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Less lethal case study: Halton, Ontario Tactical Response Unit

We welcome Steve Ijames in his return as a regular P1 columnist. Steve, who retired as a major with the Springfield, Missouri Police Department after 29 years of service, is a course developer/lead instructor for the NTOA and IACP less lethal “train the trainer” programs. Every few months, Steve will share his insights about less lethal issues and tactics.

Successfully engaging potentially deadly persons affected by mental illness is one of the most challenging situations law enforcement officers face today-and one of the driving forces behind the procurement, training, and deployment of less lethal technology. The primary mission objective in these cases is generally geared toward deescalating a scenario involving an armed, non-assaultive, non-compliant subject through:

• Determining contingency plans based on the facts presented, and setting them in motion
• Ensuring recognition of and adherence to pre-established safety priorities
• Managing officer created jeopardy
• Deployment of the appropriate tools and tactics
• Disarming the subject involved
• Transporting the subject to a treatment facility

When a plan like this comes together, it is as Canadian musician Paul Brandt sings, “A beautiful thing.” Likewise, in policing today even the best laid plans can “go south.” This case illustrates what can occur when challenging circumstances interact with outstanding personnel, training, equipment, and as Edward Daily says, “When right is called wrong.”

On 11-25-06 at 0347 hours, officers from the Halton, Ontario Police Service were dispatched to an upscale apartment complex in their community, on report of a screaming female who had locked herself in her back bedroom. The elderly woman had reportedly contacted an emergency medical monitoring firm, and said that her husband was “acting out of character”. She also reportedly said he was in possession of two large knives and was acting violently towards her. The involved subject was 79 years old, and aflicted with Alzheimer’s disease. Field officers immediately responded, as did members of Halton’s full time Police Tactical Response Unit (TRU) since the call involved an emotionally disturbed person armed with a weapon.

Upon arrival at 0353, TRU A/Sergeant Matt Kohler noted that an ambulance had already arrived, and that field officers had responded to the involved apartment for initial stabilization of the scene. Kohler rapidly set a plan in motion that prepared for likely contingencies, and then directed TRU members to prepare the specialized equipment that might be needed to resolve the problem with a reduced potential for death or serious injury. Kohler specifically selected the Anti-Riot-Weapon-Enfield (ARWEN 37), and the M26 TASER.

The TASER is an electronic control device designed to incapacitate resistant subjects, independent of their status as it relates to pain recognition, response, and/or compliance. The ARWEN is a 37mm plastic bullet launcher of British origin, that has earned its reputation for outstanding performance during its 25 years of service. In the hands of a well trained operator the ARWEN can deliver impact energy (ranging between 80-160 foot pounds) to specific targets, often resulting in immobilization of the limb and removal of the weapon involved. It is important to note that the ARWEN delivers impact energy and as such, ALWAYS leaves a mark — just like a conventional police baton.

As the TRU arrived, they were told by field officers that the elderly female caller was safe and out of the apartment. They were also told that the male subject she had called about was alone inside. TRU members identified themselves as police officers, and their numerous efforts at establishing verbal dialogue were met with negative results. While standing at the door they could hear “metal striking metal” noises coming from inside, which the officers believed were knives being clashed together. They also could hear incoherent mumbling, and based on the totality of circumstances present believed intervention was necessary to prevent the subject from engaging in self destructive behavior, or moving deeper into the apartment and further complicating problem resolution. They then entered the apartment to disarm and detain the subject under the authority of the Canadian Mental Health Act, and as outlined from an interview of Kohler after the event, the following occurred:

The subject was in the kitchen in an aggressive stance, with a large kitchen knife in each hand. The metallic sounds and incoherent mumblings continued from the kitchen. Kohler became further concerned for the well being of the subject, and ordered an entry into the kitchen. Constable Repta led the team into the apartment carrying a shield. Constable Davis and Constable Dodds followed with an ARWEN 37 and TASER. Kohler provided cover with an MP5 submachine gun.

The officers noted that the far side of the kitchen also had an opening from the living room. The subject was located on the far side of the kitchen. Kohler called out the subjects name and said, “Police, put the knives down.” The subject looked directly at Kohler but seemed emotionally disturbed. He was wearing only an undershirt and an adult diaper.

The subject did not respond to the commands of the officers and seemed oblivious to their presence. Kohler was concerned that the subject could move deeper into the apartment by way of the open kitchen door, thereby escalating the situation, and decided to act. He ordered the ARWEN deployed. Davis moved to the doorway and fired once. The subject turned 90 degrees to his right so that his left side presented to the officers. The ARWEN round (reduced energy due to distance and subject size/age) struck the subject in the lower left arm, causing him to drop the knife that he held in his left hand. Kohler ordered the subject to drop the remaining knife, to no avail. Kohler called for the TASER to be deployed. Dodds moved into position and issued on five-second application, the darts finding their mark, causing the subject to crumple forward and fall to the ground.

What occurred in Halton on 11-25-06 was a textbook tactical intervention involving an armed and non-compliant mentally ill subject. The Tactical Response Unit followed cutting edge operational protocols, initially using verbal attempts at problem resolution, and then appropriately following with less lethal options that successfully removed both weapons and placed the subject in treatment for a laceration to the upper arm, and the mental condition that precipitated the call for help. What followed was not an awards ceremony, or “thanks” for resolving the problem in an objectively reasonable manner consistent with contemporary tactical thinking, and in the way most likely to ensure success with minimal potential for death or critical injury. What followed were criminal charges for the team leader and the officers that deployed the ARWEN and TASER.

On August 8, 1990, the Special Investigations Unit was established in Ontario as an “arms-length” agency of the government, independent of the police, that investigates circumstances involving police and civilians which have resulted in serious injury or death. In the immediate case, the laceration to the mentally ill subjects arm (caused by the ARWEN) was considered a “serious injury”, so the Special Investigations Unit initiated an inquiry under file heading 06-OFI-202. The investigator involved conducted interviews of the officers and wife of the subject involved, and had questions concerning the resistance control efforts put forth by Kohler and his team. On May 11, 2007, he sent a letter to the Ontario Police College-Defensive Tactics Section-asking generally for, “an opinion with respect to the propriety of the force used in this case”, and specifically the following two questions:

1. Did the officers use the proper amount of force to prevent _________ from injuring himself?
2. Did the officers use reasonable or unreasonable force given the circumstances?

In response to this request, two instructors apparently reviewed the material provided, then co-signed a letter which put forth their positions, the most significant being:

• Based on the limited information provided, the subject apparently never used the two knives in his possession to threaten himself, his wife or the officers. His behavior throughout this encounter is classified as passive resistant, according to the Ontario use of Force model-2004.
• For individuals displaying this level of behavior, officers are taught that the use of communication and soft physical control are appropriate responses.
• It appears the subject did not display any active resistant or assaultive behavior requiring immediate action by the officers. The subject was a passively resistant subject with the potential to quickly escalate to assaultive or even serious bodily harm or death behavior. However, based on the material review, the subject never displayed this level of behavior and the Halton TU team was not responding to threatening actions at the time intermediate weapons (ARWEN/TASER) were deployed.

The investigator presented his report-which included the findings above-to the Crown Attorney. Shortly thereafter, the three involved officers were criminally charged.

On February 2, 2008, I was asked by defense counsel to review the case, and offer opinions concerning the issues involved. For the sake of brevity, they are summarized as follows:

1. The supervisory and operational decisions related to the ARWEN and TASER were correct.
2. The overall decision making and resistance control efforts of the TRU were consistent with tactical police officers that had properly assessed the totality of circumstances present, and then acted in a reasonable manner intending to enhance officer and citizen safety-with a particular emphasis on the life safety of the armed and mentally challenged person involved.
3. The overall effort put forth was well within the standards of professional and contemporary tactical team supervisors and officers facing similar circumstances. Their efforts were also representative of the performance expected of such officers by higher police authority, following contemporary thinking and training in the use of the ARWEN and TASER, and the officers understanding of the application of reasonable, proportionate, and necessary force to overcome resistance-regardless of the mindful intent of the resistance presented.
4. The officers demonstrated a sincere desire to overcome circumstances (armed, non-compliant, mentally ill) that have often resulted in a fatal or serious injury outcome, using proven methods that dramatically reduce the probability of death or serious injury to anyone involved.
5. The supervisory and use of force decisions made in this case would be fully supported and endorsed by the training and policy positions of the largest, most authoritative, and well respected professional and police training organizations in the world.
6. The assessment made by the Ontario Police College Defensive Tactics Section concerning the level of resistance offered by Mr. Morgan (“passive”) was in error, and outside of contemporary police resistance control thinking.

I concluded by asserting that the involved officers did nothing wrong, and in fact did exactly what they were trained to do and what every contemporary tactical officer in America and Canada should do-morally, ethically, and professionally-when facing similar circumstances. The subject involved-through no fault of his own-was far more than a passive resistor who, “refuses, with little or no physical action, to cooperate with the officers lawful direction”. Arming with two knives in this set of circumstance was clearly a physical action that not only resisted the officers physical control efforts-it absolutely precluded them from using soft physical control as apparently and erroneously suggested by the police college consultants. As such, this armed individual by any “resistance” definition was clearly subject to appropriately being disarmed using intermediate techniques such as the ARWEN and TASER.

The criminal case against the officers went to trial in August of 2008. Following days of testimony, one of the police college consultants asked for an opportunity to, “explain and clarify” his earlier opinions , in response to information he had learned during the course of the trial. The consultant was put back on the stand, and he told the court that in response to the testimony of Constable Repta, he (the consultant) now believed that the mentally ill subject’s actions would have in fact justified the use of an intermediate weapon. The magistrate confronted the Crown attorney with this new found opinion, and the crown attorney-to his credit-immediately dismissed all charges against the officers. In hindsight, what key lessons can we learn from this situation?

1. Words have meaning: In this case, the critical issue was not the operational aspects of resolving the problem-which the officers controlled-but the interpretation of words (such as “passive”) which the officers didn’t control, and how they were then used to determine whether their actions were justified. Consideration-in every case possible, we must pre-event examine policy, training documents, lesson plans, force models, etc., to ensure that key words (such as mentioned above) are clearly listed, defined, and described, to reduce the potential for such life/career changing “confusion” situations from occurring.

2. Rules of Engagement: The officers in this case did exactly what they were trained to do, and what contemporary police managers would have expected them to do. Likewise, an underlying issue in this case was the conclusion by the police college consultants that the involved subject had not, “used the two knives in his possession to threaten himself, his wife, or the officers”. Many would debate/disagree with this, and strongly assert that his possession of two knives in this circumstance were clearly a “threat” to the wife or she would not have called for help, and clearly a “threat” to himself and the officers as a result of the unique circumstances that were observed when they interacted in the kitchen. I will suggest that issues like this should not be subject to post event debate-which is almost always at the expense of the operators involved-but to pre-incident policy discussion/creation at the highest level possible, that specifically direct officers in cases where the subjects are not overtly attacking officers, citizens, or cutting of body parts. In the interest of truly protecting the armed/mentally ill, I suggest that it is in their best interest to take proportional direct action before they cut their throats, or attack officers or citizens in the surrounding area. Beyond question, it is easier to justify direct action if officers wait until the police/citizen/subject blood flows. Likewise, the community caretaking function-in my opinion-morally and ethically demands more of us than decision making based on the viability of post event damage control.

3. The role of experts: Those who seek “experts” in police matters must ensure that the persons chosen have a background, knowledge, and experience level that truly qualifies them as such. In the immediate case, the two consultants were not instructors or even operators in the tactical disciplines (ARWEN 37 and TASER) involved, and as such were unable to consider any issues related to the foundational training the officers were exposed to-which dramatically impacted the decisions made that day. Those who assume the role of “expert” in such cases must likewise do so only when properly qualified, and render opinions only based upon the tireless and objective review of all the material available. In the immediate case I would commend the consultant that testified for his willingness to recant from his original opinion, which was clearly the catalyst for the dismissing of charges. I would likewise point out that according to defense counsel; the information that was presented at trial-and considered in the opinion change-was detailed in the written case file available before trial.

Steve Ijames was an original member of the National Tactical Officers Association (NTOA) board of directors, and the course developer/lead instructor for the NTOA and IACP less lethal “train the trainer” programs, addressing impact projectiles, chemical agents, and noise flash diversionary devices. Steve has provided such training across the United States and in 31 foreign countries, and frequently provides litigation consultation when the use of such tools are called into question.