Still Pissed Off About the Hawley-Smoot Tariff

Friday, October 07, 2005

Anti-Taser Lawsuit

Today's Review-Journal has the story of a lawsuit filed by Sanford Tucker against the Las Vegas Metro Police Department and against Taser, International. According to the Complaint, Tucker's son Keith, who was 47 at the time, was beaten into submission, handcuffed, and then hit at least four times with a Taser. The police note that Keith was on cocaine and prescription drugs at the time of his death. Sandford claims that Keith was "in an unagitated state" when the police arrived, suggesting that although he later resisted arrest, it was the fault of the police that he went from "mellow" to combatative in the first place.

The ACLU is representing Tucker on two basic theories: that the police used excessive force in violation of the Constitution, and that the taser manufacturer failed to use an appropriate warning label. That last is a little strange, because the ACLU is interested in constitutional law issues, not in products liability law, but the story suggests that the ACLU isn't terribly interested in the taser part, only in the excessive force part.

While the excessive force claim is certainly interesting and merits discussion, I link the story to discuss the claim or claims against Taser, International. I'm going to have to make some guesses about the exact language of the complaint, but they will be educated guesses.

When you are suing a manufacturer for damage or injury caused by a product, you have three options which are generally used together: negligence, strict liability, and warranty. I assume there is no warranty claim here, because a warranty is based in contract, and although the cops have a contractual relationship with Taser, Tucker does not.

In order to prove negligence, four elements are required: prove a standard of care, prove that it was breached, prove that the breach caused the damages, and then prove the extent of damages. In a mass-manufacturing society, the first two can get really hard to prove, because it can be unreasonably difficult to show where exactly something went wrong in the process, and thereby conclude that the manufacturer breached a duty. So products liability law was invented by a couple of law professors, and subsequently adopted in every state, as a kind of short-cut for personal injury cases. In a case where fault cannot be proven on the part of either party -- that is, the manufacturer or the injured party -- the law shifts the burden to the manufacturer, on the theory that the manufacturer can better absorb the cost by spreading the expense to consumers. Thus, if I am hurt and I rack up $100,000 in medical bills, most likely my insurance won't be able to cover it, and I and my family would be financially ruined through no fault of my own. But if the manufacturer has to pay, I get compensated and the manufacturer -- admittedly, also without fault -- absorbs the cost, and it is (probably) not financially ruined.

Overall, the theory makes good sense, but only if rigorously applied only in cases where fault cannot be proven. If someone is injured through their own fault, I have not yet read the justification for passing the expense on to consumers. The law should not be a lottery for stupidity.

Products defects cases fall into three basic categories (some say two). First, the product might be defectively designed, meaning all products created according to specs are unreasonably dangerous. Second, the product might be defectively manufactured, meaning a product made to specs is fine, but this one in particular doesn't conform to specs. Third, the product might be dangerous if used improperly, and it requires a label to warn against improper use. This part is why Windex bottles say "don't spray in eyes," and why we have web sites like this. (I heard one professor say that category 3 is really just part of category 1, because if the thing were designed correctly it would have a label, but the significance of the distinction escapes me).

So the suit against Taser is probably a warning label kind of case. There is no suggestion that this particular taser was defective or broken. Tucker could conceivably argue that the thing is defectively designed because it is too potent or whatever, but the Review-Journal looks like we're dealing with the third category, the failure to warn. The suit "also accuses Taser International of failing to provide accurate warnings of the 'injuries, damages and effects' caused by using its devices."

This is completely bogus. The problem with this argument is that, while some people might not know or understand the effects of a taser, the police are trained with them, even shot by them. Maybe if I had shot someone with a taser, and accidentally killed them, an argument could be made, because I've never used a taser, and other than what I read in the news, I have very little idea about their practical effects. But this isn't about me or someone like me, it's about cops who are trained in the use and effects of tasers.

Maybe, as the ACLU claims, the cops should have been given more express orders on when to use or not use a taser, as a matter of department policy. "'Metro doesn't really have a policy,' [Gary] Peck[, executive director of ACLU Nevada] said. 'They're all over the map.'" I offer no opinion on that, but the issue of whether or not there needs to be a policy, or a better policy, has no bearing whatsoever on whether the cops need to be warned about the effects of tasers.

The article suggests a possible basis for concluding otherwise. Deputy Chief Mike Ault said, "We don't say Taser is nonlethal. We say it has a low-lethality potential." But according to the next sentence, "Taser International continues to refer to the devices on its Web site as 'nonlethal.'"
Ah-HAH says the sharp lawyer, maybe the cops didn't really know that tasers sometimes kill, because of Taser's own website! Well no, because tasers, like asparagus, can conceivably kill, but it just usually doesn't happen. It is true that I might choke to death on a bit of broccoli, but the law is not about to require warning labels on it. Look, anything can be dangerous, but without it being a generally lethal weapon.

Based on the foregoing, I'm firmly convinced that the suit against Taser is completely without merit. It is to ACLU Nevada's credit that they are only focued on police policy, rather than calling for a complete ban on tasers, and given that Tucker is suing anyway, it makes sense to use the same lawyers to push the products liability claim as the brutality claim.

More disturbing is the fact that this meritless lawsuit against Taser can have improper, negative, indirect effects. It is well known that anti-gun groups, realizing they can't make any headway in Congress, seek to defeat the Second Amendment indirectly by bankrupting gun manufacturers with civil litigation. Federal legislation immunizing manufacturers from civil liability is ridiculous, in my opinion, but depressingly necessary given the unethical tactics of gun opponents. I fear that the Taser case has the exact same effect, using a products liability suit with a very low threshold of proof (plaintiffs loooooooove strict liability because it's virtually impossible for the manufacturer to win) t0 hit the manufacturer in the wallet instead of taking on the Second Amendment directly.

Opposition to tasers and other non-lethal weapons makes no sense to me, because it comes from the same groups that oppose lethal weapons, as well. If you take away the cop's taser, his pepper spray, his baton and his mace, all he has left is his gun, and can you really say that makes you more comfortable rather than less? Sure, maybe it's cruel and incredibly painful to get hit by a taser (leaving aside for the moment the fact that the people getting tased so often deserve it), is that better or worse than getting shot? Poor strategy, I should think.

Sorta Related: Yesterday, a Police investigation concluded that a cop who shot at a moving vehicle in a school parking lot was justified in so doing. Interesting story. Pretty much every day there is a story in the newspaper about some horrible crime, or someone getting sentenced for a horrible crime. I live in a violent state.