Judges: MIKE BEEBE, Attorney General
Filed Date: 8/3/2005
Status: Precedential
Modified Date: 7/5/2016
The Honorable Paul Miller State Senator Post Office Box 488 Melbourne, Arkansas 72556
Dear Senator Miller:
I am writing in response to your request for an opinion on the following matter:
In your opinion, does an officer in the county sheriff's office have the authority to use paint ball guns to load and shoot pepper balls for the purpose of controlling crowds and for other uses deemed necessary to protect law enforcement officers and the general public?
RESPONSE
I cannot offer a simple "yes" or "no" answer to your question. Arkansas law does not directly address the use of "paint ball guns" that shoot "pepper balls." Your question must therefore be analyzed under the test for whether the use of such weaponry would be considered excessive force. Whether excessive force is used in a pre-arrest or investigatory stop is a factually intensive determination in which a court must determine whether the officer acted in an objectively reasonable manner considering all attendant circumstances. It is possible that the use of a pepper-ball gun could be appropriate, but it is also possible that use of such techniques would be excessive force dependent on the surrounding circumstances.
Arkansas law provides that law enforcement officers are authorized to use physical force or to threaten to use deadly force to effect an arrest or to defend the officer or a third party from what the officer reasonably believes to be the use of or imminent use of force while effecting an arrest or preventing an escape. A.C.A. §
From my research, Arkansas law and regulations do not directly address the use of weaponry such as the "pepper ball launchers" in your opinion request. In the absence of direct authorization to use this type of weaponry to be used, I will attempt to offer some guidance as to the legal standards for determining whether the use of such weaponry would constitute the use of excessive force.
The analysis of whether excessive force is used depends on whether the force in question is used in an arrest and pre-detention situation on a free citizen or whether it is used in a penological situation on an incarcerated person. The former requires an analysis under the
The United States Supreme Court has held that an excessive force claim in the context of an investigatory stop, arrest, or other pre-detention situations, implicates the
You do not specify the nature of the weapon to be used beyond describing the ammunition as "pepper balls." Generally speaking, pepper-ball launchers project a container of capsaicin derived irritant via pneumatic pressure.2 The U.S. Department of Justice specifically lists the Pepperball brand launcher from Jaycor in a research guide it publishes. U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice: Department of Defense Nonlethal Weapons and Equipment Review: A Research Guide for Civil Law Enforcement and Corrections (2004). Additionally, the FN303 model produced by FN Herstal has received significant media attention in the past six months because a young woman was fatally injured in Boston, Massachusetts when she was accidentally struck in the eye with a FN303 projectile during a public disturbance.See Press Release, Boston Police Department, Update on Snelgrove Investigation (Nov. 12, 2004) (available at http://www.cityofboston.gov/news/default.aspx?dept=106) (visited on July 18, 2005); and Police Admit Baseball Death Blame, BBC News, UK Edition, October 22, 2004, (available at http://news.bbc.co.uk/1/hi/world/americas/3944365.stm) (visited on July 18, 2005). There is a wide range of effectiveness and power between different pepper-ball launchers.3 The differing impact force of various launchers would be a fact to be considered by a court in determining whether the force used was warranted. The Boston incident serves as a reminder that "less-lethal" means of crowd control may still be lethal in certain circumstances.
Pepper-ball launchers have the capacity for lethal force under particular circumstances, and the question of whether using the weapon amounts to excessive force would be determined under all the attendant circumstances. Clearly, whether an officer followed any precautions and instructions as to the proper use of such weapons would be considered in determining the level of force as well as its reasonableness.4 For example, the Little Rock Police Department uses Pepperball brand launchers, described above, for certain crowd control situations. The use of these weapons is governed by the LRPD General Order 303, Use of Force. While the use of pepper ball launchers is not specifically addressed in G.O. 303, the use of O.C. chemical irritants as a less lethal deterrent is authorized in general. See G.O. 303, § F(1). A court would consider whether a law enforcement officer had acted in compliance with a departmental policy in determining whether excessive force was used.
As I have noted above, the determination of whether the use of a pepper-ball launcher is excessive force is a factually intensive question that will require full knowledge and analysis of all the attendant circumstances, including the specific weapon used, the method of use, any departmental policies regarding its use, whether such policies were followed, and the nature of the weapon's target.
Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:JMD/cyh