BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
2
9
7
AB 2973 (Soto) 3
As Amended May 5, 2008
Hearing date: June 24, 2008
Penal Code
SM:mc
REMOTE STUN GUNS
HISTORY
Source: Taser International
Prior Legislation: SB 860 (Correa) - 2008, failed passage in
Senate Public Safety
SB 1336 (Cedillo) - 2006, failed passage in Senate
Public Safety
AB 157 (Levine) - 2005, withdrawn by author
AB 1237 (Leno) - 2005, failed passage on Assembly
floor
AB 1710 (Wyland) - 2005, failed passage in Assembly
Public Safety
AB 1908 (Bowler) - 1995, held in Senate
Appropriations suspense file
Support: Unknown
Opposition:Los Angeles District Attorney's Office; Stinger
Systems
Assembly Floor Vote: Ayes 74 - Noes 0
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KEY ISSUES
SHOULD THE PENAL CODE STATUTES CONCERNING ASSAULT WITH A TASER
BE AMENDED TO REPLACE THE WORD "TASER" WITH "REMOTE STUN GUN"?
SHOULD A "REMOTE STUN GUN," BE DEFINED, AS SPECIFIED?
(CONTINUED)
SHOULD A "PERMISSIBLE REMOTE STUN GUN," BE DEFINED, AS SPECIFIED?
SHOULD ANYONE SELLING A "PERMISSIBLE REMOTE STUN GUN" BE REQUIRED TO
REGISTER THE IDENTITY OF THE PURCHASER WITH THE MANUFACTURER OF THE
REMOTE STUN GUN?
SHOULD IT BE REQUIRED THAT THE SELLER VERIFY THE IDENTITY OF THE
PURCHASER WITH A GOVERNMENT-ISSUED FORM OF IDENTIFICATION?
SHOULD PERSONS UNDER 18 BE PROHIBITED FROM PURCHASING, OWNING,
CARRYING, USING OR POSSESSING A PERMISSIBLE REMOTE STUN GUN?
PURPOSE
The purpose of this bill is to (1) amend assault statutes in the
Penal Code to replace the word "taser" with "remote stun gun";
(2) define a "remote stun gun," as specified; (3) define a
"permissible remote stun gun," as specified; (4) require anyone
selling a "permissible remote stun gun" to register the identity
of the purchaser with the manufacturer of the remote stun gun;
(5) require that the identification of the purchaser must be
verified with a government-issued form of identification; and
(6) to prohibit persons under 18 from purchasing, owning,
carrying, using or possessing a permissible remote stun gun.
Existing law defines a "less lethal weapon" as any devise that
propels ammunition that is designed to immobilize, or
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incapacitate, or stun a human being through the infliction of
any less than lethal impairment of physical condition, function
or senses, including physical pain or discomfort. (Penal Code
12601(a).)
Existing law defines a "stun gun" as any item, except a taser,
used or intended to be used as either an offensive or defensive
weapon capable of temporarily immobilizing a person by the
infliction of an electrical charge. (Penal Code 12650.)
Existing law provides that, any person may purchase, possess, or
use a stun gun, subject to the following requirements:
No person convicted of a felony or any crime involving
an assault under the laws of the United States, of the
State of California, or any other state, government, or
country or convicted of misuse of a stun gun under Section
244.5, shall purchase, possess, or use stun guns.
No person who is addicted to any narcotic drug shall
purchase, possess, or use a stun gun.
No person shall sell or furnish any stun gun to a minor
unless the minor is at least 16 years of age and has the
written consent of his or her parent or legal guardian.
o Violation of this subdivision shall be a
public offense punishable by a $50 fine for the first
offense. Any subsequent violation of this subdivision
is a misdemeanor.
No minor shall possess any stun gun unless the minor is
at least 16 years of age and has the written consent of his
or her parent or legal guardian.
Except as specified, violation of these provisions is a
misdemeanor, punishable by up to six months in jail, a fine of
up to $1,000, or both. (Pen Code 12651, 12653.)
Existing law provides that each stun gun sold shall contain both
of the following:
the name of the manufacturer stamped on the stun gun;
and
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the serial number applied by the manufacturer.
Violation of these provisions is a misdemeanor, punishable by up
to six months in jail, a fine of up to $1,000, or both. (Pen
Code 12652, 12653.)
Existing law provides that each stun gun sold in this state
shall be accompanied by an instruction booklet. Violation of
this section shall be a public offense punishable by a $50 fine
for each weapon sold without the booklet. (Pen Code 12654.)
Existing law provides that assault with a stun gun or taser is
an alternate felony/misdemeanor, punishable by up to one year in
county jail or eighteen months, two or three years in state
prison. (Penal Code 244.5(b).)
Existing law provides that an assault with a stun gun or taser
by any person on a peace officer or firefighter who the person
knows or reasonably should know is engaged in the performance of
his or her duties, is an alternate felony/misdemeanor,
punishable by up to one year in county jail or two, three or
four years in state prison. (Penal Code 244.5(c).)
Existing law provides that Penal Code sections relating to
assault with a stun gun or taser shall not be construed to
preclude prosecution for assault with a deadly weapon or force
likely to produce great bodily injury. (Penal Code 244.5(d).)
Existing law provides that assault with a deadly weapon other
than a firearm or by force likely to produce great bodily injury
is an alternate felony/misdemeanor, punishable by two, three or
four years in state prison, or up to one year in county jail, a
fine of up to $10,000, or both the fine and imprisonment.
(Penal Code 245(a)(1).)
Existing law provides that assault with a deadly weapon other
than a firearm or by any means likely to produce great bodily
injury by any person on a peace officer or firefighter who the
person knows or reasonably should know is engaged in the
performance of his or her duties, is a felony, punishable by
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three, four or five years in state prison. (Penal Code
245(c).)
Existing law provides that to bring or possess any stun gun or
taser, as defined, in any public building or K-12 school is an
alternate felony/misdemeanor, punishable by eighteen months, two
or three years in state prison, or by up to one year in county
jail. (Penal Code 171b and 626.10.)
This bill replaces the word "taser" with "remote stun gun" in
the existing statute which prohibits assault and assault on a
peace officer with one of these devices.
This bill would define a "remote stun gun" as an electronic
device that emits an electrical charge and is designed and
primarily employed to incapacitate a person or animal either
through contact with electrodes on the device itself or remotely
through wired probes attached to the device, or through a spark,
plasma, ionization, or other conductive means emitting from the
device.
This bill defines a "permissible remote stun gun" as a remote
stun gun having all of the following:
an identification and tracking system that, in the
course of an investigation, can and shall be made available
to any law enforcement agency upon request; and
a training program offered by the manufacturer.
This bill would require anyone selling a "permissible remote
stun gun" to register the identity of the purchaser with the
manufacturer of the remote stun gun and require that the
identification of the purchaser be verified with a
government-issued form of identification.
This bill would prohibit persons under 18 from purchasing,
owning, carrying, using or possessing a permissible remote stun
gun.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
---------------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
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Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
AB 2973 is a bill to amend California State law to
provide oversight and restriction on the ownership,
possession and use of remote stun guns by members of
the general public. This bill does not address, amend
or affect California State law as it pertains to the
policies and use of electronic control devices by law
enforcement.
For more than a decade, remote stun guns have been
available to the general public in California.
Nationwide, more than 168,000 remote stun guns have
been sold to general public since 1994. Yet under
current California law, remote stun guns are not
regulated. We believe that the Legislature should
provide some oversight and regulate the ownership and
sale of these devices sold to the general public for
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personal protection.
Existing California law makes it a misdemeanor or a
felony to assault a person, or to assault a peace
officer or firefighter during the performance of his
or her duty with a stun gun or "taser". Under
existing law, a stun gun is defined as any item except
a "taser" used or intended to be used as a weapon that
is capable of temporarily immobilizing a person by
infliction of an electrical charge. "TASER" is the
name of a company and a trademarked term which refers
to a specific brand. "TASER" cannot be used to
describe or define a generic class of weapons or
devices. As such, AB 2973 removes "taser" from
existing law and replaces it with "remote stun gun."
The bill also places restriction on who in California
may purchase or possess a remote stun gun and would
regulate conditions for the sale of the devices.
2. What Does "Permissible Remote Stun Gun" Mean?
AB 2973 would codify definitions of both a "remote stun gun" and
a "permissible remote stun gun." The use of the word
"permissible" implies that other forms of remote stun guns are
impermissible. However, the bill does not explicitly prohibit
manufacture, sale or possession of remote stuns guns that do not
meet the definition of a "permissible remote stun gun," as
contained in the bill. The bill does, however, propose to
prohibit persons under 18 from purchasing, owning, carrying,
using or possessing a "permissible remote stun gun."
The bill also replaces the word "taser" in the existing statute
which prohibits assault and assault on a peace officer with one
of these devices, and replaces that word with "remote stun gun."
The fact that the bill defines one design of this weapon as
"permissible" without specifying that others are impermissible
creates a number of problems related to the well-established due
process requirement that a law not be so vague that an average
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person cannot understand what is or is not prohibited.
That the terms of a penal statute creating a new
offense must be sufficiently explicit to inform those
who are subject to it what conduct on their part will
render them liable to its penalties, is a
well-recognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of
law. And a statute which either forbids or requires
the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning and differ as to its application, violates the
first essential of due process of law. (Connally v.
General Constr. Co., 269 U.S. 385, 391 (U.S. 1926),
citations omitted.)
The basic premise of the void-for-vagueness doctrine
is that "[n]o one may be required at peril of life,
liberty or property to speculate as to the meaning of
penal statutes." (People v. McKay, 27 Cal. 4th 601,
634 (2002), opinion of Brown, J., concurring and
dissenting, quoting, Lanzetta v. New Jersey (1939) 306
U.S. 451, 453.)
One serious concern appears to be an inadvertent consequence of
the bill's language. If we assume that the bill's definition of
a "permissible remote stun gun" implies that all others would be
impermissible, the bill amends current law to state that it
would be a crime to commit an assault or an assault on a peace
officer with a "remote stun gun" but it would not be a crime to
commit an assault with a "permissible stun gun."
Additionally, if the bill is read to mean that "remote stun
guns" that do not meet its definition of a "permissible remote
stun gun," are "impermissible," the bill does not state what
exactly is prohibited. Does the bill prohibit possession of a
"remote stun gun?" Does the bill prohibit sale of a "remote
stun gun?" What would be the penalties for committing of any of
these acts? The bill is silent on these points.
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Additionally, although the bill purports to prohibit persons
under 18 from purchasing, owning, carrying, using or possessing
a "permissible remote stun gun," it fails to specify any penalty
for this offense.
Similarly, the bill purports to require that sellers of
"permissible remote stun guns" register the identity of the
purchaser with weapon's manufacturer. However, again, it does
not specify any penalty for failure to comply, nor does it
impose any duties on the manufacturer to protect the personal
identity information that the law would mandate it collect.
COULD AN ORDINARY PERSON UNDERSTAND WHAT CONDUCT THE BILL
PROHIBITS OR IS THE BILL UNCONSTITUTIONALLY VAGUE?
DOES THE USE OF THE TERM "PERMISSIBLE REMOTE STUN GUN" MEAN THAT
OTHER REMOTE STUN GUNS ARE NOT PERMISSIBLE? IF NOT, WHAT DOES
IT MEAN?
WOULD THE LANGUAGE OF THIS BILL INADVERTENTLY LEGALIZE ASSAULT
AND ASSAULT ON A PEACE OFFICER WITH A PERMISSIBLE REMOTE STUN
GUN?
DOES THE BILL FAIL TO STATE WHAT IT PROHIBITS WITH RESPECT TO
"REMOTE STUN GUNS" THAT ARE NOT "PERMISSIBLE REMOTE STUN GUNS"?
DOES THE BILL FAIL TO SPECIFY WHAT PENALTY APPLIES FOR SALE OF A
"PERMISSIBLE REMOTE STUN GUN" TO A MINOR?
DOES THE BILL FAIL TO IMPOSE ANY DUTIES ON THE MANUFACTURER WITH
RESPECT TO PROTECTION OF THE PERSONAL IDENTITY INFORMATION THAT
THE LAW WOULD MANDATE IT RECEIVE?
On the other hand, if the bill is not read to prohibit the
manufacture, sale or possession of "remote stun guns," then it
would prohibit minors from owning a "permissible remote stun
gun" while allowing them to own a "remote stun gun." Is this
the author's intent?
WOULD THE BILL PROHIBIT MINORS FROM PURCHASING A "PERMISSIBLE
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REMOTE STUN GUN" BUT ALLOW THEM TO PURCHASE A "REMOTE STUN GUN?"
In addition, if the bill does not intend to prohibit the
manufacture, sale or possession of remote stun guns that do not
meet its definition of a "permissible remote stun gun," then
what is the purpose of defining a "permissible remote stun gun?"
3. Would This Bill Outlaw the Product Manufactured by the
Sponsor's Chief Competitor?
This bill defines an item referred to as a "permissible remote
stun gun." It defines a "permissible remote stun gun" as one
that (1) contains an identification and tracking system that, in
the course of an investigation, can and shall be made available
to any law enforcement agency upon request and (2) has a
training program offered by the manufacturer." Assuming the use
of the term "permissible remote stun gun" is intended to
prohibit manufacture, possession, or sale of other remote stun
guns, (see note 2 above) the requirement of the tracking device
would appear to outlaw the product made by Stinger Systems, the
chief competitor of this bill's sponsor, Taser International.
There are at least two manufacturers of remote stun guns in the
U.S. today, Taser International, the sponsor of this bill, and
their chief competitor, Stinger Systems. These two companies
are engaged in litigation at this time. (Taser v. Stinger, U.S.
District Court for the District of Arizona.)
One significant difference between these companies is that Taser
International markets its products to the public as well as to
law enforcement, whereas Stinger Systems sells its weapons only
to law enforcement and the military. While tracking the user of
a remote stun gun might be valuable if used to commit a crime by
a civilian, it has much less relevance when the device is used
by law enforcement or the military.
Taser International's products include a "tracking system" that
sprays out little bits of paper imprinted with the serial number
of the weapon each time the weapon is used. The purpose of this
is to allow law enforcement to collect these bits of paper at a
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crime scene to attempt to identify the user. To be able to
track the user of the weapon, Taser International maintains a
database containing the personal identification information of
purchasers, provided by the buyer to the seller at point of
purchase, and the serial number of the weapon purchased.
The remote stun guns manufactured by Stinger Systems use
different technology to document use of the device, including
video capture equipment in the device.
( http://www.stingersystems.com/ .) Therefore, this bill's
requirement that a "permissible remote stun gun" include a
tracking system may have the effect of outlawing the current
Stinger product used by many law enforcement agencies, and may
require any competitor, such as Stinger, to redesign their
product to conform with the Taser products. The tracking system
in the Taser products, however, is based on its business model
which involves sales to the public, while Stinger Systems
primarily sells their products to law enforcement, for which a
tracking system would be much less relevant.
WOULD THIS BILL RESULT IN LAW ENFORCEMENT AGENCIES BEING
PREVENTED FROM BUYING REMOTE STUN GUNS FROM THE CHIEF COMPETITOR
OF THE BILL'S SPONSOR?
WOULD THE REQUIREMENTS OF THIS BILL PLACE AN UNDUE BURDEN ON
OTHER MANUFACTURERS OF REMOTE STUNS GUNS?
4. What is a Remote Stun Gun (Taser)?
Remote stun guns are devices intended to incapacitate a person
or animal through use of electric shock. They are hand-held
devices that resemble a small handgun and propel two barbs from
the front of the weapon when the trigger is pulled. The barbs
are intended to penetrate and attach to skin or clothing.
Removing the barbs usually requires medical assistance. Models
currently in use send 50,000 volts of electrical current through
wires connecting the device to the barbs. The current flows
into the body causing extreme pain and a loss of muscular
control. One manufacturer of remote stun guns is Taser
International, the sponsor of this bill. Taser International's
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primary competitor, Stinger Systems, has a similar product on
the market but Stinger Systems states that its products are sold
only to law enforcement officers, security companies and the
military. ( http://www.stingersystems.com/stinger.htm ) Taser
International has several models of remote stun guns currently
on the market specifically designed for use by private citizens,
including one recently released model with a leopard skin
exterior and a holster with a built-in music player.
( http://www.taser.com/Pages/default.aspx ) Some models also are
convertible into "stun guns," which require direct contact of
the gun's handset to a person's body and two fixed electrodes
pass the current pulses into the subject.
The terms "stun gun" "remote stun gun" and "taser" are often
used synonymously, despite their differences. The term "taser"
is currently used in the California Penal Code to describe
remote stun guns and this bill would replace that term with the
term "remote stun gun." For purposes of this analysis, the two
terms refer to the same weapon and the word "taser" is used here
only when referring to existing statutes that use the word
"taser." Whether the term "taser" is proprietary or has entered
the public domain is not the subject of this analysis.
5. Public Ownership of Remote Stun Guns
Existing law in California does not restrict who may own a
"remote stun gun." It does, however, prohibit felons, drug
addicts, and minors under 16 from purchasing, possessing or
using a "stun gun." Minors between the age of 16 and 18 must
have their parent's written consent. (Penal Code 12650,
12651.) However, existing law does make it a crime to commit an
assault with a taser or to bring or possess any stun gun or
taser in any public building or K-12 school. (Penal Code
244.5, 171b and 626.10.)
Whether the public should be permitted to own remote stun guns
is highly controversial and raises several public policy
concerns. First and foremost is the issue of whether the
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effects of the weapon are safe when used as directed, which will
be addressed at length below. Closely related to the issue of
public ownership of remote stun guns is the question of how
these weapons should be regulated. If a right of public
ownership is established, should these weapons be regulated in
the same fashion as firearms, or sold with little or no
regulation, as with pepper spray, or somewhere in between? The
response of several states and cities has been to prohibit all
public ownership of remote stun guns. Public ownership of
remote stun guns has been banned in the following jurisdictions:
New York (New York Consolidated Law (McKinney's) Book
39. Penal Law. Article 265. Firearms and Other Dangerous
Weapons 265.00, 265.01)
New Jersey (New Jersey Stat. Ann. Title 2C. New Jersey
Code of Criminal Justice. Chapter 39-1)
Massachusetts (Ann. Laws of Massachusetts. Chapter 140.
Sale of Firearms. Section 131J), Michigan (Michigan Penal
Code Act 328 of 1931. Chapter 750.224a)
Wisconsin (Wisconsin Sta. Ann. Chapter 939. Crimes -
General Provisions. Chapter 941.295)
District of Columbia (DC Code Ann. Title 7, Subtitle J,
Chapter 25, Unit A, Firearms Control Regulation, Subchapter
II, Firearms and Destructive Devices, section 7-2502.01)
Hawaii (Hawaii Rev. Stats. Title 10, Chapter 134.
Firearms, Ammunition and Dangerous Weapons. Part 1. General
Regulations. Chapter 134-16)
Rhode Island (General Laws of Rhode Island. Title 11,
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Chapter 47. Statute Subsection 11-47-42)
Baltimore (Baltimore City Code 115)
Philadelphia (Philadelphia City Ordinance. Statute
10-825)
SHOULD THE PENAL CODE BE AMENDED TO DEFINE A "PERMISSIBLE REMOTE
STUN GUN" FOR PUBLIC USE?
6. Product Safety Issues
In recent years there has been a great deal of controversy over
the safety and use of remote stun guns by police due primarily
to the deaths of numerous people after being shocked with the
devices by police. While some of the safety issues may be the
same, authorizing these weapons to be marketed and sold to
private citizens requires additional scrutiny.
Underscoring these safety concerns, on June 10, 2008, Taser
International, the sponsor of this bill, was found liable in a
products liability case resulting from the death of a man
repeatedly shocked with a Taser by police in Salinas.
Bloomberg.com reports:
A San Jose, California, jury yesterday said Taser had
failed to warn police in Salinas, California, that
prolonged exposure to electric shock from the device
could cause a risk of cardiac arrest. The jury
awarded $1 million in compensatory damages and $5.2
million in punitive damages to the estate of Robert
Heston, 40, and his parents. The jury cleared the
police officers of any liability.
Concern about the safety of this product has been expressed by
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some in law enforcement for several years. Karen Amendola,
Chief Operating Officer for Research and Evaluation for the
Police Foundation, a law enforcement think-tank based in
Washington, stated in 2005, "Clearly, there is not enough
information out there on the medical issues and how these
devices are being deployed. . . . There needs to be an
objective third-party look at this issue." (USA Today, March
17, 2005.)
Dr. Zian Tseng, a cardiologist and electrophysiologist (a
cardiologist who specializes in heart rhythm disorders and
sudden death) at the University of California at San Francisco
(UCSF) has stated, "They cannot say they are safe in my
opinion." (San Francisco Chronicle, March 1, 2005.) Dr. Tseng
states, "There are vulnerable periods in the cardiac cycle, when
shocks can cause dangerous arrhythmias. . . . I think they are
dangerous. If you are shocking a person repeatedly, it becomes
a bit like Russian Roulette. At some point, you may hit a
vulnerable period."
Of particular concern is the effect of a shock from a remote
stun gun on persons who have specific medical vulnerabilities.
In a letter from Taser International to the San Francisco Police
Commission, Taser International Chief Executive Officer Rick
Smith wrote that 70% of reported subjects of Taser use were
under the influence of alcohol, another drug, or an emotional
disturbance. Dr. Kathy Glatter, a University of California at
Davis electrophysiologist states, "There is almost no medical
research examining this issue." (Sacramento Bee, November 13,
2004.) Dr. Tseng from UCSF states, " . . . a person with
cocaine in his or her system is [] much more prone to a
taser-induced cardiac arrest." (San Francisco Chronicle, March
1, 2005.)
Another group of people that appears to be particularly
vulnerable to serious injury from remote stun guns are those
with osteoporosis. Taser International previously recommended
to all law enforcement agencies buying their weapon that their
officers be subjected to a sample shock from a taser as part of
their training in the weapon's use. In 2002, however, according
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to a doctor hired by Taser International, Maricopa County
Sheriff's deputy Samuel Powers suffered a fractured vertebra due
to being shocked by a taser during training. The same doctor
found that Powers suffered from osteoporosis, which left him
vulnerable to the taser shock. (Arizona Republic, December 29,
2004.) Deputy Powers sued Taser International but the jury
found for Taser on the ground that Powers had been diagnosed
with osteoporosis prior to the training.
( http://www.businessweek.com/ap/financialnews/D8TSKG8G0.htm )
While Taser was not found liable in that case because the deputy
allowed himself to be shocked knowing that he had been diagnosed
with osteoporosis, the case nevertheless highlights the risk of
severe injury to persons with osteoporosis when shocked with a
remote stun gun. The National Osteoporosis Foundation states
that osteoporosis is a major public health threat for an
estimated 44 million Americans, or 55% of people 50 years of age
and older, and that osteoporosis is often called the "silent
disease" because bone loss occurs without symptoms.
One recent study looked at cases provided by six law enforcement
agencies and found the devices to be generally safe for police
use but underscored that these are deadly weapons. Lead
researcher in that study, Dr. William P. Bozeman, an emergency
medical specialist at the Wake Forest University School of
Medicine cautioned, "These are serious weapons. They absolutely
have the potential to injure or kill people." (Associated Press,
October 9, 2007.)
The product currently sold by Taser International uses 50,000
volts of electricity. However, there is nothing in this bill's
definition of a "permissible remote stun gun" that defines the
amount of electricity, or the duration of the shock, that may be
delivered by a remote stun gun. As such, it does not define the
characteristics of the permitted weapon in the most critical
area related to public safety: how much electricity it will use
to shock the target. Without this sort of uniformity in the
weapons, it would appear impossible to state whether this type
of weapon is safe, regardless of how many tests are performed at
any given level of electric shock.
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ARE REMOTE STUN GUNS SAFE AND APPROPRIATE FOR PUBLIC USE?
DO THESE WEAPONS NEED TO BE REGULATED IN TERMS OF THEIR
ELECTRICAL OUTPUT AND OTHER SAFETY FEATURES?
7. Comparing Remote Stun Guns to Firearms; Law Enforcement
Considerations
One argument often made in favor of allowing public ownership of
remote stun guns is that they are a less dangerous alternative
to firearms, which the public is already allowed to own.
Firearms, however, are sold with a clear understanding of the
risks associated with their use. Every person buying a firearm
knows that it is a lethal weapon. The dangers of remote stun
guns may be less apparent. Dr. Roger Barr, professor of
biomedical engineering at Duke University states, "If you think
of tasers in comparison to, say, handguns, and you say they are
significantly less lethal, I think that's a non-controversial
statement. If you begin to move over and say tasers are safe,
we can use them freely without concern for injury, I think
that's pretty radical." (National Public Radio (NPR), April 1,
2005.)
WOULD CODIFYING A RIGHT TO PUBLIC OWNERSHIP OF REMOTE STUN GUNS
ENHANCE PUBLIC SAFETY OR POSE GREATER RISKS TO PUBLIC SAFETY?
An additional concern about authorizing public ownership of this
weapon is whether this would pose an increased threat to law
enforcement officers. While many in the law enforcement
community have expressed the desire to have remote stun guns
available to officers as part of their arsenal, opinions vary in
law enforcement circles as to whether the weapons should be
available to the public. According to Jim Pasco, Executive
Director of the Fraternal Order of Police, a taser can defeat a
bullet-proof vest and thus incapacitate an officer from 15 feet
away. Mr. Pasco states, "Taser International is in the business
of selling tasers. Police officers are in the business of
public safety. We won't give him advice on selling tasers if he
does not give us advice on how to keep the public safe."
(National Public Radio, April 1, 2005.)
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DOES PUBLIC OWNERSHIP OF REMOTE STUN GUNS INCREASE THREATS TO
LAW ENFORCEMENT OFFICERS?
8. State Regulation vs. Industry Self-Regulation of Remote Stun
Guns
One fundamental policy question raised by this bill is, what
sort of regulation is appropriate for this type of weapon? As
noted above, many jurisdictions allow only law enforcement use
of these weapons and prohibit their sale to the public
altogether. (See Note 2, above.) Washington, D.C., for
example, allows devices "designed ? to stun or disable a person
by means of electric shock" to be possessed only by those
licensed to do so and such licenses are not available to the
general public. (D.C. Code Ann. 7-2502.01.) Other states,
such as Indiana, regulate remote stun guns in the same fashion
as handguns and require registration. (Ind. Ann. 35-47-8-4.)
Firearms are heavily regulated in California. (California Penal
Code, Part 4, Title 2, 12000 et seq.) Under this bill,
remote stun guns would be made available for sale to the public
without some of the most basic regulations that are currently
applicable to firearms. For example, as discussed more fully
below, this bill requires registration of the weapon only with
the manufacturer, not with the Department of Justice. Also,
this bill contains no restrictions on who may sell the weapon.
By contrast, firearms must be sold by a licensed firearms
dealer. (Penal Code 12082.) Similarly, all concealable
firearms are subject to strict safety testing requirements.
(Penal Code 12125, et seq.) No such requirements for remote
stun guns would apply under this bill. Even assuming that the
remote stun guns now on the market are well-made and not liable
to fire accidentally or produce more than the represented level
of electric shock, there is no reason to believe that this will
always be the case. Even the most responsible manufacturer
could be bought by a company interested in producing the remote
stun gun version of the infamous "Saturday night special."
SHOULD THERE BE REGULATION OF WHO MAY SELL REMOTE STUN GUNS?
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SHOULD THE SAFETY OF REMOTE STUN GUNS BE SUBJECT TO
QUALITY-TESTING BY THE ATTORNEY GENERAL'S OFFICE SIMILAR TO
HANDGUNS?
9. Mandating Private Data Collection of Personal Information and
Private Access to Criminal History Information
This bill requires all purchasers of a "permissible remote stun
gun" to provide the seller with proof of the buyer's identity in
the form of government-issued identification. This bill also
provides that "Any person selling a permissible remote stun gun
shall register the identity of the purchaser with the
manufacturer of the remote stun gun. Many product manufacturers
offer their customers the opportunity to register the purchase
of an item and this allows the manufacturer to create a database
of customers which can be used to market additional products to
that person or the customer list may be sold to other companies.
The question this provision of the bill raises is, are there
are sound policy reasons for the state to require retail
consumers to have their identity "registered" with a private
manufacturer?
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SHOULD THE STATE MANDATE THAT PRIVATE CONSUMERS MUST "REGISTER"
THEIR IDENTITY WITH A PRIVATE MANUFACTURER?
DOES THE BILL FAIL TO PLACE ANY DUTIES ON THE MANUFACTURER
REGARDING THE PROTECTION OR USE OF THIS INFORMATION?
10. Suggested Technical Amendment
To effectuate the author's intent of regulating possession and
use of these weapons, the committee and the author may wish to
consider amending the bill to replace the current language of
the bill with language to do the following: a) Amend section
244.5 of the Penal Code to delete use of the word "taser" and
replace that with "less lethal weapon, as defined in section
12601" (b) provide that to sell a stun gun, as defined in
section 12560, or a less lethal weapon, as defined in section
12601, to a person under the age of 18 years is a misdemeanor,
punishable by up to 6 months in jail, a fine of up to $1,000, or
both.
11. Argument in Support
Taser International states:
To date, the only manufacturer in the remote stun gun
market is TASER International. The success of the
civilian TASER is largely due to the manufacturer's
early business decision to require background checks,
restrict sales to minors and felons and to build into
every cartridge ID tags, which identify the purchaser
upon deployment.
12. Arguments in Opposition
The Los Angeles District Attorney's Office states:
Assembly Bill 2973, as amended on May 5, 2008, defines
the term "permissible remote stun gun". As drafted,
assaults committed with a "permissible remote stun
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gun" on a private citizen, peace officer or
firefighter would not be able to be prosecuted under
Penal Code Section 244.5.
Because an assault with a "permissible remote stun
gun" can result in serious bodily injury or in rare
circumstances death, our office believes that assaults
committed with these weapons should be prosecutable
under Penal Code Section 244.5.
Stinger Systems, Inc., states:
Stinger Systems, makes projectile stun weapons, like
Taser International. I would like to strongly object
to AB 2973, which essentially legislates a monopoly
for Taser International.
A segment of AB 2973 appears to violate the Sherman
Anti Trust Act. Namely, the inclusion of deploying
AFIDs, or confetti, when a projectile is fired. Taser
is the only projectile stun weapon company which
offers this antiquated technology but would greatly
benefit by the inclusion of this aspect in the Bill.
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