Evaluating less-than-lethal weapons

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Evaluating less-than-lethal weapons

Those of us who either deal in preventing violence, or who are protected by those who deal in violence, have a keen interest in less-than-lethal weapons. There are two reasons for this. The most important is that no sane person wants to kill another human being: The psychological damage is too great. The second is risk of legal action (including incarceration or execution if it is found that you have moved from self defense to homicide) when you kill another person. The combination of these two issues makes us go out of our way to avoid violence of any kind where possible. Thus, the emphasis in protective services is to use intelligence gathering, advance work, and careful planning to avoid violence.

Unfortunately, it is sometimes not possible to completely avoid violence, for a wide variety of reasons, including being attacked by crazies, attacked by criminals, attacked by drunks, attacked during political upheaval, or attacked for any number of other reasons.

Although we ourselves neither keep nor carry guns for our own protection – nor do we particularly encourage or discourage others from doing so – on those occasions where a gun is needed, nothing else will be adequate for the job. Looking only at the United States (different cultures have different needs and capabilities), a gun is used roughly once every fourteen seconds to stop a crime. Because most people are smart enough to know that guns are dangerous, a gun used to stop a crime is only discharged roughly once for every thirty times it is used. A strong case can be made that in those U.S. jurisdictions where there is high civilian ownership of guns criminals tend to involve themselves in property crimes, rather than crimes against the person, which is good, and that in jurisdictions where civilian ownership of guns is restricted, levels of violence increase.

There is, of course, a downside to the widespread availability of guns in the hands of civilians: Guns are often used in suicides in the U.S., with two out of every three gun deaths being suicides.

Oddly, the presence or absence of guns doesn’t affect suicide rates. A study indicated that while Seattle, Washington (U.S.) had a gun suicide rate roughly eight times higher than that of Vancouver, British Colombia (Canada), the overall suicide rate was roughly the same in both cases. And the violent death rate (suicide plus homicide) in Japan, last time we looked, was higher than that of the U.S. This is astonishing when you consider that Japan has almost no guns, almost no gun homicides (actually almost no homicides of any sort), and almost no gun suicides! It means that their non-gun suicide rate was higher than our total homicide and suicide rate combined.

The possibility of a gun suicide, therefore, is enough to convince us that if you have a troubled family member, it is a bad idea to have a gun in the house. While dead is dead, and while you will always be wondering how you could have prevented this from happening, at least you won’t be asking what would have happened if there were not a gun in the house.

So let’s assume that the assault does not require you to use lethal force. What other options are available, and, more to the point, how do we evaluate them? We will, in fact, ignore the particular choices of emergency safety tools available, and move right to the issue of evaluation, again keeping in mind that we are speaking only of the United States.

In the United States the general standard is whether a reasonable person would consider the force used to be appropriate to the threat. Threat is generally based on four factors:

•            Ability: Could the assailant hurt you?

•            Opportunity: Can the ability be put to use?

•            Jeopardy: Is there reason to believe you are in actual danger?

•            Preclusion: What steps did you take to keep the conflict from starting, from continuing, and to get away from the conflict?

Once it is established that you reasonably felt you were at risk, the question comes down to whether or not the force you used was required, justified, and legal. For those of us in the business, it is often clear when we can use deadly force, but less clear as to what emergency safety tools are appropriate when deadly force is not required.

In some cases, the decision is statutory. Thus, for example, in New York City it is simply not legal for civilian security guards to have impact weapons. No matter what is happening, if a security guard whacks you with a nightstick, you, the whackee, want to be the one calling in that complaint, no matter what you were doing to provoke it. There are other constraints on other emergency safety tools.

Putting aside de jure constraints, we next need to look at where the tool can be used on the force continuum. Since there is no accepted civilian force continuum, we need to look at the accepted law enforcement force continuum. The force continuum of the ASR Instructors Council lists the following continuum for the officer (we ignore here the threat faced):

•           Officer presence.

•           Verbal dialogue.

•           Soft empty-hand control.

•           Personal defense spray.

•           Hard empty-hand control.

•           Intermediate Weapons (impact weapons).

•           Deadly force (firearm).

As an gas (CN) and riot gas (CS) were used at the same level of force as impact weapons. Because ASRs (personal defense sprays whose sole active ingredient is capsaicin), were so benign, their use was put at a level of force below hard empty hand control (hitting the subject), and other personal defense sprays eventually were moved down to this same level.

In order to evaluate any given emergency safety tool, you must therefore be able to figure out where a jury would accept its use. It is instructive here to look at how ASRS moved from the same level as an impact weapon to being below hard empty hand control (having ourselves introduced ASRs to the law enforcement community at the 1988 conference of the American Society of Law Enforcement Trainers (ASLET), we happen to be particularly familiar with what happened).

The first factor was that these products, with capsaicin concentrations of between 1/10th of one percent and 1⁄2 of one percent were non-injurious. We demonstrated this by requiring trainees to be sprayed in dynamic simulations as part of training. This meant that the officer could get on the stand and say “I knew it was safe to use at this level because I myself have been sprayed, and therefore know that the subject faced less of a chance of being hurt than if I punched them or hit them with a stick.” What about departments where the officers refused to be sprayed in training? In this case use of an ASR is set at the same level as an impact weapon, because that was the level at which officers considered it to reside.

The second factor was training. Prior to 1989, there existed no training program for line officers in use of personal defense sprays. When we introduced the first training program at the 1989 ASLET conference, this created a standard for training and use.

The third factor was the recognition of the dangers to the subject inherent in any custodial arrest. That is to say, in any arrest there is a chance that the subject will simply die for four well-established reasons. By recognizing the fact of custodial death, and determining the four common causes of custodial death, the ASR Instructors Council was able to include, as part of the training, characteristics for subjects at high risk of sudden death, general indicators that needed to be observed, and recommendations for monitoring and treatment.

These three factors allowed ASRs to be moved down the use of force continuum, and manufacturers of tear gas and riot gas soon followed suit.

Therefore, in order to use any less-than-lethal weapon you need to determine at what level it might reasonably be used, both in reasonableness of response to a threat and in comparison with the existing use of force continuum. You additionally need to evaluate the training, take the training, and keep current with the training as appropriate. By doing this, you should be able to evaluate any new piece of equipment and make a reasoned determination as to where on the use of force continuum it should go, and in what circumstances, and against what kind of threats, it should be used.

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