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Security officer use of Tasers questioned

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Security officer use of Tasers questioned

Stun gun use by law enforcement questioned after death of North Carolina behavioral health patient

An appellate court opinion governing the use of Tasers by law enforcement officers after the death of a man outside a North Carolina hospital is likely to affect the actions of hospitals in at least five states already considering the use of the weapon for their own officers.

The ruling, issued January 11 by the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia, centers around an April 23, 2011 incident at Moore Regional Hospital in Pinehurst, North Carolina.

In that case, 43-year-old Ronald Armstrong, a man with bipolar disorder and paranoid schizophrenia, was apparently being evaluated after admitting himself in the middle of an episode during which he was off medication and poking holes in his leg "to let the air out."

According to court documents, Armstrong became nervous and eloped from the hospital's ED. Hospital security officers followed him out of the facility, and according to protocol, called 911; five local police officers responded to the scene outside the hospital.

Officers surrounded the man, who at this point had wrapped his arms and legs around a stop sign post at a nearby intersection but was otherwise calm, while they waited for a doctor to sign "involuntary commitment papers" that would have required them to take him into custody.

After the order was signed, with a checked box indicating that Armstrong was "dangerous to himself," officers attempted to remove him from the stop sign. Armstrong resisted several times, and after repeated warnings officers used a Taser five times before handcuffing and taking him into custody.

"The officers then stood up to collect themselves," court documents explain. "They left Armstrong facedown in the grass with his hands cuffed behind his back and his legs shackled. At this point, he was no longer moving?at all. When the officers flipped him over, his skin had turned a bluish color and he did not appear to be breathing." Armstrong was pronounced dead of cardiac arrest shortly after being admitted to the hospital.

Tasers are weapons that use darts to incapacitate assailants' neuromuscular systems via a non-lethal electrical charge, and can be set to different levels of shock. The use of the weapon is still controversial. Some question whether Tasers should be used in healthcare settings; they can cause cardiac death in someone with heart problems as was apparently the issue with Armstrong, and federal regulations place some restrictions on their use in healthcare. Still, they are considered by many in healthcare law enforcement to be better than batons or other forms of defensive tactical weapons, especially when their officers are up against knives, razors, and other weapons that get smuggled into hospitals.

Court sides with law enforcement

The subsequent lawsuit in the case against the officers and Taser International, Inc., alleged that officers used excessive force in the attempt to take Armstrong into custody. While the court ruled that Armstrong's Fourth Amendment rights were violated and that excessive force was used, the officers were exonerated under "qualified immunity," a federal doctrine that shields government officials from liability while doing their jobs.

Still, the court, which oversees cases in five states?North Carolina, South Carolina, Virginia, West Virginia, and Maryland?issued a stern warning to law enforcement agencies to be careful about future use of Tasers.

"Where, during the course of seizing an outnumbered mentally ill individual who is a danger only to himself, police officers choose to deploy a Taser in the face of stationary and nonviolent resistance to being handcuffed, those officers use unreasonably excessive force," the court reasoned. "While qualified immunity shields the officers in this case from liability, law enforcement officers should now be on notice that such Taser use violates the Fourth Amendment."

  • What does this mean? For starters, law enforcement agencies?including those in hospitals?are going to think twice about deploying Tasers against subjects who are not considered immediate dangers to officers?and that's not necessarily a good thing, according to some law enforcement officials. In early February, a memo from The North Carolina Justice Academy to law enforcement departments in the state articulates a clear suggestion for a change in protocol:

"On January 11, 2016, the U.S. Fourth Circuit Court of Appeals issued an opinion in the case of Armstrong v. Village of Pinehurst which dramatically changes the legal landscape governing Taser use by officers," the memo reads. "Effective immediately, Taser use as a pain compliance tool against a resisting subject is prohibited by the Fourth Amendment unless the police can articulate 'immediate danger' to the officer apart from the fact of resistance alone."

In other words, use the Taser as a last resort. Police departments are already protesting, saying that by taking away the Taser as a non-lethal option for incapacitating a suspect, officers will now put themselves at a higher risk of injury and liability as they resort to more "hands on" tactics such as tackling an individual or batons.

"Quite frankly, this is a trick bag for us," said Columbia, South Carolina Police Chief Skip Holbrook in a report from the news website coladaily.com. "A lot of the conversation that's going on right now is, the result of this is probably going to require officers to put their hands on people more."

  • How will this affect hospitals? It's hard to say, but it's estimated that about half of the hospitals in the United States currently employ Tasers in their facility, as a non-lethal alternative to guns either in their security forces or police department. Swedish Medical Center in Seattle in May 2014 began arming and training its 70 security officers with Tasers at six of its seven campuses across the city, and officials have said publicly they would only be used in an extreme circumstance to incapacitate an armed intruder.

Facing an increasing number of violent incidents that range from patient violence to active shooters, many hospitals have been researching Tasers as an option to give their staff a way to protect themselves, in addition to self-defense tactics and de-escalation skills.

Under the precedent set by the court ruling, however, hospital security staff who use a Taser against, for example, a patient that is getting unruly, would presumably not be protected by the same immunity as a law enforcement officer.

"The only time they would use it is hopefully in a very dire situation where they are fearing for their life or someone else's," says Lisa Pryse Terry, CHPA, CPP, director of Hospital Police and Transportation for the University of North Carolina Hospitals in Chapel Hill, adding that regulatory oversight of violence prevention in hospitals is often a double-edged sword that conflicts with mitigating risk.

"If CMS comes in and law enforcement action was taken by security, they can stop reimbursement and close the doors," she says. (CMS considers Taser use by security staff a law enforcement intervention and not an acceptable healthcare intervention.)

"At the same time, OSHA demands that you equip them properly," she says. "It's in the General Duty Clause. You have to give them the right equipment to help them provide a safe environment."

  • Training and policies. The use of Tasers is not likely to cease being used as an option in police department arsenals, and even the court sided with their reasonable use.

"Tasers came into widespread use for a reason: They were thought preferable to far cruder forms of force such as canines, sprays, batons, and choke holds, and it was hoped that their use would make the deployment of lethal force unnecessary or at least a very last resort," the court concluded. "None of this, of course, justifies their promiscuous use. The officers, though armed with a civil commitment order, do not possess the same degree of latitude with regard to a mentally ill person as with someone whom there is reason to believe has committed a crime."

In other words, if you work in a healthcare environment and you decide to use a Taser to take down a suspect, you're going to be held to a different standard than, say, a police officer on the street.

"It's important to parse the distinction of the use of force in healthcare as opposed to a typical law enforcement situation," says Michael Boyer, managing attorney for Carolina Craft Legal, in Greensboro, North Carolina, who has consulted with hospitals about arming security forces. "Within healthcare your purpose is to facilitate healing and protecting your patient. The standard is going to be different. Healthcare facilities will have to take their own initiative and what the risk will be to their reputation if they have a body on their hands, especially a patient."

In the case of Armstrong, the Taser incident occurred outside the hospital on public streets, and under the circumstances may have been warranted given the exposure to the public.

"He certainly posed a danger to himself having been off medication and engaging in self-destructive behaviors to the point that his sister was pleading for her brother's prompt return to the hospital where he might receive some help," the court reasoned. "As for the danger to others, it was hardly unlikely that the plaintiff, a sizeable and unrestrained individual, would bolt into the street and cause a traumatic accident for motorists who, if not themselves injured, would regret the harm inflicted on this pedestrian for years to come. I say this not to contend that the case was easy, but that it was hard. It is difficult sometimes for even seasoned professionals to predict which is which, not to mention officers and others with more limited training. And yet it is important in this area that law not lose its preventive aspect."

  • How policies will change. Hospitals that do employ Tasers are going to have to cover themselves if they have to use the weapon against a patient. In a healthcare setting, most people who are there are looking to get better, and the staff is tasked with protecting them. Security officers are going to have to think long and hard before using potentially deadly force?especially since the law might not protect them the same way it might for a city police officer.

"Psychiatric care has been largely defunded, and hospitals have had to accommodate folks more and more," says Boyer. "It's not a police officer's job to diagnose, but if there is protocol in place so they are aware before they engage, there should be that overlay of protecting life."

Basically, he says, if you're a police officer in a hospital, you should be armed with information that the person you are dealing with?such as a behavioral health patient and any history they have of violent behavior, or at least have the assumption that they could have a history.

"It's different than out on the street where you have no way of verifying that this person may be having an issue," Boyer adds.

In North Carolina, the court ruling initiated an immediate memo to law enforcement personnel at University of North Carolina Hospitals asking them to review the case with officers and change department policies.

"All future Taser use is now subject to the Fourth Circuit's pronouncement that Taser use is severe and injurious regardless of the mode to which the Taser is set," wrote UNC Hospitals police training coordinator Chris Crain. "Although that statement is not factually true, today the court said it, and thus it's now controlling law. How this decision might affect other applications of uses of force and pain compliance techniques is unclear. Written departmental policy on Taser use will also have to reflect this change in the law. Have officers prepared to articulate why particular uses of force were necessary and proportionate to the resistance offered by the citizen."

Review your policies

Hospital security experts say you should be constantly reviewing your policies to determine whether Tasers (or other weapons) are appropriate for your facility. Here are some things to consider:

Facility size. If you're a small rural hospital in a quiet community, your needs will be different from that of a larger city hospital. Your decision to arm security staff should focus largely on risk factors such as the population likely to come through your doors. Do you have gang activity or a large population of behavioral health or forensics patients in your facility? These factors may drive your decision.

Train your officers that Tasers can kill. Many hospital security departments are turning to Tasers because they are less lethal than guns. But deaths still occur from their use, as the Moore Regional case shows. When employing them, you are in fact shocking the victim, which can cause cardiac arrest or a fall. Users should always be properly trained, and must only be used as a last resort against someone who is a deadly threat. Officers responding to an unruly patient should always consider non-lethal verbal commands or de-escalation tactics first.

Put the word Taser in your protocols. Attorneys studying the court opinion say strong and specifically worded protocols should be developed for officers to follow when considering Taser use. Therefore, it should be outlined exactly when Taser use would be appropriate (and when it is not), and when it's better to defuse it with less dangerous tactics. For instance, officials at Swedish Medical Center Seattle have made it clear that Tasers will never be used on a patient. A Fourth Amendment lawsuit would take into consideration not only the reasonable use of force warranted in a given situation, but also whether the officer followed written department protocols.

Training is paramount. Tasers are available to most people on the open market, but they should not be used without proper training. If you are going to allow them for officer use, make sure anyone tasked with using them gets proper training and certification. Even better, send at least one representative from your department to get certification from Taser International's train-the-trainer program to help train your officers and conduct drills.

 




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