NOPD’s decision to drop pepper spray in favor of Tasers raises questions about use of force

13th November 2012   ·   0 Comments

By Tom Gogola
http://thelensnola.org

The New Orleans Police Department is expanding its use of Tasers and dropping pepper spray from its arsenal as part of a consent decree addressing complaints over police brutality, training and civil rights violations.

The department says it’s dropping pepper spray because its cops hardly ever use it — just eight times so far in 2012, compared to 140 Taser discharges. The department prefers Tasers in part because it’s easier to track their use; the devices count how many times they’re discharged and onboard cameras provide video of incidents.

Both Tasers and pepper spray are considered non-lethal weapons, but Tasers have been linked to more deaths. Nationally, some organizations are calling for them to be used less. They’re motivated in part by a few high-profile misuses, including one in which a Louisiana state trooper Tasered a pregnant woman when she was handcuffed.

Their objections to Tasers resonate in New Orleans, where the police department has struggled with complaints over excessive use of force. In 2011, a brawl broke out when police tried to stop the Krewe of Eris from marching in an unpermitted parade. Officers used pepper spray, tasers and batons; some of them were injured, too.

The local Fraternal Order of Police has asked U.S. District Judge Susie Morgan – the federal judge who will eventually sign off on the proposed NOPD consent decree —to reconsider the department’s ban on pepper spray. Raymond Burkart, a Fraternal Order of Police attorney, said his members want the option to use pepper spray.

“I have trouble, and so do some of our members, that the least amount of force is an electrical charge through somebody’s body versus a mild irritant to the eyes,” Burkart said.

“The mere fact that officers carry pepper spray and have that as an option to use the least amount of force possible, should tell you our officers are into constitutional policing versus going up the ‘force continuum’ and using electricity to subdue somebody,” he said.

A leading criminologist who has extensively studied Tasers and use-of-force policies said the issue isn’t the devices per se, but when and how officers use them.

“It’s a good tool when used appropriately and used within policy guidelines,” said Robert Kaminski, a professor of criminology University of South Carolina. “There is a concern that, whether it’s through policy or practice, that officers are going to the Taser too soon, or too often or saying, ‘I’ll take this person myself,’ instead of waiting for backup.”

The NOPD’s policy, spelled out in its Operations Manual, describes pepper spray and Tasers as “intermediate” use-of-force tools. The manual doesn’t offer guidance regarding when one device should be used over the other — or if it does, that information has been redacted.

Asked why Tasers are used more frequently than pepper spray, police spokeswoman Remi Braden said officers “overwhelmingly have chosen” Tasers when they are threatened, attacked or have to defend others.

The department bought its first 20 Tasers in 1999 and expanded their use to all officers in 2008. As part of the department’s training on the use of pepper spray and Tasers, officers must be subjected to the devices themselves.

A document provided by Taser International shows that NOPD’s use of pepper spray dropped — along with all other types of force — and Taser discharges jumped from 2008 to 2009.

The police department provided its use-of-force guidelines in response to a March public records request from freelance journalist Zoe Sullivan. The heavily redacted document included a section on when to use pepper spray, but not Tasers. The department provided its Taser guidelines in response to a follow-up request from The Lens.

The pepper-spray instructions do warn officers that misuse could lead to death. The instructions tell officers not to use pepper spray to get someone to cough up contraband he may have swallowed — saying it could cause “serious injury or death.”

City’s idea to drop pepper spray
The department’s shift away from pepper spray is spelled out in the consent decree over use-of-force and other policing protocols, which awaits the signature of a federal judge. Among three pages of use-of-force guidelines is one sentence on pepper spray: “NOPD agrees to prohibit the use or possession of Oleoresin Capsicum Spray by on-duty officers, including officers working secondary employment.”

That means cops working details will also be forbidden to use pepper spray.

The first Taser-related guideline in the consent decree says that officers can only use the devices “when such force is necessary to protect the officer, the subject, or another party from physical harm, and other less intrusive means would be ineffective.”

The Taser isn’t supposed to be used on a suspect for any reason other than to give the officer sufficient time to handcuff or otherwise restrain the suspect, said company spokesman Steven Tuttle.

The consent decree specifically outlaws the use of Tasers as a “pain compliance” tool.

“Unless doing so would place any person at risk, officers shall issue a verbal warning to the subject that the [Taser] will be used prior it its use,” the guidelines read. “Where feasible, the officer will defer [Taser] application for a reasonable time to allow the subject to comply with the warning.”

The consent decree also warns against subjecting a suspect to multiple five-second cycles from the device, and it commands NOPD to train its officers in the “risks of prolonged or repeated exposure.”

The city, not the U.S. Department of Justice, pushed a ban on pepper spray, according to Donovan Livaccari, an attorney and former New Orleans police officer now with the Fraternal Order of Police. “I’ve had people at [the Department of Justice] tell me that it was the city’s idea,” said Livaccari. Justice officials declined to comment on the consent decree negotiations.

So without pepper spray, what’s left besides Tasers? Braden said in a written statement that officers have a number of other options, “first and foremost being tactical communication (what some may refer to as ‘verbal judo’). Other force options include pressure-point techniques, physical control maneuvers, strategic baton skills, etc.”

Throughout officers’ careers, the department “stresses the importance of using only the minimum force necessary to overcome the level of resistance encountered.”

There are currently 873 department-owned Tasers in use among the 1,280 sworn NOPD officers, according to Braden.

The city has looked into buying another 400 devices and their camera-add ons, which attach to the butt of the weapon, said Tuttle.

Mayor Mitch Landrieu’s 2013 budget offering for the New Orleans Police Department in­cludes $7 million in funding to begin implementing the NOPD consent decree; $600,000 of the $7 million is dedicated to the purchase of “electronic control weapons.”

Tasers linked to more deaths

Although the NOPD policy currently considers Tasers and pepper spray equally appropriate options when non-lethal force is called for, Kaminski said some departments have changed their policies to differentiate between the two.

According to the October 2012 issue of Police Chief magazine, the Orlando, Fla., police department changed its policy to limit Taser use to cases of “active resistance.” Chemical spray can be used against people engaged in “passive resistance.”

The Orlando police department had reworked its use-of-force policy, according to the Police Chief study, based on growing public concerns that Tasers were deadlier than advertised.

Kaminski also noted that Tasers, when used properly, have been shown to reduce injuries to both suspects and police officers.

However, critics say that Tasers are more likely to cause death — directly or indirectly — than other use-of-force options such as pepper spray or batons.

Amnesty International has called for a moratorium on all uses of Tasers until an independent medical investigation “looks into why people are dying after being Tasered,” said Amnesty Inter­national deputy director for membership Jared Feuer.

“We are flying blind as a society and putting law enforcement in a situation that’s not fair to them – telling officers that they are non-lethal when they have killed people. We recognize that if they are going to be used, that they only be used as an alternative to lethal force. They should not be used — and are way too frequently used — as a compliance tool.”

The group said it has identified over 500 incidents from 2001 to 2012 in which someone died after being Tasered.

That’s a figure that Taser, International, based in Scottsdale, Ariz., takes strong issue with. Tuttle said there have been 50 deaths in which a Taser was identified only as a contributing factor or wasn’t ruled out by a coroner or medical examiner.

Tasers are used an average of 900 times a day around the world, among 17,000 law enforcement agencies in 107 countries, Tuttle said.

But Tuttle did admit that his company can’t prevent the abuse of Ta­sers or their misuse as a compliance weapon. “You have to have good policies, you always have to have good oversight and good training for a successful program,” he said.

Kaminski, the criminologist, said the mortality issue is by no means exclusive to the Taser, and it’s more complicated than Amnesty Inter­national would have you believe.

Their concerns echo those that were raised when pepper spray became more common in the 1990s. A 1995 Los Angeles Times investigation found that about 60 people had died over a five- year period after being pepper-sprayed.

In most cases he has studied, coroners and medical examiners ruled out pepper spray as a cause of death, Kaminski said.

“That’s the same thing with Tasers today. It is really hard to determine the causality — what actually caused the death,” Kamin­ski said. “And the mortality review on Taser-proximate deaths, in almost all the cases the medical examiner or coroner has ruled out the Taser. There were underlying health problems: heart problems, drug intoxication.”

Tasers used more often than pepper spray

Police Superintendent Ronal Ser­pas recently testified in federal court that officers in New Orleans hardly ever use pepper spray. Bra–den said there were 17 uses of pepper spray in 2011 and eight, to date, in 2012.

Tasers, on the other hand, have been used in the field 198 times in 2011, according to department figures. (They were accidentally discharged another 30 times when officers were testing their weapons, according to NOPD staff.) The devices have been used 140 times so far this year.

A breakdown of the 198 discharges in 2011 shows:
In most of the incidents, an officer used the Taser just once, but it’s not uncommon for officers to Taser people two, three or four times.
• 88 of the people were either drunk or high on drugs.
• 44 of the incidents involved an assault on an officer; 8 involved an assault of someone else.
• 28 people Tasered were under “mental crisis.”
• 24 of the people Tasered had a weapon.
• 13 incidents occurred during traffic stops.
• 15 involved domestic disputes.
• 2 had tried to commit suicide.

In one incident, an officer Tasered a dog.

Police used Tasers on six teens between the ages of 13 and 17 years old and another 16 between the ages of 17 and 19.

Of those cases, “most were in their late teens and met the guidelines of either actively resisting, fleeing arrest and/or were a threat of bodily harm to themselves or the officer,” said Sgt. Travis St. Pierre, who heads up the Taser training program at NOPD.

St. Pierre went on to note that officers are trained that they “should not use their [Taser] on young children, elderly persons, pregnant women, the infirm, and people who are visibly frail with low body mass indexes.”

St. Pierre said the department prefers Tasers for a number of reasons. For one, the effects of pepper spray last much longer than a Taser’s five-second jolt.

Tuttle made a similar argument. Tasers are more humane when you compare their short “whole-body funny bone feeling,” as he de­scribed it, with the “45 minutes of searing pain in the eyes,” that pepper spray can cause.

But there can be lingering medical issues after someone has been Tasered. The federal consent decree makes clear that certain Tasering incidents must be followed by a visit to the hospital — including any time a person is Tasered for more than 15 seconds. It also mandates a trip to the hospital for anyone who is Tasered in the head, throat, groin or other sensitive area.

St. Pierre said the weapons are also preferable to pepper spray because the units purchased by NOPD are equipped with camera add-ons on their butt end. Much of the consent decree section devoted to Tasering policy deals with accountability; under the decree, all discharges have to be reported. It also call for “random and directed audits” of Taser deployment data.

Braden also noted that the devices all have a data-port entry that “provides access to stored memory data governing use,” including the date, time and duration of every discharge.

All the data has to be included in NOPD’s annual use-of-force report.

This story was supplemented with reporting by Zoe Sullivan, in collaboration with The Louisiana Weekly.

This article originally published in the November 12, 2012 print edition of The Louisiana Weekly newspaper.