The disarming of California law enforcement

Shifting public perception

Peace officers in California are faced with difficult decisions relating to how they use force when they determine it is needed to resolve violent encounters. Most law enforcement encounters are handled by officers without death or injury to anyone whatsoever. One study acknowledges that lethal measures are needed by police at times (Silver, Roche, Bilach, & Bontrager-Ryon, 2017). A relatively few unfortunate incidents actually result in a fatality. While the frequency of lethal occurrences has remained largely unchanged, other evolving factors have intersected with these occurrences in a way that has compelled a shift of the public’s law enforcement perception. This shift in perception is expressed by growing stereotypes of law enforcement agencies and officers, who are cast as illegitimate and systematically racist. Public perception is a significant driver of change in state and national law enforcement policy, in modifications to long-held tactical procedures used by officers, and in changes and additions to law enforcement weaponry and armories.

In a related example, the widespread availability of video cameras (e.g. mobile phones), the increase in the public’s social media usage, and the twenty-four-hour news cycle have contributed to framing law enforcement use of force incidents in a manner that has caused extreme skepticism of officers. One source indicated, “…use-of-force events, are fodder for external critiques and calls for reform” (Schaefer & Tewksbury, 2018, p. 37). Many law enforcement agencies have responded to this by implementing costly body-worn camera programs. It is widely suggested that agencies who record police interactions with a body-worn camera will save money that would have otherwise been spent settling lawsuits generated from use of force incidents where a citizen is injured or killed. The case of body-worn cameras exemplifies how significant change occurred in the justice system at an intersection of advancing technology and declining public sentiment. According to one source the work of law enforcement officers may ultimately be done, “…by force or the threat of force, while also ensuring their own safety and personal survival on the streets” (Marenin, 2016, p. 464). A body-worn camera, however, cannot save a life. What if law enforcement officers were armed with technology that could stop a threat without lethal outcomes?

De-escalation, lethal force, and non-lethal options

In many dangerous incidents the involved officers are able to effectively defuse the tension of the encounter through empathetic dialogue and de-escalation techniques. The ability of an officer to communicate with empathy is a strong indicator of their aptitude when evaluating their competency when dealing with emotionally charged people. Officers who excel in this domain are less likely to use force to handle tense encounters.

However, dialogue is not always effective, even when used by the most skilled peace officers as a tool to defuse a tense encounter. Many law enforcement incidents require officers to interact with people who are experiencing an emotional crisis, or they must engage with people who are intoxicated. Some interactions involve those who are under the influence of controlled substances, or people who are impaired by developmental disabilities that affect their ability to peacefully interact with others or communicate with others. Other circumstances that preclude constructive and defusing dialog might relate to a person’s inherent aversion to law enforcement as an institution, or a law enforcement encounter with a person who is attempting to evade arrest. Despite the evolving challenges presented by a rapidly changing society, the majority of law enforcement encounters are peacefully resolved.

Although the majority of law enforcement's non-lethal weapon use concludes with comparatively minor injuries, in some cases death or great bodily injury can occur.

Unfortunately, peaceful outcomes are not achieved every time. In relatively less-frequent encounters with troubled individuals, it might be necessitated that officers use non-lethal weapons to safely resolve the incident. In current times these non-lethal weapons might include impact weapons (e.g. batons), charged energy devices (e.g. Tasers), and chemical weapons (e.g. pepper spray). Less-used alternatives are bean-bag rounds and rubber bullets. Although the majority of law enforcement’s non-lethal weapon use concludes with comparatively minor injuries, in some cases death or great bodily injury can occur. Coleman (2015) argues that because the effects of these weapons are not lethal, they might be indiscriminately used by law enforcement officers. When death occurs following the use of non-lethal weapons, it is often associated with other aggravating factors. Most commonly the death of an individual in these instances is attributed to the physical health or medical condition of the subject, or the subject’s use of intoxicants or controlled substances prior to the encounter. The use of non-lethal weaponry on otherwise healthy, non-drug users is normally administered with little to no permanent injuries.

Death might also occur as a result of complications with the deployment of non-lethal weapons. Officers train in the use of non-lethal weaponry in relatively sterile environments. Training environments often present the best-case scenario to officers. The reality and complexities of actual in-field use cannot be fully represented in a training environment. For example, during a real-world encounter a baton strike to an intentional target (e.g. leg) might hit an unintentional target (e.g. head) if the subject is fighting with officers. Real-world altercations are violent and unpredictable. Training environments cannot wholly account for this possibility or others like it. Unlikely is it, that a role player wearing a protective suit who is presenting resistance during a baton training exercise will intentionally place their head in the path of an incoming baton strike. The safety of role players is always emphasized when training; the trade-off for safety is the diminished realism of the exercise. Unrealistic training can be argued to have little applicability to real-world scenarios.

Death that follows non-lethal force is an unintentional, undesired outcome of law enforcement encounters. Lewer (2017) wrote, “There are no perfect weapons that will never kill anyone under any circumstance.” (p. 13). However, there are force applications where death is highly likely to occur when used. Firearms are the dominant weapon used by law enforcement when lethal force is required to effectuate their role. Motor vehicles are another potential means to deliver lethal force. 

In some of the rarest incidents, officers discharge firearms to stop an immediate, imminent threat to life or to prevent great bodily injury that would have likely otherwise occurred absent their intervention. The use of a firearm is a significant departure from other force options. Law enforcement has a long history of lethality in practice. Palmiotto (2018) wrote, “The police can trace their legal authority to use deadly force to the common law of England, which was developed during the middle ages” (p. 35). The use of a firearm is done so by an officer with full consideration of the potential lethal outcome resulting from its use. Aforementioned options are largely non-lethal by design, where if death occurs it is an unintended outcome, and is normally caused by aggravating factors. Regardless of lethality, any use of force by law enforcement officers is unpleasant to view.

Officers, when faced with violent encounters, are expected by society to resolve these encounters humanely. They are, “…often forced to make split-second decisions about the amount of force necessary…”, as described in the Graham vs. Connor decision in 1989. Ironically, both lethal and non-lethal force applications have had varying outcomes. Lethal force applications sometimes only wound or injure, and non-lethal applications sometimes kill.

What if a single force application could be used for all incidents warranting force, with no lethal outcomes? What if the effectiveness of that force application was equal to or greater than a firearm, without the lethal potential of a firearm? What if peace officers could resolve violent encounters without killing? What if a humane method to stop a threat was available to officers? If such a tool existed, the conversation naturally shifts to questioning the morality of using lethal force. If killing is preventable through an application of technology, should that technology replace what has historically been a staple of law enforcement use? Body-worn cameras changed the paradigm of citizen interactions for thousands of law enforcement officers. This was driven by technological advancements intersecting evolving societal perspectives. A future revolution in law enforcement will be driven by technology that makes lethal force obsolete.

The eroding legitimacy of the law enforcement institution

In March of 2018 Stephon Clark was killed by officers of the Sacramento Police Department. Clark was determined to be unarmed, and the shooting was ruled as justifiable. In August of 2014 Michael Brown Jr. was shot in Ferguson, Missouri after an encounter with Police Officer Darren Wilson. Brown was unarmed, and Officer Wilson was not indicted by the grand jury investigating the matter. These two incidents are among many others with a similar theme: an unarmed African American male is fatally shot by police, and authorities determined the shooting was justified. Encounters like these have eroded the public’s sense of legitimacy for American law enforcement officers and agencies.

Other examples exist where police used lethal force, killing people who were only a potential danger to themselves. On the night of September 17, 2006, San Diego County Sheriff’s Deputies Mike King and Sue Geer shot and killed Shane Hayes during a welfare check inside his home as he approached the officers with a knife. That shooting was also deemed justifiable, although the conduct of the officers prior to their use of force was criticized.

On August 19th, 2019 California Governor Gavin Newsom signed Assembly Bill 392. According to the State Legislature website, the law was among other things, designed to, “…redefine the circumstances under which a homicide by a peace officer is deemed justifiable…” (https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB392). This bill is a significant departure from the Graham v. Connor standard that California peace officers have been trained to for decades. The new bill amends California Penal Code section 835a to include the officer’s conduct up to the use of force into, “…the totality of circumstances.” What precipitated this shift in philosophy relating to law enforcement’s use of force?

Society it seems, has reached a tipping-point with its tolerance for incidents involving police use of force, both lethal and non-lethal. Citizen-generated video recordings of police-citizen interactions has presumably contributed towards this trend where law enforcement as an institution is subjected to focused scrutiny of the populace. This scrutiny comes from many sources; some are experts in law enforcement use of force encounters, but most are not. Body-worn cameras attempt to convey the law enforcement perspective at force-related incidents. Although success and a degree of vindication is realized through body-worn camera video, failures of some officers are also made more apparent. The use of force by an officer, whether justified or not is unpleasant to view. The application of force is shocking to the senses, a natural reaction some would argue, as violence is counterintuitive to the mores of a civilized society.

Law enforcement officers in California must now navigate arguably perilous legal terrain due to recent legislative changes in state law that scrutinize use of force incidents. The current toolset available to officers has not significantly changed for decades. Nearly all tools cause injury, and some cause death. When impact weapons are used, they might break bones, bruise skin and cause damage to muscles. Injuries from impact weapons might persist for a lifetime. The use of charged electronic weapons (Tasers) by officers sometimes precipitates injuries sustained to subjects who fall to the ground because their body is momentarily paralyzed. Pepper spray could cause respiratory complications that lead to heart complications. Firearms are designed to cause death.

Where are the technology companies?

The advancement of law enforcement tools relating to the use of force has remained relatively flat, despite incredible growth of technology in other fields. Smith (2019) argues that the predicament is a technology problem, and that soon the bullet will be obsolete. Consider the artificial intelligence now built into everyday devices. Consider self-driving cars, and the departure of the automotive industry from oil to electric. Consider drone technology, breakthroughs in the medical field, exponentially growing computer processing power, and solar and wind generated energy that is revolutionizing how American life is powered.

What does it say about a society that critiques and legislates the work of law enforcement officers and agencies, but remains silent in offering material contributions that might help solve the problems presented by those same people?

Where are the pharmaceutical companies who invest millions of dollars into drug research and development? Why have they not applied their expertise and genius to this problem? Why has the Silicon Valley not applied their world-changing technology and modernization to perhaps one of the most important institutions in American society? Where are the great minds who ride the wave of technological innovation, creating electronic gadgets that are used by nearly everyone in modern society, only to be easily discarded for the next iteration? What does it say about a society that critiques and legislates the work of law enforcement officers and agencies, but remains silent in offering material contributions that might help solve the problems presented by those same people?

The problem is simple: law enforcement officers have a limited toolset available to them; their role in society is expanding to the point where that toolset has diminished applicability and relevance to contemporary challenges. Society critiques the actions of agencies and officers but has placed no value on developing and advancing the tools law enforcement agencies issue to their officers. Law enforcement officers do not want to kill people. Occasionally they are placed in situations where deadly violence is brought upon them or brought upon others. One source indicates, “From a psychological orientation standpoint, warrior officers view their place in society as the line between good and evil” (McLean, Wolfe, Rojek, Alpert, & Smith, 2019, p. 4). Many officers view their role as such; a warrior who is the last line of defense between evil and innocence.

Those officers are charged with protecting people from those who deliver violence. There are sometimes no other choices that can be made by the officers but to kill a person. Other times suspects unintentionally perish at the hands of law enforcement officers who are using outdated tools, without ill intent. The non-lethal tools they have to address lethal threats are known to be lethal in some cases.

The San Joaquin County Sheriff’s Office is a stakeholder in this issue. Addressing crime in the communities served by the Sheriff’s Office sometimes requires that deputies use force. The problem of lethal force has a direct influence on how the Sheriff’s Office operates. In a specific example, on August 27th, 2019 three (3) San Joaquin County deputies encountered a subject who pointed a firearm at them. The deputies shot and killed him. The deputies had no other means to address this threat other than delivering lethal force to stop it. It is a tragedy that someone died. Could this have been prevented? Perhaps it could have been prevented if a tool existed that was equally efficacious as a firearm, absent the lethality. What if the weapon the person those deputies killed was later found to be a toy or replica? What if the suspect’s demographic description was consistent with the other high-profile law enforcement shootings that have recently dominated news feeds? How then would society’s view of the San Joaquin Sheriff’s Office trend?

This problem affects all of California law enforcement. The 58 sheriffs in California and the women and men who staff hundreds of police departments across the state are all affected by recent use of force legislation. They are affected by society’s perception of legitimacy that follows their use of force incidents. Communities are also affected. As the perception of law enforcement legitimacy declines, trust in law enforcement fades as well. Communities who do not trust their police departments and sheriff’s offices are less likely to call to report crimes, and they are less likely to cooperate with investigations. It can be argued that crime increases when community relationships are diminished.

This study contributes to the future of policing, as it explores how technology can create a paradigm change relating to how law enforcement services are delivered. It explores how an agency’s role in a community might change when non-lethal force is adopted. It discusses the culture change that might occur within the male-dominated law enforcement industry, when rifles, shotguns, and pistols are replaced with a non-lethal device.

Conclusion

Technology in other fields has advanced at an incredible pace, permanently changing how people live and interact with each other. The role of law enforcement has also evolved, yet the tools available for their use are relatively archaic. Society’s tolerance for deaths at the hand of law enforcement officers is declining as technological advances in non-lethal weaponry are increasing. At the convergence of these two drivers, a moral question will be asked: should law enforcement officers use deadly weapons if they are obsolete? Lethal weapons will at some point be replaced by non-lethal weapons. This study examines policing in this new paradigm. 

About the author:

Dustin Kulling is a 23-year veteran of California law enforcement. He is currently the Captain of Field Forces at the San Joaquin County Sheriff’s Office where he oversees a division of 240 sworn and non-sworn team members providing front-line law enforcement services to the community. Over the course of his career, Kulling has worked in a variety of assignments and roles, to include: patrol, investigations, field training, and an eight-year undercover assignment as a narcotics agent at a counter-drug task force staffed by DEA, FBI, and other state and local partners. Kulling is a narcotics expert, having dismantled hundreds of clandestine methamphetamine laboratories, and investigated large-scale drug trafficking organizations with international reach. He is an Adjunct Associate Professor at San Joaquin Delta College, and an Ambassador and Yoga Teacher with Yoga for First Responders. Kulling has both a M.Ed. In Higher Education and a B.S. in Criminal Justice from Liberty University. Kulling is currently attending the California Commission on Peace Officer Standards and Training (POST) Command College (Class 66), where he is studying the impact of non-lethal weapons technology. He is married to Patricia for over 26 years, and they have three children (and two Shih-Tzu dogs). Kulling has a regular yoga practice, attending a hot yoga class nearly every day.

References

Coleman, S. (2015). Possible ethical problems with military use of non-lethal weapons. Case Western Reserve Journal of International Law, 47(1), 185.

Lewer, N. (2017). The future of non-lethal weapons: Technologies, operations, ethics and law (First;1; ed.). London: Taylor and Francis. doi:10.4324/9781315040202

Marenin, O. (2016). Cheapening Death: Danger, Police Street Culture, and the Use of Deadly Force. Police Quarterly, 19(4), 461–487. https://doi.org/10.1177/1098611116652983

McLean, K., Wolfe, S. E., Rojek, J., Alpert, G. P., & Smith, M. R. (2019). Police officers as warriors or guardians: Empirical reality or intriguing rhetoric? Justice Quarterly, 1-23. doi:10.1080/07418825.2018.1533031

Palmiotto, M. (2017). Police use of force: Important issues facing the police and the communities they serve. Boca Raton, Fla: CRC Press, Taylor & Francis Group. doi:10.1201/9781315369921

Silver, J. R., Roche, S. P., Bilach, T. J., & Bontrager Ryon, S. (2017). Traditional police culture, use of force, and procedural justice: Investigating individual, organizational, and contextual factors. Justice Quarterly, 34(7), 1272-1309. doi:10.1080/07418825.2017.1381756

Schaefer, B. P., & Tewksbury, R. (2018). The tellability of police use-of-force: How police tell stories of critical incidents in different contexts. The British Journal of Criminology, 58(1), 37-53. Doi:10.1093/bjc/azx006

Smith, R. (2019). The end of killing. TN: Ingram.