Taser Lawsuit (gun/LE shooting related)

[Mark Tyson]

Madera sues Taser maker City, officer contend poor training for stun device contributed to gun death.

Copyright 2003 McClatchy Newspapers, Inc.

Fresno Bee (California)

July 29, 2003, Tuesday FINAL EDITION

When a Madera police officer drew her handgun instead of a nonlethal Taser and killed a suspect last year, it wasn't the first time law enforcement had mistakenly fired bullets instead of an electronic charge.

Twice before -- including a month before the Madera shooting -- officers in other U.S. cities had drawn their guns instead of the Taser device and wounded suspects.

As a result, the city of Madera and police officer Marcy Noriega have filed a lawsuit against Taser International Inc., manufacturer of the electronic device, and blame the company's training procedures for part of the problem.

Noriega shot Everardo Torres, 24, on Oct. 27, 2002, as he sat handcuffed in the back of a police cruiser following his arrest on suspicion of resisting and delaying police as they tried to quell a loud party at Madera Villa Apartments on North Schnoor Avenue.


Noriega told investigators she intended to stun Torres with her Taser because he had been kicking at the car's window, but she accidentally drew and fired her service weapon.

The District Attorney's Office concluded that the shooting was accidental; no criminal charges were filed against Noriega.

The city and Noriega are suing Taser, alleging that similar shootings occurred in Sacramento in April 2001 and in Rochester, Minn., in September 2002.

In both of the other cases, the suspects, one shot in the buttocks and the other in the back, survived.

The Taser shoots an electric charge that overrides the central nervous system and contracts muscles.

This momentarily incapacitates a person without causing permanent injury.

Bruce D. Praet, a Santa Ana lawyer who is representing Madera and Noriega, said in a telephone interview that officers no longer carry their handgun and Taser on the same side -- something that contributed to the Torres shooting.

"Once we found the two other incidents, we made the change," Praet said.

The lawsuit charges that the company "provided related training and representations in such a manner so as to cause any reasonable police officer to mistakenly draw and fire a handgun instead of the Taser device."

The company had "a duty" to provide notice of the risks involved and that it was aware its training methods were flawed, according to the complaint.

Aneta Dubow, one of the Los Angeles lawyers representing Taser, said the company would have no immediate comment on the lawsuit. She said she is not aware of any similar complaints filed anywhere in the country over the use of the device.

The city's lawsuit was first filed in Superior Court in Madera, but lawyers for Taser International moved the case to U.S. District Court and asked that a federal judge hear the case because the company is based in Scottsdale, Ariz.

The Torres family filed a federal wrongful death complaint against Madera and Noriega after the city rejected a $10 million claim.

In the lawsuit against Taser, Madera and Noriega contend that they "were only partially responsible for the loss" alleged in the Torres lawsuit and that if they are held liable for any of the claims, Taser should have to reimburse them for damages.

Torres died from a bullet to the heart and liver that also pierced his right kidney, an autopsy revealed.

Much of the family's lawsuit against the city and Noriega focuses on the department's use of Tasers and its use of force.

The city of Madera reportedly has admitted its liability in the shooting and in December offered the Torres family a $350,000 settlement. Praet said the family declined the settlement.

In the meantime, Praet said the city has filed motions to have a portion of the family's lawsuit, which claims federal civil-rights violations, dismissed. "As tragic as it is," Praet said of the shooting, "it does not rise to a civil-rights violation."

The reporter can be reached at [email protected] or 441-6484.

 

[Matt1911]

Is it April 1st already? Mistoke her revolver for a tazer? shot a hand cuffed prisoner?
I just don't get this joke.......

 

[digex]

Doesn't seem to me that Taser should even be involved. The fact that she shot a handcuffed prisoner in the back of a squad car seems to place the blame squarely on her. I can't even see where the mistake could be made, she wasn't in the middle of a firefight, she already had him in custody. Sounds like she screwed up and doesn't want to take the blame for it. Should be an easy case.

 

[Hkmp5sd]

I wonder why they didn't sue the handgun manufacturer also. I bet the handgun does not have a warning stamped on the barrel stating, "Warning: Grabbing this firearm accidently while intending to draw a Taser may result in serious injury or death."

 

[Orthonym]

That shoat needs to hear "plop, plop, fizz, fizz..." coming from under her chair in an airtight room!

 

[TheeBadOne]

One theory

The taser is shaped just like a hangun, functions the same way. For that reason Taser now recommends the taser hoslter be strapped on cross draw. Most had/have been strapping them on the same leg as the their gun, right next to it (attached to belt/thigh). Taser says that under stress it's too easy to grab the wrong tool (you draw w/o looking).

 

[Standing Wolf]

Noriega told investigators she intended to stun Torres with her Taser because he had been kicking at the car's window, but she accidentally drew and fired her service weapon.

Should have got a job flipping hamburgers.

 

[Feanaro]

"I screwed up, so why not sue someone else for it?"

 

[Spieler]

UNFREAKINBELIEVABLE!! If the officer isn't mature enough to take a little personal and professional responsibility when she screws up she probably shouldn't be in law enforcement to begin with. I guess we shouldn't be surprised though, nobody is held to account for their actions anymore it seems. Keep on passing the buck...

 

[El Tejon]

Stupid, feckless Tasers. Hate them with a passion.

That being said (and I feel I lot better for it), I cannot see how they could be named in any suit. However, this is often how civil ligitation works. Sue the world and see how falls out when summary judgment motions shake the tree.

 

[synoptic]

Figures it all happened in California...Sounds like she made an idiot mistake, possibly due to poor training, which is the department's responsibility, not the company that makes the product. Had it been an everyday citizen in her situation they'd be sitting in jail right now awaiting trial.

 

[Orthonym]

Yeah, "an idiot mistake..."

IANAL, but that sounds like manslaughter to me at the very least! Aren't LEOs supposed to be careful of the safety of those they arrest? Yep, the guy obviously changed his mind about submitting to the arrest, so she should have done SOMETHING about it. I'd like to have some more info about the circumstances, i.e. was the guy drunk, were there other popo present, was there a crowd standing around yelling and screaming, was she trying to stay cool and do right or was she just hoppin' mad at the guy?

After all, he was already locked in the back of the car with cuffs on. Seems to me that would allow maybe 4 or 5 seconds for consideration and deliberation, even if he were a huge, angry fellow kicking at the window. It looks like they let her off because she got flustered and acted hastily. Doh! I thought the reason we allowed policemen powers forbidden to the rest of us was that they were specially vetted and trained NOT to get flustered and act hastily!

 

[willyjixx]

ridiculous

thats what it all is. turned down a 350,000 dollar lawsuit. wants a 10 mil settlement. thats not greiving thats greed. not sayin the kid should have got that but that amount is ridiculous.

an i blame the training not the weapon

 

[rock jock]

I remember when this story broke. A little background as I recall:

First, the suspect deserved to get popped. His rap sheet included prison time for manslaughter and a whole host of multiple violent offenses, including being out of control that evening. Trust me, shooting this POS saved somebody's life down the road.

Second, IIRC, Ms. Noriega wasn't exactly a duty cop. I think that call was one of the first times she had been out on patrol in months.

Third, she had placed her Taser holster directly below her firearm and instead of actually looking at what she pulled, proceeded to just fire a shot.

I think it is safe to assume that she is stupid as the day is long and is looking for a nice scapegoat.

 

[Matt G]

The newest Tasers are really nifty. They're much more powerful than the old ones that were introduced in the '80s, which gave the Taser concept such a bad name.

While I do suppose that Taser should attempt to do something about the feel of the Less Lethal devices to make them feel less identical to a firearm, I think that this incident underscores the need for training by those who carry weapons (lethal or otherwise). Most of the cops that I see carrying the Taser carry it cross-draw. Neat thing about cross-draw is that it can be reached with off-side arm, should the situation demand it. (eg: when someone makes a grab at one's duty weapon.)

Unfortunately, there are those who will use silly circumstances like this as their proof to throw the baby out with the bath water, and a useful tool will be made less accessible and more expensive to those of us that would like to have it. Never mind how many 6, 7, and 8 figure lawsuits, workman's comp claims, and deaths have been or could be averted by the use of this device instead of fighting with violent offenders or letting things escalate.

 

[seeker_two]

What a moron!!! :banghead:

I wouldn't trust that with a WATER PISTOL, much less a firearm or a taser....

That said, I think that one shouldn't holster their taser near their sidearm. Too easy to "accidently" draw the wrong one...

(...or maybe they should. )

 

[El Tejon]

Matt, you're right. My experience is with the old, feckless kind not the new-fangled dealies.

 

[Johnny Guest]

NO NO NO - - Please, NO!

With all due respect to member rock jock, I must disagree with the statement - -

First, the suspect deserved to get popped. His rap sheet included prison time for manslaughter and a whole host of multiple violent offenses, including being out of control that evening. Trust me, shooting this POS saved somebody's life down the road.

(Believe me, my remarks address the text, and are NOT intended as a personal affront toward the member.) The story states the deceased had been arrested for "suspicion of resisting and delaying police." These are misdemeanor charges, no matter what criminal history the suspect had gathered in the past. The suspect was IN CUSTODY, already cuffed and confined to the back seat of the police vehicle. Might he have done damage to the car and equipment? Certainly, but none is claimed.

The primary duty of the police is to maintain, or restore, the public peace, with the option of taking into custody of those who break it. Police are given wide discretion as to the use of "reasonable force," to overcome resistance of those who must be arrested. Once the individual is in custody, he is taken to a place of detention pending operation of the law. (Arraignment, lockup, posting appearance bail bond OR detention pending trial, and so forth.) All after that point is a function of the court system. It is not the function of police to administer punishment, whether on the street, in the patrol car, or in the jail.

There are unfortunately some vestiges of the old "Street Justice" or "teaching that * * * * * * a lesson" still hanging on amongst some cops. It is permissible to utilize pain compliance to effect an arrest, sure, but once subdued, the cop must not gratuitously inflict punishment. Not legal to do so.

And no, I'm not cop bashing. I'm a career peace officer myownself.

Best regards,
Johnny

 

[NIB]

If she cannot distiguish between a Taser and a Firearm then she shouldn't be carrying either.....much less a badge.

Noriega told investigators she intended to stun Torres with her Taser because he had been kicking at the car's window, but she accidentally drew and fired her service weapon.

From everything I read the situation at that moment was not high stressed and by some Dept policies didn't even warrant being stunned. Regardless it is still her responsibilty to differ between a stun gun and a real firearm.

 

[jsalcedo]

Perfect!

All I have to do is conceal a tazer next to my makarov and I can "accidentally" shoot anyone who looks at me funny. Then I can settle with Tazer for a princely sum and retire.

It works the same for us civilians right?

 

[rock jock]

Johnny,

You are right of course. My comment was fired "from the hip". Still, I am not e3xactly sad that he is not among the living. If we had a decent justice system, he would never have been let out in the first place.

 

[Roadkill Coyote]

Training Issue

FWIW, Taser International's training specifies that it should never be carried on the strong side, and that was part of their lesson plan long before this incident.

 

[Erik]

When the gun-shaped Tazers first came out folks pointed out that under stress someone was bound to grab their guns instead. "Everyone" knew it. Just carry it on the weak side, some said. Fine, if you have the belt-space. Many do not, depending on what they carry and/or what their waist size is.

Which is why many departments mandate (or when they do not officers take it upon themselves) that you NOT carry one on your person. Leave it in the car. Send for it as necessary, and with a cover officer present, stun away, when and where possible.

Of course, you're still open to law suits that way, but at least it shouldn;t be for mistaking which tool is which.