RAPPAPORT POLICY BRIEFS Institute for Greater Kennedy School of Government, Harvard University

PB-2005-6 | October 24, 2005

Crowd Control That Can Kill: Can American Police Get a Grip on Their New, “Less-Lethal” Weapons Before They Kill Again? By Christopher Stone, Kennedy School of Government, Brian Buchner and Scott Dash, Police Assessment Resource Center

The new generation of “less- caused death and serious injuries. Rappaport Institute Policy Briefs are short lethal” weapons available to police Increasingly, police experts are overviews of new and notable scholarly departments has obvious appeal. research on important issues facing the insisting that the proliferation of region. The Institute also distributes If police can avoid charging into a less-lethal weapons does not mean Rappaport Institute Policy Notes, a disorderly mob with their police clubs periodic summary of new policy-related that police are using lethal force less scholarly research about Greater Boston. fl ailing, if they can avoid shooting a often. Less-lethal weapons are not deranged man threatening everyone substituting for lethal weapons—they Christopher Stone around him, if—in short—they can are being deployed in addition to Christopher Stone is the Daniel and use less-lethal weapons in place of Florence Guggenheim Professor of the everything else. As a result, the spread Practice of Criminal Justice and director tactics that risk death and injury both of these weapons may lead to more of the Program on Criminal Justice and to civilians and to themselves, who Management at Harvard University’s use of force overall, not less. Kennedy School of Government. He was a would deny them the chance? member of the Stern Commission, a body As the truth dawns—as police appointed by Boston Police Commissioner The logical assumption that the departments realize that with these Kathleen O’Toole to independently in- increased use of less-lethal weapons vestigate the death of Victoria Snelgrove. weapons their offi cers may be using This policy brief is based in part on the will reduce injuries to police and more force and perhaps causing more commission’s fi nal report. civilians explains the enthusiasm injuries—many departments are Brian Buchner and Scott Dash with which police departments scrambling to put better controls on have purchased a wide array of Brian Buchner is a Senior Research Analyst the use of less-lethal force. In some and Scott Dash is a Research Analyst, these new weapons—often with the cases, police chiefs are actually trying both at the Police Assessment Resource Center in Los Angeles. encouragement of civil liberties groups to put the genii back in the bottle: and community advocates who worry literally taking less-lethal weapons Rappaport Institute for about the police use of deadly force. out of the hands of their own offi cers. Greater Boston Yet, events are beginning to suggest Others are adopting stricter policies The Rappaport Institute for Greater Boston aims to improve the governance that what seems logical may not limiting their deployment and insisting of Greater Boston by fostering better be true. Tasers, perhaps the most that any actual use be followed up as connections between scholars, policy- makers, and civic leaders. More information popular new weapon in the less-lethal rigorously as the use of lethal force. about the Institute is available at arsenal, are increasingly controversial The reforms have not yet caught up www.ksg.harvard.edu/rappaport. because more than 150 people have with the weaponry everywhere. In Rappaport Institute for Greater Boston died shortly after being “Tased.”1 . many police departments, the light John F. Kennedy School of Government 79 JFK Street, Cambridge, MA 02138 Extended-range impact weapons that bulbs are just now coming on, policies Telephone: (617) 495-5091 fi re bean bags, rubber bullets, plastic being reviewed, and better training Email: [email protected] and wooden projectiles, “paintballs,” being sought. Nevertheless, while lives or “pepperballs” designed to stun or remain at risk, the tide has turned. mark their human targets, have also Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

Crowd Control Turns Deadly in Boston ball round that hit Ms. Snelgrove in her left eye. That offi cer later explained that he was aiming If there is any single incident that clearly at someone else moving through the crowd: demonstrated the need for stricter controls an unidentifi ed man whom he had earlier seen on the use of less-lethal weapons for crowd throwing bottles at police. The round missed control, it was the fatal shooting of Victoria its apparent target, hit Victoria Snelgrove in Snelgrove by the the eye, and fragmented as it entered her brain, in October 2004. What made this incident killing her. potentially pivotal on a national scale was the decision by Boston Police Commissioner Victoria Snelgrove was not the only member Kathleen O’Toole within hours of the death to of the crowd struck with less-lethal impact take full public responsibility and to promise rounds that night. About 15 minutes earlier and a full, independent, unfettered inquiry into the less than 100 feet away, Boston police offi cers shooting. It was a decisive moment, requiring trying to stop celebrants who were climbing its own kind of bravery. As a major city police on the girders of Fenway Park’s back wall had chief, who asked not to named, told one of the fi red multiple rounds from FN303 projectile authors during the subsequent inquiry, “She launchers at other celebrants who were did the right thing, but frankly I’m not sure if climbing on the girders of Fenway Park’s back I—or any of the rest of us—would have done wall. The impact rounds injured at least two of the same.” these celebrants in the face and caused multiple body injuries to a third. The manufacturer of the FN303 warns users never to fi re the weapon “If there is any single incident at a target’s neck or head, but on this night that clearly demonstrated the the Boston police offi cers had injured four need for stricter controls on the civilians, three of them in the face, killing one use of less-lethal weapons for of them.2 crowd control, it was the fatal The Stern Commission’s Findings shooting of Victoria Snelgrove by the Boston Police Boston Police Commissioner O’Toole fulfi lled her pledge to appoint an independent Department in October 2004.” commission to investigate the incident. Chaired by Donald K. Stern, former U.S. Attorney for Ms. Snelgrove—a college sophomore—had , the independent commission been standing on the sidewalk across the street issued its report in May 2005. from Fenway Park the night that the Boston The Stern Commission noted how little Red Sox defeated their archrival, the New the Boston Police Department apparently York Yankees, in the seventh game of the knew about the less lethal weapons it had 2004 American League Championship Series recently brought into its arsenal. Even among (ALCS). She was talking calmly with her the offi cers responsible for the purchase, friends outside of the garage where her car was maintenance, and deployment of the FN303s, parked while police, about 50 feet away, were which the police department had bought trying to clear the crowded street of celebratory (but not used) for crowd control at the 2004 of Red Sox fans, many of whom were drunk Democratic National Convention. Although and boisterous. A Boston police offi cer, using senior BPD offi cials had studied the weapon, an FN303 projectile launcher, fi red a pepper spoken with others who used it, tested it, and 2 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

trained with it, the commission found there operational chief on the night of the fi nal game was confusion and disagreement about how the of the series. While serving as operations weapons should be issued, who was authorized chief, Deputy Superintendent O’Toole to fi re them, which policies governed their use, was simultaneously, by his own choice, and what the rounds would actually do if they commanding specifi c police units in the streets struck a person. In light of this confusion, it is alongside Fenway Park. This fundamental not surprising that the commission concluded role confusion was exacerbated as the scene that the training available to offi cers in the around Fenway Park became more disorderly, use of the FN303 had been inadequate— specifi cally in its lack of attention to questions “The Stern Commission noted of when to use the weapon rather than how to how little the Boston Police use it. Department apparently knew The commission’s report also described how about the less-lethal weapons poorly the police had planned for the event, it had recently brought into its and how the planning failures contributed arsenal.” to the situation where the FN303 launchers were improperly deployed. Despite having distilled a series of crucial lessons from their eroding the department’s command and control own experience with a fatality during the systems. Although not trained in the use of the celebration after the New England Patriots FN303, he personally led the assault on revelers won the Super Bowl in January 2004, the climbing on the girders of the ballpark, fi ring leaders of the Boston Police Department did an FN303 himself, and failed to observe how not incorporate the recommendations from that subordinate offi cers immediately around him review into their plans for the 2004 ALCS with were using their weapons only minutes before the Yankees. They had not developed a specifi c Ms. Snelgrove was shot. set of policies and tactics for “celebratory The City of Boston agreed to pay a record $5 rioting”; they had not planned in advance million to settle all claims by the Snelgrove to place offi cers above the street (e.g., on family. In addition, Commissioner O’Toole rooftops) in the area around Fenway Park; they demoted the Superintendent James M. had not established and maintained clear lines Claiborne, who had been in charge of the of command; they had not established explicit planning for the event and who had served as rules of engagement and communicated these incident commander that night. In addition, two to commanders and supervisors; and they had offi cers who fi red FN303s, including the offi cer not developed and discussed strategies to deal who shot Ms. Snelgrove, were suspended. with each of a series of alternative scenarios for how the celebration might unfold. All of these Earlier Warning Signs had been explicit recommendations following The tragedy in Boston in October 2004 was a similarly tragic celebration after the 2004 certainly the most serious incident involving Super Bowl, yet the planning for the 2004 extended range less-lethal impact weapons ALCS ignored them all. in crowd control. Yet even before Victoria Finally, the Stern Commission also faulted the Snelgrove’s death, civilian injuries during performance of the Deputy Superintendent protests and disturbances in other cities had Robert O’Toole (no relation to Commissioner already raised a variety of questions about Kathleen O’Toole) who served as overall the use of similar less-lethal weapons to quell disorder. Specifi cally, problems were emerging 3 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

with the accuracy of the weapons, the sizes and to “prohibit the use of [beanbag shotguns and types of rounds fi red, and offi cer training. 40 millimeter foam rounds] against a crowd In Seattle, Mary Elizabeth Williams was struck absent the ability to target a specifi c individual and reportedly blinded in one eye after a less- who poses an immediate threat to cause lethal rubber bullet struck her during the 1999 imminent physical harm; and absent the ability World Trade Organization (WTO) protests. to reasonably assure that other individuals in The City of Seattle reached a settlement with the crowd who pose no threat of violence will 5 her for $105,000, which was the single largest not be struck by the weapons.” payout that Seattle made to settle cases arising Controversy over the use of long-range impact from the WTO demonstrations.3 weapons during anti-war protests at the Port Similarly, in Los Angeles, Melissa Schneider of Oakland in April 2003 added urgency was struck in the eye by a rubber bullet as to the Oakland Police Department revision police broke up a demonstration at the 2000 of its crowd control policies. Offi cers had fi red rubber and wooden rounds to disperse protesters, hitting at least one person in the face “Even before Victoria Snelgrove’s with a less-lethal projectile.6 The Oakland death, civilian injuries during Police Department’s new Crowd Management/ protests and disturbances in other Crowd Control policy, issued in 2004, severely cities had already raised a limits the use of a wide range of less-lethal variety of questions about the use impact weapons. It prohibits the use of impact of similar less-lethal weapons to weapons “designed to be skip fi red or otherwise quell disorder.” deployed in a non-directional non target specifi c manner” (such as stinger grenades) 7 Democratic National Convention. She in crowd events and for crowd control. In reportedly lost sight in that eye. Her settlement, addition, directional, single-shot munitions, for more than $1 million, was the single largest such as beanbags, are banned “for crowd payout to an individual by the City of Los management, crowd control or crowd dispersal Angeles stemming from the protests. The during demonstrations or crowd events….” city also settled a class- lawsuit, paying They can only be used against an individual $1.2 million for what plaintiffs claimed were who “can be targeted without endangering other inappropriate dispersal techniques by the Los crowd members or bystanders.” Prohibited Angeles Police Department using less-lethal target areas include not only the neck and projectiles such as beanbags, stinger rounds, above but also the left armpit, spine, kidney, and rubber bullets.4 and groin, unless a situation would justify deadly force. OPD Lieutenant Dave Kozicki, In Cincinnati, following the controversial an expert on crowd control training, explains: police shooting of Timothy Thomas in 2001, “We restrict the use of a less-lethal weapon to police offi cers allegedly fi red beanbag rounds offi cers who are trained and profi cient with the without warning into a crowd protesting weapon, have been told where to target, and the shooting. Cincinnati’s city manager have been trained on when to use the weapon.” acknowledged in 2002 that department Indeed, the Oakland Police Department chooses procedures at the time of the incident did not not to use any pepper ball munitions. “I have address the use of beanbags in a crowd of not been impressed with weapons like the people. The city subsequently settled litigation FN303,” says Lt. Kozicki. “We were fearful of brought by U.S. Justice Department, agreeing the velocity and size of the munitions and were 4 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

concerned that they were too small and could When the Red Sox faced the New York puncture the body.”8 Yankees again at the end of the 2005 baseball season, the leaders of the Boston Police New Restraint in Boston Department appeared to have followed the Boston Police Commissioner O’Toole accepted Stern Commission’s recommendations.10 Not and adopted all of the recommendations made only were many more offi cers assigned, but by the Stern Commission. These included: they also were trained to control the crowds using only batons and , according 1) that the BPD review its use-of-force to published reports. Unless a fi eld commander policies, creating a general less-lethal believed lives were in danger, only the police category and developing specifi c use-of- commissioner and her top-ranking deputy could force policies for each less-lethal weapon, limiting each for use by specifi cally certifi ed “A year after Victoria Snelgrove’s offi cers death, the incident has become a 2) that the BPD improve its training in the use reference point nationally, cited of less-lethal, long-range impact weapons, by offi cials in several cities as more thoroughly integrating department they narrow the permissible use policies on when to shoot these weapons of less-lethal impact weapons.” 3) that the BPD develop scenario-based training for commanders, requiring them to rehearse plans and tactics for dealing authorize the use of tear gas or rubber bullet with crowds under a wide variety of launchers. Finally, those in command would circumstances using tabletop exercises not have other duties.

4) that the BDP strengthen its planning process New Restraint Beyond Boston to incorporate lessons learned from earlier incidents, issue clear rules of engagement, A year after Victoria Snelgrove’s death, and clearly delineate the roles and command the incident has become a reference point structure in the operational plan. nationally, cited by offi cials in several cities as they narrow the permissible use of less lethal As for the FN303 itself, Commissioner impact weapons. “The Boston incident serves O’Toole quickly suspended its use after as a reminder,” said Arkansas Attorney General Ms. Snelgrove’s death. In his own report in Mike Beebe in an opinion recently issued on September 2005, Suffolk County District the use of pepper balls for controlling crowds, Attorney Daniel F. Conley cautioned the “that ‘less-lethal’ means of crowd control Boston Police against using the FN303 or may still be lethal in certain circumstances.”11 similar weapons in future situations similar Indeed, as a direct result of Boston incident, to that on the night Ms. Snelgrove was Washington D.C.’s Metropolitan Police killed. Although he did not fi nd any of the Department put aside 25 FN303s it had recently involved police offi cers criminally culpable purchased.12 for Victoria Snelgrove’s death, Conley found “no foreseeable justifi ed reason for any Boston In Seattle, Police Chief Gil Kerlikowske Police offi cer to ever employ non-deadly assembled a workgroup in June 2005 to force from an FN303 or any other projectile- review the Stern Commission report and launching weapon in such instances where make recommendations that could usefully there is such a risk of an errant shot striking be applied to the Seattle Police Department. 9 The workgroup found that several of the Stern others with potentially lethal consequences.” 5 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

Commission’s recommendations would be federal government responds, police agencies helpful in Seattle and could reduce the risk themselves will each need to continue the kind of a similar incident there. Specifi cally, the of detailed examination that Seattle conducted workgroup recommended strengthening the in the wake of the Boston tragedy. planning for large events, including the use of Equally important, police departments will scenarios and tabletop exercises, and requiring need to support the kind of independent review operational plans to include specifi c rules that Commissioner O’Toole initiated after of engagement. It recommended requiring a Victoria Snelgrove’s death as well as permanent new, annual training program for all potential oversight bodies. The precise form of incident commanders. It also recommended independent review of police actions is almost narrowly restricting the FN303 to specially always a matter of controversy. Even in Boston, trained and certifi ed SWAT team members, and there is not yet any permanent, independent independent inspections and annual testing of review board, commission, monitor, or the weapons themselves. The recommendations ombudsman able to help the police department have begun to be implemented, in part through step back from the press of daily events and the Seattle Police Department’s latest Use continue to refi ne policies and procedures on of Less-Lethal Force guidelines, issued in the basis of systematic analysis of local and September 2005. national experience. Yet the precise form of this The Need for National Standards and review is far less important than its presence Continuing Independent Review and permanence. Learning from experience is not easy for “Changes in crowd control American police. The fragmentation of technology, including the American policing, with nearly 20,000 separate development of new less- police departments, makes it diffi cult for lethal weapons, is a those in one department to draw lessons from experience elsewhere. Professional associations continuous and accelerating and organizations try to help by providing process, alway threatening opportunities for senior offi cers to trade to leave management out of experiences, but strengthening rules on issues date.” as technical as those involved with less-lethal weapons and incident command requires more than an exchange of stories. Even within a Crowd control is among the most challenging single police department, acting on the lessons tasks that police departments confront, and learned from past experiences can be diffi cult. recent advances in both equipment and Recognizing the need to speed the learning management hold out the prospect that police within police departments about the use departments meet that challenge with far less of less-lethal weapons in planning and risk to offi cers and civilians. implementing crowd control, the Stern But technical advances can increase the Commission recommended that local police risks as well. The Stern Commission’s agencies press the federal government to issue fundamental conclusion was that the Boston much more guidance on these issues than is Police Department’s acquisition of less- currently available. The commission called for lethal weaponry had outpaced its systems national standards, testing, and certifi cation for planning, training, and supervision for of each new less-lethal weapon. But until the situations where the weapons would be used. 6 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

The equipment and management were out of 10. Suzanne Smalley. “876 Police to Deploy after Sox sync. Games.” Boston Globe, September 30, 2005. 11. Beebe, Arkansas Attorney General Mike. Opinion This is not the kind of problem that yields to No. 2005-107. August 3, 2005. (http://www.ag.state. one-time solutions. Changes in crowd control ar.us/index.htm [October 2005]). This opinion was issued in response to a question from State Senator Paul Miller technology, including the development to about the use of pepper balls for controlling crowds. new less-lethal weapons, is a continuous and 12. Donovan Slack. “Chiefs Quiz O’Toole on Pellet Gun accelerating process, always threatening to Death.” Boston Globe. September 29,2005. leave management out of date. If American police departments are to avoid more injuries FURTHER READING and more deaths, they will need to invest—as Boston, Oakland, and Seattle are doing—in the “An Investigation into the Death of Victoria continuous improvement of police management Snelgrove and Other Uses of the FN303 on Lansdowne Street on October 20-21, 2004.” and review. by Suffolk County District Attorney Daniel F. Conley. http://www.mass.gov/da/suffolk/docs/ Endnotes 091205a.html [October 2002]). “Impact Munitions: Data Base of Use and 1. According to the Arizona Republic’s investigative Effects.” reporting, for example, there were 153 cases of deaths by Ken Jubbs and David Klinger, National following stun-gun use as of earlier this year. Their Institute of Justice, U.S. Department of Justice, reporting identifi ed 21 cases in which the medical examiners said Tasers were a cause, a contributing factor, NCJ 204433 (February 2004). or could not be ruled as a factor in an individual’s death. “Report of the Commission Investigating the Robert Anglen, “153 cases of death following stun-gun use,” Arizona Republic, May 26, 2005. Death of Victoria Snelgrove.” Donald K. Stern, chair. May 25, 2005 (http:// 2. FHN USA Less Lethal Systems, “FN 303: The Best in www.ci.boston.ma.us/police/pdfs/report.pdf Less Lethal response,” (http://www.fnhusa.com/contents/ [October 2005]) ll_303.htm (October 2005). 3. WTO Settlement, Seattle Post-Intelligencer, January 11, 2002. 4. Patrick McGreevy. “Lawsuit from Protest in 2000 Settled.” Los Angeles Times, May 8, 2004. 5. Memorandum of Agreement Between the Department of Justice and the City of Cincinnati, Ohio and Cincinnati Police Department. April 12, 2002. See also Jane Prendergast and Michael Clark. “Unrest in the City.” Cincinnati Enquirer, April 18, 2001 and William Weathers. “Offi cers Cleared in Beanbag Shootings.” Cincinnati Enquirer, November 21, 2002. 6. Robert Gammon. “Oakland: ‘Less-Than-Lethal’ Weapons Come Under Scrutiny.” Oakland Tribune, December 13, 2003. 7. Oakland Police Department. “Crowd Management/ Crowd Control Policy.” 2004. (http://www.aclunc.org/ police/041109-opd_policy.pdf [October 2005]) 8. Interview with Lt. Dave Kozicki of the Oakland (CA) Police Department. October 3, 2005. 9. Daniel F. Conley, District Attorney of Suffolk County. “Investigation into the Death of Victoria Snelgrove and Other Uses of the FN303 on Lansdowne Street on October 20-21, 2004.” Pg.8. (http://www.mass.gov/da/ suffolk/docs/091205a.html [October 2005]) 7 Crowd Control That Can Kill RAPPAPORT INTITUTE POLICY BRIEFS

PREVIOUS RAPPAPORT INSTITUTE UPCOMING EVENTS POLICY BRIEFS IN THE BOSTON 101 SPEAKER SERIES

PB-2004-1, October 2004 A Less Lethal Death: How Victoria Snelgrove’s “Can Social Capital Last: Lessons from Death is Changing Policing Boston’s Villa Victoria Housing Complex,” Monday, October 24, 5:30 p.m. by Mario Luis Small (Princeton University) Bell Hall, 5th fl oor Belfer Building

PB-2005-1, January 2005 Commissioner Kathleen O’Toole, Boston “Betting the Future: The Economic Impact of Police Department Legalized Gambling,” Donald K. Stern, chair, Boston Police by Phineas Baxandall (Rappaport Institute for Department Commission Investigating The Death Greater Boston) and Bruce Sacerdote (Dartmouth of Victoria Snelgrove and Partner, Bingham College) McCutchen Carolyn Ryan, Assistant Managing Editor, PB-2005-2, February 2005 Metro, “Needed Corrections: Promising Strategies for Moderated by Christopher Stone, Professor of Improving Massachusetts’ Prisons and Jails,” the Practice of Criminal Justice, KSG by Anne Morrison Piehl (Kennedy School of Government) Funding Local Government: Revisiting the Fiscal Partnership PB-2005-3, March 2005 Wednesday, November 2, 5:00 p.m. “Standards-Based Education Reform in the Bell Hall, 5th fl oor Belfer Building Computer Age: Lessons from Boston’s Murphy School,” John Hamill, Chairman and CEO, Sovereign by Frank Levy (Massachusetts Institute of Bank of New England and chair of the Municipal Technology) and Richard Murnane (Graduate Finance Task Force School of Education, Harvard University) Representative Rachel Kaprieliam, Massachusetts House of Representatives and PB-2005-4, April 2005 Co-chair of the Joint Committee on “Smart Growth: Education, Skilled Workers, Municipalities and Regional Government and the Future of Cold-Weather Cities,” Linda Bilmes, Lecturer in Public Policy, by Edward L. Glaeser (Harvard University) Kennedy School of Government; former Chief Financial Offi cer and Assistant Secretary for PB-2005-5, September 2005 Management and Budget at the U.S, Department “Creating an Effective Foundation to Prevent of Commerce Youth Violence: Lessons Learned from Boston in the 1990s,” Racial and Ethnic Disparities in Violence by Anthony A. Braga (Kennedy School of Monday, November 21, 5:00 p.m. Government) and Christopher Winship (Faculty Bell Hall, 5th fl oor Belfer Building of Arts and Sciences and Kennedy School of Government, Harvard University) Robert J. Sampson, Harvard University Other panelists to be announced. PB-2005-6, October 2005 “Crowd Control That Can Kill: Can American The Effects of New Rail Transit: Lessons from Police Get a Grip on Their New, ‘Less Lethal’ Boston Weapons Before They Kill Again?” Wednesday, December 7, 12:00 noon by Christopher Stone (Kennedy School of Malkin Penthouse, 4th fl oor Littauer Building Government), Brian Buchner and Scott Dash (Police Assessment Resource Center) Matthew Kahn, Tufts University Nate Baum Snow, Brown University James Kostaras, City of Somerville

More information on events can be found at the Rappaport Institute website at http://www.rappaportinstitute.org. 8