Suits over use of Taser guns on rise in South Florida and elsewhere as police increasingly turn to shock shots

February 18, 2005
By: Dan Lynch
Publication: Daily Business Review

A woman who has sued the Belle Glade Police Department for using a Taser on her in a hospital emergency room is the latest person to bring legal action over the controversial use of stun guns by police in Florida.

According to her assault and false arrest suit filed last month, Lisa Cato Griffith of Lake Worth went to Belle Glade Hospital in August 2002 to drop off dinner to her mother, a hospital employee. She found her uncle, James Harris, in the emergency room. Unhappy with the treatment he was receiving, he’d called police to transport him to another hospital.

When police arrived, Griffith, then 36, allegedly was grabbed by one of thepolice officers, Harold Seiler, who shot her once with an M26 Air Taser stun gun manufactured by Taser International of Scottsdale, Ariz. She was arrested and charged with battery on a law enforcement officer, disorderly conduct and criminal mischief, but a jury subsequently acquitted her.

Griffith, represented by West Palm Beach solo practitioner Christopher A. Haddad, alleges in her suit in Palm Beach Circuit Court that she suffered pain and breathing difficulty as a result of the attack. Her case raises the issue of whether Seiler improperly employed a high-tech device touted as a nonlethal alternative to police use of guns. Taser use by police has been linked to at least four deaths in South Florida in recent months.

Belle Glade Police Chief Albert Dowdell referred questions to the lawyer representing the city’s insurance carrier, Peter Walsh of St. Petersburg. He died unexpectedly that same day before he could be reached for comment.

While nobody has precise figures, suits over the use of Tasers seem to be on the rise around the country. And some senior police officials and politicians seem to be growing increasingly wary of the devices and the way they’re used. But there have been few lawsuits so far in Florida.

The family of a 6-year-old boy shot at school with a Taser has filed formal notice that it plans to sue both the Miami-Dade County School Board and Miami-Dade Police Department. A 62-year-old Tampa man has filed a federal lawsuit against the Hillsborough County Sheriff’s Office in an incident in which he was shot with a Taser.

A Broward County man died in December after being shocked with a Hollywood police officer’s stun gun, the second such fatality in that city.

Suits over such incidents are relatively rare in Florida, experts say, because Florida caps damages in lawsuits by individuals against government bodies at $100,000, and it limits plaintiff lawyer contingency fees to 25 percent of awards.

To collect a judgment over the cap, plaintiffs must win approval from the Legislature, and that’s increasingly difficult. While it’s possible for lawyers to sidestep that sovereign immunity cap by filing a civil rights action under Section 1983 of the federal code, the problem, according to Fort Lauderdale lawyer Barbara Ann Heyer, who has handled several police misconduct cases, is that the burden of proof is heavier under federal law.

“The money limitations don’t apply,” she said, “but the standards are higher. You have to show that the officer was deliberately indifferent to the victim’s rights rather than mere negligence on the officer’s part.....You have to show that this was more than a mere mistake.”

Hollywood personal injury attorney David W. Singer, who has handled a significant amount of litigation concerning alleged police use of excessive force, said Taser cases are tough to present to a jury because many of the incidents could be interpreted as police responding reasonably to criminal behavior or provocations.

“You take those cases very carefully,” Singer said. “I would have to have an absolutely perfect case. I would need an innocent victim who has suffered serious injury.”

More than 100,000 police officers nationwide carry stun guns. That includes officers of more than 180 police agencies in Florida, including the Palm Beach County Sheriff’s Department and the Miami-Dade Police Department.

The modern forms of Tasers were developed in 1999 and were quickly embraced by police and some elected officials as a nonlethal mechanism for police to use in subduing people in potentially violent situations. A Taser uses compressed nitrogen to fire electrified barbs connected to the gun by 25-foot insulated copper wires. Once they strike, the target is subjected to a 50,000-volt electric shock that lasts at least five seconds. More than one shock can be administered.

Documentation efforts

In a recent report, Amnesty International documented 74 deaths in the United States linked to police use of M26 and X26 Tasers, though autopsies in some of those deaths — including one in Hollywood in 2002 — have attributed them to other causes, most often the use of drugs. The Minneapolis Star-Tribune
has documented 105 cases nationwide in which a person died after being shocked by police with an electric stun gun.

Several studies, including one by Amnesty International and another by the Seattle Post Intelligencer, found that the devices have been routinely used by police in circumstances in which the use of guns or batons could never be justified. A long-term study of the device’s effects, Amnesty International contends, is long overdue.

Amnesty International, lawmakers, and even some police officials, also say that too many police officers are too quick on the Taser trigger. Taser officials and others, including Houston Police Chief Harold Hurtt, maintain that use of the device saves lives because it reduces officers’ reliance on deadly force to subdue suspects.

Taser International maintains that the deaths linked to its stun guns were not caused by the device. Corporate counsel Doug Klint said that each department must develop its own policy for use of the device and that “we are not use-of-force experts. ... Police departments are our customers, and we support them.” He added that Taser’s studies show that when the device “is employed early in a confrontation, it makes serious injury less likely.”

The New York Times, however, reported that the company’s research on the gun ’s safety is “spotty and inconclusive.” The Air Force Research Laboratory reported in November that the devices “may cause several unintended effects, albeit with estimated low probabilities of occurrence.”

Griffith’s attorney, Haddad, contends that the use of a Taser on Griffith “was totally unwarranted.”

City policy

The Belle Glade Police Department’s written guidelines for the use of Tasers leave broad discretion in the hands of individual officers. The department’s use-of-force policy characterizes the use of a stun gun as a “soft technique.” Hard techniques, according to the Belle Glade policy, include “knee strikes, elbow strikes, batons, nonlethal munitions and canine.”

The policy requires that “when any officer of this department ... deems it necessary to utilize any degree of force upon an individual, the degree of force shall only be that which is reasonable and necessary “to effect the arrest, prevent escape, overcome resistance, or to protect others or themselves from bodily harm.” The policy offers no specific guidelines on when an officer should employ a Taser, as opposed to a gun or club.

Griffith’s complaint alleges that Officer Seiler “acted in bad faith, with malicious purpose and in wanton and willful disregard for Lisa Griffith’s rights.” Her reputation “has been greatly injured and she has been brought to public scandal, disrepute and disgrace, and has been greatly hindered and prevented from transacting her affairs ... and has suffered great emotional trauma and hard, all to her detriment.”

According to her lawyer, Griffith has no criminal history. But Seiler has a documented history of problems with the department.

According to the Palm Beach Post, he was disciplined in 1997 for pointing his service revolver at his own head in jest. In 1999, he was disciplined on charges that he lost a drunken driving suspect’s wallet containing $570.

Seiler shot and wounded a man whom he claimed tried to run him over with an all-terrain vehicle. The man later was acquitted of charges of aggravated
battery on a police officer, and the Palm Beach County state attorney’s office subsequently declined to bring charges against Seiler in connection with the shooting.

Heyer said that as the devices are used more and more in Florida, more and more suits will be filed.

“While there are relatively few in Florida,” she said, “that may change as more incidents come up. ... The departments have an obligation to train officers not merely in the use of the Taser but in when to use it. They’re not using the product for what it was designed for. ... It’s simply not a soft tool by any stretch of the imagination.”

The Miami-Dade case, she said, in which the 6-year-old was shot with a Taser, was an instance in which “common sense went out the window.”

“What you see,” said Nova Southeastern University law professor Bruce Rogow, “is kind of a psychological phenomenon where the police are less restrained because they feel they’re not using deadly force when they might have been more restrained about using a gun or club.”

The Miami-Dade case, Rogow said, represented a particularly egregious misuse of the device. “Is there no way,” he said, “that a police officer can apprehend a 6-year-old without resorting to a Taser?”

The real issues with Tasers, according to Sal Arena of the International Association of Chiefs of Police in Arlington, Va., are “policies, procedures and training. There need to be specific policies specifically related to Tasers. It’s a weapon.”

His group, Arena said, is promoting a uniform policy on Taser use from police department to police department. “We have a model policy,” he said, “but there is not a single national policy. You get in trouble when you just put these things out on the street. The intent of that device is so you don’ t have to go hands-on first. This is not supposed to replace deadly force, and we’re not saying it is deadly force, but deployment is the key. There have to be rigid guidelines. ... It’s really up to the department and the
community. We can’t make anybody do anything. But you have to be consistent. It’s less a matter of policy and procedures than one of training.”

Dan Lynch can be reached at dlynch@floridabiz.com or at (561) 820-2071.