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Managing Aerosol
Issues
Steven
D. Ashley, M.S., M.L.S., MFCI, ARM
The use of
aerosol weapons by law enforcement agencies has skyrocketed during recent
years. As more and more
agencies have adopted spray devices, concerns have arisen regarding aerosol
program implementation and management.
Three issues which consistently raise significant concerns are
aerosol training, placement of aerosols on a Force continuum, and in-custody
death.
TRAINING
WITH AEROSOLS
Aerosol weapons (referred to most commonly as aerosol subject
restraints, or ASR’s) are one viable
method for controlling resistive behavior.
In this regard, they are no different than any other control option.
Verbal direction, defensive tactics, batons, and firearms are other
methods of exerting control. We
train with each of these control mechanisms in order to enhance officer
safety and to reduce the threat of litigation.
ASR’s should be managed in the same way.
One issue that is regularly raised is that of exposure to ASR’s
during training. Some officers
have resisted this, using the time-worn excuse that if they aren’t shot
with a handgun during firearms training, they shouldn’t have to be exposed
to aerosol’s during ASR training, while others have legitimate concerns
regarding potential medical complications. In order that training can be as effective as possible, these
concerns should be addressed by administrators and trainers.
An edited version of this article appeared in the March, 1996, Law
& Order Magazine
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It is universally accepted that the more realistic training is—the
more it approximates actual street conditions—then the more relevant,
defensible, and useful it is. However, we can only make training so realistic, without
forfeiting safety. During the
past few years trainers have gone to great lengths to make training more
realistic and job related, and this has shown up in our firearms, defensive
tactics, and driver training. Training
would be most realistic if we could shoot each other, or ram into each
other’s vehicles, during classes, without actually injuring each other,
but we obviously cannot. We
can, however, spray each other in dynamic simulation with almost no
potential for injury.
Injuries are always a concern with use of force training, and can
frequently be attributed to the training environment, as opposed to the
actual training instruments themselves.
Just as there is a possibility of an injury during Defensive Tactics
training or on the firearms range, there is a possibility of injury during
dynamic simulation training with aerosols. For this reason, its important to
properly design and implement your use of force training program.
Traditional methods of control such as firearms and impact weapons,
have a long history of use. Officers
are acculturated (although television has created a “myth” which leads
many officers to believe their weapons are more effective than they are) to
expect certain results when using these weapons.
This is not the case when using aerosols.
Firearms make holes in people, and represent the supreme measure of
control. Impact weapons—most
notably batons or sticks—are used to deliver a physical blow, much like a
punch or kick. Aerosols,
however, merely spray a liquid, which may or may not have an effect on the
target. Additionally, under certain conditions, aerosols are likely
to effect others in the area, including the officer.
Officers must develop sound expectations regarding the outcome of an
ASR use, both as to the likely reaction of the subject they are trying to
control, and to the likely result of being sprayed themselves.
The survivability of an ASR related encounter may depend, in large
part, on an officer’s having been sprayed in training.
There have been several cases around the country where officers have
attributed their survival to having been sprayed during ASR training, and at
least one case where the lack of proper training probably led to an
officer’s death at the hands of a violent assailant.
There are many reasons to expose officers to aerosols during
training, running the gamut from enhanced officer safety and decreased
tendency for horseplay to litigation defensibility.
While some departments allow officers to carry ASR’s without being
exposed, and others require a minimal exposure (most typically walking
through an “airborne fog” or wiping a small amount of agent on the cheek
with a finger), the vast majority of trainers nationally have recommended
training exposures, as have manufacturers.
Many recommend a dynamic full spray “hit” as opposed to a
“wipe” or “airborne fog” exposure, in keeping with our need to
conduct the most realistic training possible. A dynamic “hit” is
generally defined as a one to two second burst sprayed directly into the
face of a student who is simulating a struggle or resisting a simulated
arrest.
Some state OSHA organizations have stated that, while exposure should
be voluntary, it is acceptable to require an exposure prior to allowing an
officer to carry an ASR on the street.
Many nationally recognized trainers recommend this approach, and
encourage a full, dynamic training exposure. Because this type of training
involves a potential risk exposure, sound loss control practice dictates
that this be conducted only with appropriate safety and medical controls in
place, such as securing adequate decontamination supplies and equipment,
developing an effective exposure and decontamination process, and having an
EMT or Paramedic on site.
THE
APPROPRIATE CONTROL LEVEL
One troubling question regarding aerosols is where they fit on any
particular force continuum. The key to the use of any control mechanism is objective
reasonableness, as required by the Fourth Amendment to the United States
Constitution, and as adjudicated in Tennessee
v. Garner, 105 S.Ct. 1694 (1985), and Graham
v. Connor, 109 S.Ct. 1865 (1989). We
frequently attempt to place specific weapons, such as ASR’s, on a
continuum of force. Consider,
however, the difficulties this creates.
We develop and utilize continuums primarily as training aids. From
the beginning of an officer’s career, we illustrate the relationship
between resistance and control in this way.
Yet, whenever we use our training aid, we are forced to explain
“exceptions” to the continuum. The best example of this is the baton. Most continuums consider baton use “intermediate force”,
yet we must explain that a baton strike to the head is actually “deadly
force”. This is confusing,
and complicates the use of our training aid.
Most other weapons suffer this same fate.
Firearms represent deadly force, yet exert a lesser controlling
effect when present and in a holster, or when merely held in the hand at the
officer’s side. Restraint
devices such as handcuffs represent, in many systems, empty hand control.
Yet they can be used as an impact weapon, and are therefore
intermediate force. Other
examples are obvious.
Because of this “flexibility of effect”, it is inappropriate to
place specific weapons, including ASR’s, at any given location on a
continuum of force. Once a
particular weapon is locked into a specific location on whatever continuum
of
 force/control that a given department uses, any use of that weapon
elsewhere on the continuum necessitates explanation, and usually results in
confusion. Most often the
explanations are required in court, and the confusion usually resides in the
minds of officers, supervisors, and attorneys—and juries.
Weapons are instruments of control, and most can be used to manifest
various levels or types of control, depending on an officer’s reasonable
assessment of the need for control.
This assessment must be reasonably based on the officer’s
evaluation of each given situation, rather than some artificial construct
outlined in a force/control continuum. The standard must be “objective reasonableness”, as
clearly established by constitutional case law.
ASR’s, as well as other weapons, should not be specifically placed
on a continuum, but should be considered a reasonable response to the
articulable need to control a threatening or resistive subject.
MONITORING
THE AFTERMATH
There is much anecdotal, often erroneous information regarding the
connection between ASR’s and Sudden In-Custody Death Syndrome (SICDS).
An examination of various SICDS incidents from around the country
(approximately 58, according to one report) indicates that this connection
is essentially non-existent.
There have indeed been SICDS cases, although many of these cases have
occurred over the years prior to the widespread use of ASR’s by police.
Some have occurred during the past several years, in cases where
ASR’s have been used during the arrest process.
But, this appears to be the only connection.
In only one case—the death of Angelo Robinson, in Concord, North
Carolina—has competent medical authority linked a death to the use of
“pepper spray”. The Medical
Examiner in this case stated that the death of Mr. Robinson was due to,
“...bronchospasm, precipitated by pepper spray...” However, this was after stating that there was no physically
identifiable cause of death, and after referring to the temporal
relationship between the use of the spray and the death. Other medical
experts have reviewed these findings, and indicated that the ruling could
just as appropriately have gone the other way.
In other SICDS cases where an aerosol was used during the arrest
process, no connection has been substantiated.
Most often, death is attributed to positional asphyxia, cocaine
psychosis, excited delirium, or simple exhaustion of the cardio-vascular
system. Space precludes an
in-depth examination and discussion of each of these factors here.
Suffice it to say that the only one of these factors that officers
have any control over is positional asphyxia.
Positional asphyxia is caused by the inability to breathe, due to
some interference with the mechanical functioning of the body.
Prime candidates for positional asphyxia are subjects who are
transported on their stomachs, hog-tied, or placed face down during a
struggle with an officer’s weight pushing down on their back.
It is common in SICDS cases for subjects to stop breathing during
arrest or transport, and for officers to discover this some time later.
One key to management of SICDS appears to be careful monitoring of
any subject who is taken into custody, and upon whom force is used.
A review of SICDS cases reveals that in a significant number, this
was not done. Officers should
be trained to carefully monitor the condition of those they arrest,
particularly if force was used.
CONCLUSION
AND RECOMMENDATIONS
ASR’s are a viable method for controlling resistive behavior. There
is far less likelihood of suspect injury with an aerosol weapon than with a
baton or firearm, and far less likelihood of officer injury than with empty
hand control techniques.
Aerosols allow the officer to maintain a “cushion of safety”, and
reduce the necessity to move in and grapple with an unruly subject.
One Midwestern State reports that approximately one half of the
police related worker’s compensation injuries reported each year are
suffered by officers during a forcible arrest situation.
Officers should be trained, and retrained, as with any other weapon
system. In the interest of
officer safety, initial training should be as realistic as possible,
following manufacturer’s recommendations.
Policies should be adopted which call for objectively reasonable use
of all control options, including aerosols.
Policies should also require proper post exposure monitoring and
first aid.
Reducing Your Aerosol Risk
· Select an
ASR from a reputable manufacturer.
· Adopt a
policy governing the use of aerosols. Include
language on training considerations and reporting requirements following use
of aerosols.
· Avoid the
placement of specific weapons onto specific levels in your department’s
force/control continuum.
· Require
training of all officers BEFORE allowing carry or use of any weapon/control option.
· Utilize
training programs that meet your State POST Council’s guidelines for use
of force programs, and that are POST approved.
· Conduct the
most realistic training possible.
· Develop
appropriate safety and medical controls for your training program.
· Require a minimum
of annual retraining with all issued/approved weapons/control options.
More frequent training is recommended.
· Require
careful post use-of-force monitoring of subjects, especially when aerosols
are used.
·
Require a
written Resistance Control Report whenever force is used.
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