Now that the dust has settled around attorney general Jeff Sessions’ promise of harsher federal marijuana enforcement, advocates of legalization have largely exchanged their initial disappointment over the move for one of long-term optimism.
“I think there was a knee-jerk reaction of something approaching panic, but once everyone calmed down, they’ve come to realize that practically this is going to have little impact,” said Patrick Moen, a former Drug Enforcement Agency (DEA) agent who now works as council to an investment firm in the nascent legal marijuana industry.
Some, like Moen, even believe the decision could be the best thing for the growing marijuana movement, hastening the formal end of weed prohibition in the US.
“There will probably a short term chilling effect, but this could ultimately be the best thing that’s ever happened to accelerate the pace of change,” Moen said.
The markets have reflected this somewhat counterintuitive sentiment. The United States Marijuana Index, which tracks 15 leading publicly traded legal marijuana-related companies, initially dropped 21% on the heels of the Department of Justice (DoJ) announcement, but it turned out to be a blip. By early this week the index had rebounded to within a few points of its one-year high.
Sessions’ announcement formally rescinded guidance, known as the Cole Memo, issued by the Obama-era DoJ that essentially told federal prosecutors to respect state laws with regards to marijuana. Importantly, though, Sessions’ decision did not direct or incentivize US attorneys to pursue marijuana cases, it just allowed them to if they so choose.
“The Cole Memo guidance was eminently reasonable and was a common sense good policy,” Moen said. “I think that despite the fact that it’s been formally rescinded, federal prosecutors will effectively continue to abide by it.”
One of the primary reasons concern has been tempered is that Sessions announcement is not actually likely to ensnare individual marijuana users into the criminal justice system.
Federal prosecutors almost never pursue simple possession charges against recreational users, whether in states where it is legal or not.
According to the Bureau of Justice statistics, 99% of those serving federal sentences for marijuana-related crimes were convicted of trafficking offenses, which typically relate to quantities far in excess of what individual recreational users would have.
"It is unlikely that this will affect them in any tangible negative way, other than depriving of the ability to buy marijuana legally,” said Justin Strekal, Political Director for the National Organization for the Reform of Marijuana Laws (Norml).
The Sessions memo is unlikely to trigger a nationwide dragnet of marijuana users, and is also unlikely to cause wide-scale disruptions to legal cultivators, Moen notes.
“If federal prosecutors decide to ‘go rogue’ and start charging otherwise compliant state businesses, there’s going to be repercussions with regard to their relationships with the local [law enforcement],” Moen said.
Strekal notes, however, that because of civil-forfeiture laws, local law enforcement would have one very good reason to work with federal agents seeking to enforce marijuana laws on legal weed businesses. Although local law enforcement can’t bust those businesses on their own – they aren’t breaking any state or local laws – by joining with feds to enforce federal law, they get to claim a portion of any assets seized in a potential drug raid.
“In an area where you have a prohibitionist minded sheriff or a law enforcement agency, they will look at state-lawful marijuana facilities and see a big pile of money,” Strekal said.
The 4 January move by Sessions was sandwiched by two major wins for legalization advocates. On the first of the month, recreational weed became legal in California, after more than a decade of a quite lax medical marijuana program. Then on 10 January, Vermont became the first US state to legalize the substance with an act of legislation, rather than a popular referendum, as has been the case in states like California, Colorado and Oregon.
The decision may ultimately precipitate another win, as Moen observed. Within hours of Sessions’ announcement, a bipartisan group of legislators had come out against the decision and some, including Hawaii senator Brian Schatz, announced that legislation was already being crafted that could overrule Sessions, by changing the extent to which Marijuana is classified as illegal at the federal level.
“It’s great that we’ve had a number of members of Congress over the course of the last six days last week step up and say what the attorney general did is wrong. Now time for every single one of those members of Congress to put their names on the pending legislation,” Strekal said.
Donald Trump has sustained more than his fair share of political losses during the first 10 months of his presidency, mostly at the hands of the federal courts.
But the makeup of America’s judges is quietly becoming the site of one of Trump’s most unequivocal successes: nominating and installing judges who reflect his own worldview at a speed and volume unseen in recent memory. Trump could conceivably have handpicked more than 30% of the nation’s federal judges before the end of his first term, his advisers have suggested, and independent observers agree.
“The president himself has said that he expects this to be one of his major legacies. He is going to reshape the bench for generations to come,” said Douglas Keith, counsel with the fair courts arm of the Brennan Center for Justice.
“I do think this deserves more attention given the consequence, the significance of what will eventually be a wholesale change among the federal judiciary,” he continued.
Much has been made of Trump’s failure to get legislation through Congress and received wisdom suggests that he has little to show for his first 10 months in power. However, the lasting impact that court picks have on the lives of Americans means that Trump’s choices – and the sheer numbers involved – will help reshape America for the next half-century.
Until recently little attention has been paid to Trump’s judicial appointments. But Senator Chris Coons, a Democrat from Delaware and a member of the Senate judiciary committee, identified the importance of these appointments early on. In June he said: “This will be the single most important legacy of the Trump administration. They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.
The lack of diversity in Trump’s picks was highlighted by the Associated Press. They ran the numbers on the 58 people nominated by the Trump administration to lifetime positions on appeal courts, district courts, and the supreme court. Of those, 53 are white, three are Asian American, one is Hispanic and one is African American.
Forty seven are men and 11 are women.
Since a disproportionate percentage of non-white Americans find themselves at the sharp end of the judicial system this means that in many cases it will be white male judges passing judgment on Americans of color. They will also have extensive input on all manner of civil rights, environmental, criminal justice and other disputes across the country.
All presidents appoint federal judges who are philosophically aligned with their own party and ideology. Casual observers will be familiar with how this dynamic plays out in relation to supreme court nominees, the rarefied picks that most presidents only make a handful of times. But supreme court justices represent just a small percentage of the broader federal judiciary, with roughly 850 seats in regional federal courts nationwide. In many cases, it is these jurists that have the final say on the law of the land in the US, since the supreme court only hears a relatively small number of cases every year.
And for these posts, Trump’s candidates have been whiter, more male and, according to the American Bar Association, less qualified than any incoming cohort in decades.
“I think the goal is to end the progressive state as we know it,” said Baher Azmy, Legal Director of the Center for Constitutional Rights, a progressive-leaning legal advocacy group.
Perhaps the most brazen of Trump’s early picks is Brett Talley, an Alabama attorney just three years out of law school who has yet to try a case. The American Bar Association gave Talley a unanimous rating of “unqualified” for the post but that did not stop him from breezing through a confirmation hearing in the Senate judiciary committee. Neither did the fact that Talley appears to have blogged favorably about the KKK and statutory rape on message boards and failed to disclose in his questionnaire that his wife is a staffer in the White House.
Trump is “appointing hacks and cronies which I think is either intentionally or just has the effect of signaling contempt for legal process”, Azmy said.
Some of the other stand-out Trump picks include Jeff Mateer, a Texas attorney who has openly admitted that he discriminates against LGBT people, and Thomas Farr, who has spearheaded multiple legal efforts to suppress the black vote in his home state of North Carolina.
“It is no exaggeration to say that had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African-American voting rights and workers’ rights than Thomas Farr, it could hardly have done so,” wrote the Congressional Black Caucus in a letter to Trump urging him to withdraw the nomination.
One thing Mateer, Talley and Farr all have in common, like a startling 74% of Trump’s nominees, is that they are all white men. According to the Associated Press, if Trump continues on this trend through his first term, he will be the first Republican since Herbert Hoover to name fewer women and minorities to the court than his GOP predecessor.
“This is a striking move in the direction away from diversity that is not just attributable to them wanting to appoint more conservative judges,” who will tend to be whiter and more male than the general population, said Douglas Keith.
And the impact that can have for generations is hard to overstate. “Federal courts shape laws, they shape the constitution, they affect people’s rights, and at core they impact how our democracy functions,” Keith said. “Conservatives have understood the importance of these courts, they’ve been organizing around them for decades, and have been able to move their supporters in ways that the left hasn’t.”
That has involved, first and foremost, building a pipeline of potential conservative candidates, Keith said. Conservative groups like the Federalist Society and the Heritage Foundation have become de facto clearing houses for Republican presidents and they absolutely have Trump’s ear.
According to the Hill, of the 13 judicial nominees confirmed since President Trump took office, 10 are either current or former Federalist Society members or regular speakers at its events.
The organization describes itself as “a group of conservatives and libertarians interested in the current state of the legal order”, and operates on the premise that “law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology”. Clarence Thomas, Jeff Sessions and the late Antonin Scalia are among the society’s more well-known alumni.
The non-partisan American Bar Association, which for decades had offered the White House its opinion on the qualifications of nominees was removed from the process by Trump in favor of Federalist Society influence. So far they have rated four of Trump’s nominees unqualified, four more than they ever did under the previous administration.
Thus far the Republican-controlled Senate judiciary committee has been little more than a rubber stamp for Trump’s nominees, having advanced all of his picks through hearings so far. This drew scorn from Democratic committee member Sheldon Whitehouse who earlier this month called the hearings “a joke” and complained that candidates had been studiously coached on “how to withstand all of five minutes of questioning by senators”.
Trump also inherited a massive cache of over 100 judicial openings when he came into office, more than twice that of his predecessor Obama in 2009. That’s because, even as Trump has routinely lambasted Democrats as the party of obstruction, it was Republicans for most of Barack Obama’s term who slowed the confirmation of judicial nominees to a slow crawl. Since his inauguration the number of openings has grown to more than 160 – that’s about half the 323 regional federal judges Obama nominated and had confirmed during his full eight years in office, and Trump has only been in office for 10 months.
It is true that, even as Republicans have picked up the pace of confirmations, Trump cannot fill all those 160 openings overnight. But after sweeping Democratic election wins in races earlier this month, anxious conservatives are going to start pushing Trump to get as many nominees as possible through before the 2018 midterms.
“Obviously, who gets nominated and the pace of confirmations … changes dramatically if the Senate were to flip back to the Democrats,” said John Malcolm, a former justice department lawyer and now an analyst at the Heritage Foundation in Washington. Republicans “should be paying particular attention to pushing through as many nominees as they can”.
Over half of all police killings in 2015 were wrongly classified as not having been the result of interactions with officers, a new Harvard study based on Guardian data has found.
The finding is just the latest to show government databases seriously undercounting the number of people killed by police.
“Right now the data quality is bad and unacceptable,” said lead researcher Justin Feldman. “To effectively address the problem of law enforcement-related deaths, the public needs better data about who is being killed, where, and under what circumstances.”
NVSS data has been collected since the late 1800s and today is responsible for, among other things, aggregating all annual US deaths. In 1949, the report added a category to capture “legal intervention” as a cause of death along with classifications like cancer, heart disease and accidents. Typically these determinations are made by local medical examiners and coroners, reported on death certificates, and submitted to the CDC.
To assess how accurately that classification was being used, the team took the 1,146 police-related deaths recorded by The Counted in 2015, removed 60 cases that did not fit the criteria of the CDC’s “legal intervention” category and requested death certificate data for the remaining 1,086 individuals. They found that a majority, 599 deaths, were classified as resulting from something other than legal intervention – principally “assault”.
Researchers found the accuracy varied wildly by state, with just 17.6% misclassification in Washington, but a startling 100% in Oklahoma.
“[Oklahoma] had more than 30 people were killed by police there in 2015 and none of them were counted on death certificates,” Feldman said.
According to the report, there were 36 cases of “legal intervention” captured in the NVSS which were not included in The Counted.
“We hope that this paper is a call to action to improve public health reporting, whether that’s following a method like the Guardian did by integrating media sources better, or by changing the policy around requiring clinicians [medical examiners and coroners] to report these deaths,” Feldman said.
Feldman also noted that this problem was law-enforcement specific. “Evidence suggests that the accuracy of mortality classification for homicide – an outcome similar to law-enforcement-related mortality … is very high”, the report reads. One 2014 study cited puts the figure at 99%.
In 2015 the Guardian launched The Counted, an interactive, crowdsourced database attempting to track police killings throughout the US. The project was intended to help remedy the lack of reliable data on police killings, a lack that became especially visible after the 2014 unrest in Ferguson put policing in the national spotlight.
Other federal databases, including the Bureau of Justice Statistics’ (BJS) arrest-related death count and the FBI’s supplementary homicide reports were similarly criticised for severely undercounting police-related deaths. Both programs have been dramatically reworked since The Counted and similar media/open source databases forced officials such as the former FBI director James Comey to admit that newspapers had more accurate data than the government on police violence.
Members of law enforcement and civil libertarians were strongly critical of the tactics and behavior of the St Louis police department amid protests over the acquittal of a white officer in the 2011 shooting death of a black man.
Some officers’ behavior was called unethical, alarming and even unconstitutional.
One of the primary catalysts for concern was a video that emerged on Monday of a group of officers loudly mocking the popular protest chant “Whose streets? Our streets” after making a series of arrests.
“That chant goes against the very code of ethics we swore to abide by,” said Heather King, president of the Ethical Order of Police, a local organization founded by African American officers. “Whether we agree with demonstrations, protests or acts of violence, it is our job to do our job free of personal bias.”
Chris Burbank, director of law enforcement engagement for the Center for Policing Equity, a criminal justice thinktank, called the chants “horrible” and “alarming”.
“The role of policing – the No 1 most important thing that you do – is [to] protect the constitutional rights of everybody, and what [those officers] engaged in, it really is an infringement in so many ways,” he said.
“If you are policing based on ego, based on personal things – all that needs to be set aside to conduct fair and impartial policing interaction with people.”
Jeffrey Mittman, the executive director of the ACLU of Missouri, said that by arresting 123 people on Sunday, police “unlawfully detained and arrested people, used excessive force and unconstitutionally broke up a peaceful assembly of people”.
Police told a large group of people gathered in downtown that because windows had been broken and large flower pots pushed over, the assembly was being declared illegal.
Bystander video showed police using irritant chemical sprays on protesters who were seated and compliant, many with their hands in the air, or even those running away. Protesters accused the police of “kettling” them, surrounding them and making arrests once they fail to disperse.
Mike Faulk, a reporter for the St Louis Post-Dispatch, told colleagues he was “pepper-sprayed in face while an officer’s foot held my head to ground”.
Tony Rice, a veteran St Louis protester who said he wound up in the same holding cell as Faulk, said officers were using pepper spray indiscriminately and seemed to be trying to inflict punishment on those they arrested.
“At one point I had an Eric Garner moment,” Rice said, referencing the 2014 death of a Staten Island man in an arrest carried out with an illegal chokehold. “He kept pepper-spraying me and pushing me down … and then it felt like there was two knees on my back.”
Rice was pushed off his bike by officers, he said, adding that his neck was pushed into the bike’s crossbar, leaving him unable to breath. “I was screaming ‘I can’t breathe, I can’t breathe’, and I’ll tell you, I really thought I was going to die,” he told the Guardian.
Many of those arrested on Sunday night, according to Rice, were not demonstrators but merely curious residents. Burbank, who was chief of police in Salt Lake City for nearly a decade, questioned the wisdom of trying to carry out mass arrests at all, or even trying to disburse a crowd that was, by all accounts, almost entirely peaceful.
“Why does the crowd need to move?” he asked. “How many officers does it take to deploy teargas and pepper-spray and don riot gear and move a crowd, as opposed to closing down streets for a few hours and letting a crowd get their message across and allowing them to disburse naturally?”
St Louis interim police chief Lawrence O’Toole was more forthright. “The police owned tonight,” he said in a Monday press conference. “We’re in control.”
The protests were sparked by the acquittal of former officer Jason Stockley over the 2011 death of Anthony Lamar Smith. Stockley shot and killed Smith after a car chase; he said he thought Smith was reaching for a gun.
Prosecutors said Stockley planted a gun in Smith’s car, a gun which another officer testified he did not see when he first searched the vehicle. The officer’s DNA was found on the weapon but Smith’s was not. Dashcam video from Stockley’s cruiser recorded him saying he was “going to kill this motherfucker”. He shot Smith five times, including once at close range.
In 2014, just a few miles away in Ferguson, the killing of Michael Brown, an unarmed teenager, sparked intense protests.
Many protesters in Ferguson said police provoked demonstrators by showing up in riot gear and armored vehicles. Police countered that they had no choice but to protect themselves. In the Stockley protests, several officers have reportedly been injured.
Many in the city were hoping the department would adopt softer tactics but those hopes quickly faded. Burbank said it was easier to judge police decisions in hindsight, but said good policing comes down to one key question.
He said: “We always need to ask ourselves: there’s a lot we can do, but what should we do? Is it in the best interest of public peace, harmony and security for us to engage in that activity?”
Given all that Donald Trump promised the business world during his bombastic campaign it’s tempting to dismiss the president’s first six months with a “meh”. It would also be myopic.
While protesters are worried about the future, the president has so far failed to pass his tax reforms, which business wanted. But at the same time fears that his China rhetoric, threats of trade wars and Tweets about penalties for US businesses who ship jobs overseas, have not amounted to much.
The economic trends started under Obama have continued: stock markets have continued their giddy ride to uncharted highs, unemployment has continued to drift down and interest rates have remained low.
Trump’s overture may seem a little weak but the president has already made significant moves and still more may be happening in the wings.
Trump has ordered a review of Dodd-Frank, the regulations brought in to tame US financial institutions after they triggered the worst recession in living memory. He has appointed a sworn enemy of net neutrality over at the Federal Communications Commission who is now working to dismantle Obama-era open internet protections. He has freed up energy firms to start polluting rivers again and scrapped a rule which barred companies from receiving federal contracts if they had a history of violating wage, labour or safety laws.
After years of gains for consumer, environmental and worker rights groups, the pendulum is being swung the other way – but most often those changes are happening behind closed doors.
In March, Trump pledged to “remove every job-killing regulation we can find” and deregulation teams have been set up to comb through the statutes looking for rules to cull. A recent ProPublica and New York Times investigation found Trump’s deregulation teams were being conducted in the dark in large part by appointees with deep industry ties and potential conflicts of interest.
It’s hardly surprising given that the Trump administration has literally removed the White House visitors book, so we may never know who has been whispering in the president’s ear. Six months in, it is hard to tell what is being cut and by whom. We may never know the consequences of Trump’s regulation death squads until it’s too late. Dominic Rushe
The environment
In the past week, both Emmanuel Macron and Sir Richard Branson have claimed that Donald Trump has been gripped by regret over his decision to withdraw the US from the Paris climate agreement. But hopes that the US president will reverse this decision sit uneasily with the consistency of his administration’s environmental rollbacks.
In Scott Pruitt, Trump has an Environmental Protection Agency chief who understands how the agency works and how to hobble it. Pruitt, who has dismissed the mainstream scientific understanding of climate change, has spearheaded a concerted effort to excise or delay dozens of environmental rules.
Emissions standards for cars and trucks, the clean power plan, water pollution restrictions, a proposed ban on a pesticide linked to developmental problems in children, regulations that stop power plants dumping toxins such as mercury into their surrounds – all have been targeted with efficacious zeal by Pruitt.
The EPA administrator was also a fierce proponent of a US exit from the Paris accord, ensuring that Trump wasn’t swayed by doubts raised by Rex Tillerson, the secretary of state, and Ivanka Trump, his daughter and adviser. The US won’t be able to officially pull out until 2020, but the decision has dealt a hefty blow to the effort to slow dangerous global warming and provided a tangible victory for the nationalist, climate change denying elements that now roam the White House.
Elsewhere, public land has been thrown open to coal mining – an industry repeatedly fetishized by Trump – and oil and gas drilling is being ushered into America’s Arctic and Atlantic waters. Two dozen national monuments are under review, several may be shrunk or even eliminated.
In less than six months, Trump has begun to tear up almost all of the key planks of Barack Obama’s environmental agenda. This blitzkrieg is likely to slow now that it faces a thicket of legal action launched by enraged environmental groups and some states, such as New York. But to Trump’s supporters, the president, who pledged during the campaign to reduce the EPA to “tidbits”, is delivering on his crusade to transport the environmental and industrial outlook of the late 19thcentury to the modern day. Oliver Milman
Immigration
Donald Trump’s bluster over his harsh immigration reform – namely the implementation of a diluted Muslim-targeted travel ban and a crackdown on undocumented immigrants – belies the cost these self-proclaimed victories have had on both the fundamental institutions of democracy and the most vulnerable communities in the United States.
After his second attempt in March was blocked again in the lower courts, the president, seemingly without care for due process or respect for the co-equal branches of government, threatened to simply abolish the federal appeals court he incorrectly identified as responsible for the decision.Trump’s bullish perseverance on the ban, which has left many in Muslim and refugee communities around the US living in fear, has resulted in a temporary ruling in the supreme court that allows a much diluted version of the order to come into effect. Although the president heralded the decision a victory, the ultimate test comes in autumn when the country’s highest court will ultimately rule on the ban’s constitutionality.
The president has also moved quickly to supercharge efforts to round up and deport undocumented immigrants. By empowering Immigration and Customs Enforcement (Ice), the federal agency responsible deportations, to target essentially anyone in the country without legal paperwork, the number of immigration arrests has soared. Although the administration has celebrated this uptick, it has actually been able to deport people at a much slower rate due to the crippling backlog inside America’s immigration courts.
Trump’s attempt at a solution to this has been to create a network of new courts, attached to remote detention centers and far from the reach of immigration attorneys. The strategy, plagued with due process concerns, has enjoyed mixed success. But, once again, it is those most vulnerable – many of whom have lived in America without paperwork for decades and have no criminal history – who have paid the highest price. Oliver Laughland
Diplomacy
First, the good news. Donald Trump has not started a war. He has therefore, so far, avoided the worst case scenario that some predicted for his presidency. One eighth of the way through his term, he does not yet have a stain on his record like George W Bush has with Iraq. Instead his Twitter spats with cable TV hosts and their indulgence by the media are a luxury of peacetime.
But in other, important ways, the US president has set about diminishing America’s global leadership role and diplomatic standing. He has emphasised the defence of America and western civilisation and downplayed democracy and human rights. He has warmed to authoritarian leaders in China, the Philippines,Russia and Saudi Arabia while going cold on Britain (still no visit), the European Union and Australia. His attacks on the press send an alarming message to dictators everywhere.
The world has noticed. A major survey of 37 countries by Pew Research last month found that just 22% of respondents had some or a great deal of confidence in Trump to do the right thing when it comes to international affairs. After his performance at Nato and G7 meetings, German chancellor Angela Merkel said pointedly: “The times in which we could completely depend on others are, to a certain extent, over. I’ve experienced that in the last few days. We Europeans truly have to take our fate into our own hands.” At the G-20, he cut a lonely, isolated figure.
This damage could be undone relatively quickly but the “America first” president’s proposed 30% cut to the state department, where many top staff have left and not been replaced, threatens to be a lasting legacy. Max Bergmann, a former official, wrote in Politico: “The deconstruction of the state department is well underway... This is how diplomacy dies. Not with a bang, but with a whimper. With empty offices on a midweek afternoon.”
The outlier in Trump’s foreign policy came on 6 April, when the US launched 59 Tomahawk cruise missiles at an airfield in Syria in retaliation for the regime’s use of chemical weapons against civilians. It was a move welcomed by hawks and loathed by “anti-globalists” in Trump’s support base. But the most urgent issue, enough to test any US president, is North Korea. There is little evidence so far to suggest he will succeed where others have failed. David Smith
Gender and equality
Trump’s White House has wasted little time erasing many of the changes that advocates for trans rights, reproductive rights and survivors of sexual assault achieved under the Obama administration.
The Trump team is in the middle of sharply reversing how the federal government enforces laws against gender bias. In February, the administration withdrew the Obama-era guidelines requiring schools to give transgender students unfettered access to bathrooms and locker rooms matching their gender identity. And Betsy DeVos, the education secretary, may restrict the federal government’s ability to intervene when colleges and universities do a questionable job of handling students’ complaints of sexual assault.
Trump is also attempting to dismantle the nation’s public safety net for family planning, with an assist from his party in Congress. The president has signed legislationencouraging states to withhold federal family planning dollars from Planned Parenthood. The latest version of Republican’s attempt to repeal the Affordable Care Act would eliminate the birth control mandate – which is also under fire from Trump’s health department – not to mention maternity coverage requirements.
Every repeal attempt has contained a measure to block women on Medicaid from using their insurance at Planned Parenthood – measures that would shutter scores of Planned Parenthood clinics across the country. And the administration is poised to give the green light to states, like Texas, that axe Planned Parenthood from their Medicaid programs.
The White House also has aims to zero out funding for the government-funded Legal Services Corporation, which is the main source of legal assistance for women attempting to escape domestic violence, when Congress passes a budget this fall.
Finally, there’s US supreme court justice Neil Gorsuch, Trump’s pick to replace the late Antonin Scalia, who observers say “has all the makings of an extreme anti-abortion justice”. Trump named Gorsuch eleven days into his presidency, fulfilling a longtime campaign promise to nominate justices who will vote to overturn Roe v Wade. Molly Redden
Criminal justice
Much of what the federal government can do on criminal justice is left to Congress, since most criminal justice happens at state and local, rather than federal levels. However, Trump’s administration hasn’t spared much time doing what it can to reverse a roughly decades long retreat from the peak of tough-on-crime, mass-incarceration dogma.
So far, efforts on criminal justice have been much more sizzle than steak, but the prospect of dramatic policy change looms just around the corner. Stuffed in a suite of executive orders signed in February, Trump commissioned a taskforce to make recommendations on combating “the menace of rising crime”, which has been an enduring theme of the administration despite being debunked by experts. That taskforce, which reportedly, and curiously, does not include police chiefs or criminologists is scheduled to make its recommendations on 27 July.
“If you’re going to see anything from the Trump administration proposing new [or longer] mandatory minimums and a general return to the tough on crime tactics, I think you’ll see those recommendations made by the task force,” said Ames Grawert, a criminal justice researcher with the Brennan Center for Justice.
It remains unclear how much support there might be in Congress for taking up such recommendations. As recently as December there was real momentum behind a bipartisan bill to make sentencing less punitive, not more.
In another reversal from the Obama era, Sessions has also signaled that the DoJ will not use its authority to investigate or reform local police departments, even in cases where gross negligence, or rampant civil rights violations may be occurring. Sessions tried, and failed, to pause a consent decree negotiated in Baltimore after the Freddie Gray unrest, and his department has so far flaked-out of a similar effort that was slated for Chicago under the previous administration.
“We will not sign consent decrees for political expediency that will cost more lives by handcuffing the police instead of the criminals,” Sessions wrote in an April 18 op-ed in USA Today.Jamiles Lartey
The Congressional Black Caucus (CBC) has declined a proposed meeting with Donald Trump citing its conviction that the Republican president’s policies “will devastate black communities”, and the administration’s unresponsiveness to the CBC to date.
“Given the lack of response to any of the many concerns we have raised with you and your administration, we decline your invitation for all 49 members of the Congressional Black Caucus to meet with you. The CBC, and the millions of people we represent, have a lot to lose under your administration. I fail to see how a social gathering would benefit the policies we advocate for,” the caucus said in a letter.
The caucus, which bills itself as the “conscience of the Congress” was founded in 1971 to represent black issues in US government, and has historically enjoyed the membership of virtually all black lawmakers. Of the 49 current members, 48 are Democrats.
Caucus chair Cedric Richmond noted in the letter eight times where the CBC had sent a letter outlining concerns to the Trump administration since 19 January, claiming that the body had not received a single substantive response back yet.
“We took advantage of every opportunity to educate you on the needs of the black community and provide you with the information and solutions necessary to act on them in good faith …
“We have seen no evidence that your administration acted on our calls for action, and we have in fact witnessed steps that will affirmatively hurt black communities,” the letter read.
Some of those steps include proposed budget cuts to Pell Grants, a form of federal student aid, and low-income economic programs like the Home Energy Assistance Program. The caucus also cites the administration’s commitment to redoubling the war on drugs, calling that strategy “willful ignorance” that will “render our communities less safe”.
“Are they friends of yours? No, go ahead,” Trump said. “Set up the meeting,” Trump said to Ryan, a black woman. Ryan calmly reminded the president that “no no no, I’m just a reporter”, and that setting up meetings for the president with legislators was not her job. The letter closed by advising the president that “while you can solicit the engagement of individual members of our caucus, the CBC as a caucus declines you invitation to meet at this time.”
Most people, asked to identify the most universal shift in law enforcement over the past 15 years, would likely think of militarization, calls for community policing, or perhaps the slow decline of “broken windows”.
But from the turn of the millennium to date, arguably no development has been more widespread in law enforcement than the adoption of so called “less-lethal” electric control devices (ECD), which many people know by the name of their most prolific manufacturer: Taser International. The company currently supplies their weapons to 17,800 of the United States’ roughly 18,000 law enforcement agencies.
The brand name Taser has become as synonymous with these devices as Kleenex or Xerox have to photocopies and tissues – a quirk of language known as a “proprietary eponym”. The word has even become a verb, as people commonly speak of being “Tased” or “Tasered”.
And while this quirky history is known among some in law enforcement and engineering circles, the innocence with which it’s told – a curious inventor culling inspiration from the literature of his youth – belies a more sinister truth: the book itself is boldly racist.
Tom Swift and His Electric Rifle, published in New York in 1911 under the pen name Victor Appleton, is typical of the literature of its time: an imperialist adventure tale set against the backdrop of a wild and dark African continent. In it, the protagonist, Tom Swift, develops an electric rifle – a totally novel idea in 1911 – and decides to test it in Africa in the hunt for ivory.
Africa, in the context of the book, exists only as a frontier of underexploited resources ripe for the wealth accumulation of white men daring enough to attempt. “Elephant shooting in Africa! My! With my new electric rifle ... what a fellow couldn’t do in the dark continent!”
“With the price of ivory soaring,” says Swift’s veteran hunting companion, “there’s a chance for us all to get a lot of money.”
While this unabashed entrepreneurial imperialism tends to read as a relic of a bygone age, today disproportionately white police departments in places like Ferguson, Missouri, often function similarly as the adventurers sent to do the dangerous work of this kind of wealth generation. Like in the book, black communities are often seen not as dynamic places where people live lives, but as sites for plunder.
Take, for example, the Department of Justice’s March report on the prevalence ofpredatory, revenue-based policing in St Louis County: entire municipalities there, as elsewhere in the US, float their operating budgets and justify their own existence on the racially biased extraction of statutory fees from primarily black residents. This scheme has only begun to decline because of the protests and organizing that defined Ferguson in the wake of Mike Brown’s death.
In the book, as in America today, the black people are rendered as either passive, simple and childlike, or animalistic and capable of unimaginable violence. They are described in the book at various points as “hideous in their savagery, wearing only the loin cloth, and with their kinky hair stuck full of sticks”, and as “wild, savage and ferocious ... like little red apes”.
Swift and his travel companions quickly determine the blacks, scarcely human, need to be controlled, guided or killed as determined by the more “civilized” white outsiders.
Consider then how quickly the black people of Ferguson were rendered something less than fully human in the wake of Mike Brown’s killing: an on-duty Ferguson police officer, a former NYPD commissioner and a popular actor all spared no time in invoking the discourse of “animals” in reference to black protesters. Near and far, incredulous commentators sought to cast the police as the sole defenders of black communities, and the only thing standing between those communities and self-destruction.
“White police officers wouldn’t be there if you weren’t killing each other,” former New York City mayor Rudy Giuliani said on Meet the Press last November.Echoing Swift’s rank paternalism, he later added: “I probably saved more black lives as mayor of New York City than any mayor in the history of this city.”
In the book, when Swift and his companions proudly use their advanced weapons – particularly the electric rifle – to dispatch with an incoming buffalo stampede, they too happily celebrate themselves as saviors.
“Had it not been for the white men, the native village, which consisted of only frail huts, would have been completely wiped out by the animals,” the novel reads.
Being named after a racist book doesn’t make a company or device racist, any more than a person being named after a racist relative makes them so. A name is just that – and a Taser on its face is no more racist than the city or state of Washington are, simply for being named after our slaveholding first president.
But as recent campus activism in places such as Harvard and Princeton have demonstrated, there is real value in coming to terms with the bigotry embedded in the seemingly innocuous names and symbols of even our most ordinary, and aspirationally colorblind, institutions.
Being aware of the history of the word Taser should make us pause and consider that, every day, predominantly white police officers walk into predominantly black communities armed with weapons first imagined in a book in which “civilized” whites entered the black wilds for the purpose of plunder, only to cast themselves as the saviors of the natives. It isn’t meaningless that today that sequence sometimes appears to persist in reverse.
Calvon Reid writhed in pain before he died. “I can’t breathe. I can’t breathe,” the 39-year-old screamed. Reid, an African American father of two, was held face-down by two police officers on a grassy lawn inside a predominantly white, gated retirement village in the south Florida suburb of Coconut Creek in the early hours of 22 February.
Moments before, two officers, standing 10ft away, had deployed their weapons in tandem. Not guns, but Tasers. The barbs struck Reid in the chest, according to eyewitnesses, unleashing 50,000-volt shocks to his body. Reid stopped breathing within moments; two days later, he died in the hospital.
“The whole thing seemed brutal,” 58-year-old locksmith John Arnendale told the Guardian from the ground-floor apartment at Wynmoor Village retirement homes where he watched Reid lose consciousness for the last time.
It is not clear why the officers were trying to arrest Reid in the first place. He was not accused of any crime. Though police say he was acting aggressively, other witnesses have disputed this.
“They didn’t have to use a Taser to stop him,” Arnendale said. “There were four of them and he wasn’t huge or particularly athletic. They certainly didn’t choose the least harsh thing to do with him. They were kind of punishing him.”
Reid’s case is, in many ways, tragically typical of the other deaths following the use of a Taser by police in 2015: he was unarmed, as in all but three cases. Like nearly 40% of the victims, he was black. And as in at least 53% of such cases, the suspect was displaying signs of intoxication before his or her death. As with many of these incidents, Reid died following shocks administered seemingly in violation of national guidelines, by officers belonging to a police department with lax rules on how these less-lethal weapons should be used.
As Tasers became an increasingly prevalent part of police officers’ arsenals around the world, the US Justice Department funded the Police Executive Research Forum (Perf), an independent policing thinktank, to revise guidelines on their use in 2011. These rules are designed to encourage officers to know Tasers “should not be seen as an all-purpose weapon that takes the place of de-escalation techniques” – and to acknowledge the lethal potential of electronic control weapons (ECW) deployed for more than three standard shock cycles of five seconds each.
“When Tasers were first introduced, it was thought they really could be used without causing any harm,” Perf executive director Chuck Wexler said in a phone interview. “Subsequently, in our research and work, we realised that extended use of ECWs could cause injuries and death. That is why we stipulate restrictions on their use.”
The Guardian can now reveal that many police departments are still not regulating the use of Tasers in accordance with these nationally accepted standards. According to 29 guidebooks on ECWs obtained by the Guardian from police departments where a death has occurred after the weapon was deployed this year, an overwhelming majority of them flout key tenets of the expert advice:
Twenty police departments do not guide officers against more than three shocks in all but exceptional circumstances.
None of the 29 departments, according to their use of force guidelines, mandate use-of-force investigations into incidents where an ECW is deployed for more than 15 seconds.
Twenty-two departments do not advise against deploying ECWs if the sole justification is that the suspect is fleeing.
Twenty-five departments do not advise against using an ECW’s “drive stun” mode, when the weapon is thrust directly into the skin to cause pain, as a compliance technique.
Thirteen departments do not explicitly restrict officers from deploying their ECWs if a suspect is already in handcuffs and does not pose an exceptional threat.
Eight departments do not even explicitly require officers to give a warning, when possible, before the ECW is deployed.
“One of the key challenges in American policing is that you have 18,000 police agencies,” said Wexler, frustrated. “So when we put forward our guidelines, we can only emphasise that departments consider them.”
Indeed, all of these guidelines were seemingly overlooked in the case of Calvon “Andre” Reid.
“Not only should they not have been using the Tasers,” said attorney Jarrett Blakeley, who is representing Reid’s family in a suit against Coconut Creek and its police department, “clearly they were using the Tasers incorrectly.”
But Reid’s death was also exceptional in that Taser shocks were explicitly found to be the cause.
While the pathologist in Coconut Creek determined that Reid had cocaine and alcohol in his blood and had a predisposed heart condition, his death was ruled a homicide caused directly by an ECW.
One reason deaths that follow Taser use may be attracting less of the spotlight is the difficulty pathologists often have in assessing the weapon’s role, if any, in how a person dies. When someone is shot with bullets, the cause of death is usually unquestionable. But in deaths following a Taser shock, there is often a complicated mixture of circumstances, and in many cases it is drug use, or the deceased person’s resistance to arrest, that is determined to be the cause.
Of the 47 officer-involved deaths that have occurred following the use of a Taser this year, the Guardian has obtained 19 rulings by medical examiners. Seven have been declared homicides, with five ruled “undetermined”, six “accidental” and one attributed to “natural causes”. Although police activity, often directly acknowledging the ECW, was ruled a factor in 13 of the 19 cases, only in Reid’s was the ECW determined to be the primary cause of death.
Taser International, which sells ECWs to 17,800 of the United States’ roughly 18,000 law enforcement agencies and commands an overwhelming monopoly on the market, has said their weapons do not kill. The billion-dollar company has also sued medical examiners in the past, in one case leading to the examiners’ representative body to state that Taser International’s actions were “dangerously close to intimidation”.
“A Taser exposure is not risk-free,” a company spokesman said in an email response to a detailed list of questions for this article.
But the company’s position increasingly flies in the face of a growing medical argument to the contrary, as researchers insist that under certain circumstances, however rare, Taser shocks can lead directly to a person’s death.
These medical professionals argue the lethal potential of Tasers is being underestimated – partly thanks to an “aggressive” push by Taser International to fund research of its own – and that the weapons are likely responsible for many more deaths than coroners can easily record.
Science takes on real-life circumstances at heart of Taser debate
The precise circumstances of why Reid was present in the parking lot of that south Florida retirement home in February remain unclear. Eyewitnesses quoted in a recently filed lawsuit against the officers, however, claim he was neither aggressive nor committing any crime before police arrived. He had approached a resident asking for medical help, but when an ambulance arrived, Reid declined their assistance. It was at that point when police were called and the situation escalated.
By the time John and Bonnie Arnendale awoke the next morning, they said all signs of altercation had disappeared, police tape had been removed, and Taser wires were no longer on the ground.
“It was like nothing had ever happened. It was just peaceful and beautiful. It almost felt dream-like,” said Bonnie Arnendale. “Or nightmare-like.”
The Coconut Creek police department took almost two weeks to publicly acknowledge Reid’s death and did not interview the Arnendales until the story broke in local media the following week. Two months later, all four officers were cleared of any wrongdoing in an internal investigation, but a criminal investigation by the county attorney remains open.
“We believe that if they had not used the Tasers, our son would be alive today,” Calvon’s mother, Mamie Reid, said from her South Carolina home. “Why was he treated so inhumanely? Why in America would cops treat people in that manner?”
The Coconut Creek police department declined all interview requests from the Guardian. But some information has slowly seeped out: three of the four officers involved in the incident did not have up-to-date certification for using a Taser – a violation of Florida state law and internal policy. Reid was seemingly shot in the chest and shocked by multiple weapons simultaneously. One month after the incident, Coconut Creek police chief Michael Mann was forced to resign.
***
There is little dispute that ECW use, under appropriate conditions, is both effective and safe. A 2011 Justice Department survey of 12 police departments using Tasers found that deploying an ECW over other comparable use-of-force tactics, such as physical force, reduced the odds of a suspect’s injury by 60%. In the same year, the Justice Department found that the risk of death in an ECW-related incident was “less than 0.25%”, adding that in the “large majority” of even these cases the weapons “do not cause or contribute to death”.
In 2009, Taser International noted that of more than 650,000 Taser exposures among law-enforcement volunteers, none reported significant effects on their heart rhythms. Taser International told the Guardian that this number now stood at more than 2m voluntary exposures.
But critics point to the reality that these exposures – typically a short, single-weapon shock delivered to the back of a healthy police officer – do not reflect the circumstances of many ECW applications.
Numerous studies, such as one published in the Annals of Emergency Medicine in August 2011, point out that the majority of subjects exposed to Tasers in the field were either “under the influence of alcohol or illicit drugs, or had psychiatric co-morbidities”. And, as in many of the cases where a suspect has died in 2015, field situations also frequently involve multiple discharges.
Experts argue that all these factors dramatically increase the chances that an ECW exposure could be followed shortly by death.
The discussion is based in part around a principle cardiologists refer to as “capture”. Since the heart uses electrical impulses to coordinate its beating rhythm, electricity from sources outside the body have the capacity to “capture” the heart and alter its beat. This is the same principle behind defibrillation, when doctors use electrified paddles to shock a patient’s heart back into a normal beat when its rhythm has become too irregular to properly pump blood.
When a heart is beating correctly, however, electricity can instead disrupt the impulses from its internal pacemaker and cause the heart to enter into a dangerous and irregular rhythm known as ventricular fibrillation, or VF. Left unaddressed, VF rapidly leads to cardiac arrest and then death. And unlike defibrillators, which will typically try to pace a heart at 70 beats a minute, a standard Taser X26P pulses at a rate of 19 shocks a second, or 1,140 a minute.
According to Dr Douglas Zipes, a cardiac electrophysiologist and professor of medicine at Indiana University, that presents a problem. “The normal heart cannot withstand such rapid rates,” he said. “When a normal heart rate stimulated by electricity exceeds 250 times a minute, the entire conduction system breaks down and the heart goes into cardiac arrest.”
Laboratory research remains split on whether the high-voltage, low-current shock delivered by an ECW is capable of triggering the irregular rhythm of VF. For ethical reasons, many available studies on the potential cardiac effects of Taser charges have been conducted on anesthetized animals – often pigs, whose hearts are biologically similar to humans.
“The animal studies have been the underpinning of understanding what can happen, however they can only go so far,” Zipes said, noting physiological differences between pigs and humans, as well as the difficulty in recreating the variables of a Taser deployment in the field.
In 2012, Zipes published a report looking at eight cases when a person who had been Tasered in the chest lost consciousness “during or immediately after” being shocked by police. In all eight incidents, EKG readings show either VF, ventricular tachycardia (VT) or asystole, which is the medical term for a flatline reading with no detectable heart rhythm. Zipes concluded that “cardiac arrest due to VF can result from an ECD shock”, referring to an alternative name for electronic control weapons. He also concluded that law enforcement officers “should be judicious how and when to use the ECD weapon, [and] avoid chest shocks if possible”.
Steve Tuttle, the Taser International spokesman, said Zipes’s report is “based on uncontrolled and anecdotal observations”, and noted in an email to the Guardian that it “does not prove a cause-effect association”. He pointed to a 2012 Wake Forest study funded by the National Institute of Justice which found that out of 178 field chest strikes with Taser weapons, no subjects suffered any heart-related complications.
But in the case of 18-year-old Israel Hernandez-Llach, a graffiti artist from Miami who died after being shocked in the chest in August 2013, the pathologist ruled the teenager died from “sudden cardiac death” as a result of the shock. Hernandez-Llach had fled from Miami Dade police officers after painting on an abandoned building. Nonetheless, his death was ruled accidental. Prosecutors, who did not charge officer Jorge Mercado over the death, argued the officer did not intend to kill the teen as he did not know the weapon could be lethal.
Although a records request for the full autopsy in the death of Calvon Reid – who was, according to eyewitnesses, shocked in the chest with two Tasers – was rejected pending an ongoing criminal investigation, a medical source with intimate knowledge of the case told the Guardian that the pathologists involved “stood by what is on the death certificate”.
“This case was done very, very well. It’s a well thought-out opinion in cause and manner of death,” the source said, before declining to elaborate.
Taser International strongly denies the suggestion that its weapons are capable of triggering VT, a rapid heart rate that can sometimes precede the irregular and potentially fatal rhythms of VF. Still, in 2009 the company updated its recommended targeting guide to chest shots, in order to avoid “the controversy about whether ECDs do or do not affect the human heart”.
Mamie Reid remains unconvinced. “I would like for them to have three cops – Tasing them at the same time, in the chest, see if they could take that test,” she said. “Then maybe we could all be believers.”
Only 12 of the 29 police department rulebooks obtained by the Guardian from around the country explicitly advise against shocks to the chest.
Death by Taser: a difficult determination
Chance Thompson was striding and shadowboxing when two Yuba County deputies encountered him on top of a wall outside a deserted manufacturing plant in rural California. It was the early hours of 15 February, and both deputies, Jaime Knacke and Daniel Trumm, observed that Thompson appeared to be high on drugs.
They instructed him to get down, but when Thompson seemed oblivious to their requests, Trumm grabbed him by the trousers and pulled him off the ledge. A passerby captured part of the altercation on video, showing the two grappling briefly before Knacke deployed her Taser. Thompson fell to the ground instantly.
The video shows that Trumm is seemingly able to gain control of the 35-year-old, who was flat on his face after the Taser is fired. But the eyewitnesses stopped recording shortly after. According to the deputies’ account, Thompson subsequently “bucked” them both off and continued resisting.
The data from Knacke’s Taser, revealed in documents released to the Guardian by the county prosecutor, shows Thompson was subsequently shocked another five times – each for a full five-second cycle – before he was placed in handcuffs. He was then shocked once more, meaning a total of seven cycles – or 35 seconds.
It was at this point, according to their report, when the deputies noticed Thompson was having difficulty breathing. He had “white foam around his mouth and nose, his face was red, and his pupils were fully dilated with no iris color visible,” they observed. Shortly after that, he lapsed out of consciousness and his heart stopped beating. Despite later being revived, Thompson was pronounced brain-dead in hospital. The life-support machine was switched off two days later.
“What Chance was doing was non-violent. Nobody was in danger from him – he was out in the middle of the country,” Thompson’s stepfather, Ray Guthrie, said in a telephone interview. “You Taser him once, and he’s on his back, with the officer’s knees in him. He’s not resisting arrest anymore. But they just continued.”
The Yuba County sheriff’s department has one of the more restrictive policies obtained by the Guardian, advising that deputies should acknowledge signs of intoxication before use, refrain from deploying Tasers on people in restraints, and avoid shocks in the chest. But both internal and criminal investigations found no wrongdoing.
Thompson’s autopsy, conducted two days after the altercation and obtained under a records request, classed the cause of his death as a lack of oxygen to the brain following cardiac arrest after a “violent struggle”. While the pathologist noted the “attempted restraint with electronic control device” as a significant condition, the manner of death was left “undetermined”. The Taser darts were noted in Thompson’s lower back and left shoulder.
For Yuba County district attorney Patrick McGrath, this medical ruling appeared to be enough to absolve the officers of criminal responsibility. “I’m not even sure [the Taser] contributed,” McGrath told the local newspaper. Noting the high levels of methamphetamine found in Thompson’s blood (the 35-year-old had a long history of substance abuse), McGrath continued: “His methamphetamine level ... was off the charts.”
Thompson’s family considers that line of argument part of a cover-up. “It was quite obviously excessive use of force,” said Guthrie. “He wouldn’t have died if they hadn’t have tased him several times. Obviously.”
•••
Other studies on the lethal potential of ECWs have centred on the question of whether multiple shocks – irrespective of placement – can contribute to a cardiac arrest.
Dr Zian Tseng, a cardiologist and electrophysiologist at the University of California San Francisco, argues that ECW shocks can cause death by what he calls the “indirect method”, where the “intense pain and adrenaline surge can indirectly induce cardiac arrest”.
Much of the argument relies on a process called metabolic acidosis. Since ECWs cause muscle tissue to rapidly contract, they also force muscles to produce the byproduct of contraction: lactic acid. This is the same substance that causes muscle soreness hours or days after a strenuous workout. When lactic acid rapidly enters the bloodstream at a speed faster than the kidneys can process, it lowers the pH of the blood, which can increase the risk of a fatal arrhythmia or cardiac arrest. Single Taser shocks produce little lactic acid, but prolonged use increases the amount. It is believed that illicit drugs in a person’s system can further add to this risk.
In 2008, a California jury found that Taser International “knew or should have known that prolonged administration of electricity from the devices pose a danger, i.e., a risk of acidosis to a degree which posed a risk of cardiac arrest”.
The finding came in a civil lawsuit against Taser International by the family of 40-year-old Robert Heston, who died after receiving at least 25 shocks over a 74-second span. The medical examiner in Heston’s case ruled his death was due to cardiac arrest caused by his “agitated state associated with methamphetamine intoxication and applications of Taser”. The jury declared Taser International 15% responsible for Heston’s death, and Heston himself 85% to blame.
Tuttle, the Taser International spokesman, argued that “human studies” on the effects of acidosis “consistently show no interference with breathing”.
Part of the difficulty in parsing studies on the potential medical effects of Taser use is the outsize influence of Taser International in funding research. Several of the more prolific researchers on the subject were either partially funded by Taser International or forged official relationships shortly thereafter.
For example, Jeffrey Ho, who has authored dozens of papers on the safety of Tasers, was named the company’s medical director in 2009 and owns shares in the company. Another prominent researcher, Mark Kroll, who co-authored a 2009 book on Taser weapons with Ho, also serves as a board member and scientific adviser for Taser International. According to the company’s 2014 annual report, Kroll owned 34,130 shares of Taser International as of 17 March, at a value of just over $800,000 according to the share price of $23.44 for that day. (Ho and Kroll did not respond to interview requests from the Guardian.)
Tseng told the Guardian that in 2005, after he was quoted in a San Francisco Chronicle article suggesting that Tasers could induce cardiac arrhythmia, the company asked him to reconsider his position and offered him grant money for new research.
“They were very, very aggressive with me in my early career,” Tseng said.
Tuttle argued that the weapons are “the most studied less lethal tool on an officer’s belt”. He stated in an email that of more than 700 “safety studies, human studies, abstracts, reports, letters, etc”, 78% were “independent of Taser International”.
•••
Cases like Chance Thompson’s underline the difficult position pathologists often find themselves in when assessing the role an ECW may have played in a death.
“It’s essentially impossible to make that assessment through an objective examination of the body itself,” said professor Marcus Nashelsky, president of the National Association of Medical Examiners and a professor of pathology at the University of Iowa. “As important is to have a very clear, sequential understanding of what was occurring during this event immediately before, during and after use of the ECW.
“It’s the information about circumstances, and changes in the decedent around the time of the use of the ECW, that provides extremely valuable information to the medical examiner.”
Simply put: if an ECW is likely to contribute to or cause a death, it is expected that a suspect will go into distress shortly after the shocks are administered. But determining whether this occurred can often mean medical professionals are relying on a police officer’s account of the incident.
In Thompson’s case, the Yuba County coroner’s office – which is part of the sheriff’s department – confirmed that the eyewitness video was not reviewed by the pathologist who made the determination. Instead, the deputies’ own report of the event was used to determine the course of events.
In the case of Terrance Moxley, a 29-year-old African American from Mansfield, Ohio, who was staying at a halfway house following his release from prison after a drug-dealing conviction, even video evidence was not enough to assess the effects of multiple Taser shots to the chest.
Moxley, who had been violently tripping on synthetic marijuana on 10 March before police were called, was carried to a cruiser in handcuffs by a group of five officers. He managed to break free of the restraints, and officers deployed two Tasers. CCTV captured the entire exchange on video but, as Moxley was surrounded by officers, it is not clear from the footage at what point the Tasers were deployed and at what point Moxley went into medical distress.
Although police accounts later suggested Moxley continued to resist officers after he was shocked, a police incident report, written on the day of Moxley’s death and released to the Guardian under a records request, notes he was unresponsive “shortly after the Taser was deployed”.
In an autopsy, also obtained under a records request, pathologist Lisa Kohler acknowledged the video footage did not reveal when the Tasers were deployed and what Moxley’s reactions were. But she noted: “The contribution of the Taser use to this death cannot be confirmed or negated based on the information made available to this pathologist; however the barb injuries are in the area of the heart.”
Nonetheless, the Richland County coroner, who ultimately decided the cause and manner of death, ruled it a drug overdose, describing the manner as accidental. The toxicology reports contained in the autopsy, however, only tested for the presence of synthetic cannabinoid in the blood, not the levels it displayed at.
“We can only put what we can confirm we know,” said Tom Stortz, an investigator in the coroner’s office who worked on the Moxley case. “We can’t put probables or maybes.”
This thinking seems to have been applied in other similar cases. For example, in the death of Brian Pickett II, an autopsy, obtained under a records request, found the 26-year-old African American went into VF shortly after he was shocked in the chest. The Los Angeles County pathologist classed the manner of death as “undetermined” and the cause linked to methamphetamine use. But, in a handwritten note, it is added: “Cannot exclude electromechanical disruption device effects during restraint maneuvers.”
Critics might argue that such a ruling in the Moxley case is a cautious one. From 2005 to 2006, Dr Kohler, Ohio’s first female medical examiner, ruled a homicide in the deaths of three men who, in separate instances, had struggled with police and been Tasered. Use of the ECW was recognised in the cause of each death.
But in an aggressive move, Taser International subsequently sued Kohler and a number of her colleagues under a suit captioned “complaint to correct erroneous cause of death determinations”. A judge ruled for the company and forced Kohler, who has said in interviews that she stands by these determinations, to change the manner of deaths from homicide to either accidental or undetermined and wipe all references to the ECW.
Jeffrey Jentzen, who was president of the National Association of Medical Examiners at the time of Taser’s successful suit, described the legal action as “dangerously close to intimidation”.
In a brief phone interview, Kohler referred all questions on the Moxley case to the county coroner who made the final determination over Moxley’s manner and cause of death.
In other instances, it is alleged that police departments have actively withheld video evidence from pathologists.
Mario Ocasio, a 51-year-old from the Bronx in New York, died on 8 June after a group of NYPD officers hit him with batons and then used a Taser to shock him twice in the back. He was reportedly high on drugs and had been acting violently before officers arrived at his girlfriend’s residence. According to a recently filed federal lawsuit, video of the altercation was captured on the cellphone of Ocasio’s girlfriend, which was subsequently confiscated by police at the local precinct.
Lawyers working for Ocasio’s family contend that this video evidence has not been handed to the pathologist working on the case. Affidavits from eyewitnesses to the altercation state that Ocasio, who had previously served 20 years in prison for the attempted murder of a police officer, was in handcuffs at the time a senior officer deployed the Taser.
“After he was shot [with the Taser],” Ocasio’s girlfriend, Geneice Lloyd, stated in an affidavit, “Mr Ocasio’s last words were, ‘I see God’ he stopped moving or speaking and then he turned blue. He was completely unresponsive and his head movement had completely stopped.”
A spokeswoman for the New York City medical examiner’s office confirmed the cause of Ocasio’s death is still pending, but would not comment on whether video evidence had been reviewed. When contacted by the Guardian, the pathologist involved declined to comment. The NYPD also declined to comment.
A ‘new toy’ for law enforcement, born of sci-fi fantasies
The emergence of electroshock devices in the repertoire of US law enforcement traces back to the civil rights era across the American south and winds between law enforcement, racial tensions and business savvy. In 1963, the New York Times reported that “electric prods” were being used to “herd negro demonstrators” in Alabama. These devices, more commonly known as cattle prods, were designed for and until that point had only been used to herd livestock.
George Bartell, who ran a leading manufacturer of the prods called Hot-Shot Products, “expressed distress” that the devices were being used against people. “We never manufactured them as a law enforcement device,” Bartell said in the article. Within a year, however, his company had patented an electrified police baton.
But those devices never became popular, due in large part to the images of such of devices being aggressively deployed against nonviolent demonstrators.
“Their use,” said Darius Rejali, a political scientist professor at Reed College and an expert in electro-torture, “marked a key moment, when civil rights protesters could say not only that the police were putting them down, but that they were also being treated as animals. That raised a whole series of issues.”
Nearly a decade later, inventor John Cover filed to patent the very first Taser ECW in 1973. Trained as a nuclear physicist, Cover developed the device partly in response to the emerging trend of airplane hijackings. The original Taser was imagined as a gadget that could subdue a prospective hijacker without subjecting the plane to the undue risk of a missed shot from a marshal’s firearm.
Cover drew at least some of his inspiration for the device from a science-fiction series about a young boy named Tom Swift, whose futuristic inventions led him on grand adventures. In one installment, Swift develops an electric rifle and takes it with him to Africa to poach elephants for ivory, and against the native Africans described as “wild, savage and ferocious ... like little red apes”.
“Mercifully, Tom and the others ï¬�red only to disable and not to kill,” the book reads. “Tom’s electric rifle was well adapted for this work, as he could regulate the charge to merely stun.”
Cover’s real-world Taser would derive its name from a loose acronym of the book’s title: Tom Swift and His Electric Rifle. Unlike prods, the Taser’s launchable probes, propelled by gunpowder, gave it a range of approximately 15ft, well beyond the close contact needed to deploy a baton shock. Rather than a constant current of electricity over a small patch of skin, the first-generation Taser applied it to a larger area, and in order to cut down on battery size it used short oscillating bursts of current just millionths of a second long.
The Taser’s inventor struggled for decades to discover a market for his device, finding law enforcement agencies more troubled at the prospect of citizens armed with Tasers that could incapacitate officers than they were interested in adding a less lethal device to their arsenals.
But in 1982, the Los Angeles city council banned police from using chokeholds, and civilians did not fare better with the metal batons that the department adopted instead. Excessive force complaints doubled between 1983 and 1988, and the department was, by the end of the decade, recording nearly 900 baton deployments each year.
And so Cover’s “police special” model was born. The PS-83 Taser was retooled from its consumer-focused design into a more rugged, street-ready device. He built the trigger for the grip of a police officer – more powerful and quicker than that of a flight attendant. City officials in Los Angeles placed their first order for 700 devices in 1983.
But as Taser use proliferated among Los Angeles-area police, so did civil liability lawsuits, personnel complaints and disability compensation claims. Officers were often using them without discretion, most infamously in the case of Rodney King, who was beaten by a group of LAPD officers and Tasered three times. In the aftermath of the King incident, Tasers fell into disuse.
In 1993, brothers Rick and Tom Smith formed a small company, Air Taser, using money borrowed from their parents to reinvent Cover’s technology. The first Air Taser device used compressed gas, rather than gunpowder, to propel the electrode barbs, skirting many of the regulatory issues that left Cover’s early models, at various times, to be classified as a firearm.
The Smith brothers renamed their company Taser International in 1998 and launched Project Stealth to develop a more effective weapon that could stop subjects regardless of their mental focus or pain tolerance, culminating in the 1999 release of the M26 Taser.
The new weapon was much more powerful, reimagined by Taser’s designers from a simple long-distance shock weapon into an electromuscular disruption (EMD) device, which emitted electrical signals to effectively override those that the human body uses to trigger muscle movement.
The device impressed law enforcement officials across the country, and sales took off: between 1999 and 2009 the growth rate of ECW penetration in the market was 84%. (The rate of growth for mobile phones over the same time period was slightly more than 5%.)
While EMD technology was adopted by other manufacturers, nearly all of that growth funnelled directly to one firm: in 2002, its first full year as a public company, Taser International posted net sales of just under $7m. The company sold $91m worth of its professional-grade ECW devices in 2014. On Tuesday, Taser posted record quarterly profits of $50.4m, largely on the back of the company’s focus on the new, lucrative market for body cameras and video storage.
The rapid adoption of Tasers offered researchers a novel way to step back and look at the risks they might pose. In 2009, Dr Tseng and colleagues published an epidemiological study on the in-custody death rates of 50 California police departments in the five years before and five years after they adopted ECWs. The study found a startling 600% increase in sudden-death incidents in the year after Taser introduction, and then a 40% increase over pre-Taser rates for the next four years.
Tseng said the rise seemed to indicate that the weapons carry a distinct sudden-death risk, in part because of how fervently Taser International defends its products’ safety.
“You have this new toy and you’re told by Taser International that it’s non-lethal: ‘The world is great because you don’t need to shoot somebody, you don’t need to be close to them to use pepper spray, so have at it,’” Tseng said. “Then they’re recognizing, hey, it’s not non-lethal, it is associated with certain sudden-death risk, we better implement some corrective strategies so we don’t cause excess harm.”
This is what Tseng believes accounts for the decline in sudden death after a department’s first year of Taser implementation.
“Getting hit with a Taser is not pleasant but an analogy I use sometimes is chemotherapy,” Rick Smith said in 2011 interview describing his views on the product’s benefit to society. “If you’ve got cancer, they do awful things to your body to try and save you. Well, our society has a cancer. We are a violent, dangerous society, and we have a device that, while it’s not pleasant, it can make a huge difference and save tons and tons of lives.”
‘Excited delirium’: real science or a cop-out?
You promised that you wouldn’t kill me,” Natasha McKenna whimpered as five Fairfax County deputies advanced outside her Virginia jail cell door, crouched behind a riot shield. “I didn’t do anything.”
McKenna, a diminutive African American woman with a long history of schizophrenia, stood naked and unarmed. She had flung feces and urine in her cell shortly before. The deputies, wearing gas masks and white Hazmat suits, piled in and attempted to place her in restraints before a cell transfer. McKenna was already handcuffed.
The entire “extraction” on 3 February was recorded on video. It unfolded like a horror movie.
McKenna is shoved against the wall with the riot shield and slides to the ground. The struggle continues for about 15 minutes until the 37-year-old is lifted, her head now covered in a black “spit sock” and her hands handcuffed behind her back, onto a restraint chair.
As she moans, she is warned that continued resistance will result in use of the Taser. She is then “drive-stunned”, meaning the weapon is thrust into the skin without deploying the probes, and then Tasered with a full deploy of the probes into her leg three times – each for the full five-second cycle – as officers accuse her of continued resistance. She groans in pain at various points.
After the last shock is administered, McKenna continues to grunt and shake her legs. But slowly her movements begin to fade. Roughly three minutes after the final Taser shock, it appears she is no longer moving.
“If that’s not torture, I don’t know what is,” Harvey Volzer, an attorney for the McKenna family, said in a telephone interview. “When you have someone who is already restrained – her hands handcuffed behind her back, her feet shackled, a spit hood over her head – there’s nothing she could do. Why do you need to Taser someone four times? The answer is: you don’t.”
The videographer, a Fairfax County lieutenant, follows the officers as McKenna’s limp body is wheeled on a restraint chair through the back channels of the Fairfax adult detention center. She is parked by an exit as deputies, still dressed in gas masks, discuss the best way to load her into a transfer vehicle. Her head, still inside the “spit sock”, is slumped forward as a deputy pulls off the blanket, revealing part of her naked body to show the restraints to another officer. Minutes later, after a nurse checks her for a pulse, it is finally realised that McKenna is unresponsive.
“Hey, we’ve got bad news,” a deputy can be heard saying, his voice still muffled inside a gas mask.
McKenna was admitted to hospital in cardiac arrest with lactic acidosis and hyperthermia, according to the detailed account of events provided by the commonwealth’s attorney’s investigation. Despite being revived, after an hour of CPR, she was declared brain-dead. Days later, the life-support machine was switched off.
The medical examiner classified McKenna’s death as accidental, describing the cause as “excited delirium with physical restraint including use of conducted energy device”.
In September, Virginia commonwealth attorney Raymond Morrogh announced that none of the six officers who restrained McKenna would face any criminal charges. He appeared to use this diagnosis to blame McKenna’s own resistance for her death.
“In the end,” wrote Morrogh, “it was McKenna’s severe mental illness, coupled with tremendous physical exertion she put forth over an extended period of time struggling with deputies that resulted in a cascade of lethal chemical reactions inside of her body.”
Volzer, the McKenna family’s attorney, was disgusted. “Excited delirium is junk science,” he said in phone interview. “Why waste all that time if they were going to base it on excited delirium which is a non-reason? It was a joke.”
The term has featured in five of the 19 pathologists’ rulings in the 47 deaths following Taser use so far in 2015. Research by Amnesty International indicates it has been cited as the cause of death in 75 cases after Taser use between 2001 and 2008.
Yet the terminology of “excited delirium”, which loosely refers to a combination of psychotic behaviour, high body temperature and extreme aggression, is not recognised by the American Medical Association or the American Psychological Association. Tuttle, of Taser International, said in a 2007 interview that the company distributed sympathetic literature on the condition, which is recognised by the National Association of Medical Examiners, to pathologists around the United States. He told the Guardian that Taser no longer distributes this information.
“It seems like it is a catch-all,” said Justin Mazzola, a researcher at Amnesty International US who has monitored deaths following Taser use. “It’s not that it’s necessarily letting the officers off the hook, rather than explaining away the negative effects of the Taser.”
Volzer said the McKenna family are planning to file a civil suit. In April, the Fairfax County Sheriff’s Office banned all use of Tasers at the county jail, citing “an unusual event”.
Additional reporting by Jon Swaine and the Guardian US interactive team
