Sunday, December 6, 2009

U.S. Court of Appeals, 11th Circuit Court (AL, FL, GA) Says Police Can Electrocute Resister w/oTrial on the Merits

The following case of pre-trial, extra-judicial electrocution and execution originating in Whitfield County, Georgia, was not enough to convince the US Court of Appeals, 11th Circuit (with jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia) that police should not electrically shock and electrocute people who have used drugs or otherwise had altered or impaired bodily functions. In fact the Court of Appeals refused to require that case go to trial on the merits, deciding instead that police pre-trial, extra-judicial electrocution is acceptable and is likely to be reaffirmed by the 11th Circuit.

And yet this case shows the extreme risk that Taser use on resistant arrestees may have a higher risk of killing them than merely shooting them in the foot with a conventional gun. This case shows that the more out of control an arrestee is, the less appropriate and more dangerous the use of an electrocution device is:

Despite the leg shackles, Melinda continued to kick uncontrollably. Melinda eventually kicked the rear driver's side window out of the patrol car, shattering the glass and bending the steel door frame. Deputy Burge instructed her to stop kicking the badly damaged door, but Melinda refused and continued kicking and slamming her head up against the opposite door.

After issuing this warning to no avail, Deputy Burge discharged his Taser on Melinda three times at approximately 3:35 p.m. The Taser did not have the intended effect and Melinda continued her aggressive resistance. The first discharge momentarily curbed Melinda's behavior. She tightened up and ceased kicking briefly. However, she soon resumed her combative behavior. The second and third discharge had no effect, leading the deputies to question whether the device was working properly. The deputies contend one of the Taser leads came loose while Melinda struggled, likely preventing the Taser from working. Melinda suffered second degree burns to her left breast and injuries to the back of her earlobes consistent with the use of a Taser.

At approximately 3:44 p.m., EMS personnel arrived on the scene, but because of her combative nature, they were unable to examine Melinda. They concluded that she was not in any immediate medical distress since she was talking, breathing and responding. Other than having some scrapes on her arm and being dirty and sweaty, Melinda did not appear injured to the deputies or the EMS personnel. The deputies maintain that they believed that the EMS personnel had medically cleared Melinda and she was approved to go to jail. The EMS personnel maintain that they believed Melinda would be transported to the hospital for further evaluation. No explicit orders were given by either the deputies or the EMS personnel.

At approximately 4:00 p.m., the EMS personnel left and Deputy Giles transported Melinda to jail. Melinda continued kicking and screaming during transport. However, approximately thirty seconds prior to their arrival at jail, she stopped kicking and screaming. Deputy Giles reached the jail at approximately 4:10 p.m., and unloaded Melinda, who was unresponsive with labored breathing.

Melinda was attended to by jailers who noted she was ashen and had cuts and bruises on her body. The jailers diagnosed possible heat stroke and took action to cool her down by applying cold compresses. Although the jailers did not believe that Melinda was in danger of dying, her unresponsive state prompted them to call EMS. This was at 4:29 p.m.

EMS personnel arrived at the jail at 4:35 p.m., and transported Melinda to the emergency room, arriving at 5:01 p.m. While at the hospital, Melinda suffered a cardiac arrest at 5:06 p.m., never recovering. Dr. William Oliver of the Georgia State Crime Laboratory conducted an autopsy of Melinda on behalf of the Georgia Bureau of Investigation. Dr. Oliver concluded that the cause of Melinda's death was malignant hyperthermia—specifically, a body temperature in excess of 107 degrees Fahrenheit.[ 7 ]

(. . .)

On July 21, 2008, the district court dismissed the Hamilton Emergency Medical Services, with prejudice, based upon a settlement. On November 24, 2008, the district court ruled that Plaintiffs had failed to produce any evidence that the Taser was a "but for" cause of Melinda's death—a necessity under Georgia law—and granted summary judgment for the Taser Defendants. The following day, the district court ruled that Plaintiffs had also failed to establish that the deputies violated Melinda's Fourth or Eighth Amendment rights or that Melinda's death resulted from a policy, practice or custom designed to violate those rights. The court also ruled that the Plaintiffs failed to establish that any spoilation of the evidence resulted from the Whitfield Defendants' bad faith, making an adverse inference against the defendants inappropriate. The district court then granted summary judgment on all remaining claims against the Whitfield Defendants.

( . . . )

Although Melinda's death was unfortunate, Plaintiffs have no remedy here. The district court did not abuse its discretion in enforcing its local rules regarding pleadings and motions. Plaintiffs provided no evidence that the deputies used excessive force or were deliberately indifferent to a serious medical need. They were faced with an extremely difficult interaction and handled it appropriately. Therefore, the district court's grant of summary judgment to the Whitfield Defendants was proper. We also hold that Plaintiffs failed to meet the requirements of the law to hold the Taser Defendants liable. Therefore, summary judgment in favor of Taser Defendants was proper.

For the foregoing reasons, the judgment of the district court is, in all respects,


This case cites "excited delirium" as a medical explanation for a death that, in all likelihood, would not have occurred absent the three instances of use of an electrocution device, including on the victim's left breast. It is apparent to me that in cases of Taser International's so-called "excited delirium" (bitter resistance), police should desist from from using electrocution devices even more than in other cases, because the death of persons, most of who haven't committed and haven't been convicted of a serious crime, is a regular and foreseeable result. Police should not use electrocution devices on unarmed members of the public where those weapons present a foreseeable and frequent risk of death.

It seems unlikely to me that Congressional hearings on Tasers will limit their use and abuse unless the US Congress legislates or the US Supreme Court overrules the decision in this and similar cases. Otherwise, police will conclude, based on this case, the the recitation of "excited delirium" and the insistence that the victim was uncooperative will frequently be sufficient even to avoid a trial on the merits. And police will engage in pre-trial, extra-judicial electrocution devices with the pre-approval of the US Court of Appeals, 11th Circuit, in the states of Alabama, Florida and Georgia.

Although such encouragement for police was hardly necessary, this case will be influential in other federal circuits as well, where police will continue to electrocute and execute men, women and children before the reach the police station. In essence police will act with the same impunity that the Klu Klux Klan once did, except they will act as officers of the law rather than as private citizens who have the tacit approval of the legal system.

Meanwhile, there are 19,800 instances at Google of use of the phrase, "pre-trial, extra-judicial" referring in the main to police pre-trial electrocutions and executions.

It seems to me that a game warden could have quieted this woman without killing her. I honestly believe that electrocution devices should be banned and police should be required to seek the assistance of game wardens to take members of the public into custody without injuring or killing them. Game wardens seem to have much greater success in this task, even in the cases of bears, alligators and moose, relative to the risk of death that police represent.

I also believe that police officers are grossly overpaid relative to game wardens, since they are not able to achieve the success at protecting life and the public that game wardens regularly achieve with much larger "game" to save for return to the wild.

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