Another area being carved out through lawsuits is the use of less-lethal weapons. Although the widespread use of beanbag rounds is fairly new to policing, cases contemplating the propriety of their use have been popping up in the media and in the courts. The common theme with less-lethal weapons as with all uses of force is reasonableness. Was it reasonable to use the force employed in the circumstances faced by the officer?

In Deorle v. Rutherford and the County of Butte, the court considered the use of a beanbag projectile on an emotionally disturbed person. On September 9th 1996 Richard Deorle was diagnosed with Hepatitis C. After consuming vodka and taking his prescribed medication Richard’s behavior became erratic. Believing her husband was suicidal, Mrs. Deorle called 911 for help. Officer Mahon responded but Richard would not allow him in the house without a warrant. Richard remained passive and did not hinder Officer Mahon from removing Mrs. Deorle and the children from the house to a safe location. Officer Mahon called for backup and “at least 13 officers responded.” “These officers set up roadblocks on the streets around the house to ensure that Deorle had no avenue of escape, and awaited the arrival of a Special Incident Response Team (“SIRT”) and a team of negotiators.”

Deorle, though verbally abusive, was physically compliant and generally followed all the officers’ instructions. When a canine team “tested” his behavior by making their police dog bark aggressively at Deorle, he retreated towards his house.” “When a wooden board from the porch railings came away in his hands, Deorle dropped it at the officers’ command. Although shouting ‘kill me’ and brandishing a hatchet at a police officer, he threw the hatchet away into a clump of trees when told to put it down.” “Officer Rutherford, who was at the scene for thirty or forty minutes, did not observe Deorle touch, let alone attack, anyone; nor had he received any report of such action on Deorle’s part. He did, however, hear Deorle scream at him that he would ‘kick his ass.’”

Officer Rutherford, a member of the SIRT team moved in before the arrival of the negotiators. He observed Deorle walking with a plastic crossbow in one hand and a bottle or can of lighter fluid in the other. Deorle began taunting Officer Rutherford, at which point Rutherford ordered Deorle to drop the crossbow. Deorle dropped the bow and began walking toward Rutherford. Rutherford did not order Deorle to drop the bottle or can. As Deorle steadily approached Rutherford; Rutherford “took a little wider stance with my feet to get a good stable base.” When Deorle reached a “predetermined” point, Rutherford fired at Deorle with a beanbag round striking him square in the face. Rutherford indicated that he had been aiming for his ribcage. Deorle suffered severe injuries as a result of being shot in the face with the beanbag round. He subsequently filed a lawsuit against Officer Rutherford and the County of Butte, California.

In analyzing the use of beanbag rounds the court noted that such rounds are considered a “long range impact weapon.” Although considered a less-lethal force option, Officer Rutherford acknowledged in his testimony that such rounds could be lethal at thirty feet, the distance he was from Deorle when he fired, and further acknowledged that such rounds may be lethal at fifty feet if it were to strike the head or the left side of a person’s chest. These rounds are “calculated to stop people who are violent or hostile and are threatening injury or death to themselves or others.”

In reviewing uses of force a court will “measure the government interests at stake by evaluating a range of factors: they include: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others…(3) whether he was actively resisting arrest or attempting to evade arrest by flight and (4) any other exigent circumstances that existed at the time of the arrest.” The court, citing Graham v. Connor asserted: “These factors, however, are simply a means by which to determine objectively the amount of force that is necessary in a particular situation.” In other words, one determines if the force was reasonable by reviewing the factors announced in Graham.

Applying the facts of this case to these standards the court recognized that the officers were at Deorle’s property without a warrant in an effort to investigate Deorle’s peculiar behavior. The officers knew that Deorle was suffering an emotional disturbance and was suicidal. Officer Rutherford, whose stated purpose in moving closer to gather intelligence that would enhance the SIRT team’s response decided to hold his ground on Deorle’s approach notwithstanding the fact that negotiators were on the way and Deorle had no avenue of escape. Officer Rutherford fired on Deorle without ever ordering Deorle to halt his advance even though Deorle had complied with several commands given by officers including Rutherford. The court concluded that “shooting a person who is making a disturbance because he walks in the direction of a police officer at a steady gait with a can or bottle in his hand is clearly not objectively reasonable.” The amount of force used by Rutherford was excessive when analyzed against the existing facts and when weighed against the government interest. Notwithstanding the fact that the court could point to no similar case considering this issue, Officer Rutherford was denied qualified immunity on the reasoning that the force used here was obviously excessive.

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