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Mattos v. Agarano, Amicus Brief HRDC, Taser case, 2010

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Ninth Circuit No. 08-15567

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TROY MATTOS, et al.,

Plaintiffs - Appellees,

v.
DARREN AGARANO, et al.,

Defendants - Appellants.

Brief of Amici Curiae National Police Accountability Project
and Human Rights Defense Center In Support of Plaintiffs-Appellees

John Burton
Timothy J. Midgley
THE LAW OFFICES OF JOHN BURTON
65 North Raymond Avenue, Suite 300
Pasadena, California 91103
Voice: (626) 449-8300/Fax: (626) 449-4417
Peter M. Williamson
WILLIAMSON & KRAUSS
21800 Oxnard Street, Suite 305
Woodland Hills, California 91367
Voice: (818) 226-5700/Fax: (818) 226-5704

Counsel for Amici Curiae National Police Accountability Project
and Human Rights Defense Center In Support of Plaintiffs-Appellees
(Additional Counsel Continued Inside)

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Additional Counsel for Amici Curiae National Police Accountability Project
and Human Rights Defense Center In Support of Plaintiffs-Appellees
(alphabetical order)

Frederick K. Brewington
556 Peninsula Blvd.
Hempstead, New York 11550
(516) 489-6959

David B. Rankin
350 Broadway, Suite 700
New York, New York 10013
(212) 226-4507

Fred Diamondstone
710 Second Ave., Suite 700
Seattle, WA 98104
(206) 812-0720

Daniel Romano
26555 Evergreen Road, Suite 1500
Southfield, MI 48076
(248)750-0270

Patrick Geckle
1845 Walnut St. Suite 2300 Philadelphia, Pa.
19103
(215) 735 3326

Michael E. Rose
500 Yamhill Plaza Building
815 SW Second Avenue
Portland, Oregon 97204-3005
(503) 221-1792

William H. Goodman
Julie H. Hurwitz
1394 East Jefferson Ave.
Detroit, MI 48207
(313) 567-6170

Mary Anna Soifer
2766 Santa Rosa Avenue
Altadena, CA 91001
(626) 794-9978

Michael Haddad
505 Seventeenth Street
Oakland, California 94612
(510) 452-5500

Wylie Stecklow
10 Spring
New York, NY 10012
(212) 566-8000

Randall L. Kallinen
511 Broadway Street
Houston, Texas 77012
(713) 320-3785

Lance Weber
Post Office Box 2420
West Brattleboro, VT 05303
(802) 579-1309

Benjamin G. Kelsen
179 Cedar Lane
Teaneck, NJ 07666
(201) 692-0073

Julia Yoo
105 West F Street, Fourth Floor
San Diego, CA 92101
(619) 233-1525

Stephen M. Latimer
179 Cedar Lane Suite B
Teaneck NJ 07666
(973) 748-0443

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CORPORATE DISCLOSURE STATEMENT

Amici curiae are National Police Accountability Project (NPAP) and Human
Rights Defense Center (HRDC). Amici curiae are either not corporate parties or are
corporate parties that do not have any parent corporations, and no public company
owns 10% or more of their stock.

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TABLE OF CONTENTS
Contents

Page

Corporate Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Interests of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.

ECD History, Technology and Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.

The History of the ECDs Used in Brooks and Mattos . . . . . . . . . . . . . . 5

B.

The Operation and Effects of TASER ECDs . . . . . . . . . . . . . . . . . . . . . 9

C.

1.

Dart Mode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.

Drive Stun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3.

The ECD Electrical Current . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Medical and Safety Risks of ECDs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.

Should There Be Qualified Immunity for ECD Use? . . . . . . . . . . . . . . . . . . . 13

III.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance with FRAP 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES
Authority

Page(s)

Bryan v. McPherson,

590 F.3d 767 (9th Cir. 2009), opn. withdrawn and replaced,
608 F.3d 614 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12,13

Chew v. Gates,

27 F.3d 1432 (9th Cir. 1994),

cert. denied sub. nom City of Los Angeles v. Chew, 513 U.S. 1148 (1995) . . 14

Drummond ex rel. Drummond v. City of Anaheim,
343 F.3d 1052 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,13

Eng v. Cooley,

552 F.3d 1061 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,12

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Heston v. TASER International, Inc.,

9th Cir. Case Nos. 09-15327 and 09-15440 (under submission) . . . . . . . . . . 12

Henry v. Purnell,

501 F.3d 374 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hudson v. McMillian,

503 U.S. 1 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

McCranie v. State,

172 Ga. App. 188, 322 S.E.2d 360 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Sullivan,

116 A.D.2d 101, 500 N.Y.S.2d 644 (1986), order rev’d on other grounds,
68 N.Y.2d 495, 510 N.Y.S.2d 518, N.E.2d 74 (1986) . . . . . . . . . . . . . . . . . . 6

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Authority

Page(s)

Russo v. City of Cincinnati,

953 F.2d 1036 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Scott v. Henrich,

39 F.3d 912 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smith v. City of Hemet,

394 F.3d 689 (9th Cir.), cert. denied 545 U.S. 1128 (2005) . . . . . . . . . . . . . . 14

Torres v. City of Madera,

524 F.3d 1053 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities
Braidwood Commission,

Conducted Energy Weapon Use, Restoring Public Confidence:
Restricting the Use of Conducted Energy Weapons in British Columbia,

June 2009 (http://www.braidwoodinquiry.ca) . . . . . . . . . . . . . . . . . . . . . 7,8,10

Kornblum, Ronald N., M.D., and Reddy, Sara K., M.D.,

Effects of Taser in Fatalities Involving Police Confrontation,

Journal of Forensic Sciences, 36 (2): 434-48, March 1991 . . . . . . . . . . . . . . . . .
Sloane, C.M., Chan, T.C., Vilke, G.M.,

Thoracic Spine Compression Fracture after TASER Activation,

J Emerg Med. 34 (3): 283-5, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Brooklyn Man Dies After Police Use a Taser Gun,

The New York Times, September 24, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . 12

“Less than Lethal”? The Use of Stun Weapons in US Law Enforcement,

Amnesty International, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Mehserle justified in using Taser, expert says,

San Francisco Chronicle, A-1, June 29, 2010 . . . . . . . . . . . . . . . . . . . . . . . . 7-8

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Authority

Page(s)

Byron K. Lee, MD, Eric Vittinghoff, PhD, Dean Whiteman, BS,
Minna Park, Linda L. Lau, BS, and Zian H. Tseng, MD,

Relation of Taser (Electrical Stun Gun) Deployment to
Increase in In-Custody Sudden Deaths,

Am J. Cardiol. 103 (6): 877-880, March 15, 2009 . . . . . . . . . . . . . . . . . . 12-13

Taser Shares Fall Sharply Despite Gain In Earnings,

New York Times, February 9, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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INTERESTS OF AMICI CURIAE
The National Police Accountability Project (NPAP) was founded in 1999 by
members of the National Lawyers Guild to address allegations of misconduct by law
enforcement and corrections officers by coordinating and assisting civil rights lawyers.
The project presently has more than four hundred attorney members throughout the
United States. NPAP provides training and support for attorneys and other legal
workers, public education and information on issues related to misconduct and
accountability, and resources for non-profit organizations and community groups
involved with victims of law enforcement misconduct. NPAP also supports legislative
efforts aimed at increasing accountability, and appears as amicus curiae in cases, such as
this one, which present issues of particular importance for the clients of its lawyers, who
are sometimes subjected to the effects of TASER products.
The Human Rights Defense Center (HRDC) is a Washington state non-profit,
charitable corporation based in Vermont that publishes a nationally distributed
monthly journal called Prison Legal News (PLN). Since 1990, PLN has reported on
news, recent court decisions, and other developments relating to the civil and human
rights of prisoners in the United States and abroad. PLN has the most comprehensive
coverage of detention facility litigation of any publication. In addition to reporting on
the human and civil rights of prisoners, PLN also reports on the rights of crime victims,
prison and jail employees, and prison and jail visitors. PLN has approximately 6,800
subscribers in all fifty states and abroad and eight times as many readers.
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Approximately sixty-five percent of PLN subscribers are state and federal
prisoners. The remainder are attorneys, judges, advocates, journalists, academics and
concerned citizens. PLN’s website, www.prisonlegalnews.org, receives approximately
100,000 visitors per month.
In addition to publishing PLN and non-fiction reference books, HRDC has
regularly filed litigation under the First Amendment in federal courts nationwide,
challenging prison officials who censor PLN, seeking public records from government
agencies and also providing representation in select prisoner cases. HRDC is concerned
with the treatment of prisoners, and is interested in the standards to govern the use of
TASER International products and similar devices in the corrections setting.

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SUMMARY OF ARGUMENT
Electrical control devices (ECDs) – primarily products manufactured by TASER
International, Inc. – are handheld weapons that deliver rapidly pulsing electrical current
into human beings.1 ECDs cause intense pain and incapacitating muscle contractions,
either through two darts attached to wires, or directly from contact with exposed
electrodes, which TASER International refers to as a “drive-stun.” ECD use has become
ubiquitous in law enforcement and corrections.
This Court recently made three decisions relating to ECD use. In Bryan v.

McPherson, 590 F.3d 767 (9th Cir. 2009) (affirming denial of qualified immunity),
opn. withdrawn and replaced, 608 F.3d 614 (9th Cir. 2010) (finding constitutional
violation but reversing denial of qualified immunity) (petition pending for rehearing
with suggestion of rehearing en banc), the panel held the ECD in dart (or probe) mode
to “constitute an intermediate, significant level of force that must be justified by ‘a
strong government interest [that] compels the employment of such force.’” 608 F.3d at
622 (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057
(9th Cir. 2003)). Aside from the amended ruling that the governing law was not clearly
established in July 2005, when the device was used, Amici agree with the panel’s

1

An ECD is frequently referred to as a “taser.” “TASER” is a registered
trademark owned by TASER International, Inc. “Stun gun” is an unfortunate
expression because it fails to describe accurately the effect of an ECD. Besides “ECD,”
there are other expressions and acronyms for the weapons, including conducted
electrical device (CED), conducted electrical weapon (CEW), electrical control weapon
(ECW) and neuro-muscular incapacitator (NMI).
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analysis, and particularly its emphasis on the potential risks of injuries posed by ECDs.
Between the Bryan opinions, two other Ninth Circuit panels rendered published
decisions which to some extent conflict with Bryan, Mattos v. Agarano, Ninth Cir. No.
08-15567, and Brooks v. City of Seattle, 08-35526. These two decisions are now
consolidated and under en banc review. In Brooks, an officer drive-stunned a pregnant
woman three times while she was sitting in her car, the keys having been removed from
the ignition, distinguishing Bryan in part by the lack of darts. In Mattos, an officer
shocked a woman in her home during an investigation of alleged domestic violence.
The panel opinion did not say whether the ECD was used in dart mode or as a drive
stun, but Amici understand that, like Bryan, it was a dart mode application.
The Mattos panel decried the lack of a full factual record about ECDs, stating
“The problem here is that, even with the benefit of some briefing and argument on the
subject, it is difficult for us to opine with confidence regarding either the quantum of
force involved in a deployment of a Taser gun or the type of force inflicted.” This
problem arises from the fact that Mattos and Brooks, like Bryan, for that matter, are
interlocutory appeals from denials of summary judgment where the record is rife with
factual disputes. In the view of Amici, this Court would be well served to examine
jurisdiction over such appeals early on, and dismiss them where the district court’s order
denying qualified immunity is based on issues of fact. See Eng v. Cooley, 552 F.3d
1061, 1067 (9th Cir. 2009). Appeals from final judgments provide better records for
essential factual determinations such as the degree of risk posed by ECDs.
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Amici file this brief, with a short addendum of TASER International training
materials, to bring to the attention of the en banc panel the background of ECD
development, and health and safety risks arising from ECD use either in dart mode or
as a drive stun. Due to their intense pain and serious medical risks, including brain
damage and death, Amici urge that this Court hold that any law enforcement or
correctional use of an ECD be considered a high level of force which must be justified
under Graham v. Connor, 490 U.S. 386 (1989), for arrests, or Hudson v. McMillian,
503 U.S. 1 (1992), in jails or prisons.
I.

ECD HISTORY, TECHNOLOGY AND USAGE
A.

The History of the ECDs Used in Brooks and Mattos

Jack Cover, an electrical engineer, developed ECDs in the early 1970s as a “lesslethal” force option for law enforcement, whimsically naming his invention after the
1911 novel Tom Swift’s Electric Rifle; or, Daring Adventures in Elephant Land, one in
a series of stories written for young males. Cover inserted an “A” in TSER to make the
acronym pronounceable.2 Cover’s original ECD fired two darts attached to wires and
propelled by gunpowder. When both darts hit their target the ECD discharged a series
of brief electric pulses – as short as 10 microseconds (ten millionths of a second) – at the
rate of about 10 to 15 times a second.
Cover patented his invention in 1974, and the first sales occurred in 1976. The
2

Contrary to TASER’s claim, see “Company Trivia,” located at
http://www.taser.com/company/Pages/trivia.aspx, TASER is not an acronym for
“Thomas A. Swift’s Electric Rifle,” as the character had no middle initial.
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first generation ECDs used electrical output of approximately .4 joules per pulse –
around seven watts per second. Despite the risks inherent in this new technology, there
was no peer-reviewed scientific testing or medical evaluation performed before
manufacturers began selling ECDs directly to law enforcement and correctional
agencies for use on human beings. Governmental entities such as California’s Peace
Officers Standards and Training (POST) did not promulgate standards for training or
use. As a result, police and corrections agencies relied on training provided by
manufacturers, a situation which remains essentially true today.
ECD use did not immediately become widespread, in large part because officers
found that a motivated person could fight through the effects of the relatively low
power output.3 There were, however, reports of deaths associated with ECD use.4
In 1993 Cover sold the “TASER” trademark, along with various licenses and

3

Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir.1992), provides a

particularly tragic example of the original ECD’s lack of stopping power, leading to the
shooting of an agitated and suicidal individual holding a knife in each hand.
4

Kornblum, Ronald N., M.D., and Reddy, Sara K., M.D., Effects of Taser in
Fatalities Involving Police Confrontation, Journal of Forensic Sciences, Vol. 36, No. 2,
pp. 434-48 (March 1991) (reporting sixteen cases). In McCranie v. State, 172 Ga. App.
188, 322 S.E.2d 360, 361 n. 1 (1984), the court explained: “Apparently, at the time of
the incident at issue, taser guns were not considered by prison officials to constitute
deadly force. They have, however, since been classified as such at the [Georgia State]
prison.” A few years later in People v. Sullivan, 116 A.D.2d 101, 500 N.Y.S.2d 644,
647 (1986), order rev’d on other grounds, 68 N.Y.2d 495, 510 N.Y.S.2d 518, 503
N.E.2d 74 (1986), the court, discussing ECDs as among the alternatives for controlling
irrational persons, noted that “although the device was introduced in 1971 [sic], there
has been great concern about the impact on people with heart problems and its use has
been outlawed in this State.”
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patents, to brothers Patrick “Rick” and Thomas Smith, the founders of TASER
International, Inc. They changed the propellant to nitrogen, thus removing the product
from regulation by the Bureau of Alcohol, Tobacco and Firearms,5 and then, to make
the device more effective, and therefore popular with its law enforcement and
corrections customer base, increased the power four-fold, to 1.76 joules per pulse, 26
watts a second.
TASER International introduced the ADVANCED TASER Model M26 late in
1999. Shaped like a pistol, it holds eight AA batteries and delivers, depending on the
battery charge, between 15 to 20 pulses per second – each of 40 microsecond duration
– at a peak current ranging from 15 to 17 amps.6 Although the Model M26 sold well,
officers complained about its size, weight, and similarity to a firearm.7

5

Presently, TASER International’s ECDs are within the jurisdiction of the
Consumer Product Safety Commission. To Amici’s knowledge, the CPSC has conducted
no testing of the products, nor offered opinions regarding their safety.
6

Braidwood Commission on Conducted Energy Weapon Use, Restoring Public
Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia, at
54-56 (June 2009). The testimony and reports of the Braidwood Commission,
established to investigate the role ECDs played in the October 2007 death of Robert
Dziekanski in the Vancouver International Airport, caught on video, are an invaluable
resource for ECD technical issues, available at http://www.braidwoodinquiry.ca.
7

There have been at least six officers who claimed they shot someone after
confusing their firearm with an ECD, including a Bay Area Rapid Transit (BART)
officer seen on video shooting and killing a man in Oakland, California, on January 1,
2009. Although that officer used a Model X26, most cases involved the Model M26,
the shape and weight of which much more closely resembles those of a pistol. Mehserle
justified in using Taser, expert says, San Francisco Chronicle, A-1, June 29, 2010; see
also Torres v. City of Madera, 524 F.3d 1053, 1055 (9th Cir. 2008) (Model M26);
(continued...)
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In 2003, TASER International substantially re-engineered the electronics and
released the more popular Model X26, smaller, sleeker and lighter because it is powered
by only two AA batteries. To generate the same stopping power from the weaker
energy source, the Model X26 has a longer (100 microsecond) although flatter (peak
three to five amps) waveform. The X26 regulates its pulse rate better, consistently
delivering around 19 per second. The individual pulses delivered by each model contain
roughly the same amount of electrical energy – 100 micro-coulombs. The Model X26
can be equipped with an optional video camera.
Product sales to corrections and law enforcement have been substantial despite
ongoing concerns about product safety. See, e.g., Taser Shares Fall Sharply Despite

Gain In Earnings, New York Times, February 9, 2005. According to TASER
International, by the beginning of 2009, at least 350,000 officers in over 12,750
agencies in 45 countries used its products, estimating approximately 680,000 human
volunteer exposures, generally law enforcement and corrections officers during ECD
training, and 547,000 field uses.8

7

(...continued)
Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007) (model not identified).
8

Braidwood, supra note 6, at 50.
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B.

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The Operation and Effects of TASER ECDs
1.

Dart Mode

Both the Model M26 and Model X26 operate the same way. A plastic cartridge
clips onto the front of the “barrel.” Switching off the safety activates a laser sight, the
dot of light representing the target for the top dart. Pulling the trigger fires two darts,
each bearing a barbed point nine millimeters long, connected to wires ranging in length
from 15 to 35 feet, with 21 feet being the most common. The top dart travels straight
while the bottom dart angles downward so that the darts should spread one foot for
each seven feet traveled. The wider the spread, the more effective the electrical
discharge will be in causing muscle incapacitation. ECDs are more effective in the back
than the chest due to the presence of more muscles and nerves.
2.

Drive Stun

The officer can remove the cartridge altogether – exposing two electrodes –
disengage the safety, pull the trigger, and shove the electrified tips into a person’s flesh
to cause excruciating pain, albeit without the spread between electrodes necessary for
muscle disruption to take effect. TASER International calls this tactic a “drive-stun.”

Amici are troubled by the drive stun, which seems to have no legitimate lawenforcement purpose, but has a very high likelihood for abuse, as illustrated by Brooks.
Moreover, TASER International issues training materials encouraging officers to
target drive stuns to the neck and groin. Drive-stuns typically leave tell-tale pairs of
burn marks, and sometimes permanent scars. TASER International trains that “Probe
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hits are usually more desirable than drive stuns” in part because of “fewer injuries.”
Addendum A.9
3.

The ECD Electrical Current

Although darts frequently penetrate the skin, the current arcs at 50,000 volts,
allowing it to jump through thick clothing when necessary. Much has been made about
the “50,000 volt” shocks in early TASER International promotional literature and the
popular media, but in fact there is far less voltage when the current flows through
human tissue – approximately 7,000 volts for the Model M26 and 1,300 for the Model
X26. Regardless, voltage – the “pressure” behind the flow of electrons – is not
particularly relevant. Peak amperage, pulse duration, pulse rate and total charge per
pulse are the important measurements for assessing physiological effects.
TASER International lists the amperage of its ECDs as being the range of two to
three milliamps, using an irrelevant calculation for average current per second – over
99.8 percent of which consists of dead time between pulses – rather than the relevant
measure of peak amperage per pulse.10 TASER International falsely claims that the
device relies on current weaker than a Christmas light. In fact, the current per pulse is
9

There is also a hybrid tactic. After a cartridge is fired, but still attached to the
ECD, the electrodes are exposed. A person can be drive-stunned with the expended
cartridge still in place. If there is also a dart attached somewhere on the person’s body,
then the drive-stun will complete the circuit, and the path of the current will have the
necessary spread for muscle disruption to occur.
10

Supra, note 6, Braidwood Commission on Conducted Energy Weapon Use,
Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons in
British Columbia, at 54-56 (June 2009).
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many times stronger.11
Both the Model M26 and the Model X26 are set to cycle automatically for five
seconds, accompanied by an audible clicking of the electrical pulses. The cycle can be
ended sooner, however, by engaging the safety, or it can be prolonged by holding down
the trigger longer than five seconds, continuing until the release of the trigger. Trigger
pulls are recorded on a built-in computer chip TASER International calls the
“dataport,” so the time, number and length of discharges can be determined with
precision.
C.

Medical and Safety Risks of ECDs.

ECDs pose a number of substantial risks of serious injuries. Besides the
disfiguring scars which result from a drive stun, Addendum A (TASER training on the
drive stun), a dart can hit a sensitive organ. Addendum B (TASER International
training showing dart in eye). The electrical current can ignite flammable substances,
including pepper spray. Addendum C (TASER International warning on igniting

11

According to the Mattos panel decision, “The defendants paint a benign
portrait of the Taser, offering evidence that it has been used on over one million human
subjects and has proven extremely safe, as well as evidence that the actual voltage
applied to a subject’s body uses less electricity than a single bulb on a string of
Christmas tree lights.” Many of the “over one million human subjects” were volunteers
shocked through alligator clips or in “daisy chains” for minimal periods of time in
controlled settings. As explained in this brief, safety issues are complex. The reference to
“voltage” is wrong. The measure is amperage. Both the Model M26 and Model X26
have peak amperage many times greater than the one amp TASER International claims
is needed to power a Christmas tree light, and more than enough peak current to
interfere with cardiac function.
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flammable substances). Particularly serious – as occurred in Bryan – are traumatic
injuries due to fall, as the subject collapses with arms paralyzed, unable to protect
himself or herself from impact. These injuries can be fatal. See, e.g., Brooklyn Man Dies
After Police Use a Taser Gun, The New York Times, Sept. 24, 2008 (fall from
building). Finally, the intense muscle contractions caused by the device can result in
serious orthopaedic fracture or dislocation. See C.M. Sloane, T.C. Chan, G.M. Vilke,

Thoracic Spine Compression Fracture after TASER Activation, J Emerg Med.
2008:34(3):283-5 (back broken during voluntary exposure).
Perhaps most importantly, ECDs pose serious cardiac risks, which can result in
significant brain injury or death, especially when exposure is to the chest, or is
prolonged, or the person targeted is suffering from extreme agitation or delirium.
Addendum D (current TASER International warnings that its products can cause
cardiac arrest).12
The health consequences of ECDs were documented in the most thorough
etymological study to date. Independent researchers from the University of California,
San Francisco, School of Medicine determined that in-custody deaths increased six-fold
during the year following the first deployments of TASER International products in the
surveyed California law-enforcement agencies. Byron K. Lee, MD, Eric Vittinghoff,
12

The warnings followed a verdict against TASER International in Heston v.
TASER International, Inc., for failing to issue adequate warnings about cardiac arrest
resulting from acidosis caused by multiple, repeated or prolonged cycles. An appeal
from the verdict has been argued and is presently under submission. Ninth Cir. Case
Nos. 09-15327 and 09-15440.
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PhD, Dean Whiteman, BS, Minna Park, Linda L. Lau, BS, and Zian H. Tseng, MD,

Relation of Taser (Electrical Stun Gun) Deployment to Increase in In-Custody Sudden
Deaths, Am J. Cardiol. Volume 103, Issue 6, Pages 877-880, 15 March 2009.
Amnesty International identified 334 deaths associated with TASER International
products in the United States from June 2001 through August 2008, almost all cardiac
arrests. “Less than Lethal”? The Use of Stun Weapons in US Law Enforcement,
Amnesty International (2008).
Despite boasts from the manufacturer, there is no peer-reviewed data that ECDs
reduce injury rates to officers or to the people on whom they are used.
II.

SHOULD THERE BE QUALIFIED IMMUNITY FOR ECD USE?

Amici contend that the medical and safety risks of ECD use have been
sufficiently established, along with the relevant legal standards, to hold the officers for
trial on claims of excessive force in Bryan, Mattos and Brooks.
As explained above, many of the health and safety risks of ECDs are either
obvious or taught to police officers and correctional officials during training. “[T]hough
such training materials are not dispositive, . . . ‘it may be difficult to conclude that the
officers acted reasonably if they performed an action that had been banned by their
department or of whose dangers in these circumstances they had been warned.’”

Drummond, 343 F.3d at 1059 (quoting Gutierrez v. City of San Antonio, 139 F.3d
441, 449 (5th Cir. 1998) and citing Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994)
(“‘Thus, if a police department limits the use of chokeholds to protect suspects from
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being fatally injured, . . . such regulations are germane to the reasonableness inquiry in
an excessive force claim.’”)); see also, Smith v. Hemet, 394 F.3d 689, 703 (9th Cir.
2005) (en banc) (expert testimony concerning officers’ violation of state law
enforcement standards and department policy is reliable for assessing whether force
used was unreasonable), cert. denied 545 U.S. 1128 (2005).

Amici understand that not infrequently the person subjected to an ECD suffers
only the excruciating – but transient – pain of the device, and perhaps two minor
puncture wounds or burn marks. They urge that the Court, without minimizing the
degree of this intrusion, consider the more serious health and safety risks posed by the
device when deciding whether to extend qualified immunity to public officials under a
given set of facts. See Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (“To assess
the gravity of a particular intrusion on Fourth Amendment rights, the factfinder must
evaluate the type and amount of force inflicted.”), cert. denied sub nom. City of Los

Angeles v. Chew, 513 U.S. 1148 (1995).
Accordingly, Amici urge the Court to decide that the use of ECDs constitute a
high-level use of force – a serious “‘intrusion’ on a person’s liberty” – whether in dart
mode or drive stun – which must be carefully balanced against any “‘countervailing
governmental interests at stake’ to determine whether the use of force was objectively
reasonable under the circumstances.” Smith v. City of Hemet, 394 F.3d at 701 (quoting

Graham, 490 U.S. at 396), cert. denied 545 U.S. 1128 (2005).

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III.

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CONCLUSION
Based on the foregoing, Amici urge the Court to affirm the denial of qualified

immunity in both Brooks and Mattos, and to remand the cases for trials on their merits
so that the respective finders of fact can determine, based on a full record, whether the
defendants’ use of ECDs to shock the plaintiffs were objectively reasonable under the
circumstances.
Respectfully submitted,
Dated: October 21, 2010

THE LAW OFFICES OF JOHN BURTON

By:

/S/
John Burton
Attorneys for Amici Curiae

National Police Accountability Project
and Human Rights Defense Center

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3,731 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by the word
processing program Wordperfect.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Wordperfect with 14
point font in American Garimond type style.

Dated: October 21, 2010

THE LAW OFFICES OF JOHN BURTON

By:

/S/
John Burton
Attorneys for Amici Curiae

National Police Accountability Project
and Human Rights Defense Center

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CERTIFICATION OF ELECTRONIC SERVICE

MATTOS v. AGARANO

Ninth Circuit Case Number: 08-15567
I, Sandy Leonardis, certify that on October 21, 2010, I electronically filed the foregoing
Brief of Amici Curiae National Police Accountability Project and Human Rights
Defense Center In Support of Plaintiffs-Appellees with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system. All participants in the case are registered CM/ECF users and will be served by
the appellate CM/ECF system.

Dated: October 21, 2010
/s/
Sandy Leonardis

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