Weapon Confusion: TASER CEWs, Firearms, and Human Error Theories

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/07340168221123238
• Author: Howard E. Williams
• Date: 01 December 2023
• Subject Matter: Articles

Weapon Confusion: TASER

CEWs, Firearms, and Human

Error Theories

Howard E. Williams

1

Abstract

Norman’s human action theory and Reason’s human error theory provide frameworks to analyze

and to understand weapon confusion wherein a police off‌icer mistakenly draws and discharges a

f‌irearm rather than a stated intent of deploying a TASER CEW. Review of publicly available informa-

tion culminated in qualitative analysis of 20 TASER CEW/f‌irearm confusion shootings that revealed

evidence of capture error and action execution slips. Although changes in policy and training have

not eliminated such errors, there is evidence they might have had some success in reducing the

frequency. Systematic and simultaneous changes in weapon design, policies, training, and procedures

might be necessary to reduce or eliminate weapon confusion but must be carefully assessed to avoid

negative unintended consequences.

Keywords

human action theory, human error theory, off‌icer involved shooting, TASER, weapon confusion

Introduction

During a traff‌ic stop in April 2021, a police off‌icer in Minnesota shot and killed the driver when he

resisted arrest for an existing warrant. The off‌icer reportedly intended to use her TASER®

1

con-

ducted electrical weapon (CEW) on the driver but mistakenly drew and f‌ired her service f‌irearm,

a semiautomatic pistol (Bellware et al., 2021). Subsequently, prosecutors charged her with second-

degree manslaughter (Feuer et al., 2021) and later added a charge of f‌irst-degree manslaughter

(Bellware, 2021). The off‌icer was eventually convicted on two counts of manslaughter

(Bogel-Burroughs, 2021). This incident sparked international debate on whether a police off‌icer

could possibly confuse drawing and f‌iring a f‌irearm for drawing and f‌iring a TASER CEW.

Although police shootings during citizen encounters are rare, any shooting (or, for that matter, any

use of force) that appears inappropriate or excessive damages police legitimacy. There are very few

examples of weapon confusion shootings, but the public views them as unacceptable and inexcus-

able, as it did in the example above. Each instance reinforces an estrangement between the police

1

School of Criminal Justice & Criminology, Texas State University, San Marcos, TX, USA

Corresponding Author:

Howard E. Williams, School of Criminal Justice & Criminology, Texas State University, 601 University Drive, HAC 118,

San Marcos, TX 78666, USA.

Email: hw1007@txstate.edu

Article

Criminal Justice Review

2023, Vol. 48(4) 495-514

© 2022 Georgia State University

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/07340168221123238

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and the citizens they serve. Ultimately, as was graphically demonstrated in the United States during

the summer of 2020, a loss of legitimacy can lead to riots against government authority. Therefore, it

is imperative to understand how such weapon confusion mistakes and errors occur, not to make

excuses for them, but to f‌ind solutions to prevent them.

Some analysts have proposed that weapon confusion shootings are the result of inadequate or

lapsed training (Ciavaglia, 2021). However, the explanation for such shootings is more complex

than the single variable of training def‌iciencies would suggest. Not all human actions, including

police actions, are the result of stoic thought processes and trained physical response.

Literature Review

Perrow (1984) has estimated that between 60 and 80 percent of accidents involve human error. Even

in occupations recognized for extensive training and strict protocols, seemingly inexplicable errors

still occur. In 1997, medical errors reportedly resulted in the deaths of 44,000 to 98,000 people in

the United States (Kohn et al., 2000). Despite concerns that the estimate is inf‌lated, the point

remains that many deaths are attributable to errors by highly trained medical professionals.

There is little literature examining weapon confusion shootings by police, likely due to the paucity

of occurrences. Farber (2012) analyzed court f‌indings in cases involving weapons confusion arising

from some of the nine incidents that had occurred in the United States before that time. He did

include a very short explanation of what happened in each of the nine cases, but his analysis con-

cerned legal consequences from only four of those cases. His did not include analysis of the

causes of the errors. The cases included one criminal case and three civil actions. Those cases cor-

respond to Cases #1, #3, #4, and #9, detailed below. He made the following observations:

1. A jury should decide whether the off‌icer’s intent to use a TASER CEW or the mistake of

f‌iring a f‌irearm was reasonable was a question for a jury to decide, not the court in a qualif‌ied

immunity decision (Torres v. Madera, 9th Cir. 2011);

2. The off‌icer’s intentions do not determine the constitutionality of his conduct, but the “objec-

tive reasonableness of his actions,”regardless of whether it was mistaken (Henry v. Purnell,

4th Cir. 2011);

3. Mistakenly drawing and f‌iring his handgun instead of a TASER CEW can constitute criminal

negligence (People v. Mehserle, Cal. App. 2012); and

4. Although an off‌icer might be immune from federal lawsuits, that off‌icer could still be subject

to state tort action (Yount v. City of Sacramento, California Supreme Court, 2008).

Based on what he had read in the case decisions, Farber made several recommendations to reduce

off‌icer liability. First, he recommended holstering the CEW for a weak hand, or contralateral,

draw. Second, he noted that the federal civil liability standard for such incidents was still reasonable-

ness, and the courts would apply that standard regardless of whether the off‌icer intended to use a

TASER CEW or a f‌irearm. Third, he noted that off‌icers who did not face federal claims might

still be subject to state law claims for battery or negligence. Finally, he suggested more training

and practice on drawing the CEW to help off‌icers distinguish between the feel and the weight of

a CEW from that of a f‌irearm.

Martin (2016) analyzed the fatal shooting of a man by police in San Francisco. In that incident,

corresponding to Case #9 below, the off‌icer meant to draw his TASER CEW but mistakenly drew his

f‌irearm and shot the man. Martin determined that human error theory, specif‌ically slip-and-capture

theory, explained the off‌icer’s action. However, some critics dismissed slip-and-capture theory

claiming there was no science behind it (Murphy, 2021; Yan, 2016).

496 Criminal Justice Review 48(4)