Why didn’t the Dallas police use nonlethals against Micah Johnson? Some observations

When Dallas police killed the alleged cop-killing sniper Micah Johnson with an explosive-bearing remote-controlled robot, Police Chief David Brown said “[w]e saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the subject was,” adding that “[o]ther options would have exposed our officers to grave danger.”   Most experts seem to agree, and I agree with them.

My view is that the police had no real choice, and they plainly did the right thing under the circumstances.  I salute not just their courage under fire, but also their amazing ability to so quickly devise an innovative solution in such extraordinarily difficult and stressful conditions. They are clearly professionals second to none.

Still, this first-time use of bomb-carrying robot generated a lot of discussion.  While the legality of doing so is evident, some are raising questions about the ethics and policy issues the incident suggests for the future.

But a different – and quite interesting – question was asked by Susan Hennessy during the Rational Security podcast (The “Killer Robots Have Arrived” Edition) on July 14th. Her query was along these lines: why wasn’t the robot delivering a nonlethal incapcitant instead of a bomb?

This is a really good question.  After all, unlike militaries who usually do not have a duty to capture adversaries when operating under the law of war, police operating under human rights law typically do.  As Professor Seth Stoughton explained to The Atlantic:

“The military has many missions, but at its core is about dominating and eliminating an enemy,” he said. “Policing has a different mission: protecting the populace. That core mission, as difficult as it is to explain sometimes, includes protecting some people who do some bad things. It includes not using lethal force when it’s possible to not.”

So when can the police use deadly force?  Dara Lind over at Vox reports:

Constitutionally, “police officers are allowed to shoot under two circumstances,” says criminologist David Klinger of the University of Missouri St. Louis. The first circumstance is “to protect their life or the life of another innocent party” — what departments call the “defense-of-life” standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect poses a dangerous threat to others.

The U.S. Department of Justice guidance adds a critical factor: “The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.”  In other words, force is permissible only as a last resort, that is, “when all other available means…have failed or would be likely to fail.”  Was that the case with nonlethals in Dallas?  If so, why?

The answer to Ms. Hennessy’s question should start with the practical, that is, it was likely not feasible at the time to equip the robot to employ a nonlethal means.  Fortune tells us:

The details have yet to be confirmed but, for now, it appears the police obtained the robot several years ago as part of a program in which the Pentagon sells used military equipment to U.S. law enforcement.  The robot was not designed to commit lethal acts, but the Dallas police, in a desperate act of improvisation, strapped on a bomb and sent it in to stop the shooter.

Moreover, what incapacitating agent might the police have had in their inventory to use?  A taser?  Personally, I don’t think there was enough time to figure out a way to rig a taser to the robot and have high confidence it could be reliably aimed and fired.  This was a situation where the vital element of surprise could be lost with a failed attempt (since a robot had never been used by police for a lethal purpose, Johnson may not have perceived it as a threat, and this might have allowed it to get close enough to be effective – but that would only work once.)

What about tear gas?  The U.S. National Institutes of Health does report that “law enforcement agencies have found [CS] invaluable” in controlling dangerous situations “without the need for lethal force.”  That said, there are still plenty of reasons not to try to use tear gas, even in the unlikely event a workable delivery system could have been jury-rigged onto the robot somehow.

Besides the fact that police has no way of knowing whether the sniper (who had military experience) had come equipped with a gas mask (or some other home-made protection), it makes sense for them to be concerned that despite being impaired by the gas, he could still pose a threat, particularly if he had planted improvised explosive devices – and merely had to press a button to detonate them.  The instantaneous neutralizing effect of the explosive the Dallas police finally decided to use defeats that possibility, which is hardly an unrealistic one in today’s world.

Let’s keep in mind that tear gas along with things like pepper spray are really only irritants and do not necessarily incapacitate.  Truly incapacitating agents can take time to be effective and the sniper could have wreaked more havoc in the meantime.

And they can be dangerous.  In the 2002 Moscow Theater case where Chechen rebels had taken 800 people hostage, the Washington Post reported that Russian commandos pumped a “sedative gas thought to have been laced with fentanyl into the Dubrovka Theater…[but] [h]undreds of Russian hostages were poisoned by the gas along with the militants.”  Some 130 civilians were killed as a result of the effects of the gas.

Still, why don’t police have an array of well-crafted and reasonably safe incapacitating agents available to them?  Somewhat counter-intuitively, the Biological Weapons Convention (BWC) and the Chemical Weapons Convention (CWC) have long been seen as impeding the development of nonlethal weaponry.  In 2001 Jonathan Alexander argued in the Harvard International Review that:

The treaties were established to minimize the use of these inhumane agents that kill and maim indiscriminately. Without envisioning the possibility that some chemical and biological agents could actually be used to reduce casualties, emotionally based and broadly worded treaties were enacted to forbid the use of such agents.

Importantly, the CWC does have an exemption for “[l]aw enforcement including domestic riot control purposes.”   We should also note that the definition of riot control agents (RCAs) allowed under the CWC would not seem to limit their use to “riots” per se.  They are defined by the Convention as “any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time frame following termination of exposure.”   There are lots of law enforcement situations apart from riots where the capability to impose “disabling physical effects” would be useful.

There is some legal precedent supporting the use of powerful incapacitating agents in law enforcement settings.  Indeed, the Moscow Theater case was litigated in European Court of Human Rights in Finogenov and Others v. Russia which concluded that: 

Although the gas used was dangerous, and potentially lethal, it had not been intended to kill and it could not be said that it was used “indiscriminately” since it had left the hostages a high chance of survival which depended on the efficiency of the subsequent rescue efforts. All the evidence demonstrated that the gas had the desired effect on the terrorists rendering most of them unconscious, so facilitating the liberation of the hostages and reducing the likelihood of an explosion.

Thus, the better view seems to be that the fentanyl-based gas did not violate the CWC – and the Russians insist they did not do so.

However, the International Committee of the Red Cross (ICRC) is apparently hostile to law enforcement use of what it calls “toxic” chemicals, and seems to characterize incapacitants as outside the definition of RCAs.  Its position is that:

The development and use of other toxic chemicals as weapons – such as the highly potent anaesthetic and sedative drugs considered in recent years as so called “incapacitating chemical agents”– presents serious risks to life and health, risks undermining international law prohibiting chemical weapons, and risks creating a ‘slippery slope’ towards the reintroduction of chemical weapons into armed conflict. The ICRC believes that these risks far outweigh any perceived operational benefits.

At any rate, the outcome of the Moscow Theater case which was fatal to so many hostages indicates we are a long way from operationalizing an agent that complies with the treaty, yet puts innocents at less risk, but still could neutralize a threat virtually instantly as would be needed in situations like that in Dallas.  The Pentagon does have an inventory of on nonlethal weapons, but none which might have been deliverable onto the sniper would appear to have instantaneous effect the Dallas police needed (although some might be in development.)

For its part, the BWC – unlike the CWC – provides no “law enforcement” exception.  It flatly states that:

Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Although it might look as if a law enforcement use might be squeezed under a characterization of a “prophylactic, protective or other peaceful” purpose, a commentator concluded – and I agree – that “[l]aw enforcement has never been listed as an additional understanding of the…category of ‘other peaceful purposes’”.

Nevertheless, as Mr. Alexander points out, science continues to provide opportunities that were unfathomable at the time the CWC and the BWC were created.  Consequently, there may be opportunities today to develop nonlethal alternatives for situations where the immediate neutralization of a criminal suspect is essential to protecting the police and the public.

Given that there is almost no chance the BWC will be altered anytime soon, the only realistic option is to devleop means in compliance with the law enforcement exception for RCAs in the CWC.  In other words, we should resist the ICRC’s apparent push to characterize all chemical incapacitants as something other than RCAs.  Rather, we should develop these agents provided they strictly conform to the RCA definition in the CWC which includes “disabling physical effects which disappear within a short time frame following termination of exposure.”

Until we get the ability to temporarily disable dangerous threats with a nonlethal chemical, the only law enforcement recourse may too often be to permanently “disable” them with a bomb or other deadly means.

To be clear, I don’t bemoan the death of a vicious and cowardly killer (had Johnson lived I believe he would very deservedly be destined for death row) but I can imagine other circumstances (especially in terrorism cases) where the perpetrator might turn out to be an important – and exploitable – intelligence source.  In any event, we should want our police to have options in situations like that of Dallas which, sadly, we have to expect could occur again.

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