061: A Stunning Situation

Stella Case No. 061, Originally Published: 30 July 2003

Madera Calif., police officer Marcy Noriega had arrested Everardo Torres, 24, and had him handcuffed in the back of her police cruiser. The charge was not too extreme: he was arrested “on suspicion of resisting and delaying police” as they tried to quiet down a noisy party.

Torres, however, was far from cooperative. As he sat in the back of the police car he kicked at the windows. Officer Noriega decided to subdue him with her Taser, which fires two metal pins attached to wires and then charges them with current to “stun” the target.

Amazingly, instead of pulling and shooting Torres with her Taser, Noriega says she accidentally drew her service handgun and shot him with that. The bullet ripped through his heart, liver and right kidney, ensuring his rapid death.

The District Attorney ruled the shooting accidental and did not file criminal charges against officer Noriega, but the city admitted liability in the shooting and offered Torres’ family a $350,000 settlement. In response, the family filed a claim for $10 million. When the city rejected the claim, the family filed a wrongful death suit in federal court.

Such is not what Stella Awards are made of, however — complaining that a professionally trained police officer mistook her firearm for a non-lethal stun gun to shoot someone in her custody is not frivolous. Rather, it’s what the city said next: officer Noriega isn’t at fault for killing Torres! Not the way she and the city see things, anyway. While they admit they were “partially responsible for the loss” of Torres’ life, she and the city of Madera have filed suit against Taser International Inc., the manufacturer of the non-lethal weapon.

The lawsuit’s reasoning maintains Taser is responsible for Torres’ death because the company’s training procedures do not adequately teach police officers the difference between the Taser and their own handguns. The company, the suit says, “provided related training and representations in such a manner so as to cause any reasonable police officer to mistakenly draw and fire a handgun instead of the Taser device.”

Got that? “Any reasonable police officer” could pull the wrong gun and kill a suspect they merely mean to stun! Considering the thousands of police officers in the USA, and how long Tasers have been on the market — coupled with the dubious “fact” that “any reasonable police officer” is likely “to mistakenly draw and fire a handgun instead of the Taser device” — there must be hundreds of cases of just that happening, right?

Wrong. In their research, Madera’s lawyers found just two previous cases of such mistakes, though both times the unfortunate victims survived. “Once we found the two other incidents, we made [a] change” in Madera police procedure, advising officers not to carry their Taser on the same side of their belts as their handguns, says the city’s lawyer. (Remember! The gun on left to stun, the one on the right to kill. Got it? Good! Back out on the streets, guys!)

The suit says Taser was “aware” its training methods were flawed, and had “a duty” to inform police departments of the risk that a trained professional might grab the wrong gun. The suit asks that Taser pay whatever amount the Torres family wins from their wrongful death lawsuit.

Cops have incredibly stressful, important jobs. To get that job done they’re given astounding powers, up to and including the legal right to kill citizens who are threatening others. With those powers come similarly awesome responsibilities, such as carefully preserving suspects’ rights and knowing when — and how — to use the various weapons at their disposal. For Madera and officer Noriega to stand up in public to say “any reasonable police officer” doesn’t know the difference between a non-lethal weapon and a handgun is an insult to every professional peace officer — and an abdication of the responsibility that has been placed on them.

Torres was likely not a choirboy, but his death is a tragic accident, and shouldn’t be treated as an opportunity for the city to try to pin the blame on an equipment supplier.

Source

• “Madera Sues Taser Maker”, Fresno Bee, 29 July 2003.

Case Status

First, this was clear choice as the “winner” of the Stella Award for the most frivolous case of 2003, and came in #2 in the Overall Stella Awards Winner list.

Second, this is a very complex case, and the following is very long, in part because there were two lawsuits involved: the one of the family against the city and its police department, and the one of the city against TASER International Inc.

(Yes, there’s a discrepancy between “Taser” as used in the case and “TASER” as used in this update, as these days it’s very simple to learn that the corporation name was indeed spelled with the word in all caps. You’ll also see in the court filings below that there’s also use of “taser”: I’ve left the courts’ capitalization, or lack thereof, as found.)

Lawsuit 1: Family v. City

Even though this case isn’t frivolous (unless you believe the dollar amount requested taints it with that brush), it’s instructive to see some of the many steps involved, and how long it took to get through them.

Again, this is not a complete list of the steps, but you’ll get the idea from the highlights:

• October 2002: Madera P.D. Ofc. Noriega shoots Torres with her sidearm rather than the TASER M26 “Electronic Control Device” as intended. She is put on paid administrative leave, as is typical in a police shooting. That “leave” lasted four years; in 2006 she went back to her job at Madera P.D.
• December 2002: City offers the Torres family $350,000 to settle the expected lawsuit. The family turns the offer down and files a wrongful claim demanding $10 million. The city declines. The family switches lawyers — to O.J. Simpson attorney Johnnie Cochran.
• January 2003: Autopsy results finds Torres had a blood-alcohol level of 0.15 percent at the time of his death, and THC (from marijuana) was also found in his blood.
• January 2003: Apparently with help from Cochran’s law firm, the Torres family sues Ofc. Noriega and the City of Madera for wrongful death and violating Torres’s civil rights by using excessive force, and against TASER International for “products liability.”
• May 2003: The District Attorney announces the issuance of a >1,000-page report on the shooting, which culminates in the decision to not file any criminal charges against Ofc. Noriega.
• ?? 2004: The city ups its settlement offer to $755,000 plus attorney’s fees to date (estimated at $20,000). The family turns the offer down.
• April 2005: U.S. District Court (Eastern District of California) Judge Anthony Ishii threw out the family’s case, granting summary judgment in favor of Madera and Noriega. The family appeals.
• July 2005: U.S. District Court (Eastern District of California) Judge Anthony Ishii dismissed the portion of the case against TASER charging product liability.
• May 2008: The 9th Circuit Court of Appeals overturns the summary judgment. “Since the parties did not brief the issue of whether officer Noriega’s mistake was a reasonable one,” Judge Michael Daly Hawkins ruled, “the factual record is insufficiently developed for this court to make this determination.” Thus, the case was sent back to Judge Ishii.
• November 2009: Judge Ishii rules that Torres’s civil rights were not violated “because Defendant Noriega’s mistake was reasonable.” The Torres family again appealed.
• November 2011: The Court of Appeals again overturned Judge Ishii, ruling “While a jury might ultimately find Officer Noriega’s mistake of weapon to have been reasonable, it was inappropriate for the district court to reach this conclusion in the face of material disputes of fact. At this stage of the proceeding, Officer Noriega has not shown an entitlement to qualified immunity, and summary judgment was therefore improperly granted.”
• (Couldn’t find details of what happened in this span. My guess: back and forth negotiation.)
• October 2013: The Torres family accepts a settlement in the amount of $775,000, which does not include attorney’s fees. In other words, it’s pretty much exactly what they would have received in 2004, except by late 2013 the attorney’s fees were much higher — one report I saw estimated the attorneys would take around half. Reports at the time note Ofc. Noriega is still working at Madera P.D.
• March 2014: With the settlement complete, Judge Ishii makes the final ruling in the case: “IT IS HEREBY ORDERED that this entire matter shall be dismissed with prejudice. Each party to bear their own costs and fees.”

Total elapsed time: nearly 11-1/2 years.

Case 1 Update Sources:

• “Order on Defendant Taser International’s Motion for Summary Judgment”, Torres v. City of Madera, United States District Court, Eastern District California, 11 July 2005.
• “Appellate Court Puts Case of Fatal Madera Custody Shooting Back in Play”, Fresno Bee, 5 May 2008.
• “Order Granting Plaintiffs’ Request for Judgment Pursuant to Rule 54(b)”, Torres v. City of Madera, United States District Court, Eastern District California, 17 November 2009.
• “Torres v Madera: Opinion”, U.S. Court of Appeals, Ninth Circuit, 22 August 2011.
• “After 11 Years, City Settles Torres Killing Lawsuit”, Madera Big Valley News, 4 October 2013.
• “Order Dismissing Matter with Prejudice”, U.S. District Court (Eastern District of California), 26 March 2014.
• TASER M26 Operating Manual for Law Enforcement, TASER International.

Lawsuit 2: City v. Taser
In comparison, this one’s a lot easier!

The City of Madera’s suit — which the Torres’s joined — charged TASER with:

1. Design defect,
2. Negligent design,
3. Failure to Warn,
4. Negligent Warning,
5. Defective training and training materials, and
6. Breach of Warranties.

Short Version: the case was thrown out.

Much Longer Version: the plaintiffs appealed. And here is where it gets really interesting: why the lower court was correct in throwing out the case, in the Ninth Circuit judges’ opinion.

It’s fascinating to see the conciseness of the judges in picking apart every argument the city put forth in trying to pass the blame for their failures onto TASER. (Citations have been deleted without indication in the following.)

1) Design Defect:

Plaintiffs argued that the M26 and its holster was “defective” in their design. No, the court ruled.

“Under California product liability law, ‘[a] manufacturer … is liable in tort if a defect in the … design of its product causes injury while the product is being used in a reasonably foreseeable way.’” (Deletions from the original)

“Madera cannot make out a prima facie case because the Taser and holster were not ‘used’ when the injury occurred. Madera’s argument that ‘use’ is not required under the ‘risk/benefit’ theory fails. … If we were to accept Madera’s broad definition of use, it would follow that the M26 Taser and its holster would be in ‘use’ even if Officer Noriega had left them behind in her locker when she reached down and drew her Glock. We cannot accept that the California courts would sanction such a broad definition of use….”

2) Negligent Design:

“Summary judgment was also appropriate as to Madera’s negligent design claims. A product is not negligently designed so long as ‘the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer would have under the circumstances’,” the Appeals panel ruled.

“Here, the only evidence regarding Taser’s decision-making process on the M26’s design is that it developed a variety of different prototypes for the M26, presented these prototypes at ‘one of the largest training conferences of police . . . officers in the country,’ determined that the handgun-shaped design ‘was significantly better in terms of accuracy’ than the other prototypes, and received ‘overwhelming feedback’ from training officers that they preferred the handgun-shaped design to the others.

“Absent any contradictory evidence — which Madera has not produced — reasonable jurors would have no choice but to conclude that Taser exercised reasonable care in choosing the gun-shaped design for its M26.” …

“As to Madera’s additional claim that Taser negligently designed its M26 holster, the appropriate standard of care for a weapon manufacturer is beyond the ‘common knowledge of [laypersons]’ and, thus, it was incumbent upon Madera to present at least some expert testimony regarding this customary standard of care. … Madera has failed to do so. Moreover, even if expert testimony were not required to establish this element, Madera has produced no other evidence from which a jury could deduce the appropriate standard of care to allow it to compare Taser’s actions with this industry standard. Accordingly, summary judgment was proper as to Plaintiffs’ negligently designed holster claim.”

3) Failure to Warn:

“Under California law, a manufacturer can be held strictly liable for failing to warn a product’s foreseeable user about that product’s risks, even if those risks come from a foreseeable misuse of the product. However, ‘liability [for failure to warn] does not attach if the dangerous propensity is either obvious or known to the injured person at the time he uses the product.’ The district court’s conclusion — that the danger of weapon confusion was known to Officer Noriega because her previous mis-draw incident was ‘exactly the type of event … Plaintiffs argue they should have been warned about by Defendant, i.e., an alleged danger or risk of weapons confusion between the M26 and a firearm’ — is correct, as is the district court’s implicit conclusion that the Madera Police Department (‘MPD’) had ‘actual awareness’ of this danger because Officer Noriega reported the incident to her supervisor, Sgt. Lawson.

“Madera’s counterargument — that the danger of actually shooting someone with a gun rather than an M26 was not known to Officer Noriega or the MPD because Officer Noriega had never actually shot someone by mistake — is unpersuasive. The undisputed evidence is that Officer Noriega was concerned enough about misdrawing her Glock the first time that she reported the incident to two colleagues (one of whom was a supervisor) and continued practicing drawing the proper weapon ‘all the time’ so as to avoid making the same mistake again. The MPD also was in the process of devising a training program to help officers avoid this confusion. From these facts, no reasonable juror could conclude anything other than that Officer Noriega and the MPD appreciated the danger attendant to mistaking a firearm for an M26, and that Taser’s ‘duty to warn’ was absolved by this actual knowledge.

“Accordingly, summary judgment was properly granted on Madera’s two failure to warn claims (M26 and holster), as neither the M26 nor the Taser-made holster was defective for failing to contain a warning advising Madera of the dangers of confusing a strong-side holstered M26 with a lethal firearm — a danger it already knew existed.”

4) Negligent Warning:

“Madera’s negligent warning claims fail for the same reason: just as in the strict liability context, a manufacturer has no duty to warn in the negligence context if the complained-of danger is either obvious or known to the user. Because the danger of weapon confusion was known to both Officer Noriega and the MPD, no duty to warn could have been negligently breached by Taser, and the district court properly granted summary judgment for Taser on these claims.”

5) Defective Training and Training Materials:

“Madera also brings three training-related claims against Taser: (1) strict liability for defective training; (2) strict liability for defectively designed training materials; and (3) negligent training. The district court rejected all three, concluding respectively that: (1) ‘[t]raining is a service[, not a product,] and [thus] is not subject to strict products liability theories; (2) Taser’s training materials were ‘incident to’ the service of training and thus were not subject to strict products liability theories; and (3) Taser was not, itself, negligent in training Officer Noriega, as Taser’s connection to her training was indirect — she was trained by MPD officers who were, in turn, trained by Lewis, who worked for ALD De Nio Enterprises (‘ALD’), a Taser-approved Law Enforcement Product Distributor for California, not Taser.

“Again, however, the contention central to all permutations of Madera’s training-related claims is that Taser improperly failed to alert the MPD (and its officer users) that holstering the M26 and a firearm on the same side of an officer’s body creates a risk that an officer will draw one weapon when she means to draw the other. If there was nothing improper about failing to warn Madera of this danger (or, put another way, if failing to warn Madera could not have in any way ‘caused’ the injury because Madera knew about this danger already), then Taser cannot be liable under any of the three proposed theories. As explained above, both Officer Noriega and the MPD were aware of the potential for weapon confusion before the Torres shooting and, thus, Taser’s failure to alert Madera about this danger via its training materials or the indirect training it may have provided through ALD’s Lewis does not give rise to an independent cause of action.

“Accordingly, we affirm the district court’s grant of summary judgment on Madera’s three training-related claims.”

6) Breach of Warranties:

“Madera also claims that Taser breached express and implied warranties when the M26 and holster ‘failed to perform in a safe manner.’ Neither Madera’s Complaint nor its subsequent filings explain exactly what promises it believes Taser made (either explicitly or implicitly) when the MPD purchased its M26s. Without any elaboration as to exactly which warranties are at issue, it is impossible to determine whether Taser breached these unspecified ‘warranties.’ Moreover, the California Supreme Court has recently emphasized that ‘[t]he law of contractual warranty governs damage to the product itself’ that results from a product defect; it does not govern damage to other products or injuries to individuals that result from that same product defect. Instead, when a product defect causes ‘physical harm to [a] person, … [a] plaintiff [may] recover [via] strict products liability.’

“Here, Madera has not even alleged (much less put forth any evidence) that the M26 or its holster were damaged in any way during the Torres incident; Madera seeks damages only to compensate it for the personal injury Torres sustained at the hands of Officer Noriega. Without any allegation that the M26 or the holster ‘defect’ led to any damage to those products themselves, Madera cannot prevail on its breach of warranty claims.”

Case 2 Update Source:

• “Unpublished Decision”, Madera v. TASER, U.S. Court of Appeals (Ninth Circuit), 5 May 2008. [If needed, see this explanation of what unpublished means in this context.]

My 2021 Thoughts on the Case

As you (probably) read above, Ofc. Noriega had a “prior incident” with confusing the two weapons. It actually happened twice before the fatal shooting. From another court filing (citations deleted):

“Prior to the incident with Everardo Torres, Officer Noriega was involved in another incident in which she had confused her M26 and her Glock service weapon; that incident occurred in the field, when she pulled her gun instead of her taser. The prior incident in which Noriega confused her taser and her Glock happened in a cold month near the time Plaintiffs first got the M26’s. After Noriega had mistakenly drawn her gun instead of her M26, she told her sergeant, as well as the officer who was on call with her, that she had done so. After Noriega told Sergeant Lawson about the prior incident in which she had confused her gun for her taser, she never received any additional training in the use of her M26. 14. Sergeant Lawson, however, did instruct Noriega that she needed to practice more. Lawson testified that he told Noriega to practice drawing her Glock and M26 ‘so that she could become comfortable with them and wouldn’t have any confusion.’”

In a different court filing was this added detail: in the first field case, when Noriega realized she had her Glock in her hand, “it was pointing at [her] partner’s head, the [Glock’s] laser was pointing at his head.” That scared her, so she trained on her own daily to avoid it: “I would have both my gun and my taser in their holsters. And I would draw my taser, and then I would draw my gun. And in my mind thinking taser, taser, taser, gun, gun, taser. Just practicing that way so I would draw, draw, draw.” She had successfully used her TASER “about five times” before the Torres shooting, but never “shooting” it — it was always in “touch-tase” operation.

Also, in April 2001, months before Madera P.D. purchased its TASERs, the company issued this bulletin to police departments: “To eliminate any risk of confusion between lethal and less-lethal force, we strongly advocate carrying lethal force on your strong-hand side and all less-lethals on your weak hand side in cross-draw to prevent any muscle memory confusion from a firearm to a less-lethal. Chief Instructor Hans Marrero requests keeping less-lethals on one side (the left for a right-hander) but still using the strong-arm with gross motor skill indifference for shooting. If agencies are using right-handed holsters they can be easily moved to the cross-draw without the need for a new holster. More on this topic on our website.”

Sgt. Steve Frazier, who purchased the TASERs for the department, appears in the court decision too. “When Frazier received training bulletins from Defendant that looked like the April 2001 bulletin, he would throw the bulletin out without reading it.” Madera had trained its officers to keep their TASERs on their “strong side,” in thigh holsters beneath their pistols.

Terrific supervisor, eh? Yet he was later promoted, to Operations Commander.

One Last Thing

Attorneys for Officer Noriega — but not, if I read it correctly, the City of Madera — prepared a Petition for a Writ of Certiorari (a request for a review in appeal) to the U.S. Supreme Court on the wrongful death case. I cannot tell if it was filed with the Supreme Court and declined, or if it was never filed, but I did get hold of it (you can download it immediately below).

I particularly loved this part:

Here, quite clearly, Officer Noriega did not “knowingly” do anything. She certainly did not knowingly violate the law, having intended to do one thing — employ her Taser — but actually doing another, discharging her pistol. Nor can she be characterized as “plainly incompetent” for making the mistake in question, having received limited training with respect to using the Taser, and none as to how to avoid the confusion that occurred in this case. Indeed, concerned about potential mistakes, she practiced distinguishing between the two weapons. There is no evidence that Officer Noriega, rather than the police department itself, dictated that she wear the weapons on the same side, one holster above the other, a position which, as illustrated here and in the Henry case, was a recipe for disaster.

Considering all of this, it’s clear that Noriega’s lawyers and I disagree on the “plainly incompetent” part.

But I can appreciate the way that her department stood behind her almost all the way.

Letters

For case 060 about the color blind bus driver, readers were somewhat confused:

Jerry in New Jersey: “What I don’t get about this case is this: if the color-blindness was a barrier to this fellow doing his job (and you can certainly see that it would be!), then how did he get the job in the first place? Want to bet that the next suit is against the doctor who performed the pre-employment exam?”

I won’t take that bet, since the driver doesn’t have grounds, and the transit authority probably would be happy to get this issue behind them. But yes, you have to wonder just how much attention the doctor was paying during the driver’s pre-employment physical, or whether there was some “funny business” going on.

Kenneth in New York: “First, can a color-blind person get a regular driver’s license? After all, if being color blind is an insurmountable obstacle to being a bus driver, shouldn’t it also apply to ‘regular’ drivers as well? Second, I was always under the impression that red was *always* at the top of a vertical stack of lights, and (I believe) at the left of a horizontal row of lights. As long as one is able to determine which light is on he can also know if it’s red, yellow, or green. If the sole objection is his inability to ‘properly distinguish the color or traffic lights’, doesn’t that argument go away with this knowledge?”

First, yes: a color-blind person can get a regular driver’s license, but that’s not what a commercial driver needs. As noted, federal regulations are more stringent for commercial drivers, since they might be carrying dangerous cargo — or 70 passengers. I see nothing wrong with having higher standards for commercial drivers.

The fact is, it’s federal law; there is no way for the driver to compel a state court to overturn such a rule. “Impossible to win” is indeed a point in the “frivolous” column, since the only other possible outcome is a monetary judgement against a defendant who has no choice but to comply with the law.

Last, a much more general comment:

Rory in NSW, Australia: “I am a Barrister at Law specialising in crime in Sydney, Australia. I originally thought that your reporting was a bit of a joke and quite untrue. Perhaps colouring the reporting to make it more sensational. The ascending range of my reactions to the reporting has been: humour, incredulity, astonishment and stupefaction. Beyond that I cannot go. I would be confident that the vast majority of my American colleagues are of sober habits and rational of thought, [and] work hard and charge fees accordingly. However, if one were to assume that those who perpetrate these causes are representative of a class of lawyers, then one could only conclude that the bulk such a class is the most odious vermin that nature ever suffered to crawl upon the earth (Apologies to Dean Swift).

There are rules here where a lawyer responsible bringing for a cause with no merit may be subject to penalties such as paying the fees him/herself. But even before those rules were enacted and are now part of our statute law, I cannot recall a single case in which the cause was as capricious as those which your newsletter refer. I have been in law now for some 34 years as a student and a practitioner. At the end of the day, I would think that your exposure of these lunatic causes (and to ridicule them) is probably one of the best methods of at least slowing them down. I would have a hard time wearing down the professional embarrassment if it were me that you were reporting on.”

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