After being hit, the suspect never showed any inclination to fall and showed no physical distress or evidence of pain. Later, X-rays revealed no broken bones and no internal injuries.
Given the circumstances, the suspect could well have been justifiably shot and killed with lethal ammunition had less-lethal munitions not been available.
When we first contemplated this article, we intended to take issue with manufacturers of less-lethal munitions for making their equipment slightly underpowered. But despite the fact that they did not break bone or do any damage that interfered with the suspect's breathing, aggressive abilities or mobility, it's pretty clear that raising the force or speed of less-lethal rounds would cause them to act undesirably like slugs in the shotgun.
Defense and plaintiff's attorneys need to understand that the option they are dealing with is simple. Their client may have external or internal injury, broken bones or suffer the trauma of a less-lethal hit but be safely taken into custody. Since less-lethal is not non-lethal, increased survivability for their clients must be accompanied by a compromise. Their client can be gravely injured or killed by standard loads, justifiably fired by an officer, or officers can try less-lethal and, most of the time, be successful. Fewer less-lethal lawsuits may equate to increased survivability for their clients under situations where they could otherwise have been justifiably injured or killed.
It is our belief that an officer, civilian or victim should not be greatly put at risk because as officer used less-lethal rather than standard ammo. Less-lethal did the job in this instance, but marginally so. The suspect was not knocked down, nor incapacitated. This has to by anticipated and trained for.
In this instance, and in others where less-lethal is used, it's our belief the incident should be investigated predicated on the amount of injury to the suspect. There is no case law that states whether use of less-lethal is an "officer-involved shooting," so each incident should be carefully documented with all protocols followed.
The increased level of documentation in investigation will also benefit agencies should they face a court challenge. Less-lethal is useful under a different set of criteria than lethal force, though there may be some overlap. Officers' decisions to use force must rest on their observed facts from their viewpoints. In this case, co-author Rocky Warren was the sergeant who fired the less-lethal Red Bag Round.
With this article, we hope to spark discussion. Controversy, exchange of information, as well as adaptation in regard to procedures, technology and training are always beneficial in the long term.
Lt. Dave Rose is a highly decorated 25-year veteran of law enforcement, as well as a trainer and private consultant.
Sgt. Rocky Warren, a decorated 24-year law enforcement veteran, is also a trainer and private consultant.
Rose and Warren both work with the Placer Co. (Calif.) Sheriff's Dept. and are co-authors of The Complete Trainer-An Instructor's Guide to Police Use of Force Case Law and The Paradigm of the Moral Warrior (soon to be re-released through Varro Press).