Injuries from “Less Lethal” Crowd Control Measures Raise Questions amid Ongoing Protests

As protests have swept through cities across the country, the use of crowd control methods by law enforcement are on full display. The use of oleoresin capsicum (pepper spray), conducted energy devices (Tasers, stun guns), and impact rounds (beanbag rounds, rubber bullets) for crowd control purposes has come under increased scrutiny. Proponents hail these devices, and they are marketed with claims they “minimize the risk of death and injury to public safety officers, suspects, detainees, and the public.”[1]

Even if avoiding injury is the goal, it is not always the outcome. The Austin Police Department discontinued its use of bean bag rounds after a 20-year-old man was critically injured and a 16-year-old boy was hospitalized after being shot with the “less lethal” rounds on June 2nd. A 26-year-old Dallas man lost his eye after, he said, Dallas police shot him in the face with a rubber bullet on May 31st. Similar incidents have been reported in recent weeks amid other protests in the U.S. More broadly, the news outlet Reuters, in a recent article, claims it “documented 1,081 cases through the end of 2018 in which people died after being shocked by police with a Taser, the vast majority of them after 2000.”

While these methods may be “less lethal” and less likely to result in death from live ammunition, there is a valid argument their use could still constitute “deadly force.”

Texas Penal Code §9.01states, “deadly force” is “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” §1.07 defines “serious bodily injury” as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

An injury like the loss of an eye resulting in both permanent disfigurement and a protracted loss of sight, would likely constitute a “serious bodily injury” under Penal Code §1.07. If a rubber bullet can cause this type of serious bodily injury isn’t the gun shooting it capable of inflicting serious bodily injury, which is what §9.01 requires in its definition of “deadly force”. What about the death that may result from the stunning of a stun gun?

Clearly, law enforcement office can and rightfully use deadly force if the situation demands it. Texas Penal Code §9.51 states; an officer attempting to make an arrest or prevent an escape is authorized to use “deadly force” if the officer reasonably believes at the time that one of two things is true:

(1) the conduct for which the arrest warrant was issued included the use or attempted use of deadly force (e.g., a suspected murderer), or

(2) there is a substantial risk that the suspect would cause death or serious bodily injury to the officer or some other person if that deadly force is not used and the arrest is consequently delayed (e.g., someone charging an officer or bystander with a knife).

It is possible certain protestors fall into one or both of those categories, but broad implementation of these “less lethal” devices for crowd control for peaceful protests should be closely examined by the federal government, state government, and at the local municipal level before the rest of the world witnesses it on social media and newscasts.

[1] https://www.ncjrs.gov/App/QA/Detail.aspx?Id=127&context=9

By Randle Law Office attorney Judith ElMasri and summer intern Joe Holloway.

Joe Holloway is a summer intern with Randle Law Office. Mr. Holloway is a former journalist and educator pursuing a J.D. from the University of Houston Law Center. He serves as the UHLC Student Director for the Houston Young Lawyers Association, the President of the Space Law Society, Student Bar Association Executive Board Secretary, and Vice-Chair for Public Relations on the Board of Advocates. He received his master’s degree in journalism from the University of Texas at Austin in 2011 and his bachelor’s degree in journalism from Baylor University in 2009.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.