Part VI: Intermediate Weapons
Batons, electronic control devices (ECDs), and oleoresin capsicum (OC) spray are often called intermediate weapons because they offer an intermediate level of force between a firearm and going hands-on. But objective reasonableness depends on the facts. Baton blows to the head, neck, or groin area may cause serious injuries. The electrical charge from a dart-mode ECD causes neuromuscular incapacitation and is very likely to cause serious injuries to someone standing in tree, climbing over a fence, or saturated with flammable liquids. Absent a strong governmental interest, as when the suspect poses a significant threat, intermediate weapons are excessive when any reasonable officer would know that they are likely to cause serious injuries.
The Nature of the Intrusion – What does an intermediate weapon do?
A baton can be held at port arms to gently push a protestor back to the sidewalk. It can also be used to strike his attacking limbs. A baton is capable of causing deep bruising, blood clots capable of precipitating a stroke, and even death.
Oleoresin Capsicum (OC) spray comes from the oily extract of the cayenne pepper plant. Exposure to OC creates a deep burning sensation and difficulty breathing.
Electronic control devices (ECDs) come in two modes – dart and drive-stun.15 In the dart mode, the ECD propels a pair of “probes,” or aluminum darts tipped with stainless steel barbs towards the suspect. When the darts strike the suspect, the ECD delivers an electrical charge through the wires and probes and into the suspect’s muscles. The electrical impulse momentarily overrides the central nervous system. The suspect falls, momentarily incapacitated, which provides an opportunity for the officer to move in with handcuffs.
In the drive-stun mode, the officer pushes two electric contacts located on the front of the ECD directly against the suspect. The drive-stun delivers an electronic shock. The drive-stun does not override the central nervous system like the dart-mode, but it is painful and may cause a struggling suspect to release his grip on something.16
The Governmental Interest at Stake – When are intermediate weapons objectively reasonable?
An immediate threat is the most important Graham factor. Intermediate weapons fall within the range of reasonableness if, after applying the facts to the Graham factors, the suspect poses an immediate threat.
The severity of crime at issue may help establish an immediate threat. Consider an armed robbery suspect who refuses an officer’s order to lay on the ground. An intermediate weapon may be reasonable to make him.
But change the facts, and the answer may change. Assume the same person was only suspected of drunk driving. While a serious crime, drunk driving is not indicative of someone who is an immediate threat. The same urgency to get him on the ground may not exist.
The crime is only one factor to consider in deciding whether a threat exists. Police officers have a right to protect themselves even while investigating minor crimes. Consider a case where a patrolman stopped a truck driver for a simple traffic violation. The driver became immediately confrontational. “Get that flashlight out of my eyes” he stated. Five-times the officer asked for license and registration. Instead, the driver ranted and raved by the highway, “Why don’t you just take me to f---ing jail” and “I don’t have to kiss your damn a—because you’re a police officer.” After the fifth request, the officer shot the man with an electronic control device (ECD) in the dart-mode. The ECD caused neuromuscular incapacitation, he fell, and was taken to jail.
The truck driver’s failure to provide documentation was an arrestable offense; but, was it reasonable to use the ECD … and without warning? That was the issue before the court. The truck driver claimed that he would have obeyed the officer’s arrest commands, had the officer warned him. The officer, on the other hand, claimed that arrest commands would only escalate an already tense and difficult situation into a more serious struggle. This time the facts supported the officer.
But in another case, the facts viewed in a light most favorable to the plaintiff did not support an immediate threat. Here a young man drove onto Coronado Island wearing nothing but boxer shorts and tennis shoes. An officer also saw that he was not wearing his seat belt and directed him to pull to the side of the road. He did, but began to pound the steering wheel and to curse, … apparently upset about the pending traffic ticket. Then the the young man got out of the car. The slightly clad young man must have looked strange. Adding to his bizarre behavior, he began to yell gibberish, expletives (though not at the officer’s face, like the truck driver) and to hit his thighs. The officer was about twenty to twenty-five feet away from the young man when, without warning, the officer shot him with an ECD in the dart-mode. He fell due to neuromuscular incapacitation and shattered his teeth on the pavement.
The reviewing court believed that the only similarities between this case and the truck-driver’s were that the two men were stopped for a traffic violation; they were loud; and, they were shot by an ECD. While the in-your-face behavior of the truck driver could cause a reasonable officer to believe that there was a threat, the behavior of the young man on Cornoado could not. He was further away and just having a temper-tantrum.
Each use of force must be objectively reasonable. Not all of them were in a domestic violence case. The officers had probable cause to arrest the suspect who was acting erratically, holding a baseball bat, and advancing on the officers. The first three deployment of an ECD were not excessive because the facts supported a threat. However, seven more were excessive. At this point he had been disarmed, brought to the ground, and was restrained by several other officers.17
Similarly, OC spray is reasonable against a combative suspect who poses an immediate threat. But once the suspect is under control, he should be decontaminated as soon as reasonably possible.18
Active resistance may be combative or mechanical in nature. Whether combative resistance poses a credible threat depends on the number of officers and the size, height, weight and condition of the suspect compared to the officers.
Mechanical resistance is a situation where the suspect’s resistance is not directed at the officer; instead, the suspect grabs ahold of something to thwart the officer’s attempts to control him. When the suspect is not an immediate threat, time is an important factor. Is there time to consider other, less intrusive options than an intermediate weapon?
15 Experts have testified that ECDs may cause abnormal heart beat leading to stoppage and death. On the other hand, a National Institute of Justice panel determined that there is no conclusive evidence that indicates a high risk of serious injury to humans from short-term ECD exposure in healthy, non-stressed, non-intoxicated persons. Statistically, ECDs carry a significantly lower risk of injury than physical force.15 John H. Laub, Director, National Institute of Justice, Study of Deaths Following Electro Muscular Disruption 31 (2011).
16 The Physical Techniques Division provides electronic control device training to students attending the Federal Law Enforcement Training Center. The students are issued the manufacturer’s warnings. Attention to these warning can help the officer stay within the range of reasonableness.
17 Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013)
18 Lalonde v. Co. of Riverside, 204 F.3d 947 (9th Cir. 2000)