I suppose it’s unsurprising that criminal defense lawyers and plaintiff’s lawyers would all have concerns about the use of Tasers — the Taser victims and their family members end up in our offices — but even prosecutors and municipal and state defense lawyers (speaking off the record, of course) express dismay at the frequency and manner in which Tasers are used.

By Amnesty International’s count, since 2001 over 500 people have died in the US as a result of Taser use. Police departments have just begun admitting there’s a problem. Cincinnati’s police chief has admitted Tasers can kill. Seattle won dismissal of the civil rights claims in a case case where they Tasered a pregnant woman for refusing to sign a speeding ticket and, rather than crowing over their victory, said they had already changed their policy. It’s a start; as I’ve discussed before, the tendency of police departments to move from zealous law enforcement to brutality is all too common.

Alas, if you’re a criminal defense lawyer or a civil rights lawyer, then you instinctively rolled your eyes the moment you read the phrase “changed their policy.” To what? Do these new policies treat Tasers the way they should be treated — given the studies confirming real risks of heart attacks and skull fractures — as a means of last resort, literally a substitute for a bullet, instead of a more convenient means of obtaining compliance? Or do these new policies merely warn about “extended or repeated Taser exposure” — which some police officers will gladly read as including more than a minute of tasing, and dozens of shocks — with an all-purpose exception for “active resistance,” so the police officers can always claim the suspect was “actively resisting” and thereby comply with the Potemkin policy?

Which brings us to the point of this post. So, you’re a plaintiff’s lawyer, and a client (or their survivor) has just come in after a tasing incident. Now what?

There are three main claims you could bring: (1) excessive force civil rights claims against the cops; (2) a Monell practice or policy claim against the police department; and, (3) a products liability claim in strict liability or negligence against Taser International itself.

Excessive force claims (of all types, not just Tasers) are common; they’re disfavored by federal courts that are a bit too keen on summary judgment, but they’re typically inexpensive to litigate and can provide for attorney’s fees if successful, which is important because the verdicts and settlements are typically fairly low unless the client is brain damaged, paralyzed, or deceased. The real art is in distinguishing strong claims from merely meritorious ones in effectively conveying your own client’s version of events while undermining the police officer’s undoubtedly different version, and in grappling with the tendency of many jurors to believe your client got what was coming to them.

Monell claims are also tough. Courts rarely let any type of civil rights claim get to a jury, and courts are even more strict on Monell claims. There’s little harm in alleging them in the complaint, but get moving in discovery to back them up — and if you can’t back them up, know when to fold them and stop wasting everyone’s time. Truth is, Monell claims are generally not the province of generalist personal injury lawyers doing an occasional police brutality or wrongful prosecution case, they’re more for civil rights and public interest lawyers who have repeatedly seen the same problem and so already have the inside knowledge needed to back up the claims.

Finally, product liability lawsuits in general are not for the faint of heart nor plaintiff’s lawyers on shoestring budgets, and lawsuits directly against Taser International are no exception. Consider this: Taser won the first 60 product liability lawsuits filed against it, going back to the early 1990s, then finally lost one in 2008. Similarly, like with most product liability claims, plaintiffs’ firms should expect to pay $100,000 in costs just to get to a jury and should have the wherewithal to pay $250,000 on a single risky case. Needless to say, that means Taser product liability suits tend to make sense only when your client has been catastrophically injured or when your suit is on behalf of survivors. Study the Fontenot and Rich cases below; if you don’t have a case like that — e.g., a client who died from a heart attack after being tasered in the chest by a cop taught by Taser to go for “center of mass” — then consider forgoing the product liability claim because it’ll just chew up your time and money, reduce the recovery for your client, and create bad law for the rest of us. If you have a case like that but don’t have the ability to prepare or to fund it, refer it to someone who can.

Now, on to the law.Continue Reading A Trial Lawyer’s Guide To Taser Lawsuits

The “West Memphis Three” have long been a cause célèbre, for good reason: the case had all the hallmarks of a railroad prosecution, from hysteria over Satanism to a coerced confession by a minor with a well below average I.Q. to the lack of any forensic evidence or eyewitness testimony connecting Damien Echols, Jason Baldwin and Jessie Misskelley to the brutal murder of three young boys in 1993.

NPR’s blog sums up much of the story:

The original convictions, based on a theory that Echols, Baldwin and Misskelley killed the three children as part of a Satanic ritual, were the subject of the 1996 HBO documentary Paradise Lost: The Child Murders At Robin Hood Hills and the 2000 follow-up Paradise Lost 2: Revelations. Paradise Lost 3: Purgatory is set to premiere at this year’s Toronto International Film Festival. All three come from filmmakers Joe Berlinger and Bruce Sinofsky.

The case is also the subject of the 2002 book Devil’s Knot.

The first two documentaries — and presumably the third — argue that the three were wrongfully convicted primarily because they were, in a word, weird, and because of fears whipped up in the community by mentions of Satanism.

As the films tell the story, they were misfits in West Memphis, teenagers who listened to the wrong music and dressed the wrong way and made people intensely uncomfortable. Misskelley, a 17-year-old with a reported I.Q. of 72 when he was arrested, confessed to the police after a lengthy interrogation, only to almost immediately recant. The Supreme Court of Arkansas later called the confession, in which he admitted being present but primarily incriminated Echols and Baldwin, “virtually the only evidence” against Misskelley, and noted that it contained “a confusing amalgam of times and events” and “numerous inconsistencies,” both internally and with the actual physical evidence in the case. The court nevertheless upheld his conviction.

After a long, long journey through the court systems, in November of last year the Arkansas Supreme Court unanimously ruled the West Memphis Three were entitled to hearings on whether they could use Arkansas’ DNA exoneration statute for post-conviction DNA testing. Those hearings were scheduled for December when, just yesterday, Craighead County Circuit Judge David Laser announced that the three would be in court the next day.

What The Heck Is Nolo Contendere?

Although the prosecutor has issued a statement (filled with an embarrassing use of capital letters for emphasis) claiming they plead “GUILTY,” various sources have confirmed the nuanced plea bargain:

The so-called West Memphis Three agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.

“No contest,” a.k.a. nolo contendere, is indeed one of the strangest legal maneuvers on the books, allowing a defendant to plead neither guilty nor not guilty. Even the Supreme Court hasn’t figured out what the plea really means:

Courts have defined the plea of nolo contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal. 1942), aff’d, 139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law § 497. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.

Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty. . . .” Id., at 453, quoting 2 W. Hawkins, Pleas of the Crown 466 (8th ed. 1824).

The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d ed. 1909). An early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon., Y. B. Hil. 9 Hen. 6, f. 59, pl. 8 (1431). A 16th-century authority noted that a defendant who so pleaded “putteth hym selfe in Gratiam Reginae without any more, or by Protestation that hee is not guiltie . . . ,” W. Lambard, Eirenarcha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).

Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.

North Carolina v. Alford, 400 U.S. 24 (1970). The father of one of the victims, though, has it figured out just right:

The support for the West Memphis Three reaches some of the victims’ relatives who have questioned whether the right people were behind bars.

Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said prosecutors told him that they planned to reach a no-contest plea on Thursday.

“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”

Exactly. Either the West Memphis Three murdered three young boys as part of a Satanic ritual or they didn’t. Agreeing to let them out now means the State of Arkansas believes they’re innocent. Like I wrote back when Fairfax County claimed it was “not an admission of liability” when it paid $2 million to settle a wrongful death lawsuit after its police officers pointlessly entrapped and killed an upstanding citizen in his prime, under the circumstances of that case and this case, it most certainly is an “admission of liability.”

The boys should never have been imprisoned at all.

Since most everyone, State of Arkansas included, believes they’re innocent, the question turns around to can they obtain any compensation for nearly twenty years of wrongful incarceration?
Continue Reading Can The West Memphis Three Sue For Wrongful Imprisonment?