Police Reform (8/10): “More Less-lethal Force”

Introduction

When I started in the criminal justice system, the police had only two options to subdue suspects: batons and guns.

Of the millions of face-to-face contacts people have with the police every year, about 1.4% involve the use or force or threats of force by the police. (1 out of 100). About 25% (0.56%) of those violent contacts involve the officer pointing a gun. (1 out of 400) About 50% (0.7%) of those violent contacts involve the officer using physical force such as pushing, grabbing, punching, or kicking. (1 out of 200).

“Never Argue with a Badge and Gun” 

Violent confrontations with the police almost always start with a suspect refusing to cooperate or comply.  The suspect “starts it,” and the police “finish it.”

I repeatedly tell my law school students: “Never argue with a badge and gun.” “If there is a problem, argue it out in court later.” “It’s not worth losing your teeth or your life.”   

I remind my students that police officers, unfortunately, are human, just like the rest of us.  An officer may be going through a brutal divorce.  He may be frustrated with his teenagers.  His commander may have berated him at briefing.  His beloved pet may have just died. In short, he may be a ticking time bomb ready to explode. “Don’t push the detonator button!”

The Case of “Wrong Place and Time”

Suspects don’t know what the officer is thinking when confronted.

I know of a case where a young man left his girlfriend’s apartment and walked to his yellow VW.  His right arm was stiff from sitting on her couch watching TV, so he rotated his right shoulder just before getting into his car. 

As he started his engine, his passenger window was shattered, and a police officer was pointing a shot gun at him. “Freeze!”  Fortunately, the young man immediately complied and froze.

Come to find out, an armed robbery had just taken place at a nearby liquor store.  The robber shot and killed the store clerk.  The store clerk had shot the robber in the right shoulder. The eyewitnesses saw that robber had fled in a yellow VW. 

The innocent young man was in the wrong place at the wrong time.  He had not “frozen” immediately, and reached for his keys or wallet instead, he would have been shot and killed. The shooting would have been ruled “excusable.”

Mistakes do happen.  I tell my students, “You don’t want to be the victim of one of those tragic mistakes.”

“Never argue with a badge and gun.”  “Just cooperate and comply.”  “Argue it out in court later.”

Guns

The majority of police officers never point their gun at anyone during their career.  Even fewer officers actually shoot their gun.

In the Old West, sheriffs and marshals only had one option to subdue criminals – shoot them.  Wyatt Earp, Bat Masterson, and Porter Rockwell shot and killed dozens of suspected criminals. The lawmen were judge, jury, and executioner. (Utah marshal Porter Rockwell, perhaps the most famous lawman of his time, killed more criminals than the other famous lawmen combined.)

Less-lethal Alternatives

It became clear that officers needed alternatives to guns.  Herculean efforts have been expended by scientists, engineers, and police to create “non-lethal” weapons designed to incapacitate without killing. These weapons were originally called “non-lethal.”   

However, a lot of people have died from “non-lethal” force. Death usually resulted from:
–Pre-existing medical conditions like heart disease.
–Repetitive or excessive use of force, like, repeated tasering.
–Improper use of force, like blows to the head by baton, plastic bullet through the eye, holding a choke hold too long

So currently, the alternatives to guns are called “less-lethal” force, not “non-lethal” force.

In the summer of 2020, the Seattle City Council barred officers from using “less-lethal” weapons against protesters and rioters.  This inane policy left officers with one option: shoot, or don’t shoot. Instead of the numerous injuries sustained by protesters and police, there will be more deaths.

Batons

At the same time lawman in the Old West were shooting suspects, London bobbies carried truncheons or billy clubs. Over the years these batons changed is size and shape, short “day sticks” and longer “night sticks.” The composition, went from only wood, to include rubber, plastic, and metal. Most recently, the police use side-handle sticks, and expandable metal batons.

These batons can be effective if they strike the large muscles in the legs or arms. However, a blow to the skull, sternum, or spine can be deadly.

The Rodney King incident, which sparked riots, is the most famous incident of using “less-lethal” baton force to overcome resistance. “Monday morning quarter backs” said the police should have used choke holds, pepper spray, Tasers, or a “pile-on.”  However, choke holds, Taser, and “pile-ons” are potentially fatal, and pepper spray is often not effective with someone high on drugs.  Although King was badly beaten and hospitalized, he survived.  (Of course, King’s passengers, who cooperated with the police, were not harmed at all.)

Neck Restraint: Choke holds and Carotid holds

Choke holds were intended to incapacitate a person by cutting off the oxygen to the brain.  However, many people died.

 If the hold is prolonged, oxygen is cut off from not only from the brain, but also from the entire circulatory system.  Upon releasing the hold, it takes time before the blood is oxygenated enough to revive the brain.  

Even a proper choke hold can cause brain damage, and a prolonged hold can cause death. This was the apparent cause of death of George Floyd, where the officer knelt on his neck for 8 minutes.  

Most police departments have banned the use of choke holds.

The carotid hold, instead of eliminating oxygen from the blood, quickly stops the blood flow to the brain. Unconsciousness occurs within seconds. Upon releasing the hold, the suspect is almost immediately revived. The carotid hold has much less risk of injury or death.

Gases: Tear Gas, Pepper Spray

Tear gas and pepper spray are “less-lethal” alternatives that can be used on individuals or groups. These gases are relatively safe with no lasting effect.   

Rioters sometimes come prepared with goggles and bandanas to cover their eyes and mouth, so the gas has no effect.

There was a California case where officers physically rubbed pepper spray swabs directly into the eyes of protesters.  The officers were found liable.

Case of the Near Fatal Reaction to Pepper Spray

I had a unique case where a young man started shouting in an apartment complex that two men in a car were “narcs.” One officer reached out the window and pepper sprayed him in order to shut him up.

The young man had a severe reaction. He collapsed, stopped breathing, and went into cardiac arrest. The panicked officers administered life-saving CPR until the paramedics arrived.

The defendant was held in custody in the hospital for interfering with the police. He was then brought to my court in handcuffs.   He had no prior convictions.  He almost died.  I decided that no additional penalty was necessary in order to get his attention.  

Pain Compliance and Body Mechanics

Pain compliance involves manipulating a person’s joints or pushing pressure points to create enough pain to achieve compliance. Body mechanics techniques rely on using leverage and momentum to gain control of a suspect.

Canines

Police dogs are another “less-lethal” technique for subduing a suspect.  The dogs are trained to latch onto the suspects arms or legs.  However, some courts have ruled that police canines constitute “deadly force.”

Flash bang Stun Grenades

Flash bang stun grenades are bright enough and loud enough that a suspected is completely blinded and deafened for about 5 seconds. Although I have had several cases where police have used this “less-lethal” method, the only “injury” has been peeing or pooping pants.

Less-lethal Ammunition

There are several types of “less-lethal” ammunition. I have personally never had a case where “less-lethal” ammunition was used.

One is a “bean bag” fired from a shotgun. However, this force can stop the heart or rupture internal organs.

Another option is the use of rubber bullets.  The force of these objects can put out an eye or cause injury or death.

The British military and police used “rubber bullets” against IRA protesters in Ireland. I remember a comic meme showing that the way to win the war on terror against the IRA was to use a huge rubber bomb.

Electroshock Tasers

Tasers a very effective in incapacitating a suspect. Tasers may not work if the suspect is wearing thick clothing, or both barbs don’t connect with skin.  Violent protestors sometimes wear thick long sleeve clothing to protect against the police use of Tasers. Tasers can be fatal if the suspect has serious heart problems.

Case of the Kenosha Wisconsin Police Shooting

According to initial media reports, in late August 2020, in Kenosha, Wisconsin, two white officers confronted an out-of-control, possibly under the influence, unarmed black man.  The initial video showed both officers had their guns out and pointed at Jacob Blake.  As the Blake tried to walk from the sidewalk to his open driver’s door, one of the officers tugged on his T-shirt, trying to stop him.

When the Blake got in the driver’s seat, one of the officers, at point blank range, shot Blake in the back multiple times, paralyzing him. The area erupted in riots.  The local police established a curfew and the governor called in the national guard.

The officers may have been legally “justified” in shooting Blake.  Apparently, his three children were in the car.  The officers needed to stop Blake in order to keep him from driving away and injuring or killing his own children or innocent bystanders.  However, from the initial video, it appears that the shooting was “unnecessary.” 

Based on the initial video, this is seems to be a classic scenario for the use of “less-lethal” force.  A Taser would have been solved the problem.  Even a baton, carotid hold, or pepper spray might have been effective options.

Officers are given extensive training and practice in the use of firearms.  Perhaps, they should be given more extensive training in the use of Tasers.

After the initial media reports, and after the riots, other videos, body cams, and information became available. According to the police union a Taser was used on Blake with no effect. Also, Blake may have been reaching for a knife inside the car.

This is another example of a “rushing to judgment.” It is also a classic example of the principle: “No matter how thin you make the batter, there are always two sides to the pancake.”

The police and prosecutors in these shooting situations want all the evidence before making a decision. They do not want to “rush to judgment.” However, the media, protesters, mobs, and rioters are not so deliberate.

Other “Less-lethal” Approaches to Crowd Control

In addition to the above approaches some countries use:

• Water cannons
• Mounted police horse charges
• Police charges with batons and shields

Ongoing Research

There is ongoing research looking for a “magic bullet,” a truly “non-lethal” weapon effective in incapacitating someone. These include:  

• Net guns
• Pepper spray projectiles
• Stink bombs
• Sticky foam
• Sound canons
• Electromagnetic radiation
• Dazzler lasers

Conclusion

We should expand and encourage the use of “less-lethal” force by police.  We should increase the inventory of, and training with, these weapons.

Police should be reminded that, even when deadly force is “justifiable,” it is not always “necessary.”

The public should be reminded that there will always be exceptional circumstances where the use of “less-lethal” force might result in injury or death. “Less-lethal” force is not always “non-lethal” force.  But that doesn’t mean we should decrease or eliminate the use of “less-lethal” force.  “Don’t throw out the baby with the bath water.”

(“Chokehold,” “Pain Compliance,” “Use of Force,” “Baton,” “Stun Grenade,” “Non-lethal Weapon,” “Riot Control,” Wikipedia; “Pain Compliance vs. Body Mechanics,” Richard Nance, March 15, 2017, http://www.officer.com; “Contacts Between Police and the Public,” U.S. Department of Justice, 2011; “A Dubious Order Against the Seattle Ban on Police Use of Non-Lethal Force,” Andrew McCarthy, National Review, July 27, 2020.)