Law enforcement

ACLU calls for review of Taser use after landmark finding on Miami-Dade artist’s death

 

dovalle@MiamiHerald.com

The Florida American Civil Liberties Union on Friday called on local police departments to change how officers use Taser stun guns, one day after a medical examiner ruled the weapon played a role in the death of a young street artist in Miami Beach.

On Thursday, the Miami-Dade Medical Examiner’s Office — in a first-of-its-kind finding in Florida — ruled that Israel Hernandez-Llach, shot with a police Taser last August, died of heart failure because of an “electric device discharge.” But the death was also declared accidental.

“Given the harmful medical and deadly consequences of electroshock weapons, all South Florida police departments need to reform their policies for the use of the weapon and provide additional training to dramatically reduce the ‘accidental deaths’ due to their use,” Howard Simon, the ACLU’s state president, said in a statement Friday.

Miami Beach police said a review might be in the works. Two other major police departments said they had no immediate plans to revisit Taser use — but top-level discussions are likely in the future.

The landmark finding in Miami-Dade stands to have significant ripple effects — not only on law enforcement but also in lawsuits against the weapon’s manufacturer and police agencies that equip officers with Tasers.

The 18-year-old graffiti artist, known to friends and family as “Reefa,” ran from police after he was caught spray-painting an abandoned McDonald’s in North Beach. After a foot chase, Miami Beach police officer Jorge Mercado zapped Hernandez-Llach in the chest.

The teen collapsed and later died at Mount Sinai hospital. His death sparked protests and renewed scrutiny on the use of police Taser stun guns. Since early February, three men in separate episodes across Miami-Dade have died after being shot by police Tasers.

On Friday, the teen’s family members and supporters repeated a call for the arrest of Mercado. They plan to rally outside the office of State Attorney Katherine Fernandez Rundle on Monday.

“Israel’s killer has neither spent a day in jail for his crime nor has he lost his job as a police officer,” Jorge Estomba, a member of the Justice for Reefa Committee, said in a statement.

Miami Beach brass have repeatedly defended Mercado, saying he acted within the department’s policies.

But Chief Ray Martinez said Friday that he recently requested an audit of those policies from an independent police training and standards organization. He said he would not be surprised if the group, the Police Executive Research Forum, recommends Taser policy changes.

“That’s one of the things they’re looking at,” Martinez said. “That is included in what we asked PERF to look at. I’m sure [the audit] is going to generate another round of policy decisions.”

But Martinez, echoing many other police officers, also called the Taser “a valuable tool if you think about how many times it saves lives. I think that topic always comes up.”

Scott Massington, president of the Dade County Association of Chiefs of Police, said that while members have not discussed altering Taser policies, the new medical ruling will likely spur talks.

“Certainly it makes sense that we should absolutely bring it up,” said Massington, a Coral Gables police major.

Miami Police Chief Manuel Orosa said his department has no plans to alter Taser policy, which includes officers notifying superiors — and him — if they are forced to use the weapon three times or more during an incident. The department also uses special software attached to the weapon to monitor the length of time a person is Tased, and how many times an officer deploys the stun gun.

A spokesman for Miami-Dade Police, which employs the same policies as Miami, said the department has no plans to alter how it uses the Taser.

It will be several months before the State Attorney’s Office concludes whether Miami Beach Police broke any laws in employing a Taser to arrest a fleeing graffiti artist.

“We’re all parents, and our hearts go out to his family and all of his friends,” Fernandez Rundle said on Thursday. “We understand everyone is waiting for our final conclusion, and we will do it as quickly as humanly possible, without compromising, of course.”

Legal experts, however, say that a criminal charge likely would be difficult to sustain — prosecutors must prove a criminal charge, such as manslaughter, beyond “a reasonable doubt.” Mercado is also still subject to an administrative investigation by Miami Beach police’s internal affairs investigation.

But the medical examiner’s report could bolster civil lawsuits against Taser International, the Arizona company that manufactures the weapons.

Over the years, most Taser deaths have been ruled as having been caused by “excited delirium,” a controversial brain disorder first identified in the Miami in the 1980s. Researchers say the delirium — exacerbated by drugs or mental illness — makes people grow agitated and enraged and raises body temperatures to feverish levels.

Most recently, the medical examiner’s office ruled Norman Oosterbroek, a celebrity bodyguard who lived in Pinecrest, died of “cocaine-induced excited delirium,” according to a law enforcement source. In September, Pinecrest officers used a Taser to control the naked man, who was pounding on a neighbor’s door with one hand while gobbling suspected drugs.

That investigation remains ongoing. Critics say the delirium diagnosis is unproven, a way to explain away heavy-handed police tactics.

Law enforcement sources said Hernandez-Llach had an elevated body temperature, which can be a sign of the syndrome, but toxicology tests did not show any known drugs in his system other than marijuana. And the teen did not exhibit any of the raging aggression cited in most excited delirium cases.

Across the country, medical examiners have only rarely cited the stun gun as contributing to someone’s death. When it has happened, the company has taken aggressive legal action, suing the few medical examiners that have pointed to the stun gun as a cause of death.

The company insists the weapon is a valuable, less-than-lethal alternative to bullets that saves lives and is safe to use. Taser, however, in 2009 did issue a warning advising officers to steer clear of shooting the Taser at the chest because of the risk of cardiac arrest in some people.

Taser did not respond to a request for comment Friday. But on Thursday night, a spokesman said the company will not speak “on an unfortunate death without having been provided any factual documentation by the medical examiner or the opportunity to review the autopsy report.”

Dr. Douglas Zipes, a cardiologist at Indiana University who has published studies showing the Taser can cause heart failure and is critical of the excited delirium diagnosis, called this week’s Miami-Dade ruling “significant.”

“I think the pendulum is swinging toward a realization and recognition that the Taser device, under certain circumstances, can cause cardiac capture and the electricity can stimulate the heart rate to levels that the heart cannot sustain,” said Zipes, who often testifies for defendants suing Taser.

Lawyers for the family of 21-year-old George Salgado, who died after being stunned by a police Taser in April 2012, hailed the ruling in the Hernandez-Llach case.

Medical examiners had ruled that Salgado died of excited delirium after he grew agitated and got into a confrontation with police in West Miami. A friend told investigators he took three tabs of LSD, but toxicology reports could not identify any known drugs.

Deputy Medical Examiner Emma Lew ruled that his death was associated with consumption of an “unknown substance,” possibly a “new designer drug.”

Family lawyers Keith Pierro and David Gold say the young man was not on drugs and was shot with a Taser several times in the heart region — just like Hernandez-Llach.

“We’re hopeful that the medical examiner’s office will take another look at the cause of death,” Pierro said, “especially when you look at how many times he was Tased in the chest and torso area.”

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