In the early morning hours of Oct. 14, 1998 a call was received at Placer Co. Sheriff's dispatch regarding a report of a suspect armed with a knife and standing in the street behind a four-plex apartment in a high-density population area.  The situation would be quickly ended without the loss of life, but it could easily have been otherwise.

Preparation En Route

One sergeant had less-lethal ammunition at his disposal and, accompanied by another sergeant, responded to the scene.  As they rolled, the less-lethal-equipped sergeant (a former SWAT officer and advanced firearms instructor) completely unloaded the patrol unit shotgun and placed all 00 buck rounds in the patrol car's glove box.  The sergeant reloaded the shotgun exclusively with "less-lethal," placing a Def. Tec (Defensive Technologies) "Red Bag" in the chamber.  Aware of the "first in/last out" character of the shotgun magazine, he loaded the multi-pellet rubber, followed by a single rubber ball less-lethal round, placed as the next round to go into the shotgun chamber.

After completely re-loading the shotgun with "less-lethal" and without knowing the number of officers responding or on scene, the sergeant consciously made a decision.  He reached into the glove box, where he retrieved one 00 buck round.  He held the 00 buck round in his left hand under the slide, which would allow him to function the slide and exhaust the "less-lethal."  Should it then become necessary, the sergeant could fire the 00 buck round nearly as quickly as if it were in the magazine, through means of a "combat load."  This allowed the sergeant to provide his own "lethal-force backup."

The Scene

The suspect was standing inside a 5-foot-tall, wooden-fenced trash enclosure.  A potential hostage female was also near the suspect and refused to follow any directions to retreat.  The suspect clearly declared his intent to kill himself with a knife and also said that if the female companion left or went out to the perimeter, he would kill himself immediately.

Any effort to remove the female companion just inflamed the suspect's emotions and made the situation more volatile.

The suspect declared that he was going to "cut himself" and made specific threats to kill any officers who approached.  He would not show his hands.

One deputy (newly retired from the SWAT team after a 15-year tenure) was armed with a shotgun and Def-Tec Green Bag (close-range ammo).  This officer positioned himself on the north side of the building.  The Red-Bag (longer range)- armed sergeant was on the building's south side, looking through an open personnel door and toward the open carport door corner, where the suspect stood.  While officers on the scene negotiated with the suspect, the less-lethal-armed officers remained in positions where they could see and target the suspect adequately.  Both officers held their shotguns out of sight.

Documentation

The sergeant reached up to his shirt pocket and activated an audio tape-recorder, on which he would later remember to verbally identify himself and include time and date.

The sergeant knew that if he fired on the suspect, it would be from where he was standing.  He took a folded paper shift roster form his person and dropped it onto the grass at his feet to mark the range to target exactly (credit retired Col. Jeff Cooper's book, To Ride, Shoot and Straight and Speak the Truth for this idea).  Had the wind been blowing, a pen or pencil would have sufficed.  Where time on scene allows, this is highly recommended.  The more accurate the range data we have in these types of incidents, the better the information and statistics we get on less-lethal deployment, its effects and actual use.

Action

The suspect again made a threat to kill himself and said, "I might as well do it now."  Both less-lethal-armed officers could see the suspect's hands moving underneath his shirt.  The sergeant believed the suspect was in the act of slashing his own abdomen.  At that point, the suspect pulled his left hand out from under his shirt, then reached and took a step toward the woman.  Though separated by a building's distance and without communication, both less-lethal-armed officers fired so closely together that the reports sounded nearly as one.

The sergeant's Red Bag struck the suspect in the left rib cage, near the floating ribs, at point of aim.  The range was 35 feet and 6 inches.  The Green-Bag-armed deputy struck the suspect in the right hip, at point of aim.  The range was about 30 feet.  The suspect was startled and yanked his hands from under his shirt.  He dropped a metal object, later found to be a Bic cigarette lighter.  Both less-lethal-armed officers racked the actions of their shotguns and advanced on the suspect from opposite sides.

A perimeter deputy, armed with service sidearm, successfully took the suspect to the ground and applied handcuffs, with assistance from other perimeter personnel.  The suspect was then transported to the hospital.[PAGEBREAK]

Conclusion

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).