The State of American Law Enforcement - Damned If You Do, Damned If You Don't

Perhaps nowhere in contemporary American society does the question of the right tool for the right job come into play more often than in matters of police use of force.

Author Dean Scoville Headshot

Ashley MacDonald was shot and killed by Huntington Beach, Calif., officers in 2006, some in the community questioned why a TASER wasn’t used instead of a gun.

When El Paso (Texas) police officer Angel Barcena deployed a TASER on a gun-wielding suspect only to be shot and killed himself in 2004, some in the law enforcement community asked why the officer hadn’t used a firearm instead of a TASER.

These scenarios and countless others like them exemplify the fallout that plagues law enforcement officers who use force in a field situation. We can be sure of only one thing: There will be no shortage of second guessing as to our choice of tactics or weaponry.

Perhaps nowhere in contemporary American society does the question of the right tool for the right job come into play more often than in matters of police use of force. But what is the right tool? Is there a magic bullet? And when does tactical review become an inhibiter against a cop doing his job?

The Problem of Force

Law enforcement veteran Dave Smith has long addressed officer safety concerns through a series of popular officer safety training tapes featuring his alter ego, Buck Savage. But while Smith learned early on to come to terms with the idea of force and its consequences, he fears that it’s a paradigm too few cops and administrators embrace.

"When it comes to using force, officers need to know the difference between direct and vicarious liability and come to terms with them so that they can focus on the job and being safe," asserts Smith. "They need to think about the physical and emotional liability that comes with the job ahead of time. The worst thing is for an officer to become focused internally when he should be focused externally to the situation at hand."

Smith points to Laurens County, Ga., Dep. Kyle Wayne Dinkheller’s ill-fated traffic stop of an erratic driver. As recorded on Dinkheller’s dashboard camera, he allowed the driver to load an assault rifle right in front of him—a weapon that he then used to kill the deputy. Smith sees this 1998 tragedy as emblematic of a problem that arises in use-of-force incidents: The inability of officers to respond promptly or effectively to the threat at hand.

"When you watch the video, Dep. Dinkheller is yelling, ‘I’m in fear for my life!’" notes Smith. "Well, that’s not something you yell at a suspect—that’s something you write in a report! He may have been in fear for his life, and yet he never effectively defended himself. That’s the epitome of what can happen when officers are more concerned about liability and other issues."

Tulsa, Okla., police officer Marshall Luton agrees. "Officers need to do whatever they need to do to stay alive if they’re trained at all," asserts Luton. "A lot of officers are carrying pocket knives in their pockets, they’re carrying daggers behind their magazine pouches, and if suspects go for the guns of these officers, all bets are off. These officers are allowed to do whatever they have to do to stay alive.

"But agencies are trying to create policies designed to change the behavior of an officer. It’s ridiculous—it’s going to get an officer killed because he’s going to be thinking, ‘Well, I can’t do this or that because I’m going to get fired,’ rather than thinking, ‘I’ve got to do whatever I can to stay alive.’ You can’t have administrators telling you when you can or can’t use a weapon—that should be up to the individual officers."

Punished for Success

Dave Smith believes the problem is entrenched up and down the law enforcement food chain. He compares the situation to that of a Skinner box.

"If you hit the right light you get rewarded," Smith notes. "You hit the wrong light, you get zapped—punishment and negative reinforcement.

"If a chief loses an officer or deputy in the line of duty, the chief gets a sympathetic media, they get a spectacular and solemn ceremony, they fold the flag and everybody hugs everybody. It’s all very intensely positive and pro-law enforcement. But if an officer wins the gunfight, the chief often ends up dealing with a hostile media and an outraged community. In other words, they get punished for an officer succeeding."

Smith’s formidable sense of humor becomes taxed when he considers the sometimes disparate issues that come to the fore in the wake of officer-involved force and shootings.

"There are certain emotional and visceral responses to a shooting. One of the first questions often asked after an officer-involved shooting is, ‘All right, who’d he shoot?’ The subliminal message is, ‘Oh, my God, do we have an ethnic component here? Anything that’s racially charged? Is this an area where we have activist activity?’ All these things suddenly cascade onto the administrator."

The flood of criticisms and Monday morning quarterbacking that come in the wake of an officer-involved use of force is predictable, often precipitated by community activists and special interest detractors and facilitated through the news media. Within the diluvial fallout, Smith finds a vicious cycle wherein officers are ostensibly trained to do the job, but perhaps unintentionally conditioned not to.

"Don’t Tase Me, Bro!"

Partially in response to critics, partially to give officers peace of mind, police administrators have in recent years experimented with giving their personnel a broader array of less-lethal weaponry designed to temporarily restrain or incapacitate resistive subjects.

This is nothing new; the Chinese used pepper as an incapacitator 2,000 years ago. What is new is the effectiveness of these weapons. They now work, and they work well.

Today there are six general categories of less-lethal weapons that are currently and variously employed in the law enforcement community: impact projectiles, electrical shock, chemical, physical restraint, light, and acoustic.

Numerous studies have validated the use of less-lethal weapons. The use of pepper spray has resulted in fewer injuries to suspects and officers (Baltimore County, Tallahassee) and lowered the number of complaints against officers. The use of the TASER has mitigated the need for greater or more lethal force.

But there remains criticism, from within and without the law enforcement community. And perhaps no single force option has been under the microscope more than the TASER.

TASERs Under Fire

In some communities, the TASER is a much more controversial force option than a .40 caliber hollow point.

Regardless of its efficacy in mitigating greater uses of force, the TASER is despised by human rights and legal rights group who claim it is a lethal weapon. And their point of view pervades the press and misguides the public.

A nearly 30-page indictment by the ACLU of Northern California attempted to establish the TASER as a precipitating cause in the deaths of a number of subjects upon whom the weapon had been deployed. Amnesty International is seeking a virtual moratorium of its use by police officers.

Public rage toward the TASER and TASER users is also high. Last year when Utah State Trooper Jon Gardner used a TASER to incapacitate Jared Massey after Massey’s refusal to sign a traffic citation, little did he anticipate that his dashboard camera recording of the incident would eventually get more than a million hits on YouTube—or that he would receive death threats as a result.

Excited Delirium

The protests and recriminations have apparently not fallen on deaf ears. San Antonio Police Chief William McManus has gone so far as to ban the use of TASERs on anyone known by officers to be under the influence of narcotics. He has further hedged his bet by mandating that 141 officers already trained in its use attend a supplemental eight-hour training session.

Sgt. Gabe Trevino, a spokesperson with the San Antonio Police Department, acknowledges that there has been some grumbling about the policy change within law enforcement circles.

"We have heard from a few (law enforcement) agencies from throughout the country that have a problem with it," Trevino says. "But we don’t expect everyone to agree with us. We believe it’s what’s best for our community here in San Antonio, not what may be better for a police department somewhere else."

Trevino cites excited delirium as a factor in Chief McManus’ decision.

"The chief feels that based upon what he has seen in his experience that the TASER is not necessarily the cause of death, but may be a contributing factor to the excited delirium death of somebody who has been Tased while under the influence of drugs. He felt it was important to make the change."

Trevino is quick to note that San Antonio’s policy is hardly unique—other law enforcement agencies have adopted similar guidelines—and that the policy changes were largely in response to recommendations from the Police Executive Research Forum (PERF).

"PERF recommends that the TASER should not be used on somebody who is known to be under the influence of narcotics, and a number of law enforcement agencies have made similar policy changes prohibiting the use of TASERs under such circumstances.

"In ours, we make it clear that it’s only when the intoxication is known to the officer. We worked with our police association in implementing that policy and the chief believes that it is appropriate. We will move forward and see where we go from here. Our officers are good with (the policy). The community has been very receptive to it. It’s what our citizens expect and what our city management likes."

An Academic View

A former Director of Research for the Police Executive Research Forum, Lorie Fridell has some insight into PERF’s concerns.

A professor of criminology at the University of South Florida, Fridell is also on the ACLU Board of Florida, and with 20 years of research into police use of force, she occupies rarified space, one that has both feet firmly planted on each side of the equation.

On the one hand, Fridell is not naive about police use of force. On the other, she recognizes that cops perform a difficult job. Asked about police use of TASERs, she responds first with a caveat.

"I may not be representative of what some in the ACLU might think in regards of TASERs," Fridell laughs. "But I’m of the opinion that taking the TASER away from officers could lead to more harm and instances of death, rather than less."

Fridell believes the problem with weapons such as TASERs has less to do with the weapon itself than how such tools are marketed and presented.

"Early on, TASER International trumpeted this as a ‘miracle weapon,’" Fridell says. "But at the last TASER International training I attended, I heard a very different message: ‘This is not a miracle weapon.’ They made sure that officers knew that they have to be careful about prolonged activations. But I believe that early message was problematic as it went from chiefs and up and down the law enforcement rank and file."

Fridell notes that TASER usage varies in the use-of-force continuum by region, with many agencies including it on a level with lethal force options, while others place it on a level just below lethal. As such, she is less concerned about how the TASER is classified than the circumstances in which weapons such as TASERs are deployed.

"When I weigh the good that the TASER can do relative to what it can accomplish with a passive resistant protestor, I am against its use against a passive resistant protestor. It should be used in response to any actual harm posed to the officer."

Secondary Effects

Earlier this year when the NYPD deployed a TASER on a suspect who subsequently fell about 10 feet off of a roof and died, the incident became the latest in a series of flashpoints surrounding the weapon. In the days following the incident, the lieutenant responsible for directing its deployment committed suicide.

Sgt. Brian Muller of the Los Angeles County Sheriff’s Department Technology Exploration Program wonders if such incidents may be the result of a second order of effects.

"The first order of effects is we expect that he might have a bump if we use our baton or an ARWEN," explains Muller.

"We expect he would have a red face and teary eyes if we pepper spray him. If we TASER him, we expect him to drop like a dead weight because the TASER causes loss of muscle control.

"The second order of effects is the unexpected," Muller adds. "Such as in this incident when you TASER a guy and he falls off a 10-foot rooftop and dies. Usually, this comes down to the tactics around the use of force; whether or not the decision to employ the weapon of choice was appropriate given the surrounding circumstances. I’m not saying that’s necessarily the case, but it is certainly something worth looking at and possibly learning from."

Interoperability Options

The all-or-nothing consequences of certain force options finds law enforcement scrambling for greater latitude in the use-of-force continuum. Increasingly, interoperability is the goal of force researchers, and use-of-force options are less a case of either/or than having multiple use-of-force options readily available. Moreover, such use of force is capable of being simultaneously documented via video camera.

"The Los Angeles County Sheriff’s Response Team has purchased cameras that are mounted to helmets for the use of squad sergeants and grenadiers, the less lethal linebacker folks," says Muller. "That way, when people are throwing stuff at us, wherever the deputy is looking, we can see what’s incoming and where it’s coming from. And if we’re aiming a less-lethal weapon at somebody, it will show the perspective of the deputy wielding that tool. And that’s what we want, as opposed to somebody off to the side videotaping something. It adds to our credibility. People want to see the videotape. Because unfortunately, some people don’t believe us."

Even when our credibility is not suspect, our wisdom may be. So we can anticipate some further changes in how we do business.

Furthermore, we are expected to accomplish this at a time when all manner of radicals, anarchists, and terrorists—just about every dissenting entity outside of neo-Luddites—are exploiting modern technology to further their myriad causes. Whether they are accessing information on private and public targets, rallying resources, or coordinating acts of civil disturbance, we must choose our tools and tactics carefully.

The Future

In a world of better mousetraps, law enforcement is more interested in beating a path to the door of the next force mitigator than beating a suspect. Today, that mousetrap is less apt to be spring loaded than capsicum-filled or battery-charged, capable of dispersing a million Scoville units or 50,000 volts—or perhaps both.

So while 9mm and .45 caliber shell casings from officer-involved shooting may continue to dot the landscape for the foreseeable future, law enforcement persists in its quest for a magic bullet, one that will quell problems, stem the tide of litigation, and win favor in the hearts and minds of our critics.

Until then, it might be best served by not shooting itself in the foot with ill-conceived use-of-force policies that needlessly endanger officers.


Weapons Interoperability in Action

TASER gets all the press, but it isn’t the only less-lethal weapon available to modern law enforcement.

Indeed, if it’s capable of striking, slashing, spraying, electrifying, or penetrating, odds are that it’s been a part of law enforcement’s arsenal and will continue in some form in the future. Concepts such as interoperability mean that we’re apt to see more than one of these force options simultaneously available to the individual officer.

Today, one of the most popular interoperable weapons is the TigerLight, an extremely bright flashlight that can spray OC.

"You very, very rarely have the foresight to know what level of force you’re going to be required to use," notes Tulsa, Okla., officer Marshall Luton. "When it comes to using conventional pepper spray, it’s often on your belt and you end up telegraphing its use to the suspect who can then turn away from it.

"You don’t have to worry about that with the TigerLight—it’s already there. With TigerLight, they never see it coming. I caught a guy with a full blast right in the mouth when he was mid-sentence saying he was going to kick my ass. Also, I don’t know of anyone who uses the TASER with his weak hand, which limits your use-of-force options. You end up having to drop the TASER if you want to transition to your gun. You don’t have to worry about that with the TigerLight."

Another benefit of the TigerLight, according to Luton, is that the weapon can be used on multiple suspects at once. It’s also easy to transition from the TigerLight to deadly force when necessary. "You’re not tied to a single level of force. To go up the use of force continuum you would have to drop the TASER, and that’s entirely against human nature. You might be able to deploy your TASER at one person, but what happens when you’re flanked by a second suspect who takes your gun or is already armed?"

In January 2008, POLICE Magazine launched a year-long article series focusing on the “state of American law enforcement.” If you’d like to read the other chapters, click on the links below.

Chapter 1: The Thinning Blue Line.  Law enforcement agencies nationwide are competing for a dwindling population of recruits.

Chapter 2: The Blue Mosaic.  Policies meant to diversify law enforcement agencies have changed police demographics and will continue to do so in the future.

Chapter 3: Teaching to the Test.  Does law enforcement training focus too much on qualifying and not enough on skills that can help you win fights?

Chapter 4: A Love-Hate Relationship.  Most people only meet an officer when they are arrested, questioned, or cited. That makes it hard for them to like cops.

Chapter 5: Can the Average Cop Thrive in the Age of Specialization?  The generalist cop is part of a dying breed, which means many of today's officers will need to excel at a specialty.

Chapter 6: Women Warriors.  Female police officers must walk a fine line between fitting in and making their own way in law enforcement.

Chapter 7: Working on the Front Lines.  The patrol officer is the backbone of American policing, but a lot of agencies don’t want to admit it.

Chapter 8: SWAT: Breaking the Mold.  Agencies nationwide model their tactical teams on LAPD SWAT. So what does it mean if that unit changes its policies to be more politically correct?

Chapter 9: Stopping the Next 9/11.  Improvements in intelligence gathering, training, and equipment give you a good chance of preventing the next attack and saving lives if it happens.

Chapter 10: Rules of Engagement. Today’s law enforcement officer is the best trained and best equipped cop in history, so why do policy makers think you have the judgment and intellect of children?

Chapter 11: Gangster Nation.  Big city street gangs have taken root in small town  America, bringing mayhem to Main Street.

About the Author
Author Dean Scoville Headshot
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