Boston Police, Pepper Spray Rifles and Deadly Force

Yesterday, the Boston Globe had some new details about the horrific scene around Fenway Park after the Red Sox beat the Yankees.

It left me with a question about those pepper guns and how they are intended to be used. I wrote this for posting today:

I see two possible intended uses for the weapon:

1. To deliver pepper spray to an area not otherwise reachable;
2. To deliver pepper spray to an individual not otherwise reachable.

Today's Globe seems to answer that question, in this article:

When asked if the manufacturer would ever recommend shooting the FN-303 into a dense crowd, Mills [an official of the gunmaker] said it would depend on the circumstances, but if ''somebody in a dense crowd is shooting a ball-bearing at you or throwing a Molotov cocktail at you, it [the FN-303] can shoot accurately in a crowd."

The FN303 projectile is ''fin-stabilized," Mills said, which gives it more accuracy than a paintball gun.

Now we know. It is specifically designed to fire a pepper round at an individual target accurately. More about this quote below.

I had assumed the Snelgrove homicide resulted from police use of the weapon consistent with purpose #1, above, as they tried to clear a path out of the crowd surrounding and threatening them. I assumed Ms. Snelgrove was an unintended target, the ground or the crowd's legs being the intended targets. If so, then her horrible death was an accident for which no officer is criminally culpable.

But the news yesterday and today, including both Boston Globe articles linked above, makes it appear that the Boston Police were using the rifles as in purpose #2, above - as a method of long-distance punching. That is, using the ball itself as an impact weapon to enforce individual compliance with police commands. (Shooting kids off the wall when they refused orders to come down, for example.)

I think that is an improper purpose for that weapon. To my mind, the pepper spray rifle amounts to a deadly force weapon that should not be used on individuals absent justification for deadly force. I am certain the manufacturer and the BPD would disagree, but I think they're wrong. I will explain why.

A good functional definition of deadly force is "that force likely to cause serious bodily injury or death." That, or a near variant, is the definition generally used by law enforcement agencies to train their personnel on deadly force. It is proper for police to use deadly force only when it is necessary to use it to prevent serious injury or death. The law in this area is clear.

Pepper spray, per se, is not deadly force; it is not likely to cause serious bodily injury or death. It burns and makes you cry and slams your eyes shut and is generally a miserable experience, but it won't leave any permanent or serious injury. The projectiles from the FN Herstal FN303, on the other hand, will. Apparently the manufacturer recommends not aiming at the head or neck. Well, gosh, why would that be? Because if you hit someone in the head or neck with a pepper ball fired from a rifle, they are likely to be seriously injured or die. That's deadly force.

You could argue percentages here. Not many shots go to the head so, as a percent of the total shots fired, the number of shots fired at the head (that is, likely to cause death or serious injury) is low, low enough not to amount to "likely" in the overall use of the weapon. But that's not the relevant measure. Everyone agrees that the use of a handgun is deadly force. Why? Because it fires a projectile that is likely to kill or seriously injure its target. So doea the FN303. Just look at what FN Herstal says about the FN303:

EFFICIENT Guarantees a maximum of effects on impact. The 29 J kinetic impact shock instantly stops the subject.

Enough kinetic force to stop someone instantly. With a small hard plastic ball. That's deadly force.

Still need more persuasion? Go back to that quote from the Globe, above. The gunmaker's spokesman gave two examples of when it would be appropriate to use the weapon against an individual: when he's shooting a ball bearing at you, or when he's throwing a molotov cocktail at you. Both of those actions would justify the use of deadly force - both are instances where the subject was himself using deadly force and would thus be a proper target for deadly force by the police.

FN Herstal essentially said it: those rifles are deadly force weapons.

The analysis isn't over, though. Knowing that the rifles amount to deadly force, the police actions may have been proper if the police were confronted with a proper situation for the use of deadly force.

If Ms. Snelgrove was killed by that weapon as it was deployed properly to apply deadly force, then her horrible death goes in the accidental homicide category. That is, if the police reasonably believed they were in danger of death or serious harm from that surging, surrounding crowd, they would have been justified in using deadly force against those who threatened them. Assuming Ms. Snelgrove was hit by accident (I'm willing to assume that, but it is not certain) by a round legitimately targeted at someone else who was a proper subject on which to use deadly force -that is, a threatening member of the crowd- then I believe no crime was committed by the police.

I am more troubled by Deputy Superintendent Robert O'Toole's reported actions: firing at people on the wall, using a weapon he wasn't familiar with, and ordering untrained officers to use an unfamiliar weapon.
This is his second publicly-revealed bad judgment relating to the use of force (I think he was videotaped slapping a handcuffed man outside Fenway in the 1980s). Imagine what bad judgments he's made that we don't know about. Did he shoot Victoria Snelgrove? I'd like to know.

Either way, it's time for him to go. And he should take the FN303 with him.

Comments

[Larry De La Briandais]

The FN303 is a LESS lethal option than a firearm. It provides police an option to batons and firearms. When used as intended it is a much better alternative. However, ANYTHING can be used incorrectly or abused. Shooting a non-compliant suspect with an FN303 round is a much better alternative than shooting them with a firearm or striking them with a baton until they comply.

[carpundit]

Larry,

Thanks for the comment.

The FN303 may be "LESS lethal" (by which I think we both mean less likely to cause death) than a traditional firearm shooting a solid lead projectile, but it is still a lethal weapon that should not be employed unless deadly force is justified.

I disagree about the baton comparison, not because it's necessarily wrong, but because it's not a helpful comparison. The batons are for hand-to-hand struggles. The FN303 is a rifle, not suitable for baton-range encounters. Apples to oranges.

CP

[Robin Low]

If shooting plastic paintball like projectiles at people is considered "deadly force" because someone may die as a result of being shot in the eye, then paintball should be outlawed in the United States.

The FN303 is a good weapon intended to be used on uncompliant suspects, and it could be aimed accurately. The safe range is above 1 m which I believe that the officer that shot her was more than 1 meter away.

The pellets are filled with bright orange paint and OC to incapicitate the victims.

The crowd, no matter how anyone may put it is rioting. Breaking signboards, burning things, throwing glass bottles at cops, is indeed not just a celebration.

Anyone with any sense of personal safety would definately not put themselves in danger and be among the crowd and expect to be totally safe.

The rifle is not intended to be shot at the ground. Shooting on the floor does not do anything in a riot.

I am dissapointed that the state actually would give out $5.1 million to someone who put wilfully themselves in danger.

Well a person, especially a cop does not really need any certification to use the FN303. Saying that the cops that are trained for several hours to use the FN303, are totally untrained is just a play of words.

Most of the Boston Police Officers there were trained but not certified, just like telling someone it is not safe to use a chopstick becasue he did not go through a chopstick course and get a certificate. Its a paintball gun, point and shoot, then reload when its empty.

The FN303 is called a non-lethal weapon for a reason, if they wanted to shoot at the floor, they would have used a smoke grenade, which may hit someone in the head and kill them too.

[carpundit]

Robin,

The FN303 is a rifle. It fires a heavy plastic, finned, ball-nosed projectile capable of killing people. It is not a paintball gun. Regardless, paintball participants all wear protective gear, including goggles. Why? Because even those guns can be fatal.

Rifles are not chopsticks. Certification may be a mere piece of paper, and I understand the point that certification is often a sham, but training is not. Certification done properly means the officers' training was long enough and detailed enough to make them safe users of the weapon.

Victoria Snelgrove is not to blame for her own death, as you suggest in your comment. Indeed, she was seeking the safety she thought would come with proximity to the police. Five million is an appropriate sum for a promising life ended by the city's negligence.

BTW, not even FN Herstal calls the FN303 "non-lethal." They call it "less lethal," which I think is a careful marketing term designed to give the impression that it is not a deadly weapon, which it is.

I have nothing but contempt for rioters, as most of the members of that crowd were. I favor a major investigation, using videotape as evidence, with the goal of identifying and charging every criminal present. Rioters should be imprisoned.

But not Victoria Snelgrove. She was an innocent victim.

The FN303 should be banned, or restricted to deadly force situations.

[Shawn]

In your statements above, you have a few gramatical errors and puncuation problems. I would think that being someone who is willing to write about such a topic with such critism on an error would try and argue it focusing on their own errors as well. For someone in your position to sit back a criticize an issue with such a bias opinion and closed mind you did a very poor job. Yes, the negligent shot of the rifle did kill someone, it was not intended to. Whether or not you say that she must of been running to the police for safety and not beign part of the riot is your opinion. You can look at video and interview all sorts of people, it will always be your opinion. You have know idea what she was doing or what her intentions were. In MY opinion, I don't see why anyone would want to run through a riot towards the police who are all decked out in riot gear shooting at the rioting crowd.

Back to your mistakes, your negligent mistakes in your article. Apples to Oranges or not, it is a negligent mistake. Granted it didn't take the life of an individual but there is a reason for that. You are not in the position to have authority to try and control a rioting crowd. Why are you not in this position...because you can't handle the responsibiliy and stress that those officers deal with in their everyday life. No, you wish to take the HIGH ROAD and show your class and criticize others problems.

So, I encourage you to keep judging other peoples lives and problems without any focus on your own problems and negligent mistakes. It seems that nothing you do will ever have an aritcle written about it...because nothing you do will impact the lives of others, other than urinal reading. I am not writing a huge aritcle about a touchy subject so therefore do not care if my grammar has and negligent mistakes.

And to reply to the paintball comment above...thin less-lethal rifle is similar to a paintball gun. Yes, MOST people do wear gear when paintballing but negligent accidents happen. From personal experience of a close friend being shot in the eye with a paintball while cleaning his mask, you can never prevent every problem from every aspect. There cold have been more deaths from those riot if it was not handled with at all.

As you might reply to this post with more critical analysis that is fine. It's all opinion, and a heck of a lot easier to respond to someone else's comments from this type of arguement. Or you may not since this topic is out dated. I wish you the best and hope that your critial and bias articles make your prosperous.

[irogmaelderge]

I’d prefer reading in my native language, because my knowledge of your languange is no so well. But it was interesting! Look for some my links:

[Paintball Guns]

Paintball guns can be used in appropriate and inappropriate ways, just like knives. We can't start making all knives illegal just because some people misuse them. Similarly, paintball guns should not be illegal. Besides, a paintball gun is rarely dangerous unless shot in the eye. There are many items considered dangerous when sent into the eye.

[Jeff]

I read this discussion with great interest. I'm a correctional officer working for the Nevada Department of Corrections. The FN 303 is in our inventory, and I am one of the correctional officer qualified to use it by our department.

Firstly the FN 303 is not a pepper ball rifle. It is an air powered impact weapon with an option to carry pepper powder. The reason I say that is the rounds that can be used in the FN 303 come in 6 differant versions, one of the versions has pepper powder. We use the marker paint and the water rounds. This is a great tool for us, as it gives us the means to apply force without getting close to "recieve" force, and that's important in a prison setting when we are out numbered 90 to 1. The FN 303 also is very accurate within the effective range. We are trained to aim for the legs, arms, or even the hands, and then the torsal area if force needs to be increased. By the way hitting a violant inmate in the shins well result in ending an incidnet with little risk of perminate injury.

We also use a pepper ball gun, which is nothing more then a modified paint ball gun, and let me tell you the FN 303 is nothing like a paint ball gun.
the only quality a paint ball gun shares with the FN 303 is they both use an air tank.

Now to the incident in Boston. I can't comment on what the officer did, becuase I was not there and don't know all the details, nor do I know the feelings of the officer in question. However to fire this weapon at someone's head is no different then hitting someone in the head with a PR-24, this is you better be justified in the use of deadly force. Anyone that has been certified in the PR-24 knows that the head, neck and spine are "red" zones and may cuase death or serious bodily harm. As for shooting kids off a wall with the FN 303 becuase they wouldn't comply, that sounds like a classic example of excessive force. I'm just asking that those who judge, judge the one applying the force not the tool used.

So what I'm saying is the FN 303 is a great tool for some situations. However it has the ablity to be deadly and restraint should be used when deploying the FN 303, just as any other use of force in a law enforcement setting.

[coonass]

I agree with Jeff. As a former commissioned peace officer (2 different forces) I can testify that a homicidal or just plain stupid operator can kill with just about every antipersonnel device in the law enforcement arsenal. That includes pepper spray, which can in a confined space suffocate anyone in that space. Another tear gas, CN, was notorious for its ability to kill in close spaces and was apparently used with that effect more than once during the Vietnam conflict. It also includes "rubber bullets" whether rifle caliber or 40mm rounds for grenade launchers, and riot batons. It also includes fists. All of these weapons systems qualify as "less-lethal" because all of them under the right circumstances can take lives.

If there is a relative preventative for tragedies such as Victoria Snelgrove's death (there is no absolute way to prevent them), it's not banning certain weapons systems that can provide (used properly) relatively less hurtful consequences for both operator and target; it's providing effective training and getting people who don't or won't limit force to appropriate levels out of law enforcement. Much more difficult, especially if the people involved are in high-echelon positions and are politically protected from such personnel actions. But it's better than limiting the options available to competent, ethical law enforcement officers for protection of themselves and others to methods which either require exposing the operator to a hand-to-hand combat situation unnecessarily or methods which have a very narrow threshold between effective incapacitation and lethality.

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