of 8,000 has not disclosed the settlement amount. A REVOLUTION IN POLICING The Taser was developed in 1970 by former NASA scientist Jack Cover, who derived the name from a children’s book title: "Thomas A. Swift's Electric Rifle." For three decades, the device was mostly a niche weapon, unreliable and seldom used. Cover’s company, Taser Systems Inc, ultimately went bankrupt. In 1993, brothers Rick and Tom Smith acquired the rights and formed what would become Taser International. By December 1999, the Smiths had developed a more refined, powerful and dependable Taser. They cast it as a seismic transformation in law enforcement. By the end of 2003, more than 4,300 police agencies had Tasers – a four-fold increase in two years. Revenue hit $24 million, up from $3 million three years earlier. Profits reached $4 million, reversing a $473,247 loss in 2000. Thomas Streicher, then-chief of Cincinnati Police, hailed Tasers as “the only instrument to revolutionize an aspect of policing in the past 35 years.” Yet a new hurdle was emerging: lawsuits. The claims against Taser International began as a trickle, going from zero in 2003 to six in 2004, reaching 19 in 2008. Complaints of overuse began to proliferate. Some officers resorted to the stun guns too quickly in situations that could be de-escalated with words or softer tactics, according to a 2011 Justice Department report that referred to the problem as “lazy cop syndrome.” Municipalities and their insurers were settling nearly half the Taser-associated suits against them through the mid-2000s, according to court records. Taser, meanwhile, was succeeding in getting nearly every case against it dismissed before trial, arguing that its signature weapon was misused or not the cause of death. The company asserted there was no conclusive scientific evidence at the time linking Tasers to cardiac arrest or other fatal conditions. But Taser’s litigation success was costly: The company’s legal expenses were approaching what it paid in salaries and benefits. In 2005 they climbed ten-fold, reaching $4 million, regulatory filings show. At least four police departments suspended Taser use based on liability and safety concerns. At the end of 2006, Taser International posted a $4 million loss, its stock down about 75 percent from its 2004 high. The following year, the publicly traded company told investors successful litigation defence would be “a key factor” in its recovery. Taser began assembling medical and legal advisers to help modify its safety warnings. By May 2007, Taser announced it had faced 45 death and injury lawsuits without a loss. "Our strategy of fighting this litigation with an aggressive defence continues to get results," it said. The streak ended in June 2008 with the case of Robert Heston, who died after three police officers in Salinas, California, shocked him 25 times over 74 seconds. It was the company’s first loss at trial in a wrongful death case; Heston’s family was awarded $6.2 million. Taser got the amount reduced to $150,000 on appeal, but other troubles followed. A few months after the Heston verdict, Amnesty International issued a report documenting more than 300 cases in which people died after being shocked with Tasers. The company said its weapons had saved thousands of lives. NEW WARNINGS, CONFUSED COPS As Tasers’ safety came under scrutiny, the company changed its language about risks. Taser regularly described its stun guns as “non-lethal” through the early and mid-2000s, adopting a Defense Department term for weapons not meant to kill. The devices posed no serious heart risks, the company said. Taser’s early training materials advised police to aim for the centre of the chest; in 2004, the company urged police trainers to teach officers to stun people as many times “as necessary” to gain control. But in 2005, Taser changed course, warning officers to “avoid prolonged or continuous exposure(s).” Soon after, it dropped the “non-lethal” characterization. Around the same time, researchers began raising questions about Tasers’ safety. Peer-reviewed animal studies published in 2006 and later replicated found a Taser discharge to the chest could disrupt the heartbeat, potentially causing death. In 2009, on the heels of Taser’s first big court loss in the Heston case, a Canadian commission reviewed the case of Robert Dziekański, a Polish immigrant who had died after police stunned him five times with a Taser. Citing the risks of fatalities, the panel concluded that Tasers should be deployed only “when the subject is causing” or “will imminently cause bodily harm” – a threshold police departments often use for guns. That September, Taser acknowledged its weapons could pose “remote” cardiac risks in otherwise healthy people. Abandoning its longtime recommendation that police target the chest, the company issued revised instructions advising officers to aim at the back or, with front shots, near the beltline. The switch angered and confused many police who had relied on Taser’s previous safety assurances, according to legal records and interviews with more than two dozen current and former law enforcement officials. “It was perceived that the company was trying to transfer a lot of the liability from itself to the municipalities,” said Greg Meyer, a retired Los Angeles Police Department captain who now is a litigation consultant on police use of force cases. In a conference call with police officials from across the country on October 23, 2009, Taser CEO Rick Smith said the changes weren’t driven by safety concerns. The impetus, he said, was “risk management and avoiding the controversy.” “Are chest hits with the Taser dangerous? And the answer to that is definitively ‘No,’ ” he said, according to an audio recording of the call. Smith dismissed the notion that Taser was shifting liability to police. “Will Taser help defend officers where there’s chest shots involved? The answer is, unequivocally, ‘Yes,’ ” he said. Smith declined to comment for this story. Over the next few years, Taser’s warnings grew increasingly expansive. In rare cases, a Taser could have a “negative effect” on cardiac function, the company acknowledged in 2010. By 2013, the warnings included a bold-faced alert that Taser discharges could, in rare cases, “capture” the heartbeat, potentially leading to cardiac arrest. The instructions advised against repeated or prolonged exposure totalling more than 15 seconds. Users were told to avoid stunning anyone who, among other things, might be impaired by drugs, agitated, exhausted, asthmatic, elderly, frail, running, or at risk of heart problems. UNAWARE OF RISKS The targeting change “hasn’t registered with a lot of officers,” said Matt Masters, a 20-year veteran of the Kansas City Police Department. “Taser never came out unequivocally and said, ‘You should not shoot at the chest, and here’s why.’ ” In September 2014, Masters’ son Bryce, 17, went into cardiac arrest after a police officer stunned him in the chest with a Taser for at least 20 seconds for refusing to exit a car during a traffic stop. Dragging the teen’s limp body to the curb, the officer dropped him face-first on the pavement before calling for medical help. After emerging from a coma, Bryce had permanent brain injuries, his father said. Taser has denied in a lawsuit filed by the family that its weapon caused Bryce’s cardiac arrest. “Until this happened to my son, I had no idea that Taser had changed the point of aim,” said Masters, who has carried a Taser since 2002. Taser says there is no excuse for officers misunderstanding the risks. “We get those warnings out there,” Tuttle said. “They are given to the departments. They are given to the trainers. They are put on (Taser’s) public website.” “What more can we do?” Still, some officers remain unaware its stun guns can factor in deaths. On July 20, 2011 – nearly two years after Taser first warned police to avoid chest shots – policeman Michael Forbes in Charlotte, North Carolina, responded to a reported altercation between a couple at a light rail station. He found La-Reko Williams, 21, and his girlfriend “tussling” on the platform, “pushing and pulling” in an argument that began on the train, court records show. Williams, a wiry 5-foot-6-inch man, began walking off as Forbes approached; the officer, with nearly four years on the force, told Williams to stop, grabbing at his arm. Williams pushed Forbes’ hand away and turned to argue. The exchange was caught on Forbes’ body recorder. “I ain’t gotta talk to y’all,” Williams said. “You’re gonna get detained,” Forbes said. “Do not play with me.” As Williams continued arguing, Forbes ordered him to the ground. “You wanna get Tased?” he asked. Seconds later, his Taser’s darts struck Williams’ chest, knocking him to the ground in pain. Forbes ordered Williams to roll onto his stomach, then pulled the Taser’s trigger again, delivering a second shock. Williams died. The family sued, saying the Charlotte-Mecklenburg Police Department failed to train officers properly on Taser’s chest shot warnings. The family’s lawyer, Karonnie Truzy, asked Forbes if the department ever told him to avoid targeting the chest. “I don't believe so,” Forbes testified. “We were trained that the Taser is a non-deadly force option, and that it's reasonably likely not to cause death or serious injury.” Forbes declined to comment. The police department said it tightened its Taser policy after the incident. The city lost at trial, and paid $706,479 to cover the family’s damages and legal fees. “It’s a deadly weapon,” said Williams’ mother, Temako McCarthy. “Call it for what it is.” The family initially sued Taser, too, but Truzy dropped the company from the case because of Taser’s warnings against chest shots. Tuttle, the manufacturer’s spokesman, said police ultimately make the call when to deploy the stun guns. “Taser provides instruction on how to operate its weapons, but it does not and cannot make agency policy on when, where or how its weapons are to be used,” he wrote. In some cases, Taser has assisted plaintiffs lawyers in lawsuits against the company’s own clients – by providing affidavits to support the argument that police did not abide by its warnings. That happened in an Arizona lawsuit alleging Jorge Sanchez, 31, died after a police officer shot him in the chest and discharged the Taser repeatedly during a confrontation in 2012. Sanchez’s mother initially sued Taser, the police and the city of Phoenix. Taser was dropped from the case after Michael Brave, the company’s national litigation counsel, provided the plaintiffs with a 10-page affidavit in 2015. It included a 10,914-page attachment listing Taser’s training communications with Phoenix Police, according to documents reviewed by Reuters. “It’s brilliant when you think about it from a legal standpoint,” said Devon Jacob, the family lawyer. “Pretty much the only way you could have Taser liable at this point is for them to be aware of some sort of danger that they have not warned about.” (Additional reporting by Grant Smith, Lisa Girion and Ruthy Munoz. Editing by Ronnie Greene and Michael Williams)