Less Lethal Weapons: More Uncertain and Confusing Than You Think

The protests following recent police uses of deadly force have advocated various solutions to alleged police excesses. These solutions include calls to defund the police, the creation of citizen review boards, requirements for officers to wear body cams, and replacing (or at least augmenting) officers’ firearms with less lethal weapons.

This article focuses on less lethal weapons (LLWs). LLWs have evolved significantly over the years. In the days of the Wild West, lawmen had only their fists as less lethal options. Today, many officers carry expandable batons, pepper spray, and the Thomas A. Swift’s Electric Rifle (TASER) electronic control devices on their duty belts. Additionally, special reaction teams, such as SWAT, may deploy bean bag rounds, pepper balls, flash-bangs and rubber bullets. These resources expand law enforcement options for dealing with resisting individuals and have been broadly endorsed by many police agencies, community groups and the media for the following reasons:

• They provide intermediate options to officers, allowing officers to gain compliance at the lowest level of force while mitigating the need to use deadly force.
• They allow an officer to engage a resisting individual from a distance and this separation enhances officer safety.
• They demonstrate the willingness of a department to reduce force levels, thereby enhancing community relations.

Not So Fast! Some Concerns About Less Lethal Weapons

Nobody can object to the purported benefits and goals of LLW; however, like every complex topic, there is a sizeable gap between theory and operational reality. Here are several issues for consideration.

Article author John Weinstein will be presenting on two topics at the 2024 Campus Safety Conference July 8-10 in Atlanta: "Armed Staff: Security Enhancement or Liability?" and "The Intersection of Campus & Municipal Policing." For more information and to register, visit CampusSafetyMagazine.com.

1. What is it a “less lethal” weapon? Deadly force is typically defined as force that can cause death or grievous bodily harm. An officer is authorized to employ deadly force to prevent his or her death or serious injury or that of others. We all know which weapons fall into the LLW category, but definitions can be problematic. Nobody would consider a flashlight to be a lethal weapon like a firearm, but a heavy flashlight swung hard and hitting a person’s head can be lethal. Similarly, OC (oleoresin capsicum, i.e., pepper spray) and TASERs have been known to cause death to asthma sufferers and those with cardiac problems. By the same token, what if an officer (inadvisably) tries to control an offender by shooting at an arm or a leg instead of center mass to stop the threat? Is the firearm now a less lethal weapon? In short, every weapon the officer carries, to include his or her hands, can cause death or serious injury.
2. What are the goals of LLWs? LLWs are intended mainly to reduce the likelihood of serious injuries to citizens, maximizing compliance while maintaining officer safety, prevent civil suits or enhance citizen-police relations. However, different groups, even within a department, may order these priorities differently. Clearly, officers heartily endorse officer safety, and community groups endorse reducing citizen injuries as their highest priorities respectively. If a department has been successfully sued or there have been recent significant and destructive protests, a mayor and an appointed chief may elevate community relations and the avoidance of liability suits over officer safety. As we have seen recently in Seattle, where the Chief of Police resigned over different views than the city council about indulging community demands. Similarly, the resignations of officers and even some high-ranking commanders who allege the department didn’t have their back demonstrate how different entities rank various goals differently. Some of those goals are mutually exclusive. The perceived utility of LLWs varies with these individuals.
3. How badly are LLWs needed? The media axiom “if it bleeds, it leads” suggests that sensational news gets more attention than mundane copy. Surely, officer-involved shootings, especially those in which wrongdoing is alleged, will sell more papers and receive more air time than a story about a cop saving a puppy or buying lemonade from a neighborhood kid. But just how frequent is the use of force? A study of two large police forces in Florida showed that of approximately one million calls for service, officers only made about 20,000 arrests, approximately 2%, and only 15-20% of these involved the use of any. Further, only a handful of these involved deadly force, making it “exceedingly rare.” In short, the “epidemic” of illegitimate deadly force by law enforcement is significantly overstated.
4. How can we assess the efficacy of LLWs? Even if the above goals can be reconciled among different audiences, the application of force is far more dependent than just the potential level of a weapon’s lethality. The use of police force is dependent upon many factors, including the behavior and number of suspects, the availability of back-up, the officer’s experience and physical fitness, training and the time of day. One cannot consider the lethality of the weapon apart from the totality of the environment in which it’s being used. Any debate about the use of force that focuses only on the weapons and fails to include the myriad factors affecting its use is seriously deficient.
5. Will LLWs improve police-community relations? Any reduction, for whatever reason, in the use of police deadly force within a community, would be expected to improve community relations; however, this is not necessarily the case. The application of deadly force, already shown to be exceedingly rare, is only one stitch in the fabric of recent criticisms of police. The racial composition of the department and its command, the frequency of patrol in an area, accusations of different standards in enforcing the law for different communities, failures to discipline “bad cops,” the size of the department’s budget and the nature of its equipment, and media coverage are among the points of criticism that are made long before force is applied. Further, as protectors of the status quo, police will necessarily find themselves at odds with communities that seek immediate and significant change. But even if we focus only on LLWs, there is an additional problem owing to the fact that “less lethal” does not equate to no injury. The portrayal of high-tech weapons in Star Wars and other popular entertainment has created an unrealistic expectation within the public of the effects of LLWs. LLWs are not “phasers” that incapacitate without harm. Even if used correctly by highly trained officers, LLWs can result in serious injuries, and community outrage results from what it perceives as the unwarranted and illegitimate application of force, irrespective of its level or effect. Finally, the community’s post hoc view of the justified use of force by an officer is not the proper criterion to judge these incidents. Supreme Court decisions cite a reasonable officer’s understanding at the time of the incident as the appropriate determinate governing the justified use of a particular level of force.
6. Operational problems of LLWs. As noted above, LLWs can cause serious injury or death, even if used correctly by a well-trained officer. Such unfortunate outcomes are due to the dynamic and the unpredictable nature of use of force encounters. For instance, a suspect hit in the eye with a TASER dart could lose his sight; an asthmatic sprayed with OC could have a serious and even life-threatening respiratory response, including excited delirium; a person struck with a baton could, as a result of bobbing and weaving, be struck in the head or some other lethal area; and a person shot in the chest with a bean bag round could suffer a heart attack. The unpredictability of these encounters, coupled with unrealistic citizen expectations and, at times, doubts about the fidelity of police intentions are likely to result in criticisms of even LLW use.
7. Can LLWs reduce police liability? Probably, in a perfect world, but this is not a perfect world. The unforeseeable and undesired outcomes noted in the paragraph above are likely to result in civil litigation, no matter how laudable an officer’s intentions.
8. Will LLWs improve officer safety? Even if a LLW works as intended, there are numerous reasons why it may fail to keep an officer safe and obtain compliance from a resisting suspect. OC is best used within 8 feet and TASERs within 15 feet. This close distance means that an individual rushing an officer from so short a distance can make contact with the officer before he or she is able to employ a weapon. A rushing suspect has the advantage of the reaction gap, which means in the second or so it takes an officer to process that he or she is under attack, contact could be made. In addition, being charged by a suspect intent on doing harm is likely to induce movement by the officer, and this movement can reduce the accuracy of LLW employment. Other factors exist: an officer himself or herself may be disabled by OC spray if it is employed into the wind; some suspects can fight through the effects of OC, especially if they are under the influence of certain drugs; and a TASER’s darts may embed themselves in a suspect’s heavy clothing and not make contact with skin, rendering this LLW useless. A final set of concerns are associated with a deus ex machina fallacy, reminiscent of the old saw, “give a small child a hammer and everything encountered needs banging.” An officer who believes his or her duty belt contains every resource for every circumstance confronts several problems. First, over-reliance in and belief in the efficacy of these tools may undermine the officer’s most potent weapon: his or her speech and the ability to communicate with the suspect. This is a much more difficult task than simply employing a physical weapon, even if it’s legally justified. To the extent LLWs are seen as the answer to most confrontations, opportunities to resolve them verbally could diminish. Second, LLWs exist on an escalation ladder and while ladders can be used for moving up or down the escalation of force continuum, the use of LLWs assumes the failure at one level will automatically result in the selection of a weapon higher up the ladder. Finally, the existence of so many weapons on a duty belt could cause an officer, fearing possible second-guessing by department or community leaders, to temporize while trying to come up with the optimum solution. Due to the fact that the officer is reacting and already behind the response curve, this delay could jeopardize an officer’s safety, up to and including death.

Remember De-escalation, Training and Community Outreach

The shortcomings of less lethal weapons noted above do not mean they should not be adopted by departments. No technology is perfect. However, these shortcomings necessitate three initiatives by prudent police leaders.

First, departments need to reemphasize verbal de-escalation skills, providing all officers with Verbal Judo and Crisis Intervention Team training. These “soft” skills can mitigate the need for “hard” weapons in many instances.

Second, officers deploying LLWs need to be trained on them in realistic (i.e., stress induced) scenarios, and this training must include circumstances when these weapons fail to accomplish compliance (i.e., the need for, ground fighting and cuffing).

Finally, police leaders are well advised to discuss the issues herein with community leaders. This conversation must take place proactively, and not in response to a crisis at which time police motives are viewed as defensive and self-serving.

Note: The views expressed by guest bloggers and contributors are those of the authors and do not necessarily represent the views of, and should not be attributed to, Campus Safety magazine.

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