Cities and States Look to Crack Down on ‘Less-Lethal’ Weapons Used by Police

©Kaiser Health News

Following nationwide protests against police brutality in which law enforcement officers wounded or blinded protesters, state and local lawmakers and an international police association are taking steps to restrict the use of “less-lethal” weapons that caused the injuries.

At least seven major U.S. cities and a few states have enacted or proposed tight limits on the use of rubber bullets and other projectiles, though some efforts for similar actions have stalled in the face of opposition from police agencies or other critics.

Additionally, clashes between law enforcement officers and protesters in Portland, Oregon, and Washington, D.C., have triggered investigations by federal inspectors general.

After the George Floyd protests, “there was this new appetite from legislators at all levels of government to look at how to better protect protesters,” said Nick Robinson, legal adviser at the International Center for Not-for-Profit Law.

Amid calls for restrictions, the International Association of Chiefs of Police, based in Virginia with 31,000 members in dozens of countries, plans to review its recommended policies on pepper spray and less-lethal “impact projectiles” as well as other aspects of crowd control, said Terrence Cunningham, the organization’s deputy executive director.

“It became very clear to us that we need to revise those policies” in the wake of the Black Lives Matter protests, he said. Some law enforcement agencies “have done a great job managing the crowds and the protests,” he said. “Others could have done a better job.”

The legislation and studies come after USA TODAY and KHN documented dozens of injuries sustained after the killings of George Floyd in Minneapolis and Breonna Taylor in Louisville. Weapons used by local police or other law enforcement agencies included sponge and bean bag projectiles as well as “pepper balls” — essentially paintballs filled with chemical irritants.

At least 30 people suffered eye injuries, and approximately one-third of the cases resulted in complete loss of vision in one eye, during protests in late spring, according to a study by the American Academy of Ophthalmology and the University of California-San Francisco’s ophthalmology department.

That’s what happened to Shantania Love in California.

“Peaceful protests shouldn’t end in people being blinded or shot in the head,” said Love, who permanently lost sight in her left eye in May after being shot with a less-lethal projectile in Sacramento.

Doctors at Dell Seton Medical Center at the University of Texas were so shocked by “rubber bullet” wounds in Austin that they documented them in a letter to the New England Journal of Medicine.

“All the injuries were bad. They made a hole in somebody. They broke bones,” said Dr. Jayson Aydelotte, the hospital’s chief of trauma surgery. “Wewrote this to raise awareness so communities can make their own decisions about what to do with this information.”

The Austin police chief said his department would no longer use bean bag rounds on crowds after the projectiles — encased birdshot fired from a shotgun — caused many of the injuries seen at the hospital.

But many other U.S. law enforcement departments have continued using less-lethal weapons during protests across the nation.

Police in Rochester, New York, have repeatedly used pepper balls on crowds this summer, as recently as Wednesday. Officers from the Metropolitan Police Department of the District of Columbia fired sting balls and tear gas after protesters threw bricks, glass and smoke grenades at them during clashes over the weekend, The Washington Post reported.

There are no national standards for police use of less-lethal projectiles and no comprehensive data on their use, said Brian Higgins, a former New Jersey police chief who’s now an adjunct professor at the John Jay College of Criminal Justice in New York City.

Police department rules vary widely. In some incidents this year, police appear to have violated their own rules, which allow projectiles to be fired only at dangerous individuals.

In July, the International Association of Chiefs of Police held a webinar on lessons for law enforcement from this year’s protests and other recent demonstrations. It drew 800 participants, Cunningham said.

“It raised more questions than we had answers to,” he said. “For some of these practices, the policies that we have are pretty old, to be honest with you, and this is a great opportunity to rethink it.”

The association’s guidelines for sponge and bean bag rounds and other impact projectiles haven’t been revised since 2002. Meanwhile, the technology and tactics of less-lethal weapons have substantially changed.

Its review could eventually lead to another congress of police executives and union leaders, who produced a consensus policy on the use of force three years ago, Cunningham said.

One message in particular needs to be repeated and made clearer, he said. Less-lethal projectiles should be used only to subdue dangerous individuals and not fired indiscriminately into crowds, as happened in several instances that USA Today and KHN documented.

Crowd-control policies should be updated not just because of the injuries but to adapt to new tactics used by peaceful protesters and troublemakers, law enforcement officials said. Social media has transformed mass demonstrations, enabling marchers to assemble more quickly and in greater numbers, they said, and police need to respond.

“Some crowds have gone from a peaceful protest of 30 or 40 people to 1,000 strong within an hour,” said Larry Cosme, national president of the Federal Law Enforcement Officers Association.

Few if any of the initiatives will generate instant change, independent experts cautioned. Law-enforcement agencies oppose some restrictions on less-lethal projectiles, saying the weapons are a critical tool to control uncooperative people that stops short of deadly force.

The IACP makes recommendations on police use of force but law enforcement agencies set their own policies. Even the best policies — including those set in law — are just slogans unless departments have the resources to carry them out, experts said.

“I’d be very curious to know what they’re basing any changes on, other than placating people,” Charlie Mesloh, a certified instructor on the use of police projectiles and a professor at Northern Michigan University, said about the association’s initiative.

“Unless someone’s willing to pay for training that would make things better, this is just another piece of paper,” he said. “There are no magic solutions.”

Reform advocates took a setback this week when the California legislature failed to pass a bill that would have allowed police to use tear gas and riot projectiles only against dangerous individuals and only after warning the crowd they’re part of. It would have required police agencies to report their use of less-lethal force annually to the U.S. Justice Department.

Police groups opposed the bill, especially its limits on tear gas, which the Los Angeles County Sheriff’s Department told legislators can “prevent the escalation of physical force” by dispersing a crowd without the use of projectiles.

Assembly member Lorena Gonzalez, who sponsored the bill, said she’ll reintroduce it next year. Robinson, of the International Center for Not-for-Profit Law, said he expects many new measures to be proposed across the country in January, when state legislatures convene.

Another stalled effort is in Minnesota, where lawmakers did not approve a proposal that would have prohibited law enforcement agencies and peace officers from using chemical weapons and kinetic energy munitions such as plastic wax, wood or rubber-coated projectiles on civilian populations.

At the federal government level, a preliminary version of a proposed amendment to the National Defense Authorization Act included restrictions on less-lethal munitions. But the restrictions were cut from the proposal before it was voted on and turned down.

Washington, D.C., officials in July enacted a sweeping police reform measure that bans the use of rubber bullets or tear gas against nonviolent protesters. Less-lethal munitions and chemical spray were used to disperse a crowd in June before President Donald Trump walked through Lafayette Square to display a Bible in front of a historic church.

Derrick Sanderlin with his wife, Cayla Sanderlin. Derrick, who had trained San Jose police recruits on avoiding racial bias, was hit by a projectile that ruptured a testicle.

San Jose’s City Council is considering new controls on such weapons. In June, the Seattle City Council banned the weapons outright, but a federal judge blocked the law after the Justice Department argued it would take away law enforcement’s options to “modulate” the use of force.

As part of a larger police reform measure, Colorado banned law enforcement officers from firing less-lethal projectiles indiscriminately into a crowd or aiming them at someone’s head or pelvis. Language in a Virginia bill would ban their use by all law enforcement.

In addition, inspectors general at the Justice Department and the Department of Homeland Security are investigating the actions of federal law enforcement officers in Portland after lawmakers raised concerns. DOJ is also investigating federal officials’ role during protests in Washington, D.C.

Amnesty International USA recently released a wide-ranging report on the protests, chronicling what it said were 125 instances of police violence against protesters, journalists, medics and legal observers in 40 states and Washington, D.C., in May and June. The group accused police of mishandling a litany of less-lethal devices, including sting-ball grenades, rubber pellets and sponge rounds.

Amnesty called for the development of national guidelines for less-lethal projectiles. The group said they should be independently tested for accuracy and safety, and they should be used only in situations of “violent disorder” in which “no less extreme measures are sufficient” to stop the violence.

Cosme said he’s open to starting discussions about updating the national consensus policy to include more detailed standards for less-lethal munitions. He also supports requiring testing of devices to ensure accuracy and safety.

But he said less-lethal munitions are critical tools for crowd control because officers can target individuals from a distance.

Chuck Wexler, executive director of the Police Executive Research Forum, a think tank for police leadership, said the protests in recent months could offer lessons for how police handle demonstrations.

“We’ll be looking at this,” he said. But Wexler said he does not have a concrete plan or timetable for convening reviews of what happened, given the pandemic.

“The real key question is, What kind of strategies can we develop that are the most humane for cops and for the community alike?” he said.

“What did we learn? What are some of the cautionary tales?” Wexler said. “What strategies were effective? Where were injuries the least for demonstrators and cops alike?”