This is a cross-post of the diary written by Allen Gilbert and posted at the ACLU-Vermont page. It's in response to the sudden action taken by the House Government Ops Committee yesterday stripping the protections out of the legislation introduced after the death of Macadam Mason, only the latest death caused by law enforcement deployment of tasers.

Reposted by permission.

 What was thought to be a final look at a Taser use and training bill, H.225, before approval by a Vermont legislative committee turned out to be a bait-and-switch, with a redraft that shifted discretion to law enforcement to use Tasers as they see fit. Gone were protections that the weapons would be used only when lethal force was justified. Ignored was testimony that measurement and calibration of Tasers’ electrical charge are crucial to safe operation. Dismissed was testimony from Taser International’s CEO that cameras recording officers’ actions can reduce abuse. Remaining was language that codifies existing Vermont police Taser policies — which will likely lead to more of the same problems with the stun guns, problems the original bill hoped to prevent.

Bound volumes of research reportsoffered by Taser International to lawmakers as evidence their products save lives.

The Vermont Attorney General’s office, the Law Enforcement Advisory Board, and Legislative Council got together (without the input of advocates who have followed the bill and submitted testimony) and produced the redraft. This new version was unveiled Wednesday morning in the House Government Operations Committee and approved Wednesday afternoon, with no chance for critics to testify except those happening to be in the room when the events occurred.

The five-hour window between introduction of the redraft and passage by the committee contrasts with months-worth of discussion and hearings at which an LEAB draft Taser policy – from which the new bill borrows heavily – was roundly criticized.

Since 2012, the measure for success of a Taser use and training bill has been whether the new law — had it been in force at the time – would have prevented the police Taser death of Macadam Mason in Thetford in that year.

A Government Operations Committee member asked that very question Wednesday when the redraft was presented. The answer is, probably not.

The reason is the redrafted bill’s low “threshold” standard for when police can draw and shoot a Taser. The standard is:

(2)(A) Officers may deploy an electronic control device:

(i)  in response to an actively resistant subject, if there is reason to believe that using another compliance technique will result in a greater risk of injury to the officer, the subject, or a third party;

Examples of actions by an “actively resistant subject” include “pulling away, escaping or fleeing, struggling and not complying on physical contact, or other energy enhanced physical or mechanical defiance.” “Pulling away” can be putting your arms across your chest; “other energy enhanced physical or mechanical defiance” is not defined.

Belief “that using another compliance technique will result in a greater risk of injury to the officer, the subject, or a third party” means that if an officer feels he’s at a higher risk of injury if he pulls out a baton or pepper spray instead of a Taser, then he’s justified in pulling out the Taser. Any possible injuries caused to the subject by the Taser are immaterial.

The U.S. Supreme Court standard for when an officer may draw a deadly weapon is when such force is needed to reduce an immediate risk of serious injury or expected death to the subject, officer, or others. Even if Tasers are viewed as “less lethal” rather than “lethal,” the gap between the two standards is huge. The standard now in the bill is not appropriate considering the possible effects Tasers can have, which include death.

Since the bill has such a low use-of-force standard, more lawsuits involving Tasers are inevitable. So far, Vermont police have spent $80,000 in settlements after being accused of misusing the weapons. H. 225 as now heading to the House floor is inviting more suits. Its loose, permissive standard puts officers and their departments at risk.

And as before, also at risk will be people with disabilities or people suffering from mental health issues. The weapon’s manufacturer says to avoid using Tasers on such populations. But the committee’s bill only says

The use of electronic control devices shall include recognition of the potential additional risks that can result from situations in which subjects have cognitive disabilities or are in emotional crises that interfere with the ability to understand consequences of action. 

Leaving such a determination to officers not versed in conditions resulting from disabilities or mental health issues puts them in a difficult position.

The only protection added to Wednesday’s redraft was one to protect pets. The new provision reads:

(6)  Electronic control devices shall not be used on animals unless necessary to deter vicious or aggressive animals that threaten the safety of officers or others. 

The committee’s approval of the bill came on a unanimous 11-0 vote. It now goes to the full House for debate. That debate will not take place until next week, unless rules are suspended to take it up more quickly.