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Saturday, January 31, 2009

Lawyer says BART officer meant to fire Taser

January 31, 2009
By Kelly Rayburn, Paul Rosynsky and Harry Harris, Oakland Tribune

The BART police officer charged with murdering 22-year-old Oscar Grant III at the Fruitvale station New Year's Day intended to fire a Taser at Grant when he instead pulled his service pistol, the officer's attorney wrote in court papers filed before a bail hearing Friday.

The papers — obtained before Alameda County Superior Court Judge Morris Jacobson put a gag order on the parties in the case involving former Officer Johannes Mehserle — offer the first explanation from either Mehserle or an attorney of his as to what his state of mind might have been during the early hours of Jan. 1.

"The offense charged is serious," attorney Michael Rains wrote. "However, even a rudimentary and hasty examination of discovery provided to date indicates that Mr. Mehserle did not act ... with malice against Mr. Grant when he fired his weapon."

District Attorney Tom Orloff's office declined to release its own bail-hearing motion Friday afternoon, citing the gag order. Rains' request that bail be set at $100,000 was rejected. Bail instead was set at $3 million.

The court papers include statements from several witnesses — both officers and civilians — saying Mehserle indicated he was going to use his Taser on Grant and that he looked shocked after the shooting.

Mehserle was one of several BART officers at the Fruitvale station responding to reports of a fight on a train, according to the papers. Officers described a chaotic and out-of-control New Year's crowd.

One of those detained by police was Grant.

Mehserle was directed by BART Officer Tony Pirone to arrest Grant, according to the document, but Grant "resisted and refused to submit to handcuffing."

Pirone said he heard Mehserle tell Grant to stop resisting and put his hands behind his back before saying, "I'm going to taze him, I'm going to taze him. I can't get his arms. He won't give me his arms. His hands are going for his waistband."

But instead of pulling his Taser, Mehserle pulled his gun and shot Grant in the back, the papers state.

Other officers and witnesses who saw the shooting described Mehserle "as being in shock and many saw him putting his hands to his head," according to the document. One civilian witness said Mehserle had an expression on his face as if to say, "holy (expletive) what happened or what did I do."

Rains also argued that Mehserle had limited experience with a Taser. Mehserle had been certified to carry a Taser for less than one month before the incident occurred, the papers state. He carried a department-approved Taser somewhere between eight and 12 shifts before Jan. 1.

According to a statement from Pirone, Mehserle told his fellow officer, "Tony, I thought he was going for a gun." Grant was unarmed.

That statement, however, was used by Alameda County Superior Court Judge Morris Jacobson and Deputy District Attorney John Creighton to argue that Mehserle did have malice when he shot Grant and thus the murder charge is correct.

Creighton said during the bail hearing that Rains' explanation for Mehserle's state of mind was conflicting.

Although, Mehserle is claimed to have announced his intention to use his Taser on Grant, he also stated afterward that he believed Grant was reaching for a gun.

The two statements are in conflict, Creighton argued, because if Mehserle thought Grant was trying to reach for a gun he never would have announced his intention to use a Taser on Grant. Instead, Creighton said, Mehserle is trained to react to force with force, meaning he would have pulled out his gun if he thought Grant had a gun.

Jacobson agreed, saying the two statements made by Rains appear to be a defendant changing his story to protect himself.

"There was an indication from Mr. Mehserle that he was going to use a Taser, but within a few minutes (he) stated, 'I thought (Grant) had a gun.' These two things to me are inconsistent," Jacobson said. "There appears to be a change in the story. His willingness to change his story appears to me that he would be willing to do so to avoid the consequences."

While Rains' papers attempt to characterize Mehserle's state of mind, it does not quote the murder defendant directly and instead uses statements by others to describe the scene and Mehserle's possible motives.

Mehserle resigned from the BART police force rather than give a statement about the incident to BART officials who were investigating it earlier this month.

Asked if Mehserle was trained properly in the use of a Taser and whether a lack of experience in carrying a Taser could have contributed to what happened, BART spokesman Linton Johnson said, "All of that is part of the investigation."

Legal experts appeared to agree with Creighton and Jacobson that Rains' explanation was suspect.

"It's somewhat suspicious that it's taken this long to come up with that particular interpretation, which might make it suspect," said University of San Francisco law professor Robert Talbot, who has developed training programs for the San Francisco Police Department and San Mateo County Police Academy. "It would be harder for a jury to believe it, I feel, coming a month later. ... You'd expect something more spontaneous."

Still, it's "suspicious but not impossible," Talbot said. There have been other cases across the nation in which officers said they'd accidentally fired their firearms when thinking they were deploying their Tasers. Those officers haven't been criminally prosecuted, he acknowledged, but those shootings weren't caught on videotape and widely broadcast, either.

Talbot said he could see how Mehserle, even if he did believe Grant was reaching for a gun, might have reached for his Taser "not believing under the circumstances that he needed to use deadly force."

"Truthfully, for me, the videotape never looked like murder," Talbot said. "It never looked like somebody that was looking to blow somebody away, the body posture, the facial expressions."

Even if a jury accepts that Mehserle believed he was drawing and firing his Taser, Talbot said, it could still convict him of involuntary manslaughter if it finds he acted with gross negligence.

Involuntary manslaughter happens "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection," according to the Penal Code.

This is punishable by imprisonment for two, three or four years with a potential additional three, four or 10 years for using a firearm.

Friday, January 30, 2009

July trial for ex-police officer in Taser death

January 30, 2009
Associated Press

WINNFIELD, La. (AP) - A former police officer accused of repeatedly jolting a handcuffed Louisiana man with a Taser before he died is scheduled to be tried in July on a manslaughter charge.

A spokesman for the Winn Parish District Attorney's office said a state judge met Friday with lawyers on both sides of the case and set July 13 as the first day of a trial for Scott Nugent.

Nugent was a Winnfield police officer when he allegedly shocked 21-year-old Baron Pikes nine times with a 50,000-volt Taser while arresting him in January 2008. Pikes' death was ruled a homicide.

Nugent pleaded not guilty last year to charges of manslaughter and malfeasance in office and was freed on $45,000 bond. He faces up to 45 years in prison if convicted of the charges.

BART cop: 'I'm going to Tase him'

January 30, 2009
Demian Bulwa, San Francisco Chronicle

Former BART police Officer Johannes Mehserle declared that he was going to fire his Taser stun gun, not his pistol, just before he shot an unarmed man he was trying to arrest early New Year's Day at an Oakland station, his attorney says.

Attorney Michael Rains wrote in a court document that a second BART officer, Tony Pirone, reported hearing Mehserle say just before shooting Oscar Grant, "I'm going to tase him, I'm going to tase him."

Afterward, Mehserle said he thought Grant had been reaching for a gun, Rains wrote.

Rains gave the account in a motion asking a judge to release Mehserle on bail while the former officer defends himself against murder charges. A hearing is scheduled for this afternoon before Judge Morris Jacobson in Alameda County Superior Court.

The legal filing by Rains does not specifically give Mehserle's explanation for the shooting at Fruitvale Station, which happened as he and other officers were trying to arrest Grant for resisting an officer. Instead, it quotes several other witnesses and refers to evidence from the scene.

Still, it marks the first time that Mehserle's attorneys have indicated what his defense could be at a trial.

Rains wrote that "the bulk of the discovery, including witness and officer statements, seem to indicate that this young officer, who carried a Taser for only a few shifts prior to this event, may have mistakenly deployed his service pistol rather than his Taser, thus negating any criminal intent."

The prosecutor in the case, John Creighton, questioned whether that account made sense.

Creighton noted that the defense attorney quotes Pirone as saying after the shooting that Mehserle approached him and said, "Tony, I thought he was going for a gun."

"If he intended to pull his Taser and pulled his service weapon by mistake, why would he say to another officer after the fact, 'I thought he was going for a gun'?" Creighton said. "Why wouldn't he say, "Oh my God, Tony, I meant to pull my Taser,' or something to that effect?"

Rains' 14-page bail motion asserts that Mehserle is not a danger to the community or a flight risk. But John Burris, an attorney representing Grant's family, said Mehserle should not be released.

He said the evidence in the case - including camera footage of the shooting - suggested that the officer meant to fire his gun, not his Taser.

"That's a defense that's not surprising, as much as it's been talked about," Burris said. "I would only say that, No. 1, the Taser shouldn't have been used, either. There wasn't any basis for that. And No. 2, the facts on the videotape don't support that as an argument. But that has to be presented at trial."

Burris said, "The evidence is consistent with murder."

Mehserle, 27, and other BART officers had detained the 22-year-old Grant and four of his friends just after 2 a.m. at the Fruitvale Station while investigating reports of a fight onboard a Dublin-Pleasanton train. Grant was shot just after Pirone told him he was under arrest for resisting an officer.

Grant put up a brief struggle, but was lying face-down, with both hands behind his back, when Mehserle shot him, Oakland police investigators said in a court affidavit.

District Attorney Tom Orloff said his office charged Mehserle with murder because the former officer had committed an intentional, unlawful act when he shot Grant.

Mehserle declined to talk to criminal investigators. He quit the BART police force Jan. 7 after two years on the job rather than be interviewed by internal affairs inspectors who could have brought a disciplinary case against him.

BART said it bought 64 Taser X26 stun guns last year for $62,000, then placed them into service on Sept. 9 after officers did six hours of training. Mehserle shot Grant with his Sig Sauer P226 semiautomatic pistol, BART said.

The bail motion gives an account of the moments before the shooting, stating that Grant overheard Pirone tell Mehserle that Grant was under arrest. As a result, Rains wrote, Grant "attempted to stand up, but was forced to the ground face first."

Mehserle and Pirone ordered Grant to put his hands behind his back to be handcuffed, but Grant resisted, Rains wrote.

Rains quoted Pirone as saying that he tried to help Mehserle by holding Grant's head and shoulders down.

According to the motion, "Pirone said he heard Mehserle say, 'Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back.'

"Then Mehserle said, 'I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband,' " Rains wrote.

"Then Mehserle popped up and said, 'Tony, Tony, get away, back up, back up.' "

Rains wrote that several witnesses described Mehserle as looking stunned after he shot Grant. One said Mehserle "had an expression on his face like, 'Holy s-, what happened or what did I do, with his hands around his head,' " the attorney wrote.

He added that the witness "believed the officer also had an expression as, 'Why did my gun go off?' "

The bail motion also provides some background information on Mehserle. It says he was born in Germany but has lived in the Bay Area since age 4; that he grew interested in police work through a friend who was an officer; and that he plans to marry his girlfriend, who gave birth to the couple's first child Jan. 2.

Adoption of stun guns spikes the risk of in-custody death in the first year

January 30, 2009
Michael O'Riordan, Heartwire

San Francisco, CA - The rate of in-custody sudden death increases more than sixfold in the first year after the adoption of electrical stun guns in police and sheriff departments, a new study has shown [1]. Moreover, in this first year, the use of the stun guns, the most popular of which is Taser (Taser International, Scottsdale, AZ) did not reduce the rate of firearm-related deaths, despite the devices being marketed as an alternative for reducing the use of lethal force.

"We speculate that early liberal use of Tasers may have contributed to these findings, possibly escalating some confrontations to the point where firearms were necessary," write Dr Byron Lee (University of California, San Francisco) and colleagues in a report published online January 21, 2009 in the American Journal of Cardiology.

The subsequent decrease in sudden deaths and firearm-related deaths to levels before the adoption of the stun guns likely reflects the recognition of the adverse consequences of the Taser, according to researchers, leading to an adjustment of their use or changes in techniques.

"These deaths come back to baseline in the years two to five," senior investigator Dr Zian Tseng (University of California, San Francisco) told heartwire. "That finding is supportive of the fact that the Taser might be causing excess mortality in the first year. As police learn to use the weapon, as they start to recognize that there might adverse outcomes with the gun, they would no doubt adjust their techniques or change their policies. It suggests that this excess mortality is preventable."

Commenting on the study for heartwire, Dr Hugh Calkins (Johns Hopkins University School of Medicine, Baltimore, MD) said the use of stun guns in the law-enforcement community is an important issue, one that needs to be studied further. However, he is critical of the conclusions reached by Lee and colleagues, stating that more than 13 000 police departments worldwide are using the technology, and many of these departments independently tested their safety and effectiveness.

"If you look at the Taser device in particular, it's been about 10 years since it was first introduced, and in those 10 years, it's been subject to intense and critical scrutiny by every law-enforcement body that adopts it," he said. "If this were really causing people to die, if it were not having a favorable impact, it wouldn't be so widely adopted."

Taser use in California

Electrical stun guns, also known as neuromuscular incapacitating devices, are controversial alternatives for subduing prisoners and suspects in police custody. Existing data, the researchers note, are inconclusive on the cardiac and physiologic effects of stun guns. Those with concerns about their use, including Amnesty International, say that the devices could cause ventricular tachyarrhythmias in real-world conditions where police suspects may be under heightened physiological, pharmacological, and environmental stress.

In an attempt to gain a better understanding of the safety of devices in the real world, the researchers surveyed 126 police and sheriff departments in California cities, of which only 50 replied with sufficient data on the rates of death before and after the adoption of stun guns. They requested information on the rates of in-custody deaths in the absence of lethal force, firearm-related deaths, and officer injuries requiring emergency-department visits. Annual arrest data per city was obtained from the California Department of Justice.

The researchers obtained data for the five years prior to deployment of Tasers and in the following five years in which they were used. In the first year after Tasers were introduced to the departments, the risk of in-custody sudden death was 5.96 per 100 000 arrests, a sixfold increase over the five years prior, when Tasers weren't used. In years two to five after deployment, however, the in-custody death rate declined to 1.44 per 100 000 arrests, a number that was not significantly different when compared with the predeployment period.

Among 37 departments that provided sufficient data, the rate of firearm-related deaths increased from 6.66 per 100 000 arrests in the years before Tasers were used to 14.1 per 100 000 arrests in the first year of deployment. This rate declined to 9.1 per 100 000 between years two and five, a rate not statistically different from rates observed in the five-year period before Tasers were used.

"Based on this study, further epidemiologic research on the effect of Taser deployment on real-world outcomes is warranted," write the researchers. "Transparency by law enforcement agencies with regard to Taser use and in-custody sudden-death outcomes is critical for future studies by independent investigators."

Lee, who has provided expert medical testimony in two legal cases against Taser, told heartwire that he was surprised by the findings and that he had initially thought the group was likely to publish a negative paper, especially since in-custody deaths predate the use of electrical stun guns. Tseng added that the study was not designed to answer the question of whether the Taser causes death but rather to look at what happens when it is introduced in a real-world setting.

Safer than other weapons

Calkins, who serves on the medical advisory board of Taser International, noted that only 50 departments of the 126 surveyed provided data on in-custody deaths, and only 40 of these departments provided data in the first year after the Taser was deployed. The absence of responses in this first year of deployment—there were data from 47 departments in the year prior to deployment and 50 responses in year two—could have skewed the findings to show an increase in in-custody deaths. The survey also did not determine whether the Taser had been deployed in subjects who died. Other cities, including Cincinnati, OH, and Phoenix, AZ, have used the Taser and shown that it decreases the use of lethal-force deaths and reduces officer and suspect injuries without increasing the risk of in-custody deaths, said Calkins.

Dr Jared Strote (University of Washington Medical Center, Seattle), who was not part of the study, told heartwire that the findings by Lee et all were interesting but, like Calkins, pointed out the study was observational in nature and hindered by missing data. Along with Dr H Range Hutson (Harvard Medical School, Boston, MA), he has recently studied the use of Tasers over five years with Seattle police department and found no deaths within the first 24 hours of Taser use and a low number of injuries.

"In general, I think they are a safer weapon than many of the other weapons police officers have, and in many circumstances they have the potential to save suspects' and bystanders' lives, as well as the lives of police officers," said Strote. "But I think there are certainly some individuals who are being restrained for whom safety of Tasers is really unclear."

Strote added that the jury is still out on the physiological impact of the Taser.

Calkins told heartwire that there have been approximately 300 in-custody deaths with 650 000 applications of the Taser, but the time sequence of these deaths is not consistent with a ventricular arrhythmia during all of these deaths. Patients who die as a result of ventricular fibrillation caused by the Taser would die within the first minute, and not several hours later in custody, as is often the case, he said. A recent US Department of Justice-sponsored study of more than 1200 subjects who were Tasered found the weapon to be safe, with just three subjects reporting significant injuries [2]. Two subjects died in police custody, but the stun gun was not deemed by medical examiners to be cause or contribute to the death.

Calkins serves on the medical advisory board of Taser International and is compensated for his work. Lee has provided expert medical testimony on behalf of the plaintiffs in two lawsuits filed against Taser and received compensation for his work. Tseng and Strote report no conflicts of interest.

"Ordinary People Prohibited" from accessing British Columbia courts

January 29, 2009

Statement by Peter C. Ritchie

RE: Foisy vs. BC Ferries (re: the Queen of the North)

If one of your loved ones dies because of negligent actions onboard a British Columbia Ferry, don't go looking for justice in the province of British Columbia. Unless you are wealthy, you won't be able to afford Court in B.C.

The people of B.C. will never get a chance to hear in Court why or how two people died in the B.C. Ferries disaster in March 2006. Very sadly, two lovely teenage girls from Penticton will never know what happened to their father. Our so-called justice system has let them down.

The two teenagers and their mother did not have the money to pay the exorbitant amounts required by our justice system to fund their trial. The Queen of the North trial scheduled for February 2, 2009, will not happen. Our justice system is unfair to these two girls, and people should be aware what the government has done to us all in B.C.

In all of Canada, it is only the government in B.C. that has passed rules that operate to prevent ordinary people from having access to the Courtroom. Even though ordinary people pay the taxes for the Courts (the physical building, the judges, the sheriffs, and the Court staff, etc.), the B.C. government has erected financial barriers so that non-wealthy folks are kept out of their own Courts. These barriers, in Court case against B.C. Ferries, kept two teenage girls from having their day in Court.

I repeat, there is no other province in Canada where the government impedes access to such a degree as here. In B.C. you will need a pile of money just to rent the courtroom. This unfair rent is euphemistically called "hearing fees". This trial was estimated to take something like 30 days. This rent would have cost the girls about $15,000.00. Only in B.C. do we have outrageously high jury fees. The two girls also did not have anywhere near the money to pay the government for their so-called "right" to a jury. Jury fees would have cost the girls an additional approximate $25,000.00. For starters, the girls had to come up with approximately $40,000.00 in jury and hearing fees to the government to be able to walk into the courtroom. Nowhere else in Canada is like this.

The B.C. government also demands a host of other fees. For example, when the Writ was date stamped by a clerk at the counter my clients had to pay $208.00. When they asked someone at the Courthouse to put their dead father's case on a list for a trial, that cost them another $208.00. These expenses and fees levied by the government go on and on as the litigation proceeds. If you are wondering how ordinary people pay for these excessive government fees, the answer is simple. They don't. Maybe the B.C. government expected these girls to raise money by doing more baby-sitting? Maybe they should have held a bake sale at their Penticton high school?

This case involving the sinking of a "public" ferry is one of enormous public importance. The facts of this tragedy have never been fully revealed. The facts would have come out at trial. The capacity of B.C. Ferries to ensure safe passage is of crucial importance to the travelling public. Just as importantly, these two innocent kids really deserved to find out what happened to their father. Gerald Foisy and Shirley Rosette who both died on the Queen of the North had entrusted their safe passage to B.C. Ferries just like hundreds of thousands of us do who ride the Ferries. What really happened to cause a fully equipped modern vessel to smash into an mountainous island at high speed? What really happened so all passengers were not taken safely off this sinking ship? You will now never find out. The trial cost is too much for the two girls and their mother.

Citizens deserve justice. No other province charges such fees. If the girls lived anywhere else in Canada, they would have at least a fighting chance to have their day in Court. A few comparisons. In B.C., $40,000.00. In Alberta, the trial fees would have been $800.00. In Ontario, $645.00. Only one other province charges hearing fees, Saskatchewan. In Saskatchewan, the daily hearing fees cost only $15.00 per hour, say $3,000.00 in total, not $15,000.00 like in B.C. Saskatchewan is also the only other province that charges jury fees. Those fees are difficult to assess exactly but are nothing like B.C.

To understand the B.C. government's attitude toward Court access, it really would be simpler if they put up signs on the Courthouse door, reading "Ordinary People Prohibited".

The rules in our justice system are designed so that wealthy litigants, like B.C. Ferries, have an advantage over ordinary people. In this litigation, B.C. Ferries took full advantage of the unfair laws and Court rules. Goliath is favoured over David here in B.C.

A litigant's best hope is often a jury and B.C. Ferries tried its best to get rid of the jury. When it comes to the size of Court awards in wrongful death cases, Judges are restricted by ironclad precedent of relatively small amounts. Juries are not so restricted. The input of juries in fixing amounts of awards is of critical importance to our system of justice. Juries are not bound by precedent and they have wide latitude. B.C. Ferries sent their lawyers to Court to try to persuade the Judge to rule that the case should not be heard by a jury. The girls fought back and B.C. Ferries lost that round when the Judge ruled that a jury could hear the case. Why did B.C. Ferries try to keep this case away from a jury? A jury comprised of regular folk have a lot of power. What were the facts they did not want a jury to hear? What really happened on this ship? Why the crash? Why the failed rescue?

There was a federal Transportation Safety Board inquiry. The T.S.B. report can be viewed online. The Board's inquiry methodology was deeply flawed. Their mandate was restricted because they don't look to find fault. Unlike a trial, the T.S.B. does not cross-examine those involved. But at least they got some of the fundamentals right. They found no equipment failure. They said the seas were calm. They said there was little wind, little rain, and the visibility was good despite a squall. It wasn't the sea that caused the deaths. So how in heaven's name did this ship come to perdition? If there had been a trial the girls hoped the truth would come out

B.C. Ferries surely did not want the jury hear evidence that the woman steering the boat did not know what she was doing. She was poorly trained and lacked supervision. As the T.S.B. told us, she had spoken to her supervisors about her nervousness to drive the boat that very voyage. Yet BC. Ferries still allowed her to be at the helm knowing she was poorly trained and knowing she lacked basic navigational skills. Also, the T.S.B. found B.C. Ferries had only two crew on the bridge. The T.S.B. said three people were required by law to be on the bridge at the time of the collision with Gil Island. Why did B.C. Ferries have only two people on the bridge?

The public will not learn the details of what these two people were actually doing on the bridge which caused them not to pay attention to where they were going. What were they doing for approximately 14 minutes when there were going at high speed in the wrong direction? Why did they not realize they were heading right into Gil Island? It is like a ship being driven into the shores of North Vancouver. Gil Island is a mountain rising out of the sea. The facts are astounding.

B.C. Ferries' problems were not limited to just what went on on the bridge. The T.S.B. investigation found that: "B.C. Ferries was in the process of developing evacuation plans/procedures for its vessels; a detailed plan for the Queen of the North, however, had not been completed. Documentation available to the crew did not provide sufficient detailed information about passenger-control duties during abandonment." Go ahead and Google the T.S.B. report. See page 46. Imagine a public ferry with no proper evacuation plan. It is astounding.

The T.S.B. also criticized B.C. Ferries for other critical shortcomings. For example, the trial evidence would have reflected the T.S.B. conclusion that watertight doors were not closed. Worse, a B.C. Ferries vice president actually told the Provincial Public Accounts Committee in 1998 that they were sailing with these watertight doors closed. Google the Public Accounts Committee in Hasard 1998, p. 794. After a federal ruling was made the vice-president told the committee, "We've had our ruling. We are now sailing with the doors closed, as required by regulation." The jury would have heard that this was untrue. Doors were regularly left open on the Queen of the North. One of the first announcements the passengers heard after the ship crashed was to close the watertight doors. There is an obvious reason for having watertight doors closed on a ship like this. The T.S.B. said, "The potential to slow down or stem the progressive flooding was not realized." The announcement was too late. The water rushed in fast. Debris got in the way of one door, and it could not be closed. How would you expect a jury to react to the fact that regular practice was for the Queen of the North to sail with these doors open despite repeated attempts by Transport Canada and the T.S.B. to point out the dangers of open watertight doors? As there will be no trial, we cannot know how the jury would have reacted. If B.C. Ferries had kept all of the watertight doors shut, how much would the speed of the flooding would have slowed? How much more time to search for passengers?

There is much more. The alarm bells were so poorly positioned that some passengers could not hear them. That means, that alarm bells could not be heard in some of the sleeping cabins. This is shocking. How are passengers supposed to be notified that a crisis is occurring?

The fact that the Queen of the North had no proper evacuation plan is profound. The safety of passengers is put in peril. With no detailed evacuation plan, what is supposed to happen? For example, how is the search for passengers supposed to occur? How would a jury react if they found that search procedures were pathetically negligent?

If a disaster happens, an organized evacuation is absolutely essential. Passenger cabins have to be checked and fast. What is a passenger to do if the cabin door is jammed? The jury would have heard all about it. For example, once a cabin was searched a crew member was supposed to write a large "X" on the door in chalk. The chalk mark signifies the cabin has been searched. On the Queen of the North they could not find chalk. Who was supposed to search it? Was the door jammed? The girls will never get to hear whether their father's cabin was even searched at all. The evidence would have been that there were several areas of the ship which were not searched.

No doubt some individual few crew members acted bravely, but B.C. Ferries surely did not want a jury to hear how poor the rescue process was. The T.S.B. determined that the ship took about 1 hour 20 minutes to sink. The jury would have heard that the training of the crew was so bad that B.C. Ferries had no effective system in place to verify the number of passengers that got off the sinking ship.

As the crew all sat in the lifeboats sitting on the quiet calm sea that night, they could not get the number straight. An incorrect count is disastrous. An incorrect count means that B.C. Ferries could not determine whether there were passengers left onboard. There were only 59 passengers. The crew of 42 all got off safely. The crew all sat in their lifeboats watching the ship until it eventually sunk. Two innocent souls were left onboard. The crew only had to count up to 59. The next morning it was announced by the press that all passengers had been evacuated safely from the vessel. It is by God's grace that there were only 59. This ship had a capacity for 650 passengers.

The jury would have heard from passengers the details about the confusion during the evacuation. The jury would have had a chance to consider that in light of the fact that there was no proper and detailed evacuation plan the evacuation is bound to be confused, if not utterly panic stricken.

A trial is by far a better way of getting at the truth than the T.S.B. inquiry. The T.S.B. is hamstrung in its ability to get at the truth, but at a trial witnesses are put up on a witness stand in front of everyone. Then, most importantly, witnesses are subject to being cross-examined. This is the best way ever devised to get at the truth. The T.S.B. did not have this advantage. There would have been a lot of cross-examination in this trial. Certainly, there would have been cross-examination about the relationship between the man and the woman who were driving the ship at the time of the collision with Gil Island. It was no secret that they had a personal relationship. This is referred to in the T.S.B. report. They concluded during the crucial 14 minutes the two on the bridge were having a "personal conversation", whatever that means. What is not clear to the public or to the two girls is how this personal relationship figured into this disaster.

The T.S.B. inquiry uncovered evidence of illegal drug use by B.C. Ferries crew. Had there been a trial, evidence would have been led about the use of illegal drugs by crew members between shifts. And, very significantly, what was done or not done about it by B.C. Ferries. The T.S.B. said, "not all senior crew members consistently took action to ensure the company's no-tolerance policy was strictly adhered to". With no trial, beyond this, the public and the girls are completely left in the dark.

As I stated above, B.C. Courts are not for regular folks but only for the wealthy. Just to get into the Court the hearing fees and jury fees would have cost the girls about $40,000.00, but the two teenagers and their mother faced even more financial obstacles. In order to prove the case, the two girls would have to have brought witnesses to Court.

The witnesses who knew what happened that night are B.C. Ferries employees or former employees. In advance of the trial, the two girls notified B.C. Ferries that they required fourteen crew members from the Queen of the North to testify. Many of these witnesses do not live within walking distance of the Vancouver Courthouse. A number are up in the Prince Rupert area. The two girls have very little money so they asked B.C. Ferries to pay to bring the crew to Court. B.C. Ferries refused, leaving the girls to pay in full the cost of the bringing these witnesses to trial. This means that the girls would have to pay all of the costs for airfare, cab fares, hotel rooms, and breakfast, lunch and dinner for all the crew members. This is another example of how our justice system makes it so difficult for individuals to sue large corporations. The teenagers would have to come up with, say another $15,000.00 to $20,000.00.

There is more. Traditionally, people probably associate a high degree of honour to naval officers, especially to a Captain. One would expect that a Captain of a ship like the Queen of the North would be honourable. A common perception is that, even if he does not go down with his ship, the Captain would want to be forthcoming about this incident, if for no other reason, to prevent similar future shipping disasters. The girls needed the Captain to testify at the trial. He lives in Calgary so the girls asked the captain's lawyer in Vancouver to accept a Subpoena to save them the cost of having to hire an Alberta lawyer to go to Court in Alberta and obtain an out-of-province Subpoena. This honourable Captain told his lawyer in Vancouver not to accept service. This means he insisted the girls shoulder the cost of getting an Alberta lawyer to get a Subpoena from an Alberta Court. He would also require travel expenses. So much for naval honour.

There is more. In order to prove their case, the girls needed a senior operations official from B.C. Ferries. During the lead up to trial, B.C. Ferries produced for examination their representation as is required by the Court rules. This witness was an important witness in the girls' case. He is supposed to know how ships are meant to be safe. When the girls asked for him to be produced at trial, about five weeks prior to the trial, B.C. Ferries told the girls that this witness would be out of the country at the time of the trial. He would not be available to come to Court. B.C. Ferries suggested that his evidence be obtained prior to the trial on a videotape. The expense of obtaining this videotape evidence in this case would have to be borne by the two teenagers.

The girls faced additional obstacles because of the law itself. Our laws operate in an unfair manner. Because of B.C. laws, the survivors of a parent's wrongful death are usually not entitled to large awards of damages. In B.C. death cases a claimant is not entitled to any damages for sorrow, pain or grief. Our laws relating to wrongful deaths have been in need of reform for years. It is impossible in B.C. to get even a nickel for the deepest grief however caused. The historical reasons why a child cannot be compensated for grief arising from the wrongful death of a parent have been examined and changed elsewhere in Canada, but not in B.C. Typically, a survivor of a wrongful death can only recover small amounts for such things as loss of financial contribution and things like that.

B.C. Ferries also had other law to its benefit. The law does not allow any reasonable chance for these children to seek damages to punish the wrongdoer. Remember no one has been charged criminally in this case. In wrongful death cases, a jury cannot punish stupidity, gross negligence, or wanton neglect by awarding punitive damages. In B.C. even if a family member is murdered, the survivor cannot get punitive damages against the wrongdoer. Even if the jury had wanted to hammer B.C. Ferries with punitive damages in this case, the law would not permit them to do so. You really have to ask yourself, what kind of justice system do we have where our law prevents punitive damages from being imposed when there has been a conduct which is so wrong and which results in the loss of human lives: Why is it that you can try to get punitive damages if some product you purchase is defective, or if your insurance company treats you unfairly, but not if your father loses his life at sea where another is clearly at fault? This law is wrong and unfair.

It has been a very sad and frustrating experience to see two young teenagers through this process. I have been a lawyer for a long time, but I cannot justify to them why the Court system is so unfair. I cannot justify to them why our justice system demands $40,000.00 in hearing and jury fees as a requirement for them to have a trial, and find out why their father died. I cannot explain to them why Courts say their father's life is so valueless that their grief cannot be compensated. I cannot explain to them why our laws would not allow a jury to award punitive damages against a wrongdoer.

Our justice system favours the large institutions. Powerful and wealthy organizations like insurance companies, governments, and multi-million dollar corporations can access Courts anytime they want. These two girls cannot. These two lovely girls loved their father. They were innocent to think we have Courts for people like them. I cannot justify to them why we do not.

Thursday, January 29, 2009

Complaints against Mounties need to be more transparent: Watchdog

January 29, 2009
By Janice Tibbetts, Vancouver Sun

Review of the RCMP's Public Complaint Records

OTTAWA — The RCMP resolve too many serious complaints informally, including allegations of excessive force, injuring people, and firing Taser stun guns and pepper spray, says the independent watchdog for the national police force.

In a report released Thursday, the Commission of Public Complaints Against the RCMP warned that the Mounties could undermine public trust if they do not make their complaints process more formal, thorough, transparent and consistent nationwide.

"The commission is concerned that the RCMP has informally resolved serious allegations typically involving use of force," said the report, which was the agency's first national examination of how the RCMP resolve complaints. "This severely undermines the public complaints process and limits the effectiveness of police oversight."

The report said that 3,104 allegations were made against the RCMP in 2007. Almost one-third involved neglect of duty, while 20 per cent were for improper attitude and 13 per cent were for improper use of force.

The commission said that the RCMP settled 30 per cent of complaints through an informal process, and that the paper work was often shoddy. For instance, it was sometimes unclear what course of corrective action, if any, was taken or even whether the implicated Mountie knew of the complaint.

Almost half of the allegations involving the improper use of force were resolved informally "in a manner the commission deemed inappropriate," said the report.

"We have cases where the Taser has been used, pepper spray has been used and the ones when the use of force resulted in injury, all of which have fallen under the heading of informal resolution and I don't think this stuff qualifies," said Paul Kennedy, chair of the complaints commission.

The study uncovered incidents where complainants required medical attention after an officer used excessive force, but the allegations were still handled informally.

Any complaint involving excessive force should be handled formally by RCMP investigators not connected to the incident and they should issue reports on their findings that include recommendations, said Kennedy.

The commission also fingered the Mounties for not having a clear definition of "serious misconduct" — the bar for requiring a formal investigation rather than an informal one.

The informal process was most often used in the Northwest Territories and Nunavut, said the report.

The report notes that the commission has received mixed reaction from the RCMP when seeking more information about complaints that were handled informally. In some cases, the RCMP revisited the complaints in question but at other times, detachments asserted that their initial probes had been sufficient.

The findings come at a time when the RCMP are under scrutiny for its use of Tasers, including an ongoing public inquiry in Vancouver into the death of Robert Dziekanski, who died at the Vancouver International Airport in October 2007 after he had been Tasered five times.

Earlier this month, Kennedy announced the commission would conduct a separate investigation involving the approximately 10 people who have died by Taser shots since the RCMP started using the stun guns in 2001.

Radio and phone recordings released from night man died at Vancouver?s airport

January 29, 2009
The Canadian Press

VANCOUVER, B.C. — Chilling audio recordings have been released of telephone and radio conversations at Vancouver's airport the night a man died after being jolted by a police Taser.

The recordings, which will be played at the inquiry into Robert Dziekanski's death in October 2007, include calls from airport security and witnesses as the Polish man started throwing furniture.

In one tape, a security guard asks for an ambulance because Dziekanski had been stunned with a Taser. In another, a woman pleads for help as sounds of Dziekanski throwing furniture against glass walls are heard in the background. The final recording includes someone informing an operator that the man who was shocked had died, asking for a message to be passed on to supervisors.

Dziekanski was jolted five times within seconds of four officers arriving, and died a short time later.

Multiple use of Taser ruled excessive - judge slams Mountie in Banff arrest

January 29, 2009
Sean Myers And Tanya Foubert
Calgary Herald

RCMP and the Crown are looking into the case of a Banff constable who Tasered a man multiple times while arresting him, after a judge ruled the officer was not justified in handcuffing him in the first place.

Provincial court Judge John Reilly accused arresting officer Const. Casey Murphy of using excessive force and giving "deliberately false" evidence during the trial on a charge of obstructing a police officer.

Exshaw resident Adam Dormer, 26, was found not guilty on Monday and will not have to pay a bylaw fine issued for being a nuisance.

"We are aware of it," said RCMP spokesman Sgt. Patrick Webb. "The RCMP and the prosecutor are looking into it. We're waiting for a court transcript to ascertain exactly what was said. All we know is the judge did not rely upon the RCMP's evidence to make a decision," Webb said.

"My adrenalin starts running when I start talking about this," Dormer told the Herald of his arrest on Banff Avenue. "It may have happened a year and a half ago, but it feels like it happened yesterday." Dormer said he will consult with his lawyer before deciding what, if any, action to take next.

In court, Dormer claimed he was Tasered five times -- including three times while in handcuffs--in Banff on July 21, 2007.He presented photographic evidence that appeared to show five separate Taser burns on his back.

Murphy said he only Tasered Dormer twice when Dormer became unruly while he tried to handcuff him.

Dormer, a 26-year-old carpenter, testified that he and two friends, Brad Wall-win and Nicholas Fysh, were walking toward the HooDoo lounge from the Aurora nightclub, giving random people high-fives. He said when he encountered Murphy, he offered him a high-five and eventually a handshake after telling about his brother training to join the RCMP.

"After he wouldn't shake my hand a second time, I took it as offensive," Dormer said, adding he told Murphy his refusal is one of the reasons why people view police as "(expletive) pigs."

"I do not think I was being verbally abusive. . . . I was being truthful,"he told Crown prosecutor Doug Simpson.

Dormer said after being Tasered twice while being put into handcuffs, the weapon was discharged another three times while Murphy held the Taser to his back and pushed him toward a police cruiser.

Murphy offered a very different version of events, which began just after 1 a. m. He said while on foot patrol on Banff Avenue with Const. Marc-Andre Fournier, he noticed Dormer and several friends on the other side of the street crashing into fences.

Murphy said he noticed Dormer be-cause he stood 6-foot-9 and was wearing a red sweater.

He said a female approached him and asked if the officers could escort her to the HooDoo lounge because she was scared of a man who had tried to lift up her skirt. On the way to the club, she pointed out Dormer as the man who was bothering her.

After the woman went in the club, Murphy said he encountered Dormer, whom he described as being intoxicated.

"I directed him to go home, he had been drinking and I was going to leave it at that," he said.

Murphy said he refused to shake Dormer's hand and as a result the conversation turned into an argument, with the accused yelling and swearing and becoming aggressive.He said he warned Dormer multiple times to stop yelling and call it a night.

The officer testified that because of the noise Dormer was making and the complaint made by the unidentified woman, he decided to place him under arrest for causing a disturbance.

He said Dormer became combative and when he would not co-operate, he was warned he would be Tasered.

Murphy said he cycled the Taser twice, once on Dormer's lower right back and once on his upper left shoulder for five seconds each to get handcuffs on him.

After he was cuffed, Murphy said Dormer became co-operative.

Defence witnesses testified the officers never mentioned the woman complain-ant and said Dormer had not consumed any alcohol.

"I was the designated driver, I do not drink when I drive," Dormer said.

Defence lawyer Tyson Dahlem told the court he made two unsuccessful requests to disclose the readouts from the Taser, the X-26 model, that would indicate how many times it was fired on that date.

The judge said his ruling was based on the fact the officers had no right to arrest Dormer in the first place and that he was subjected to excessive force when Tasered while in handcuffs, which under Section 12 of the Charter of Rights and Freedoms is considered cruel and unusual punishment and grounds for a judicial stay.

"I am not even sure, on the basis of what I hear here, there was a justification for arrest at all," Reilly said. "If you do not have an established right to cuff him in the first place, he's got every right in the world to resist."

Several X26 model Tasers acquired before 2006 by RCMP and municipal police forces in B. C., Alberta and Ontario have been sent for testing under suspicion some may be generating more power than indicated.

The use of Tasers has come under increased scrutiny in recent years after Taser discharges were followed by death in a number of cases, including Polish immigrant Robert Dziekanski, 40, who died of cardiac arrest at Vancouver's airport in October 2007 after being Tasered five times.

Wednesday, January 28, 2009

Banff judge rules RCMP tasering incident excessive force

I have a question: When will charges be laid against the involved RCMP officers for unlawful arrest, giving deliberately false evidence, use of excessive force and failure to acknowledge a friendly high-five??

January 28, 2009
By Tanya Foubert, Rocky Mountain Outlook

A Bow Valley resident was acquitted of charges of obstructing a police officer after testimony and evidence at his trial revealed he was wrongly arrested and Tasered multiple times, including while in handcuffs.

Judge John Reilly found Adam Dormer not guilty Monday, dismissing an obstruction charge and a bylaw ticket for being a nuisance.

The judge said his finding was based on the fact officers had no right to arrest Dormer in the first place and that he was subjected to excessive force when Tasered while in handcuffs, which under section 12 of the Charter of Rights and Freedoms is considered cruel and unusual punishment and grounds for a judicial stay.

“I am not even sure, on the basis of what I hear here, there was a justification for arrest at all,” Reilly said. “If you do not have an established right to cuff him in the first place, he’s got every right in the world to resist.”

He also issued a stern rebuke to Banff RCMP Const. Casey Murphy, whose evidence he called “deliberately false.”

Reilly accepted photographic evidence presented by defence attorney Tyson Dahlem of Dormer’s back after he was Tasered on July 21, 2007.

Dahlem presented a series of photographs depicting five separate sets of burn marks on his client’s back. Each set consisted of two evenly spaced, small contact-burn points, which result from a Taser being used on stun mode and held in direct contact with the body, releasing an electrical current to an isolated area.

“The use of a Taser in this circumstance was grossly disproportionate to the situation he was arrested for,” he said.

Dahlem informed the court he made two unsuccessful disclosure requests for readouts of a report from the Taser, the X-26 model, that would indicate how many times it was fired on that date.

“There is a significant divergence in testimony vis-a-vis Mr. Dormer and his friends versus the officers,” Dahlem said. “The way to answer this question is if the Taser deployment report is produced. This is something easily in the possession of the RCMP and obviously relevant and would resolve the issue in its entirety.”

Dormer, a 26-year-old carpenter and resident of Exshaw, testified that he and two friends, Brad Wallwin and Nicholas Fysh, were traveling toward the HooDoo lounge from the Aurora nightclub giving random people high fives.

He said when he encountered Const. Murphy he offered him a high five, which did not go over so well. He then offered a low five, and when that failed, Dormer said he tried to express to the officer that he has a lot of respect for what the RCMP do.

He said he told both officers his brother is training to join the force and attempted to shake Murphy’s hand, which was refused.

“After he wouldn’t shake my hand a second time, I took it as offensive,” Dormer said, adding he told Murphy his refusal is one of the reasons why people view cops as “f (expletive) pigs”.

“I do not think I was being verbally abusive… I was being truthful,” he said under examination by Crown Prosecutor Doug Simpson.

Dormer said after being Tasered twice while being put into handcuffs, the weapon was discharged another three times while Murphy held the Taser to his back and pushed him toward a police cruiser.

“I was Tasered five times… you feel it when you are Tasered,” he replied when asked how he knew the number of times the weapon was deployed.

Wallwin testified he could see Murphy holding something into Dormer’s back as he walked away. Fysh said Dormer yelled out in pain as he was being taken to the cruiser and said he was being Tasered.

Const. Murphy testified to a different sequence of events that night, which began just after 1 a.m. He said while on foot patrol on Banff Avenue with Const. Marc-André Fournier he noticed Dormer and several friends on the other side of the street crashing into blue fences set up along the street to separate a major road and infrastructure replacement project.

Murphy said he noticed Dormer because of his height, which is 6 foot 9, and a red sweater he was wearing.

He said a female approached them and asked if the officers could escort her to the HooDoo lounge because she was scared of a male, whom she identified as being a very tall male wearing red.

Murphy indicated that while walking the female toward the club, she pointed out Dormer, saying he bothered her earlier by trying to lift up her skirt and because she was wearing no underwear, she was scared. He and Fournier testified neither of them obtained her name before she disappeared into the club and that she insisted she did not want to file a complaint.

After that is when Murphy said he encountered an intoxicated Dormer on the sidewalk.

“I directed him to go home, he had been drinking and I was going to leave it at that,” he said, adding he put it to the accused that he had been causing a disturbance and bothering the unidentified female.

Dormer, Wallwin and Fysh all testified Murphy did not mention the woman or her complaint.

Murphy said he refused to shake Dormer’s hand and as a result the conversation turned into an argument, with the accused yelling and swearing and becoming aggressive, calling them “f (expletive) pigs.” He said he warned Dormer multiple times to stop yelling and call it a night.

The officer testified that, because of the noise Dormer was making and the complaint made by the unidentified female, he decided to place him under arrest for causing a disturbance. He said Dormer became combative and when he would not cooperate, he was warned he would be Tasered.

Dormer was not charged with causing a disturbance, but ticketed under a Banff bylaw for behaviour that could likely disturb another.

Dormer and the two defence witnesses, however, testified Murphy did not place him under arrest, but instead threatened him with going to jail. “At no time was I told I was under arrest, I was told I am going to jail,” Dormer said.

Witnesses also testified Dormer was not intoxicated; in fact, he had consumed no alcohol that day or night. “I was the designated driver, I do not drink when I drive,” Dormer said.

The defence witnesses also testified Dormer was not yelling or being verbally aggressive with Murphy, but said he was getting attitude for something blown out of proportion. “I could tell the police officer did not like the remarks,” said Wallwin about Dormer’s comments. “It was like we were getting attitude the whole time.”

Murphy said he cycled the Taser twice, once on Dormer’s lower right back and once on his upper left shoulder for five seconds each time and only in order to get handcuffs on him.

He added after he was handcuffed, Dormer was cooperative and as a result Murphy said he was lenient in charging him with a bylaw ticket instead of a charge under the criminal code.

Braidwood Inquiry - Scheduled Witnesses

Scheduled Witnesses (Subject to Change)

Thursday, January 29, 2009
Nancy Baggio, Vancouver Airport Authority (with YVR security videos)

Monday, February 2, 2009
Paul Pritchard (video)
Lorne Meltzer
S. Agraviador, Vancouver Airport Authority


We interrupt this broadcast to encourage our readers to take a few moments when you're done here to visit Excited-Delirium . He's over there - as usual - making perfect sense.

Cause of death: cardiorespiratory arrest complicating physical exertion with law enforcement subdual and restraint

Here's a cause of death I've not seen before: cardiorespiratory arrest complicating physical exertion with law enforcement subdual and restraint. The manner of death was ruled a homicide. Call it whatever you want, but doesn't it simply boil down to: "tasered by police, stopped breathing and died?"

January 28, 2009
myfox9 Twin Cities

MINNEAPOLIS (FOX 9) -- The identity and cause of death of a Minneapolis man who died after police used a Taser on him has been released. Last December, police used a Taser to subdue 24-year-old Quincy Deshawn Smith during a confrontation. Smith was armed with a rifle and fought with officers as they tried to arrest him, around 12:45 a.m. Dec. 9 in the 1000 block of Knox Ave. Police were called there to answer a domestic assault call. Police noticed he was having a medical problem, and he was taken to HCMC, where he died. The five responding officers were put on paid administrative leave.

Wednesday, the cause of death was ruled as "cardiorespiratory arrest complicating physical exertion with law enforcement subdual and restraint." The manner of death was ruled a homicide.

Officers removed from taser death lawsuit

Patrick Lee, 21, was HIT WITH A TASER NINETEEN (19) TIMES in September 2005. He died.

Official cause of death? "Excited delirium" of course. That thing that conveniently kills people dead when police are involved.

Taser International has been dismissed from the family's lawsuit. "Not enough evidence to try them." And the taser that was used NINETEEN TIMES on Patrick Lee? It was fine, just fine!! "There was nothing defective about it. There was nothing UNREASONABLY DANGEROUS about it, BASED ON ALL THAT THE PLAINTIFF'S ATTORNEYS HAVE BEEN ABLE TO DISCOVER ABOUT THE WEAPON over the course of a couple years."

(For more on what UNREASONABLY DANGEROUS means, see: Taser subtly shifts its safety claims again.)

The city of Nashville will remain part of the lawsuit. The judge said the use of a Taser was legitimate, but she wasn't sure if the officers were properly trained. "It is safe to say that Metro's own student guide left TASER-CERTIFIED OFFICERS with A POTENTIALLY CONFUSED UNDERSTANDING AS TO WHEN AND HOW THE TASER DEVICE SHOULD BE ACTIVATED, particularly if the first application did not have immediate effect."

And where on earth would the potentially confusing training material have come from? You guessed it!!

Meanwhile, over in New Orleans, Winnfield Police Officer Scott Nugent, was fired from his job and faces manslaughter charges after he shot Baron Pikes, also 21, with a taser gun ONLY NINE TIMES within 14 minutes in January 2008. The coroner found the death of Baron "Scooter" Pikes to be homicide by Taser.

January 28, 2009
Reported By Dennis Ferrier, WSMV Nashville

NASHVILLE, Tenn. -- Patrick Lee was thrown out of the Mercy Lounge for bizarre behavior several years ago. The bouncers called police, and the trouble began.

Lee, 21, was hit with a Taser 19 times. More than a dozen police officers couldn't control the shirtless and seemingly super-strong young man.

Lee died there in police custody. The coroner called it drug-induced excited delirium. His dad, songwriter Earl Bud Lee, called it excessive force.

"I would just hope everybody would please, please not let this go away and respond to that Taser situation, because I do believe that's what killed him," Earl Bud Lee said in 2005.

But a grand jury decided nothing criminal happened, and so the family filed a civil suit for excessive force.

All of the officers on the scene, Taser -- the company that makes the weapon -- and the city for not properly training its officers were all sued.

Monday night, more than three years after the lawsuit was filed, Judge Aleta Traugher dismissed seven officers from the lawsuit as well as the company, Taser. There was not enough evidence, she said, to try any of them.

"The Taser weapon, the gun, performed just as it is supposed to perform," said Darrell Townsend, attorney and case analyst. "There was nothing defective about it. There was nothing unreasonably dangerous about it, based on all that the plaintiff's attorneys have been able to discover about the weapon over the course of a couple years."

What's left are three police officers -- the two that fired the Taser 19 times and the officer who held Lee with a knee in his back -- and the city, because while judge Traugher said the use of a Taser is legitimate, she said she isn't sure if the officers were properly trained.

Metro makes every officer take a four-hour Taser course before being issued a weapon. Each officer, including the chief of police, is also shot with a Taser just to understand how it works.

Traugher said, "It is safe to say that Metro's own student guide left Taser -certified officers with a potentially confused understanding as to when and how the Taser device should be activated, particularly if the first application did not have immediate effect."

That's why part of this lawsuit will go to trial.

After Lee's death in 2005, Metro police were stripped of their Tasers. Now only shift supervisors carry the weapons and must be called to a scene if responding officers believe a Taser is needed.

Lawyer for Mountie takes issue with fire captain's criticism of RCMP as 'unprofessional' at inquiry

January 28, 2009
By Neal Hall, Vancouver Sun

Vancouver - A Richmond fire department captain held firm today on his opinion given in testimony a day earlier that the behaviour of four Mounties was unprofessional.

Despite a grilling by David Butcher, a lawyer for Const. Bill Bentley, one of the officers involved, Capt. Kirby Graeme maintained that the actions were unprofessional because none of them were monitoring Robert Dziekanski when the fire crew arrived at Vancouver International Airport after 1:30 a.m. on Oct. 14, 2007.

"I said they were unprofessional, not highly unprofessional," Graeme told the Braidwood inquiry, which is probing the death after Dziekanski was Tasered five times, restrained and handcuffed.

Graeme testified there were four Mounties standing around and no one was monitoring Dziekanski, who was face down on the floor and handcuffed behind his back.

Graeme asked police to remove the handcuffs but one of the officers refused, saying the man had been violent.

"I said we need them off to do a proper assessment," the witness recalled.

He said the officer responded: "No, we can't do that."

The lawyer, Butcher, suggested to the witness that it would be highly unprofessional to criticize the actions of police without full knowledge of the facts.

"I meant no disrespect to the RCMP officers at the scene," Graeme replied.

Butcher said the witness did not answer the question, so he repeated twice again.

"Yes," Graeme replied.

Butcher asked the witness whether he had read today's Vancouver Sun.

Graeme said he had.

"So you're aware your comments have been publicized locally and nationally," Butcher said.

The inquiry commissioner, Thomas Braidwood, a retired appeal court judge, interrupted Butcher.

"We're here to find the facts as to what happened that night, not in terms of comments of what's in the press," Braidwood said.

Asked if Dziekanski was in the proper recovery position, Graeme said: "He wasn't in anything close to the recovery postion."

He also said he wasn't aware that an RCMP media relations officer had at one time stated that Dziekanski was put in a recovery position after he collapsed.

At the Braidwood inquiry, David Butcher is the lawyer representing RCMP Const. Bill Bentley, one of the most junior officers who responded to the call at Vancouver's airport that led to Dziekanski's death.

Lawyer Reg Harris is representing RCMP Cpl. Benjamin (Monty) Robinson, lawyer Ravi Hira is representing RCMP Const. Kwesi Millington, and Ted Beaubier is the lawyer repesenting RCMP Const. Rundel.

There are more than a dozen lawyers at the inquiry representing various parties, including the Vancouver Airport Authority, the federal government, the Public Service Alliance of Canada, the City of Richmond, Taser International Inc. And the B.C. Civil Liberties Association.

Even the government of Poland has retained a Vancouver lawyer, Don Rosenbloom, to attend the inquiry.

The Braidwood commission lawyers are Art Vertlieb and Patrick McGowan.

Mounties lawyers at Taser inquiry suggest firefighter didn't see everything

January 28, 2009
The Canadian Press

VANCOUVER, B.C. — Lawyers for the Mounties who confronted Robert Dziekanski the night he died say a fire captain who called the officers "unprofessional" didn't see the officers' efforts to help the man.

Capt. Kirby Graeme told a public inquiry that when he arrived minutes after Dziekanski was stunned by a Taser in October 2007, four officers were standing around and not monitoring Dziekanski.

Graeme says the Mounties even refused to remove the man's handcuffs so firefighters could properly assess him.

David Butcher, a lawyer for one of the officers, noted that Graeme observed the Mounties for less than a minute and suggested he didn't see what the officers were doing before firefighters arrived.

Butcher also focused on the considerable media attention surrounding Graeme's comments, suggesting to Graeme that his comments were inappropriate given the coverage they received.

But inquiry commissioner Thomas Braidwood cut Butcher off, saying questions about negative media coverage had nothing to do with the inquiry or what happened to Dziekanski.

Mounties refused to remove handcuffs of collapsed man, B.C. Taser inquiry hears

January 27, 2009
The Canadian Press

VANCOUVER, B.C. — Firefighters who rushed to Vancouver's airport in the minutes after Robert Dziekanski was stunned by an RCMP Taser found a pale, unresponsive man face down in handcuffs as officers stood metres away doing nothing, a public inquiry into the man's death heard Tuesday.

Richmond Fire Department Capt. Kirby Graeme said when he arrived in the early morning of Oct. 14, 2007, the officers weren't helping or monitoring Dziekanski, and at one point even refused to remove the man's handcuffs so he could be properly assessed.

Minutes earlier, the same four Mounties had confronted Dziekanski, a Polish immigrant who had been throwing furniture around in the airport's international arrivals area.

"To see a patient face down, handcuffed and not being tended to in some way, shape or form, I thought, 'Something's not right here,"' said Graeme, a firefighter with more than two decades of experience.

"I saw it being unprofessional."

Graeme was asked by Walter Kosteckyj, the lawyer for Dziekanski's mother, if he considered whether the officers "were obstructing your efforts to be able to help this man?"

"Yes," replied Graeme.

Graeme said Dziekanski was laying on his face with his head turned to one side, and had not been placed in a first-aid position known as "recovery position."

An officer told him that Dziekanski had been monitored, but Graeme said by the time his crew arrived at the airport, nearly 20 minutes after Dziekanski had been stunned, he had no pulse and appeared to be already dead.

It wasn't until paramedics arrived shortly after that officers finally removed the handcuffs.

Dziekanski still had no pulse and did not have the vital signs required to use an automatic defibrillator. A paramedic told Graeme there may be a faint breath, but Graeme said that turned out to be incorrect.

Paramedics and firefighters performed chest compressions for more than 20 minutes before Dziekanski was declared dead, said Graeme.

Helen Roberts, a lawyer for the federal government, suggested to Graeme that RCMP officers were in fact monitoring Dziekanski before firefighters arrived and he was alive.

Roberts said that would explain why the officers weren't giving Dziekanski medical attention.

"Nobody was on the patient when we got there, and to me personally that's how you monitor a patient, you don't monitor them standing back five or 10 or 15 metres away," responded Graeme.

"If he'd been monitored correctly, someone still would have been there and they would not have been leaving him face down."

Graeme also said the airport's own firefighters, which he estimated to be based less than a kilometre away from where Dziekanski was stunned, were not called.

He said that team is typically the first to respond to medical emergencies at the airport, and would have been able to reach the scene much faster than his team from the fire hall, which is located four kilometres away.

"They were not there, which actually surprised me," he said. "Every other medical assignment that I've been sent to (at the airport), they're always there, and they're always there first."

It's not clear why that team was not called.

Graeme was later asked by Kosteckyj if he had spoken with the airport's emergency response team since October 2007.

"Has it been conveyed to you that there's been a high level of frustration at not being involved in this matter?" asked Kosteckyj.

"Yes," replied Graeme.

Graeme was expected to continue cross-examination on Wednesday.

Kosteckyj said he was glad Dziekanski's mother, Zofia Cisowski, wasn't in the courtroom to hear Graeme's account.

"I think that will be absolutely devastating to my client when she hears that evidence," Kosteckyj told reporters after testimony wrapped up for the day.

"You would have expected when a person was down, he's being constantly monitored, and that did not appear to be the case."

The inquiry, which opened last week, is trying to get a full accounting of what happened to Dziekanski prior to his death on the floor of the airport.

It will also examine how agencies responded in the weeks and months that followed.

Tuesday, January 27, 2009

Alberta sends tasers for testing

January 27, 2009
Melissa Dominelli, ctvedmonton.ca

Alberta has started testing older model Tasers used by Alberta police services before January 2006 to make sure they are not delivering shocks that are too powerful.

The units will be tested by an engineering firm, MPB, in Ontario.

Solicitor General, Fred Lindsey said about 100 Tasers have been sent to Ontario, where a testing protocol has been developed.

The decision comes after initial testing, not done by the province, found that some of the older model Tasers in Alberta were producing voltage levels higher than the 50,000 volt shock they're designed for.

"If we have any instrument that's used in law enforcement that's not meeting the manufacturer's specifications, we want to make sure that we test it and ensure that it is and if it isn't, we will take it out of service," said Lindsey.

Lindsey hopes to have all 400 of the older Tasers, known as x-26 models, tested by the end of March and eventually he said testing of all Tasers will be done on a regular basis using facilities in Alberta.

Some critics of Taser usage think the Taser testing a step in the right direction, but say it doesn't go far enough.

Back in October, Trevor Grimolfson was Tasered by police, after he allegedly went on a rampage, breaking objects and attacking people in a city pawn shop.

Grimolfson later died and his close friend, who asked not to be identified, can't help but wonder if the Taser played a role in his death.

"I would rather not see a Taser on any police officer at all," he said.

While the first tests are underway, the solicitor general said all of the province's Tasers will remain in service.

The Edmonton Police Association is happy to hear that other Tasers won't be pulled from service while testing begins.

"It would be irresponsible to take them out of services because they do a lot of good as an intermediate weapon and it stops us from using lethal force," said Tony Simon with Edmonton Police.

And while Trevor Grimolfson's friend is glad the province is taking a second look at Tasers, he wishes it had been done sooner.

"Why couldn't they be testing these Tasers every two months before they go out into the street?"

Effective immediately, any Taser used in an arrest where the suspect is injured will automatically be pulled from service and tested.

Braidwood Inquiry - Scheduled Witnesses

Scheduled Witnesses for Wednesday, January 28, 2009

Kirby Graeme, Richmond Fire and Rescue (continued)
Sonia Duranleau, Richmond Fire and Rescue
Sonya Purewal, Canada Border Services Agency
Brent Kopp, Richmond Fire and Rescue

Too much taser use, too little humanity

January 27, 2009
By PAUL SCHNEIDEREIT, The Chronicle Herald

DEPLOYMENT of the Taser has saved thousands of lives in Canada since the stun gun’s introduction in 1999, according to police spokesmen.

There are any number of pungent words for this claim, but let’s employ a polite one. Poppycock.

Have the number of fatal police shootings of criminal suspects fallen by thousands? No, and the totals were never that high to begin with. Have the number of suicides dropped by that magnitude? No. Again, the totals were never, ever in that range. What about the number of police officers killed? That tragic number was also, thankfully, much, much smaller.

So where did police officials come up with the "4,000 lives saved in Canada since 1999" figure? Beats me. But I don’t think it’s just a coincidence that Taser International officials have used the same phraseology – 4,000 lives saved by Tasers since 1999 – in the past, while referring to the U.S. experience. (That number has since been adjusted upwards by the Taser’s makers, to at least 9,000). Even in that context, I don’t believe anyone’s conclusively shown that thousands of people who would have been shot dead were instead Tasered – and so remain alive.

That’s not to say that Tasers couldn’t indeed save lives in certain circumstances. In fact, I have no doubt they have done so. But thousands? In Canada, since 1999? Not a chance.

Defenders of the Taser, I’ve noticed, employ the "thousands of lives saved" argument less and less. Good thing, too.

For instance, the public was not going to swallow that police would have had to use their firearms when, called to assist in a medical emergency, they instead Tasered a diabetic man in Amherst last year. (Police still defend that bit of public service, by the way.)

Or that bullets would have flown in a Dartmouth home last February when a mother called the cops on her unco-operative 17-year-old daughter. (Another justice gem. The Nova Scotia Supreme Court just overturned the girl’s acquittal on charges of assaulting the police officers who Tasered the teen while removing her from her own room.)

Or that gunfire would have been the result when an 80-something-year-old man in B.C. was Tasered in a hospital bed – I kid you not – after he had resisted treatment efforts.

I could go on, but you get the picture.

Still, let’s go to one more example, that of poor Robert Dziekanski, the disoriented and despondent Polish immigrant who was repeatedly Tasered by four strapping Mounties at the Vancouver International Airport in 2007 and subsequently died. If the RCMP officers had not had Tasers, would they have pulled their guns and shot the man, who apparently alarmed the law enforcement constables by picking up a stapler? Clearly, the answer is no.

So how did we get to the point that four policemen would walk into an airport, be told of an agitated man who didn’t speak English and, less than a minute after arriving at his location, shock him with Tasers FIVE times – after he didn’t respond to their commands in English – and pin him to the ground with a knee on his neck until he had stopped breathing?

The police conduct in that incident was appalling. Their excuses and justifications since then have been nauseating.

He was sweating profusely. So he needed to be Tasered? He was suffering from alcohol withdrawal. The autopsy found no traces of drugs or alcohol, and since when have police been trained to Taser first and ask questions later? He didn’t respond to commands. The police were TOLD he didn’t speak English, for God’s sake.

What happened to Robert Dziekanski isn’t only a disgrace to the RCMP’s image, however. Testimony at a current public inquiry in B.C. has revealed that the airport official who processed Dziekanski first had noticed, more than eight hours later as she was ending her shift, that the Polish immigrant was still wandering the arrivals area. She went home without taking any further action. An airport official who dealt with Dziekanski’s mother and a family friend waiting to meet him told them to go home after a brief check of surveillance cameras showed no one of his description. She didn’t even bother to pick up a phone and ask anyone in that area if they had seen Dziekanski.

They didn’t care. Neither did the Mounties. As a result, an innocent man died and his mother’s life’s been shattered.

Police advise charging officers in assault

January 27, 2009
IAN BAILEY, Globe and Mail

VANCOUVER -- Vancouver city police are recommending criminal charges against two of three off-duty officers from other Lower Mainland departments accused in a sidewalk attack on a newspaper deliveryman last week.

Chief Jim Chu told a crowded news conference yesterday that an investigation by six members of the Vancouver Police Department concluded the third officer, from Delta, may actually have been trying to "intervene to stop the assault" of Phil Khan, 47, a father of three, last Wednesday morning.

The version of events echoed that of one witness, a city worker who spoke earlier with The Globe and Mail, but contradicted another, a cab driver who told CTV all three men were involved in the attack.

Mr. Khan said last night he was not satisfied with the chief's announcement and disputed any assertion that one of the officers was a hero who tried to rein in his associates.

"All three should be charged because they all participated in this thing," Mr. Khan said from his home.

He is recovering from bruises to his head, abdomen and rib area. "If one officer said, 'I am going to stop the fight, don't beat him, I am going to pull him away, I would say one officer out of three saved me,' but I was getting kicks from all of them."

He said he was hard pressed to identify the officer who made the "brown people" remark because the native of the Fiji Islands, who moved to Canada in 1982, was on the ground and couldn't see because the hood of his jacket had been pulled over, blindfolding him.

"I couldn't see them. All I could hear is, 'We don't like brown people.' "

He said one person said, "If you don't behave, we can use our taser gun."

The father of three girls, aged four months to four years, said he was saved by other night-time workers, including city workers, employees of the Hyatt hotel and nearby Tim Hortons and Macdonald's who went out and tried to intervene. "People got very upset and said, 'Why are you beating this guy up because he's a newspaper delivery guy. We know him.' "

Mr. Khan said he will never be able to return to the delivery work he began doing in 1996, and loved "because I am very traumatized, very afraid."

Mr. Chu said police are urging the Crown to lay a charge of robbery against a West Vancouver officer and charges of assault and possession of stolen property against an officer from New Westminster. Mr. Khan said he was robbed of $200 and a cellphone after the officers attacked him.

Mr. Chu said yesterday's announcement was a rebuttal of suggestions from the public - some of which landed in his e-mail box - that police might not be enthusiastically pursuing the case against fellow officers.

He said he met the team on the case over the weekend.

"These things do take time, and when it's before the court process and all the information is shared, I think you will see in an open courtroom the Vancouver police were not dragging our heels on it or taking our time with this case. A lot of people watch TV and know CSI Miami solves it in one hour, and that's not the case with these kinds of crimes."

He said the complicating factor in this case, which has caused a furor in B.C., was trying to sort out the varying accounts from multiple players, including the victim, the alleged assailants - who were interviewed by police - nine witnesses, and other evidence. Mr. Chu said there was no video of the actual assault from area cameras.

The chief said there was not enough evidence for a hate-crime charge.

"We have the victim's statement that a racial statement was made, but the victim cannot say who may have said it. As a result, we cannot recommend a charge against any individual, but instead leave it as a matter for the courts to take into consideration."

Vancouver police eventually arrested the three officers.

There have been reports from witnesses that the three men smelled of alcohol. Mr. Chu said he would not discuss evidence in the case. He did not rule out police recommending additional charges. "We will be open to more information that comes."

The unnamed officer in the Delta Police Department has been on administrative duties since the incident, and force spokeswoman Constable Sharlene Brooks said yesterday the force has asked the Abbotsford Police Department to conduct an independent Police Act probe of the conduct of the officer.

In a statement, Chief Constable Kash Heed of the West Vancouver Police Department said he had made a decision on the status of the officer from his department that he would announce in due course. He said he was offering his "sincere and heartfelt" apology to Mr. Khan and his family.

The officer in New Westminster has been suspended with pay, and is under investigation by the professional standards branch of the force.

Monday, January 26, 2009

Charges recommended against two police officers allegedly involved in assault

January 26, 2009
By Catherine Rolfsen, Vancouver Sun

Vancouver police are recommending charges be laid against two police officers allegedly involved in an attack on a Surrey delivery man last Wednesday.

They are recommending that charges of robbery be laid against an officer with the West Vancouver force, while charges of assault and possession of stolen property are recommended against an officer with the New Westminster police, Chief Const. Jim Chu said at a press conference this afternoon.

Police will not recommended against a third officer from Delta, Chu said.

He said there is evidence this officer in fact tried to intervene in the alleged assault.

Chu said names of the officers charged will be released when charges are laid.

The announcement comes less then a week after Vancouver police arrested three off-duty police officers from the New Westminster, West Vancouver and Delta police forces on suspicion of assault.

The alleged victim, 47-year-old Surrey delivery man Firoz Khan, said the officers attacked him unprovoked, robbed him, racially abused him and threatened to use a Taser.

Chu said that since the victim could not identify the officer who allegedly uttered racial remarks, police are not at this time recommending the case be tried as a hate crime.

However, he said police are still looking for witnesses in the case, and stressed that the courts will decide about whether the alleged racial remarks warrant hate crime sentencing.

Retired judge to hear case in taser death

January 26, 2009
Associated Press

NEW ORLEANS (AP) - A retired state judge has been assigned to hear the manslaughter case against a former Louisiana police officer accused of repeatedly jolting a handcuffed man with a Taser before he died.

The Louisiana Supreme Court last week named retired Judge John Joyce to replace Judge Jacque Derr, who recused himself from the case shortly after he was sworn in as a Winn Parish state judge.

Joyce will preside over the case against Scott Nugent, who was a Winnfield police officer when he allegedly shocked 21-year-old Baron Pikes nine times while arresting him in January 2008.

Derr said he withdrew from the case because he had "associated" with Nugent on several occasions when he was a city judge in Winnfield.

Customs officers went 'above and beyond' with Dziekanski, Taser inquiry hears

January 26, 2009
The Canadian Press

VANCOUVER, B.C. — The customs officers who dealt with Robert Dziekanski the day he was stunned with an RCMP Taser at Vancouver's airport went "above and beyond" their duties, their supervisor said Monday at a public inquiry into the man's death.

Dziekanski died in the early morning of Oct. 14, 2007, more than 10 hours after his flight from Poland touched down.

The Canadian Border Services Agency has faced criticism because officers didn't call a translator for Dziekanski, who didn't speak English, to find out why he had spent hours unnoticed in a secure customs area.

The inquiry has also heard that at one point an officer told a friend of Dziekanski's mother that he likely wasn't at the airport, which prompted her to return home to Kamloops, B.C. without meeting him. Officers didn't immediately try to contact her once her son finally surfaced.

Still, Alexandra Currie, an acting immigration supervisor who was working that night, said officers took extra care helping Dziekanski find his bags and make his way through the various stages of processing. She said they eventually tried to locate his mother, Zofia Cisowski, searching a public waiting area, paging her and trying to call her.

One of the officers was even able to communicate with Dziekanski in Polish, said Currie, although the extent of that communication was unclear.

"They went above and beyond what we normally do," Currie told the inquiry.

"A lot of the actions that took place - looking for the family, going outside the customs hall, making pages, giving him water, retrieving his luggage, all of that - that's not in our job description, and I was very proud of the officers that evening."

Currie first encountered Dziekanski after 10:30 p.m., when two officers brought him to her office over concerns that he had been in the airport so long.

Dziekanski's flight landed roughly seven hours earlier and after he first entered the customs area, he spent more than five hours unnoticed before finally approaching immigration officers.

Currie said she asked Dziekanski in English where he had been, and then used hand gestures, pointing to her watch and then placing her head on her hands to mimic sleeping.

Dziekanski nodded his head yes, said Currie.

Crown prosecutors in B.C. have previously said they believed Dziekanski may have been sitting on a bench or sleeping near the baggage carousels, but it wasn't clear how they may have reached that conclusion. It's still not known where exactly he may have been and why no customs officers noticed him for so long.

While Currie knew Dziekanski didn't speak English, she said it's not standard practice to call a translator and it appeared border officers were able to process him successfully without one.

Currie was also the latest witness to testify that Dziekanski was calm, respectful and obedient when she dealt with him. RCMP have said he was agitated and erratic before he died.

"He was calm, he appeared co-operative, he appeared to respond, made eye contact directly," she said.

Another officer who testified earlier Monday had a similar account, as have other witnesses including flight attendants, airport staff and a passenger on Dziekanski's flight into Vancouver.

But less than an hour after Dziekanski left the customs and immigration screening area, he began throwing furniture in the airport's international arrivals area.

Four RCMP officers were summoned and within seconds of their arrival, Dziekanski was stunned by a Taser five times and died a short time later.

Dziekanski indicated he had been sleeping in hours at airport, inquiry hears

January 26, 2009
The Canadian Press

VANCOUVER, B.C. — In the hours before Robert Dziekanski died after being jolted by a police Taser he had been taking a nap in the secure customs hall at Vancouver's airport.

The Polish man, who didn't speak English, spent about 10 hours wandering around the airport after landing in Vancouver in October 2007.

Alexandra Currie, an immigration supervisor who was on shift that night, told the Taser inquiry she used hand gestures to ask Dziekanski why he took so long to be processed and wondered if he had been sleeping.

Currie says Dziekanski nodded his head yes.

Crown prosecutors in B.C. have previously said they believed Dziekanski may have been sitting on a bench or sleeping near the baggage carousels, but it wasn't clear until now how they reached that conclusion.

Kelly McKenzie, another officer who had contact with Dziekanski that day, told the inquiry Dziekanski was calm and respectful, refuting police claims he was agitated and erratic in the hours before he died.

Braidwood Inquiry - Scheduled Witnesses

Scheduled Witnesses (Subject To Change)

Monday, January 26, 2009
Kelly McKenzie, Canada Border Services Agency
Alexandra Currie, Canada Border Services Agency
Juliette Van Agteren, Canada Border Services Agency
Sonya Purewal, Canada Border Services Agency

Tuesday, January 27, 2009
Sonia Duranleau, Richmond Fire and Rescue
Kirby Graeme, Richmond Fire and Rescue
Adam Chapin, Canada Border Services Agency

Police may begin taser tests next month

January 26th, 2009
A6By MICHAEL STAPLES, The Daily Gleaner

Testing on conducted-energy devices belonging to the Fredericton Police Force will likely begin next month.

Const. Ralph Currie said the finishing touches are being put on a contract with a local company to do the work, and that should be completed soon.

The force confirmed in December that it was going to have the voltage readings on its conducted-energy devices checked through independent testing.

The Fredericton Police Force has 20 of the devices, which can shoot out 50,000 volts.

The decision to proceed with the testing followed tests commissioned by CBC and French-language Radio-Canada which found that out of 41 guns tested, four discharged more current than the manufacturer Taser International said was possible.

More than 20 people in Canada have died after being shocked by a taser.

Taser International has said that the devices can't be blamed for deaths.

Sunday, January 25, 2009

U.S. study raises more questions about stun gun safety

January 25, 2009
CBC News

The Taser stun gun has been advertised and sold as a police tool that can decrease the number of suspect shooting deaths and officer injuries, but a new study suggests its use does not reduce the number of people who die in custody.

The study was conducted by researchers at the University of California San Francisco. They surveyed U.S. city police departments for cases of in-custody sudden deaths in the absence of lethal force in the five years before they started using Taser stun guns and the same period after deployment began. Fifty of the 84 departments approached were able to provide data.

The research group found a sharp increase in the rate of in-custody sudden death in the first full year of Taser deployment compared with the average rate in the five years before the stun guns were used.

"A little bit to our surprise we found a statistically significant six-fold increase in the in-custody sudden death rate in the first full year of Taser deployment, and that rate then declined down near baseline in years two to five," said one of the researchers, cardiologist Zian Tseng.

Tseng testified last May at the Braidwood inquiry, which is looking into the death of a Polish immigrant Robert Dziekanski at Vancouver International Airport in October 2007.

Over the entire reporting period, researchers found the average rate of 1.57 sudden deaths per 100,000 arrests in the 50 cities. In the first full year after stun guns were deployed, the rate was 5.96 per 100,000 arrests, a 6.4-fold increase over the predeployment period.

The study showed that in the first complete year after deployment, the rate of deaths caused by officers using firearms remained high at 15.1 per 100,000 arrests, a 2.3-fold increase over the predeployment period. In years two to five after deployment, the rate of lethal force deaths decreased to 9.1 per 100,000 arrests.

Officers adjusted use, researcher believes

Tseng said his team concluded that police likely changed the way they used the Taser after the first year and that accounted for the drop in sudden in-custody deaths. He thinks the findings point to the importance of stringent policies for Taser use.

Tseng told Vancouver's Braidwood inquiry that a normal healthy person could die after a jolt from the stun gun if the shock went into the chest during a vulnerable point in the heart beat.

The U.S. researchers acknowledge their study is "purely observational" and has limitations because they did not ask police for details about the reported in-custody deaths and did not ask whether the Taser had actually been applied in those incidents, meaning the weapon was used only in a subset of these deaths.

However, they said, other investigators have suggested that stun guns may cause sudden death by increasing the risk of excited delirium, a much-debated condition in which sudden death occurs after a violent struggle.

Canadian physicians concerned

The Canadian Medical Association has raised concerns in the past about police departments relying on the manufacturer's claims of safety, and has called on police departments to open their databases to researchers.

Dr. Matthew Stanbrook, deputy editor for science at the CMA's Journal, thinks the U.S. study is a good first step toward building a body of work about real-life stun gun use.

"Greater societal pressure needs to be put on agencies on this to release that information for the public good because people are asking serious questions about this," he said.

Taser International, which is based on Scottsdale, Ariz., has been selling the most popular brand of stun gun to police departments in North America since 2001. The company has data on its website that it says shows the number of injuries to police officers has dropped dramatically since the introduction of the stun gun.

The San Francisco study found no change in the injury rate to officers. However, researchers noted in their report that the 10 largest U.S cities where stun guns are used most frequently refused to release their Taser data for the study.

Image of man in first week of taser inquiry's at odds with accounts from police

January 25, 2009
The Canadian Press

VANCOUVER, B.C. — Two markedly different images of Robert Dziekanski are emerging at the public inquiry into his death: the sweaty, erratic and visibly agitated man described by investigators, and the calm, polite and courteous person encountered by many of the people who saw him last.

The inquiry began last week to explore what happened to cause Dziekanski to throw furniture while he was in the international arrivals area at Vancouver's airport.

His strange behaviour in the early morning hours of Oct. 14, 2007, set off a brief confrontation with four RCMP officers, where he was stunned five times with a Taser and died minutes later.

When Crown prosecutors announced last month that no charges would be laid against the officers in the death they said Dziekanski was pale, sweating profusely and appeared nervous, confused and frustrated in the hours before his death.

But most witnesses who testified at the first week of the inquiry described a calm and obedient man who, while sweating and at times growing frustrated that he couldn't be understood, was much like any other passenger after a 21-hour journey.

"He was co-operative, he was compliant, non-violent, he didn't seem aggressive," said Kal Bharya, one of the border officers who processed Dziekanski.

"Just like any other typical traveller."

Still, lawyers for the RCMP officers have questioned witnesses repeatedly at the inquiry about whether Dziekanski appeared intoxicated and how much he was sweating.

No alcohol or drugs were found in Dziekanski's system, but a forensic pathologist suggested to police that withdrawal symptoms from chronic alcohol abuse may have explained his behaviour

The inquiry has heard Dziekanski was confused at times but mostly docile on his two flights from Poland to Vancouver, although an attendant on his first flight recalled "a little bit" of alcohol on Dziekanski's breath when he boarded the plane.

Witnesses have said Dziekanski, an inexperienced traveller who had never flown before, again seemed confused when he first arrived in Vancouver, his face dripping with sweat.

But much later, when he was finally processed after spending hours unnoticed in the customs hall, he was calm, polite and had stopped sweating.

Bharya and another officer, Tina Zadravec, both testified at the inquiry that there was nothing out of the ordinary about Dziekanski, but told police in 2007 they thought he may have been intoxicated.

Zadravec told police Dziekanski looked like he had woken up from a "serious drunk," a conclusion she reached from observing his body language from several metres away. Bharya's only reason to think Dziekanski had been drinking was that he was speaking Polish, when he must have known the officers only spoke English.

Walter Kosteckyj, the lawyer for Dziekanski's mother, said questions about whether Dziekanski appeared drunk were nothing more than an attempt to smear him and dodge responsibility.

"The strategy is to vilify Mr. Dziekanski and to say he was the author of his own misfortune," Kosteckyj said last week.

David Butcher, who represents one of the RCMP officers, said he and other lawyers are simply trying to put forward their own theory about what happened.

"Our effort, of course, is not to vilify Mr. Dziekanski, that is nonsense," Butcher said in a recent interview.

"What we're trying to do is find out whether there's an explanation for Mr. Dziekanski's behaviour, which caused civilians to call 911."

Butcher said he plans to show evidence that Dziekanski may have been suffering from a form of extreme alcohol withdrawal, which can lead to symptoms including sweating, increased heart rate, anxiety and hallucinations.

That evidence could include several reports that helped Crown prosecutors assess Dziekanski's cause of death - officially "sudden death following restraint," possibly linked to heart disease from alcohol abuse.

A lawyer for Taser International asked the head of the inquiry, retired judge Thomas Braidwood, to enter those reports as evidence, a motion supported by three of the officers' lawyers and the federal government.

But Braidwood temporarily denied that request until it was clear whether the reports' authors could be called as witnesses to be cross-examined.

The inquiry can't find criminal or civil liability, but Braidwood's final report can make findings of misconduct.

Braidwood is also preparing a report from a study commission held last year that examined the use of Tasers in general.