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Less-Lethal: Mixed Blessings

Less-lethal weapons are a very effective option in the arsenal of law enforcement, but they have the potential for producing unintended consequences on the street, in the minds of criminals, and in the courts.

November 26, 2014  |  by Todd D. Keister

Photo: iStockphoto.com
Photo: iStockphoto.com

A disheveled, homeless-looking man in his mid-30s sits sullenly in a bus stop shelter. It's 80 degrees outside, but he's wearing an old army field jacket. In his hand he's holding a hunting knife. The police are called, and when they arrive, they try to convince the man to relinquish the knife. The man merely shouts nonsensical replies. He becomes more and more agitated, then stands up and brandishes the knife. An officer to his right fires a bean bag round from a shotgun, striking the man in the mid-section, whereupon he drops the knife and falls back in a crumpled heap on the bench. He is taken into custody without further incident and delivered to the hospital for psychiatric evaluation.

This is the dream scenario for less-lethal weapons. A man who clearly presents a danger to the public is disarmed and taken to get help without serious injury to either himself or the police, and the department avoids a media assault about inadequate training and insensitivity to the mentally ill that would likely follow if the suspect had been shot. However, these types of standoffs are the exception and not the rule in daily police operations.

During the past three decades, the number of law enforcement agencies using less-lethal weapons has increased exponentially. And as the sophistication of this technology grows, the law enforcement community faces serious challenges in determining how to deploy these weapons, train officers in their proper use, and explain their use to the public.

Experience has demonstrated that the use of pepper sprays, TASER guns, and the like have reduced the number of injuries to police officers and suspects. The use of these devices against unarmed suspects is a wise strategy and should be encouraged.

However, as these devices become more sophisticated and their use against assailants armed with weapons is encouraged, the public expectation that police officers will never injure or kill anyone continues to grow. As technology continues to advance, we need to begin to think about what will happen when America's police are armed with "Star Trek"-like phasers set to stun, and the bad guys are still carrying guns and knives. What are—and what will be—the unintended consequences of less-lethal weapons in law enforcement?

Bolder Criminals

It's well known that an offender who decides to resist arrest or attack a police officer must consider the possibility of being injured or even killed for doing so. What is unknown is how the proliferation of less-lethal weapons has changed and will change the way these men and women think.

Most research in this area is devoted entirely to gaining insight into police officers' thought processes when deciding to use physical force. Little study has been conducted about the factors affecting an offender's decision to fight or attempt to kill a police officer. And there has been none that specifically addresses how less-lethal weapons may factor into the equation.

Understanding how offenders make decisions about whether to use violence is critical to understanding how to train police officers and when to employ less-lethal weapons.

Less-Lethal Vs. Lethal

When police are confronted with individuals armed with deadly weapons, including knives and clubs, less-lethal weapons should not be considered as an option except when other officers are present and are providing lethal cover for the officer deploying the less-lethal tool.

There are two reasons why this is critical to officer and public safety.

First, in order to deter assaults on officers, suspects must understand they run a real risk of serious physical injury or death if they attack police with weapons. Second, while they are very effective, less-lethal weapons are not as potent as firearms, and their use against armed attackers places officers and the public at greater and therefore unacceptable risk. Encouraging a police officer to use pepper spray or a TASER against a drug-crazed assailant who "only has a knife" is completely unjustifiable.

Officer response speed is also a concern arising from the prevalence of less-lethal weapons in law enforcement. The addition of more and more tools and levels of force available to the officer makes use-of-force decisions more complex. This complexity, combined with a growing trend of making the safety of the bad guy a priority, endangers police officers and civilians alike. There is mounting anecdotal evidence that this tendency is resulting in injuries and deaths, where police have declined or delayed using justifiable deadly force or have opted to try a less-lethal option when deadly force was warranted.

Fear Factor

Going forward the concern is that, as less-lethal weapons proliferate and become more and more sophisticated, a significant disincentive for violent crime and attempted murder of police will be removed.

While no existing research has addressed the issue specifically, can there be any doubt that an offender's decision to attempt to stab a police officer with a knife would be greatly influenced by what the officer would potentially do to him if he failed in his assault? As the offender weighs the potential benefits and risks of trying to kill the officer, his fear is going to be much lower if the consequences are being sprayed with a sticky goop rather than being shot in the chest with a large-caliber handgun.

Research into offender decision-making has shown that potential offenders do, in fact, weigh the immediate risks and benefits of their contemplated action before deciding to offend while giving little thought to long-term punishment. This is because an assailant's decision to resist or attack is made in the moment; there is little time for calculation or reflection about prison time or even the death penalty. So the decision is based upon what the offender perceives as his level of immediate bodily danger. Which means an offender who sees himself confronted with a less-lethal tool vs. a handgun can instantly form a fairly accurate assessment of his relative risk.

Given that officer assaults have proven to be largely dependent upon a police officer's perceived ability and readiness to use violence, it is reasonable to hypothesize that the type of weapon the officer is going to employ would also influence a potential attacker's thought process.

A study of offenders who had perpetrated felonious assaults on police officers found that 48% of them considered the possibility of death or serious physical injury when making their decisions.

If, in the future, this threat is virtually eliminated, how much more likely does it become that an offender will decide to attack? An offender may shrug off the possibility of being caught for a burglary, thinking, "That'll never happen to me," but even the most foolish and imperceptive of criminals can see real danger when looking down the barrel of a gun. It's unlikely they will experience the same deterrence facing a less-lethal tool.

Politics of Force

After a hostage-taking incident in California concluded with the surrender of the gunman and no loss of life, a police official was quoted as saying, "We're very happy we were able to bring this dangerous situation to a successful conclusion without anyone getting hurt, including the suspect. That is our number one priority; to ensure that no one gets killed."

While this is a wonderful sentiment and no police officer wishes to injure or kill anyone during his or her tour, the increasing focus on making sure no one gets hurt has evolved into an obsession with trying not to injure the bad guy. Law enforcement officers' primary concern should be to ensure that no innocent civilians or police officers get hurt. If an officer has reasonable fear of serious bodily injury or death to himself or to others then that officer has the constitutional duty to eliminate that threat, even if doing so requires deadly force.

The attraction of less-lethal weapons for police administrators is understandable, given that nearly every time a police officer anywhere in the nation is filmed using force upon a criminal, the media launches a weeklong series of stories about police brutality, improving police officer training, and—should the officer be white and suspect black—racism.

Despite concerns about bad publicity and liability, however, law enforcement officials should beware the ramifications of creating public expectations that criminals who attack the police or resist arrest are not going to be injured. Already, some academics are arguing that the existence of less-lethal weapons makes the use of firearms for self-defense illegal. In addition, the United Nations Committee Against Torture has issued a statement that suggests electronic control weapons "…constituted a form of torture." And Amnesty International has argued that less-lethal weapons are supposed to be used as an alternative to deadly force only, and not to be used against suspects who are merely non-compliant.

Law enforcement professionals should not be afraid to publicly acknowledge that police officers operate in the violent underworld of our society and in order to perform their duties and survive they must, at times, employ deadly force. As bean bag shotguns are deployed in officers' cars and knockout gas and other wonders are invented to end hostage standoffs, we need to examine the question of what will deter a criminal from taking a hostage or robbing a store in the first place.

If a hardened criminal knows that he can take a shot at an officer, and his only risk is being hit with a bean bag, sprayed with sticky foam, or shocked by a TASER, why wouldn't he do it? Certainly not for fear of what the justice system can do to him.

It is not only police officers that need to be concerned with the influence of less-lethal technology on offender decision-making. A potential armed robber, burglar, or hostage-taker undoubtedly factors the prospect of armed police response into his decision to victimize civilians. A potential hostage-taker must consider the possibility of being shot in the head with a bullet from a police sniper's rifle. This certainly has a greater deterrent effect than the prospect of being shot with a tranquilizer dart.

What every police officer knows, and research ignores, is that at any given moment he or she is on duty and in uniform, there is likely someone nearby who would love to kill an officer, any officer, and would not hesitate to do so given half a chance. Regrettably, the only thing that restrains many of these predators from acting out their aggressive impulses toward police or civilians is the threat of physical violence delivered by police or weapon-carrying civilians.

The unfortunate reality is that the gross inadequacy of the criminal justice system has resulted in a situation where many criminals fear only what the police will do to them. In fact, a great many offenders have no idea what the potential criminal penalties are for the crimes they are contemplating. If the fear of injury or death from the police is removed, serious changes in the operation of our justice system need to be considered, lest we inadvertently remove one of the last remaining deterrents from the most savage criminals in our society.

Todd Keister is a 20-year veteran of a state police agency, currently serving in the Bureau of Criminal Investigation as a lieutenant. He has previously served as a trooper, field training officer, sergeant, academy instructor, station commander, assistant zone commander, and director of field investigations for the state's governor's office.


Comments (1)

Displaying 1 - 1 of 1

Longarm @ 11/30/2014 10:30 AM

Well said and sobering, but I fear we are going this way quickly. One thing that is badly needed in our society is a watchdog to hold the media accountable for their actions. The media is a major threat to the public peace due to their total incompetence, outright lies and sensationalism, and total lack of integrity.

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