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Changing
Use of Force Practices
Steven
D. Ashley, M.S., M.L.S., MFCI, ARM
Hand held chemical spray weapons (typically referred to as aerosol
weapons, aerosol subject restraints, or ASRs) have been used by police in
the United States since the late 1960’s. Initially, more traditional
chemical mixtures, usually generically referred to as tear gas,
were marketed in small aerosol cans for use by individual officers.
Early hand-held units were often ineffective, as the active ingredients –
or agents – were really intended to be dispersed over a large area in an
airborne cloud rather than sprayed onto an individual in a direct pattern.
Sold under the brand name MaceÔ, these products rapidly gained a reputation
amongst police officers of failing to control aggressive, resistive
individuals. Instead, officers
that used MaceÔ were often so adversely affected by the spray
that they would refuse to use it thereafter. Use of handheld sprays generally fell out of favor.
During
the late 1970s, a hand-held spray weapon containing oleoresin capsicum (OC),
sometimes referred to as “pepper spray”, was developed for civilian
policing, making inroads into the police arsenal during the 1980s.
This product contains the active ingredient capsaicin, extracted from
pepper plants. Because OC is
chemically classified as an inflammatory agent, thereby differing from the
earlier tear gas products which are chemical irritants, it produces a more
severe effect in the targeted individual.
 The primary effects of exposure to OC include sharp burning
sensations in the eyes and on the skin, as well as coughing and profuse
mucous production. Generally,
reflexive closing of the eyes, choking and shallow breathing, lead to
reduced mobility following exposure (National Institute of Justice,
1994).
Today,
American law enforcement generally employs two types of aerosol weapons.
Simple OC products, in varying strengths and concentrations of up to
ten percent, make up the bulk of the aerosol market.
Additionally, combination products, or blends, are also used.
Typically, OC and more traditional CS tear gas (orthochloro-benzalmalononitrile)
are “blended” to produce a pepper-fortified tear gas. These blend products have seen particularly widespread use in
the Midwest and southern states.
Law
Enforcement’s Less than Lethal Practices
Because police officers are charged with enforcing the law and
maintaining public order, they are frequently placed in situations where
they must attempt to manage or control an otherwise free citizen.
Whether an encounter leads to an actual arrest or merely a temporary
detention for questioning, these intrusions are often unwelcome.
It is not uncommon for such police intervention to be resisted by the
citizen or citizens involved. When
this happens, officers frequently need to use forcible means to control and
perhaps arrest the persons in question.
Traditionally, officers have had limited technology at their
disposal. Beyond empty-hand
defensive tactics or boxing, officers could utilize striking instruments
(such as nightsticks, billy clubs or blackjacks) or they could use a
firearm.
Clearly, striking someone with a club or stick represents a high
level of force, with significant potential for injury.
Of course, shooting them represents an even higher level of force.
While such high levels of force are sometimes justified by a
citizen’s aggressive, resistive behavior, the opposite is far more common.
In
those situations where high levels of force cannot be justified, officers
were, and are, often at a disadvantage, facing a significant possibility of
being injured themselves. The
need to control certain violent individuals, while at the same time being
discouraged from using potentially injurious deadly weapons (often the only
weapons they possess), has resulted in many officer injuries while making
arrests for relatively minor violations of the law.
As
society’s expectations matured regarding reasonable levels of force,
police needed a control method that possessed less potential for injury than
a “club” or a gun. For
roughly the last decade, that method has increasingly been aerosol subject
restraints.
During
the late 1980s many law enforcement agencies began to adopt OC technology
for routine patrol use. There
was commensurate development of non-brand specific training programs,
although much of the available training still emanated from the
manufacturers and vendors of aerosol weapons.
Concurrent with the movement toward aerosol weapons, law enforcement began
to adopt other less-than-lethal technologies.
Expandable police batons, which could be worn on the officer’s belt
(as an alternative to the traditional nightstick, which was often left
behind in the patrol car when needed), became the “impact weapon” of
choice. Different versions of
the standard police flashlight, engineered so as to substitute as an impact
weapon when necessary, were also available, although concerns were raised as
to increased legal liability in such circumstances.
Alternative restraint methods were developed, supplementing and
sometimes supplanting standard issue, chain-link handcuffs.
Each of these new developments required specialized training, as well as
additional procedural guidelines in order to reduce the risks inherent in
technological change. Such procedures and training were not always implemented,
with the results that new control methods and tools often led to increased
liability costs, and a parallel increase in the number of officer injuries.
As municipal managers and insurers increasingly take notice of this
undesirable and contradictory trend, law enforcement executives have sought
to reduce risk through adoption of procedures and training programs.
Today, many of the negative results arising from these initial
problems have been overcome, although some departments still lag behind the
rest of the law enforcement profession in their risk reduction efforts.
Justifying
the Use of Aerosol Weapons
It has been estimated that the majority of law enforcement officers
in the United States carry an aerosol weapon.
While most officers have a basic understanding of how to use their
aerosols, the question of when to use them is less well understood. In fact, there are differing opinions among police
administrators and theoreticians as to when aerosol use is operationally
appropriate. Concerns regarding
this question are embodied in several basic philosophies for the timing of
aerosol use.
The
first of these philosophies is to use aerosols when faced with minimal
levels of resistance, such as verbal non-compliance or aggressive posturing.
Justification for use at such a low level hinges upon the potential
for officer injury – and the commensurate increased likelihood of injury
to the involved citizen – if an officer moves in to control the resistance
physically, and begins fighting with the individual.
Essentially, it’s thought to be better to spray early rather than
face this increased risk of injury to both parties.
Another operational philosophy is to not spray unless faced with a
fairly high level of resistance, such as would otherwise justify the use of
a striking weapon. The
reasoning for delaying the use of sprays until greater justification is
present involves concern that use of the aerosol could result in a severe
physical reaction that might, in fact, be life threatening.
This philosophy tends to place heightened emphasis on avoidance of
legal liability in such circumstances.
A third, and perhaps the most defensible philosophy, is to use
aerosols – and for that matter any weapon – when such use can meet the
test of “objective reasonableness”.
This standard is required by the Fourth Amendment to the United
States Constitution, and is cited by the Supreme Court of the United States
in Tennessee v. Garner, 105 S.Ct. 1694 (1985).
One way of stating this is that use of any weapon is justified when
an officer reasonably believes that such force is necessary to stop an
individual’s aggressive or resistant behavior, and that lesser levels of
control would be unsafe or ineffective.
The Supreme Court has further indicated that reasonableness should be
determined based upon a reasonable officer’s assessment of four factors;
the nature of the crime at issue, whether the suspect is an immediate threat
to the safety of the officer or others, whether the suspect is attempting to
evade arrest through resistance or flight, and the degree to which the
situation is tense, uncertain and rapidly evolving.
This last point acknowledges that officers must act with little time
to analyze and consider circumstances, rather than with the luxury of 20-20
hindsight (Graham v. Connor, 109
S.Ct. 1865 (1989)).
Officers using weapons or control techniques of any type must be
prepared to articulate their need for the use of such force.
The use of force to maintain order, to protect citizens and to
enforce the law must be balanced against the cost to society in reduced
freedom of movement and in increased intrusion into the lives of society’s
members. The outcome of this
balancing test will determine the legal acceptability of each individual use
of force.
Citizen
Perception of Aerosol Weapons and Police Use of Force
There
was a time when mainstream America gave little thought to the routine use of
force by police officers. Unless
a citizen had been arrested, or lived in a high crime area, such things were
generally out of sight, and out of mind.
When it did come to the attention of the public, use of force was
often deemed to be necessary for the greater good.
Only in the case of inappropriate use of deadly force did one see
very noticeable public reaction, and generally even those cases did not
result in an overall damning of the law enforcement profession.
This is no longer the case.
The
proliferation of information, coupled with society’s ability to capture
and rapidly distribute images and ideas, has dramatically changed the law
enforcement landscape in America. There
is an increased belief in the pervasiveness of brutality and excessive force
on the part of law enforcement officers by the American public.
Widespread and repeated br oadcast
of sensational footage of excessive force incidents, coupled with endless
analysis and discussion of events by commentators, has resulted in a virtual
expectation that the police will use more force than is necessary.
Despite
this trend, in many jurisdictions where aerosol weapons are properly used
and managed, complaints against officers for excessive force have declined
by as much as 50 to 60 percent. It
is generally believed that this is due to the short-term nature of the
effects of aerosol exposure.
Physically
fighting with a suspect, and perhaps using a striking implement such as a
nightstick or baton, carries with it a significant potential for harm. Injuries ranging from scrapes and sprains to deep bruises and
broken bones are often the result. These
injuries leave marks on the human body which often remain for days, if not
weeks or months. Occasionally
medical treatment may be required, sometimes resulting in time off from work
for the involved citizen. These
situations frequently give rise to complaints that the force used was
excessive, and often are accompanied by threats of legal action.
When
viewed in this context, the relatively short-lived effects of an aerosol
exposure, albeit extremely painful and debilitating, seem preferable.
Usually, the most extreme effects wear off in approximately 20 to 30
minutes, and the exposed person can then be said to be “functionally
recovered”. Residual effects,
such as reddening of the skin, bloodshot eyes, heightened respiratory
sensitivity, and a mild burning sensation, can last anywhere from several
hours to several days. In a
very few cases, there may be some peeling of the outer layer of the skin (as
if recovering from a mild case of sunburn).
Unfortunately,
high profile cases such as the demonstration in Humboldt County, California,
wherein officers applied OC directly to the eyes of apparently peaceful
anti-logging demonstrators, are widely broadcast by the national media.
In such cases, debate ensues as to the appropriateness and necessity
of aerosol use, giving rise to statements equating use of aerosol weapons to
“torture”. Following such incidents, some jurisdictions rethink their
use of aerosols, and sometimes ban further use by local police.
On
balance, it appears that routine use of aerosol weapons by police leads to
reductions in complaints of excessive force, while high profile, individual
cases often give rise to general discontent with use of force practices in
the affected jurisdictions.
Conclusion
Societal pressure to find less injurious methods of controlling
behavior led to the development and increasing adoption of aerosol spray
weapons during the 1970s and 1980s. Once
products began to appear, law enforcement agencies began to seek the most
effective aerosol weapons from both liability reduction and officer safety
standpoints.
As of this writing, the majority of law enforcement agencies in the
United States are routinely using aerosol spray weapons.
In most states, a high percentage of those departments are equipped
with oleoresin capsicum (OC) products.
In some areas, blends (most notably of OC and CS tear gas) are used.
Increasing pressure from citizen’s groups and the media has
encouraged law enforcement administrators to develop appropriate procedural
guidelines for use of aerosol weapons, and to develop and implement training
programs in aerosol weapon usage. Increasing
levels of documentation and supervision of incidents have resulted from
ongoing public scrutiny of use of force situations.
In jurisdictions where appropriate policies and procedures are in
place, supported by thorough training and adequate supervision and
management, reductions in officer and suspect injuries, as well as fewer
complaints of excessive force, continue to be reported.
Occasional aberrant incidents receive widespread publicity, fueling
public perception that police in general use excessive force.
The
Need for Further Research
While a large amount of information exists on capsaicin, much more
research is needed into the long-term effects of OC aerosol weapon exposure.
Specifically, more research is needed into the long-term effects on
vision and respiratory health. More
definitive study is needed into any possible connection between use of
aerosol weapons and in-custody deaths.
There is an almost total lack of research into the effects of blend
(CS/OC) based aerosol weapons. The
completion of future research into use of blends is particularly important
for those regions of the country where blends are the dominant weapon used.
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