The purpose of this column is to discuss technology. However, technology does not exist in a vacuum - it must be used. The way that technology is used can have a far-reaching impact on how we do police work.
The Most Controversial Technology
We have talked about electronic control devices (ECDs) here before. We have discussed what makes them work, and how to deploy them tactically. We have even explored what to do when they fail to have the desired incapacitating effect. What we have not considered in this space is the theory, or as some would say, the ethics of ECD use.
Let's keep things simple and on-point. Here are some verifiable facts:
- ECDs are handheld battery powered devices - they are not nuclear powered.
- ECDs deliver short duration low current electrical pulses to the body when a satisfactory circuit is established.
- In order to incapacitate someone, that charge needs to create neuro-muscular incapacitation (NMI), rendering the subject incapable of resisting (at least while energy is delivered to the person's body).
- Other non-lethal tools and techniques that officers have, including impact weapons and aerosol sprays, use pain compliance to gain control.
- Pain compliance devices leave it up to the subject when, and if, to comply - in effect hurting them until they give up.
- If the subject isn't affected by the pain, or decides to fight anyway, then pain compliance tools don't give you control.
So, in order to force compliance from a resisting subject, you need something that takes the decision to submit away from the subject, and involuntarily incapacitates them until you can gain physical control. The only non-lethal tool that you have with which to force that compliance is your ECD.
Of course, the use of an ECD is painful, just like other use-of-force tools and techniques. The question is not whether or not you should hurt someone while gaining control, it's how much and how long should you hurt them.
Why Would You Hurt Someone More than You Have To?
When you're going to take someone into custody, they will either resist or they won't. If they resist, you will have to use some means to overcome that resistance. If the resistance is physical, you need to use physical means to overcome it. If they offer strong resistance, you'll need to use stronger control to overcome their resistance.
That may seem obvious - and it usually is to anyone who has worked the street and made arrests - but many people just don't get it. Let's say it again - stronger (as in more violent) resistance requires stronger (as in more violent) control. And here's the thing... more violent often means more injury, for officers and subjects - and sometimes for by-standers.
That is never a good thing.
So, there is an absolutely "reasonable" reason why we would use a tool that forces compliance, and is unlikely to result in serious injury. The only tool you have that does that is your ECD.
Wait a Minute... ECDs are Dangerous. Aren't They?
No, they're not. Whether you like them or not, ECDs are demonstrably unlikely to result in death or serious injury. Here are some more verifiable facts:
- There is a large and growing body of knowledge - from departmental studies to peer-reviewed research, from the U.S. and Canada to Great Britain and other countries, from practitioners and attorneys to academics and medical professionals - that supports the idea that use of ECDs, while not risk-free, is unlikely to result in death or serious injuries.
- There have been several hundred thousand exposures to the effects of ECDs in training. There have been hundreds of exposures, some continuous exposures as long as 45 seconds, in research environments. There have been very few injuries, and no deaths.
- ECDs have been in the hands of the public for many years, and also in the hands of law enforcement. Since the late 1990s, a growing number of law enforcement agencies have deployed ECDs. Today, nearly two-thirds of the law enforcement agencies in the U.S. have ECDs, many with full deployment to all officers. Who knows how many usage incidents have occurred on the street, in real world scenarios? Informed estimates from top researchers put the number at over ½ million.
- Collectively, there have been approximately 1.2 million exposures to the effects of an ECD, between training and real-world deployments.
That does not mean that use of ECDs is risk free. There is always the possibility that someone could be injured. Nothing is risk-free. When injuries do occur, they are generally of two types: injuries related to muscle contraction / exertion, and falls. In most cases, these injuries are benign.
What About the Claims of "ECD-Related Deaths"?
Years ago, police were accused of killing people with "choke holds". Then police were accused of killing people with pepper spray; then by hog-tying; then by positional or compressional asphyxia. Sometimes police are accused of killing people through inappropriate use of restraints. Nowadays, police are sometimes accused of killing people with ECDs. The "deep pocket causation theory" is alive and well (he with the deep pockets caused the harm).
Some organizations claim that there have been hundreds of deaths caused by ECDs, or "related to" the use of ECDs. The facts are that there are, and have always been, in-custody deaths. Sometimes we know why someone died in custody, and sometimes we don't. In some of the cases where medical authorities have not been able to identify a specific cause of death, they have drawn a speculative and scientifically unsupported connection between police activity and the death.
Think about this for a minute: In most resisted arrests there will be a struggle. Many times OC or an ECD will be used in an attempt to control resistance. Handcuffs and other restraints will certainly be used. Any death that occurs subsequent to such an arrest could be referred to as an "OC related death", or a "restraint related death", or even an "ECD related death". That does not mean that any of those elements caused the death.
The relationship between the use of force implement or technique and the death is temporal in nature - that is, there is a relationship in time. The resistance occurred, then the use of force, and sometime after that, the death. That means one thing happened before the other, it does not mean that one thing caused the other. For that there must be convincing evidence.
There is no evidence that ECDs kill. There is a great deal of myth and conjecture, media hype and misunderstanding, anger and unsupported conclusions, all colored by an apparent belief that someone must be at fault.
Use of Force Standards
The standard for determining the reasonableness of the use of force during the seizure of a free person was outlined by the United States Supreme Court in the case Graham v. Connor, 490 U.S. 386 (1989). In that case, the USSC held that the standard was one of objective reasonableness under the Fourth Amendment. The Court said that there are three determinants: the nature of the crime, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect is resisting arrest or attempting to flee. (Remember, the Fourth Amendment standard is an abuse of power or authority standard, not a self defense or defense of others standard.) They also said that police officers' actions must be judged from the perspective of the reasonable officer on the scene, not with the luxury of 20-20 hindsight, and they said that one should take into account that police officers must make split second decisions in situations that are tense, uncertain and rapidly evolving.
That is the standard for the use of force in making an arrest, and it doesn't matter what tool or implement or technique you use - your use of it will be evaluated under those criteria. It does not matter what tool you use, but how and when you use it, given your knowledge of the likely outcome of its use.
In this context, the test is an "objective" one and you are not held responsible for what might happen when you use force, but for what is likely to happen. The results are unpredictable, so you can only be expected to base your decision to act on your knowledge of likely outcomes of your use of force.
That is important, because without that ability to make decisions based on the likely outcome of a particular use of force, you would have to treat everything - every tool and technique in your toolbox - as potential deadly force. Think about that.
Use a takedown you learned in DT class, and the suspect has a heart attack - deadly force. Hit someone on a leg pressure point (common peroneal), and they develop a blood clot that kills them - deadly force. Threaten to take someone to jail and they run away in fear and are hit by a car - deadly force. Spray someone with OC, and they blindly stumble and fall, hitting their head - deadly force. Deploy an ECD during a struggle to take someone into custody, and they subsequently, mysteriously, stop breathing - deadly force.
Any analysis of the level of force represented by a tool or technique must be based on the likely outcome of its use. If use of a particular tool - say a baton - is likely to result in injury, then it represents intermediate force. If firing a handgun at someone is likely to result in serious injury or death, then it represents deadly force.
ECDs and The Use of Force
Of the several hundred deaths that critics want to lay at the doorsteps of ECD manufacturers, five have resulted in a finding that the ECD was one of the primary causes of the death, and in none of those cases was the medical authority able to state the specific mechanism whereby the ECD caused the death. They were not able to state to what degree of medical certainty the ECD caused the death, or to what degree the ECD contributed to the death. When those cases were put before other medical experts with similar or greater expertise and credentials, the original finding in every case was questioned.
But even if the five cases had been directly caused by an ECD, based on the more than 517,000 field uses of ECDs discussed earlier, that would be a fatality rate of less than two thousandths of 1 percent (.000012). By the way, that's less than the odds of dying by falling out of bed.
With 1.2 million ECD exposures, and the few reported injuries, it's clear that ECDs represent a level of force that is unlikely to result in serious injury or death. Anyone that tries to liken the use of an ECD to the use of deadly force either does not understand the standard outlined by the courts, or has not fully researched the issues related to the use of such weapons.
What Should Officers Do?
Because ECDs are relatively new on the law enforcement scene, they are often misunderstood. Additionally, we grow up with a fear of electricity, and that causes people to fear the use of ECDs. The answer to both problems is education. The more information citizens have regarding the use of force by police, and particularly the use of ECDs, the more comfortable they will be with the fact that we use such tools.
What we know through data collected by many different departments, as well as other researchers, is that the utilization of ECDs almost always leads to a dramatic reduction in the number of arrestees and officers injured, and in the number of excessive force complaints. That translates to fewer people injured, and less money spent on litigation, worker's compensation, and other costs.
Officers should remember that ECDs are not "the magic bullet". They should not be used in every case, nor should any weapon. It is far better to use interpersonal communication skills than any forcible control method. When resistance is encountered, it is preferable to use verbal skills and - if it can be done without increasing the likelihood of injury to the officers or arrestees - empty-hand defensive skills.
Officers should also remember that nothing works every time, and ECDs are no exception. Officers should be prepared to go to a Plan B if and when their ECD, or any other weapon, does not perform as expected.
Legally and ethically, when making an arrest an ECD is no different than any other weapon or tool or technique, meaning that we must have justification when we use one, and we must be objectively reasonable in our decision to do so. Our use of force - whatever tool we use - must meet the standards set forth in Graham v. Connor, and we must thoroughly and honestly document our reasons for determining that our use of force decisions were justified.
Stay safe, and wear your vest! (and Buckle Up!)
