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Commentary: If Rayshard Brooks' shooting was justified, then police departments need to re-examine their use of tasers

The case could turn on whether people recognize this fact

Another day, another sad discussion of an officer-involved shooting. The city of Atlanta is in turmoil right now because of the shooting death of Rayshard Brooks. The surveillance video, accompanied by body camera footage, appears to show that in his final moments, Brooks was visibly intoxicated and struggled with police.

During that struggle, he managed to take one of the officers' tasers, after which he attempted to flee from police. None of this, thus far, would, in most people's minds, justify the use of deadly force. However, in the most recent video that has been released, including the surveillance footage from the Wendy's where the scene unfolded, it appears that Brooks turned and aimed the taser at police right before they shot him.

As a result of the incident, the officer who shot Brooks has been fired, the Atlanta police chief has resigned, and another officer has been placed on administrative duty. The question will now become whether the officer who shot Brooks will or should face criminal charges.

Much will likely hinge on whether Brooks was threatening death or serious bodily injury when he aimed the taser at officers. Brooks' lawyer recognizes this, which is why, even in the immediate aftermath of the shooting, he publicly asserted that a taser is not a deadly weapon.

Many of the folks who have defended the shooting have, instead, asserted correctly that tasers can be deadly weapons. If this is true and proves to be a valid defense for the officer in the shooting, then it means that beyond the implications of this case, police departments across the country need to seriously review their use of tasers.

One point that many criminal justice reform advocates have been making for years is that tasers are, in fact, deadly weapons and that police (particularly in some jurisdictions where there is little or no hand-to-hand combat training offered) are entirely too quick to use them in situations where deadly force is not justified. The internet is littered with hundreds if not thousands of horror stories of police using tasers on suspects who are merely verbally noncompliant, on pregnant women, or virtually at the drop of a hat at the first sign of resistance. If the taser is a deadly weapon such that Rayshard Brooks' shooting is justified, then all that needs to stop, and any officer who uses one in a situation where deadly force would not be justified should be fired and charged.

One clue as to the seriousness of the taser as a weapon is that the taser is not marketed to police departments as a "nonlethal" means to subdue a suspect, but rather as a "less lethal" means to subdue a suspect. This is how they have been marketed since they were widely introduced to police departments in the early 1990s. There has never been any contention, even by the makers of the taser, that a taser isn't lethal force. It's just less lethal than a gun.

This isn't surprising. The taser delivers a 50,000-volt initial shock, followed by several closely packed bursts of 1,200 volts. It should be obvious to anyone that subjecting someone to a blast from a taser could cause death by cardiac arrest or a number of other causes, and if it is not obvious, the American Heart Association has confirmed the point.

Axon Enterprise, Inc., which makes the taser, says that there is very little risk of death when tasers are used properly by people who have been trained properly, but a recent study indicates that many or most police departments offer little or absolutely no training on proper taser usage and that tasers are frequently misused by police as a means to compel compliance, based upon erroneous officer belief that tasers are harmless. Further, the people most likely to be killed by tasers — people who are heavily intoxicated – are among the people most likely to be tased.

Beyond the possibility of death, the possibility of serious injury also exists with a taser. People who are tased have a tendency to fall in an uncontrolled manner, which can lead to head and other injuries.

It is true that in the vast majority of cases where a taser is deployed, no death or serious bodily injuries occur. But a "vast majority" is not "all." Any implement that has the potential to cause death ought to be treated seriously as a potentially deadly weapon, because that's what it is.

This is why, for years, many have been pressing police departments to realize that a suspect should only be tased if it would be otherwise legally justified to use lethal force on the suspect. And many police departments are, indeed, adopting such policies. And if those policies apply to police, should they not apply to anyone who steals a police officer's taser and points it at police?

Ultimately, this is what a prosecutor and a jury will have to answer: Was it reasonable for the police officer to fear imminent death or serious bodily harm when he discharged his weapon?

And moreover, in the context of someone who has already physically struggled with and struck a police officer, a suspect who has taken a taser from an officer and points it at him with the obvious intention of using it is in serious danger of taking control of the situation and perhaps being seconds away from taking the officer's firearm.

Tasers are clearly less lethal than firearms. In a situation where an officer might otherwise have to use a firearm, a taser is clearly the better option. But they are not harmless, and they are not toys.

This case will set an important precedent, given its high national profile. Do we, as a society, think that a taser is a deadly weapon, or don't we? If we don't, then I guess the cop who shot Brooks should be criminally charged. If we do, then we need to demand better accountability from our police departments across the country in how they use them and secure them.

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