A Design Flaw is a Cause of the Tulsa - and Other Taser-For-Gun - Shootings

WASHINGTON - April 20, 2015 - PRLog -- The fatal shooting in Tulsa by a volunteer deputy, who mistook his service firearm for a Taser stun gun, has been ascribed to the shooter's negligence, lack of adequate training, and/or his age and inexperience, but similar mistaken shootings have occurred almost a dozen times before.

        A common underlying cause - and one very easy and inexpensive to fix in order to prevent even more re-occurrences - appears to be a design flaw in the laser aiming mechanism, suggests public interest law professor John Banzhaf, an expert in shooting cases.

        An accidental shooting, when a gun is mistaken for a Taser, is caused in part by the fact that the laser sights on both are apparently identical, he says.

        Thus, when the shooter sees the aiming mark on the suspect's body which he associates with his Taser, it reinforces - rather than tends to correct - his mistaken belief that he is shooting a Taser.

        As the sheriff's attorney explained, "He said that he saw the laser sight on the shoulder, assumed it was the Taser . . . both the gun and the Taser have a laser sight, and he just made a mistake."

        It's only natural - "reasonably foreseeable" - that people will make mistakes, especially when they have to act very quickly and under great stress, so the law requires that all products be designed to reduce the incidents of such reasonably foreseeable mistakes, rather than to reenforce them.

        Where this can be done at very low cost, and be effective in significantly reducing the harm from the mistake which would otherwise occur, the failure to design for such errors constitutes negligent design or a “design defect,” and can impose legal liability on the product's manufacturer.

        Similar problems used to occur with much greater frequency in the administration of intravenous and other drugs in hospitals.  These can occur not only when the wrong drug is given, but also when a different concentration of the correct drug is administered, or the correct drug is administered using the wrong route (e.g. intravenous vs. intra-arterial vs. epidermal).

        Because the box packaging - or the plastic bags in which intravenous drugs come - can often look very similar for different drugs or for different concentrations of the same drug, it is to be reasonably expected that medical professionals will occasionally reach for the wrong plastic bag or package, especially when decisions have to be made quickly and under stress.

        However, something as simple as using different colors on the bags or packaging to differentiate different drugs, different concentrations of the same drug, or the means by which the drug should be administered, have substantially reduced such quick-but-wrong decisions, says Banzhaf.

        The same simple technique could also be used to slash the number of deaths and serious injuries caused when officers think they are reaching for a Taser and instead pull out their gun.

        There have already been about a dozen reported instances, with many more reasonably to be expected in the future as the use of Tasers continues to grow.

        If the laser aiming beam used by the Taser was a color other than the one which is typically used in aiming devices on police handguns, the shooter - just as he is preparing to shoot - would get a stark reminder and warning that he is not firing his Taser; rather than reinforcing the confusion by presenting him with a sight picture identical to that presented by and expected from his Taser.

        The cost to use a different colored laser beam for Tasers than for handguns is very small, but gives the shooter another chance - a stark warning - that he has mistaken one tool for another.

        Even simpler and less expensive might be to have the Taser's laser aiming beam flash on and off very rapidly.  This would still provide an accurate beam for aiming, but would be a clear reminder at the last minute, if the shooter sees the usual steady aiming target, that he is shooting a real gun and not a Taser.

        Experts have testified that well-known psychological phenomena can contribute to such mistaken shootings.  High-stress situations, for example, can impair cognitive functioning and even vision.

        Also, because of what is known as the “slips and capture” phenomena, the brain can make a mistake by erroneously defaulting to learned behavior without ever realizing the error.

        This is all the more reason, argues Banzhaf, to interrupt that incorrect default behavior by reminding the shooter that things this time are different - a steady red dot, rather than a blue one or a flashing red one which he would expect from his Taser, would warn him that he is about to fire a bullet.

        Such a design flaw probably would not, of course, absolve the Tulsa deputy of any potential criminal or civil liability, says Banzhaf, who teaches Torts.

        However, the victim’s family, seeking deep pockets from which to obtain adequate civil compensation, might well also bring a product liability law suit against the Taser’s manufacturer.

        What is even more likely, says Banzhaf, is either that the Taser’s manufacturer on its own initiative will make a simple change to the laser sighting mechanism (e.g. move to a rapidly flashing target beam), and/or police departments - in an effort to reduce their own potential liability for mistaken shootings - will insist upon such changes in the stun guns they purchase and provide to their law enforcement officers.

        It may even be possible, says Banzhaf, a former electrical engineer and inventor with several U.S. patents, to inexpensively change the aiming mechanisms on the Tasers already in use by law enforcement officials by adding a circuit to rapidly flash the existing projected laser target beam.

        This could lead to recalls which might help prevent such avoidable but clearly foreseeable mistakes in the future, he says, and perhaps bring some good from this otherwise unmitigated - and needless but unfortunately not uncommon - tragedy.

       Banzhaf has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."


LIST OF ACCIDENTAL GUN/TASER SHOOTINGS

http://banzhaf.net/taser.pdf

EXAMPLES OF HOW TO COLOR CODE DRUGS TO PREVENT ACCIDENTS,
http://banzhaf.net/color.pdf