Less-Lethal Weapons

The future is here

 


 

Chris Boyd | From the August 2008 Issue Friday, August 1, 2008

For decades, police officers have sought tactics and equipment to facilitate the safe arrest of violent, combative subjects whose actions don’t justify the use of deadly force. Traditional impact weapons (saps and nightsticks, or “billy clubs” as they were once referred to) evolved to include side handle batons, such as the PR-24 and, more recently, expandable batons, such as those manufactured by ASP. Chemical agents evolved from CS and CN tear gas (“Mace”) to the more modern oleoresin capsicum, commonly known as OC. The late 1980s saw the emergence of the term “less-lethal” and the development of electronic “stun devices,” as well as the first attempts at direct-strike soft kinetic energy projectiles, as opposed to the former “skip-fired” wooden baton rounds. The “beanbag shotgun” became popular at progressive agencies looking for alternatives to deadly force and more traditional less-lethal force options.

Since technology is ever-evolving, and case law regarding use of force is constantly changing, law enforcement looked to private industries to provide equipment that could be used in the daily law enforcement mission: taking criminals to jail using the least injurious means possible. There’s one particular company that stands out in the crowded arena of less-lethal devices. That company is Taser International, based in Scottsdale, Ariz.

An entire book could be written regarding the history of this very successful American enterprise. I won’t bore you with the details. Suffice it to say, Taser International’s success in the ongoing development of one of law enforcement’s single greatest tools speaks for itself. There are currently 13,000 agencies in over 40 countries that deploy a combined total of more than 300,000 Tasers. As a civilian company that manufactures an electronic control device (ECD) sold to governmental agencies, Taser International (hereinafter referred to as “Taser”) offers an instructor certification course. They also provide the instructors with suggested training and recommendations for policy and procedure guidelines.

However, just as firearms manufacturers do not dictate mandatory qualification courses of fire, Taser does not dictate mandatory departmental directives—it’s up to each agency to develop and implement their own training and deployment polices and procedures. In fact, the most recent Law Enforcement Operator’s Manual from Taser states, “Each agency is responsible for creating its own use-of-force policy and determining how Taser devices fit into their use-of-force matrix based upon legal and community standards. Make sure your agency has a use-of-force policy that addresses Taser device use and that the policy is clearly addressed during end-user training.” This article is intended to serve as a basis for implementing a department Taser program or to serve as a basis of comparison for an existing program.

Begin with Step-Written Department Directives
Prior to implementing a Taser program, an agency must develop step-written directives regarding the use of the Taser device, the same as required for any other item of equipment deployed by officers. The directive should include a training and certification program (as well as a periodic recertification mandate), issuance guidelines, appropriate deployment procedures and post-deployment procedures. Taser provides sample policies and includes them during the instructor course. A survey of surrounding agencies in your county or region is a good starting point. Compile existing department directives and take the “best of the best.” Determine what the regional standard is so your agency is consistent (and defensible in case of litigation). It’s also important to find out what booking requirements the jail has in regards to medical screening of prisoners who have been tased and are to be booked into a jail facility. Does the jail medical booking procedure require a medical screening of someone subjected to a taser prior to receiving the prisoner? Will their nursing staff remove embedded probes, or can your city’s paramedic service deal with this? These questions need to be answered and included in your agency’s directives.

Taser Training Curriculum
Training should only be conducted by Taser-certified instructors. This will give the training the credibility it needs if it’s ever challenged in court. It also gives the instructor a knowledge base to deliver to students. Either firearms range staff or defensive tactics instructors are generally utilized as Taser instructors for obvious reasons. A solid background in use of force and relevant case law is imperative. The ability of the instructor to impart safe, sound tactics is crucial.

Most Taser instructors, myself included, find no reason to deviate from the Taser training curriculum provided during the Taser instructor course. At the very least, the recommended training from Taser serves as the basis

for the end-user course. Depending on class size and training budget, role-playing can be added into the basic course for additional realistic training.

Over the past several years, the recommended training curriculum has continued to evolve alongside the product. The current training consists of a six-hour training block. The course includes information provided by Taser related

to history/evolution of electronic control devices (ECDs), deployment guidelines, legal issues, medical research, device nomenclature, etc. It also includes handouts and discussion of the agency’s use-of-force directives and Taser-specific directives.

During the course, instructors administer both a written and a practical exam. The written course covers material presented during the interactive training session, while the practical exam involves the actual deployment of a minimum of two live cartridges at varying distances. The practical exercise serves to allow the operator to demonstrate accuracy, verbal warnings and weapon manipulation proficiency. The written training certificate should be included in the employee’s personnel file as documented evidence of their certification.

A point of sometimes-heated discussion revolves around the question of whether or not an agency requires its officers to be “tased” during the training certification process. Taser has no mandate for students to be exposed for end-user certification; they rely on the individual agency to make that decision. Some officers complain, “They don’t make us get shot to carry a gun, or hit with a baton to carry the baton.” While these statements are obviously true, every agency I know requires their officers to be exposed to chemical agents (CS or OC) in order to be certified to carry the chemical agent. In my mind, the benefits of a half second exposure to the taser far outweigh the negatives. I believe a mandate for exposure demonstrates the agency’s trust that this is a safe, effective law enforcement tool. I also believe that it allows the officer the ability to testify as to their firsthand knowledge of the effects. It gives officers the opportunity to go “hands-on” with

the person being tased, which serves to demonstrate

how officers can physically engage and handcuff

or at least restrain the suspect while they’re being tased. Lastly, it provides the

officer an understanding of how a suspect can immediately resume aggressive, assaultive behavior once the device is shut off (manually or automatically).

Medical, Safety & Liability Concerns
Taser products are the most medically researched less-lethal devices ever offered to law enforcement. Volumes of clinical and case studies exist that support the safety of their devices. There are more than 125 medical and field studies regarding Tasers, which support their record of being a safe device. Taser has documented in excess of 1.3 MILLION human exposures to their product (both officers in training environments as well as suspects on the streets). Although several dozen lawsuits have been filed related to in-custody deaths following exposure to a taser, Taser only recently (June 6, 2008, in the U.S. District Court for the Northern District of California in the case of Betty Heston et al v. City of Salinas, TASER International, et al) lost a case. This case, which will undoubtedly be appealed, found 15 percent liability against TASER International and 85 percent fault against the decedent, a 20-year methamphetamine addict who had numerous prior arrests for violence against police and family members alike.  For more details regarding this case, please see TASER Training and Legal Bulletin 14.0-5 at www.taser.com

As a result of their wholehearted belief in the safety of their product, Taser markets their devices as “non-lethal” in concert with the U.S. Department of Defense definition of non-lethal weapons as “Weapon systems that are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury

to personnel, and undesired damage to property and the environment…”

Until the Smith v. City of Hemet decision [Smith v. Hemet, 356 F3d 1138 (9th Cir. 2004)], many agencies classified tasers as “non-lethal” as opposed to “less-lethal.” The Smith v. Hemet decision was made by the infamous U.S. 9th District Court related to a canine deployment. It served to essentially change the definition of “lethal” to include serious bodily injury and is now regarded to include kinetic energy impact munitions and tasers. The theory behind a taser’s ability to cause serious bodily injury is that if a probe were to strike a suspect’s eye or testicle, serious bodily injury would result.

Deployment Criteria
Criteria for the deployment of a Taser will depend on three things: Your agency’s directives (both use-of-force and Taser-specific directives), the suspect’s actions and the officer’s individual tactics. Most agencies consider the deployment of a Taser to fall within the category of “greater controlling force.” Greater controlling force may be defined as the level of force needed to control a subject who engages in active resistance. Active resistance may be defined as behavior that consists of a refusal to comply with verbal commands and conveys a threat to the officer or another person, or consists of physical resistance to attempts of physical control by the officer. Other similar uses of force in this category may include (depending on your agency’s policies) takedown and distraction techniques, chemical agents, carotid restraint and K-9. In order to deploy a level of greater controlling force (as opposed to verbal commands and lesser controlling force such as pain compliance and control holds), the suspect must engage in active resistance.

Officers must have a solid understanding that tasers (or any other non-lethal or less-lethal tool) are not a substitute for deadly force if deadly force is warranted. This is not to say that a taser cannot be used to prevent the use of deadly force. The following is an example of using a taser to prevent the use of deadly force.

Three patrol officers confront an emotionally disturbed person who is seated on the ground holding a knife at their side. The subject talks about suicide but indicates he doesn’t want to hurt anyone other than himself. The officers, utilizing safe tactics, formulate a tactical plan. One officer is designated as the “taser” officer and another as the deadly force cover officer. The third officer is designated as the “hands-on” or handcuffing officer. The three officers position themselves within 15 feet (an ideal deployment distance for the Taser device, considering probe spread and a 21' maximum range) of the suspect, with a solid barrier between them that allows the officers to shoot over or around. In this scenario, the suspect is non-compliant to repeated verbal commands to drop the knife. The taser officer issues the verbal challenge, “Drop the knife or you may be tased or shot. You will be tased with 50,000 volts if you do not comply immediately.” If the suspect does not drop the knife, the taser officer may deliver a taser hit after communicating with their partners that they’re going to tase the suspect. The communication is important to prevent an inadvertent “sympathetic” lethal shot by the lethal force cover officer.

An inappropriate deployment of the Taser device can be exemplified by a variation of the above scenario. Take the same fact pattern, but remove two of the three officers from the scenario. It would be poor tactics for an individual to approach a suspect who is armed with a deadly weapon with the officer’s taser instead of their firearm drawn.

In any case, the deployment of a taser must be consistent with department policy. Another important point to consider is just because we can use a level of force does not always mean we should. Discretion is one of the things that cops get paid for. Unfortunately, it’s also one of the hardest things to teach officers. A solid training program will give officers a foundation for the proper use of this device, as well as the ramifications for its improper use.

Maximizing Potential for Success
As with all tactics and equipment, officers must have a back-up plan in the event that the application of the taser against a combative suspect does not work. The best recipe for success is to make sure that the device is mechanically sound prior to needing to deploy it. Taser’s newer X26 is substantially more reliable (in most peoples’ experience) than the older M26. The necessity to charge the batteries on the X26 doesn’t exist as it does for the M26. By design, the X26 (using Taser patented “shaped-pulse technology”) makes it much more efficient at penetrating through clothing and skin. Both the M26 and X26 utilize the same probe cartridge. Officers should check to ensure the blast doors are in place and that the cartridge is properly seated to avert a failure at an inopportune moment.

As in delivering lethal force, shot placement of both Taser device probes is the single most critical factor in success or failure. If only one probe is delivered on target, a failure will occur. A good spread of the probes (most probable if the standoff distance from the threat is 12–15 feet away) will also aid in a successful incapacitation. Muscle mass shots (especially in the back) will have the best likelihood at achieving the desired consequence. Lastly, multiple taser hits (2–3 officers delivering taser hits against a threat) will serve to enhance success. If one is good, two are better.

Taser and SWAT: A Winning Combination
It stands to reason that if tasers play a role in patrol work, they also have a role within SWAT operations. My department’s SWAT team mandates that all entry team and inner perimeter/containment team personnel deploy with their Taser on all missions. The importance of carrying less-lethal force options cannot be overstated. The ability of each operator to have immediate access to this tool demonstrates a level of care for the well-being of the suspect. Our tactical medics are also certified on the Taser device and carry the X26. In addition to deploying the Taser device against human suspects, we’ve also had success in preventing the lethal shooting of aggressive dogs by hitting them with the device instead. Recent case law in California (arising out of a SWAT-served high-risk search warrant at a Hells’ Angels Clubhouse in San Jose, Calif.) mandates a plan for dealing with aggressive dogs with at least the ability to deploy some form of less-lethal force. Our operation plans and tactical briefings include this element. Officers should be reminded of the need to cant the Taser so that the probe spread will be in-line with the dog’s body to ensure two good probe hits.

Deployment Documentation
Even the most appropriate use of force and best arrest can be tainted by poor documentation of the incident. I’m a firm believer that cops’ actions and uses of force are almost always dealt with professionally and appropriately. When an issue arises, it’s often not in the actions taken; it’s in the failure to properly document the suspect’s actions and the officer’s reactions. In any arrest involving a use of force beyond simply handcuffing the suspect, officers should take the time necessary to write a thorough report. Whenever possible, obtain witness statements (especially neutral third-party accounts) as well as the suspect’s statement. Take photos of the suspect’s injuries (and just as importantly, lack of injury). K-9 handlers tend to generally be the best at documenting these facts, obviously due to their training and experience. If a suspect is transported to the hospital for evaluation, attempt to get a medical release form signed. If they refuse treatment, obtain a copy of the refusal. Although this documentation will be unnecessary the vast majority of the time, the one time you really need it will usually be the time you don’t have it. Save yourself and your agency preventable stress by consistently obtaining this important information. Lastly, make sure that your supervisor downloads the deployment data and includes this with each Taser use-of-force report. The ability to exonerate officers from false reports of excessive deployments is why Taser developed this ability. When a suspect claims they were repeatedly tased and tortured for two minutes and the downloaded data reveals a total of two five-second applications (supporting the statement in the officer’s written report), the officer will appreciate the downloaded data and so will the attorneys.

Taser Future
Taser International, while currently providing an incredible tool to the law enforcement community, is not content with merely maintaining the status quo in electronic control devices. In keeping with their commitment to the continuing development of leading-edge technology, Taser is nearing the final stages of testing and evaluation of their latest endeavor, the XREP, or eXtended Range Electronic Projectile. Designed to be launched via 12-gauge shotgun, this device is capable of accurately delivering a shot on-target up to 100 feet. Once the projectile strikes the suspect, four 1⁄2" barbs (resembling straightened fish hooks) embed themselves. Six cholla wired barbs deploy from the projectile, and its inertia causes them to strike the suspect, completing the electrical circuit and delivering a 20 second electrical charge replicating the neuromuscular incapacitation the standard model X26 is known for. There are currently 19 law enforcement agencies across the United States involved in field deployment testing and evaluation. The XREP is designed to be launched by any standard pump-action shotgun (like other less-lethal rounds, such as drag-stabilized “sock” rounds, the XREP does not create enough inertia caused by firing the round to reliably cycle semi-auto shotguns). Taser is teaming with Mossberg in the development of a purpose-built shotgun, which will be designed to chamber only proprietary XREP rounds. The goal of this partnership is to manufacture a designated shotgun/XREP-launching platform capable of delivering great accuracy at even further range, while preventing the accidental chambering of any munitions other than the XREP cartridge. Look for a future review of this in Law Officer magazine and law enforcement availability of the XREP cartridges and shotgun in the first quarter of 2009.




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Chris BoydChris Boyd is a 21- year veteran of the Carlsbad (Calif.) Police Dept. He has worked patrol, K-9 and vice/narcotics. Boyd is a certified Taser, MP5, NFDD and firearms instructor, and is currently assigned as a patrol sergeant. He’s also an entry-team leader on his department’s SWAT team.

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