Robert J. Kaminski, Robin S. Engel, Jeff Rojek, Michael R. Smith and Geoffrey Alpert

18 KAMINSKI ET AL.

Discussion

The data used in the present study provide an opportunity to distinguish injury outcomes using a more traditional definition of CEW-related injury compared to the atypical and more expansive definition recommended by Terrill and Paoline (2011). Our results confirm Terrill and Paoline’s speculation about the role of measuring dart punctures as injuries from CEW deployments. We conclude that the direction and size of the reported impact of CEW use on suspect injury rates is based, in part, on how CEW injuries are defined, measured, and analyzed. It is clear from our results that when routine CEW punctures are excluded from the injury measure, CEWs are associated with reductions in injuries to suspects or are benign, neither increasing nor decreasing injury rates. It is also clear that including CEW punctures as injuries consistently inflates injury rates, whether or not they were used in conjunction with other types of force.

Definition of Injury While we agree that CEW punctures may create minor wounds, we do not

believe these wounds meet the standard definition of injury typically used by law enforcement officials and the courts. Further, we believe that attempts to measure and include routine CEW punctures as injuries could lead to greater restrictions on the use of CEWs and concomitant increases in the number of injuries and the severity of injuries to both suspects and officers. Rather than a simple academic debate, the implication of measuring puncture wounds as injuries has potential serious consequences. The strongest empirical evidence available regarding the injury-reduction effects of CEWs is based on studies employing quasi-experimental designs that found the introduction of CEWs sig- nificantly reduced rates of injury to both officers and citizens (MacDonald

Downloaded by [Robert Kaminski] at 16:06 14 May 2013 et al., 2009; Taylor & Woods 2010). The withdrawal of CEWs or severe restric- tions placed on their use (based on alternative findings using invalid measures of injury) would therefore be expected to lead to an actual increase in the number and severity of injuries during police–citizen encounters.

The proper definition and conceptualization of injury is a difficult one that has produced much controversy in the medical profession (Langley & Brenner, 2004; Robertson, 1998). A common theoretical definition of injury in the medical profession is “damage to the body produced by energy exchanges that have relatively sudden discernible effects,” which is often used to distinguish between injuries and diseases (Langley & Brenner, 2004). Absent in this theo- retical definition, however, is a usable operational definition, where clearly many circumstances of bodily damage that would fit under the theoretical definition would not be operationalized as injuries and vice versa (Langley & Brenner, 2004). It is therefore not surprising that criminal justice researchers also struggle with this concept when applied to police use of force situations.

THE CONSEQUENCES OF COUNTING ENERGY WEAPON PUNCTURES AS INJURIES

We argue, however, that punctures caused by CEWs do not rise to the conven- tional level of injury as commonly defined in the medical, legal, and criminal justice professions.

First, routine CEW punctures on approved target areas are minor flesh wounds that are likely similar in pain and severity to receiving an injection with a medium-gage hypodermic needle or a blood draw at a doctor’s office or

hospital. 7 Just like injections and blood draws, CEW punctures can result in minor pain, bleeding, and bruising. The minor wounds associated with injec- tions and routine blood draws, however, are not documented as injuries by hospitals or physicians, as long as the wounds occur within the normal and approved operating parameters of the device used. Granted, the circumstances for the use of CEWS are different than medical procedures, and in most cases injections and blood draws are given with explicit patient consent, but that is not always the case. For example, in emergency medical situations, medical personnel routinely use injections and blood draws without patient consent, and again the minor wounds associated with these procedures are not docu- mented as injuries to nonconsenting patients.

Consider another medical example: surgical incisions. Clearly, a surgical incision is the result of an intention act by a specialist using a tool designed to aid in his/her craft. In this case, based on his/her training, a surgeon uses a tool (typically a scalpel) that, by design, results in tissue damage. Neverthe- less, surgical incisions on patients are not considered injuries in the medical profession. The same logic can be applied to police use of CEWs. In this case,

a trained professional (police officer) uses an approved tool (CEW) to aid in his/her craft (gain citizen compliance while attempting to simultaneously reducing the likelihood of citizen and officer injury). The resulting expected minor punctures from proper police deployment of CEWs should not be consid- ered “injuries” any more than a proper surgical incisions resulting from a doc- tors’ use of a scalpels.

Also consider the results of the application of other police uses of force Downloaded by [Robert Kaminski] at 16:06 14 May 2013

including exposure to OC spray, which may cause eye, lung, and skin irritation. In addition, joint locks and handcuffs may cause skin irritation and temporary pain. We argue that unless a CEW (or OC) causes an unintended and more serious injury (e.g. a CEW dart puncture of the face, eye or other unapproved target), these routine minor wounds that are expected as part of the deployment of the device should not be included in a measure of injury. Inter- estingly, if the effects of CEWs and OC are not experienced (dart punctures and eye/lung irritation) it means the devices did not work as intended and probably did not produce the desired effect of gaining citizen compliance. 8 This suggests that if we adopt Terrill and Paoline’s recommended measure of injury, every successful deployment of these devices would result in coded

7. The TASER X26 dart is .8 mm in diameter (.031 inch) (Webster, 2009, p. 99), equivalent to an approximately 21 gage hypodermic needle. 8. We are indebted to an anonymous reviewer for this insight.

20 KAMINSKI ET AL.

“injuries” to suspects. What then, would be the point of conducting research to determine if CEWs increase or decrease injuries? Accurately measuring inju- ries as proposed by Terrill and Paoline would result in the measurement of a constant rather than variable to be explained; and as a result, CEWs would be the highest injury-inducing use of force tactic.

Previous Lessons Regarding the Measurement of the Use of Force Terrill and Paoline’s call to reconsider the measurement of a key construct

in use of force research is reminiscent of similar concerns raised by at least one of these authors over a decade ago. In the previous circumstance, it was the measure of “force” itself that was called into question (Terrill, 2001). As Garner et al. (2002) demonstrated in their comprehensive literature review, there were dramatic differences in the measurement and operationalization of police use of force across studies. Terrill and his colleagues (Terrill, 2001; Terrill & Mastrofski, 2002), along with others (Garner, Hepburn, & Buchanan, 1995; Klinger, 1995) advocated for the examination of police use of “coercion” rather than “force,” and called for the measure of police coercion on a continuum that included even the most minor actions that were not routinely considered by police agencies or the courts as uses of force (e.g. verbal commands, verbal threats, handcuffing, Terry frisks, etc.). Most controversial was the inclusion of handcuffing as a form of coercion, or in some studies, use of force. Even though restraining arrestees with handcuffs is considered standard procedure by police agencies across the country (for officer safety reasons and to prevent flight) and not considered by agencies as a use of force, it was often included in academ- ics’ measures of force. Including handcuffing in a measure of force, by definition, would indicate that all (or nearly all) arrestees across the coun- try have been subjected to police use of force. Further, the Bureau of Justice Statistics’ Police–Public Contact Survey, the largest national data

Downloaded by [Robert Kaminski] at 16:06 14 May 2013 collection effort on police use-of-force and other outcomes in the USA, does not consider handcuffing as a use of force (Eith & Durose, 2011).

Researchers’ expansion of force measures to include actions that law enforcement and others do not consider to be uses of force has resulted in a disconnect between research and practice. As might be expected, the inclusion of handcuffing (and other nontraditional measures of force) resulted in a dramatic increase in research reporting percentages of police–citizen encoun- ters that involved use of force. For example, in one use-of-force study examin- ing Project on Policing Neighborhoods data, Terrill (2003) reported that of the 3,544 police encounters with criminal suspects that were examined, 58.4% involved the use of verbal and physical force, 21.0% involved the use of only physical force, but only 4.7% involved physical force when handcuffing and pat downs were excluded.

As a result of this change in measurement that artificially inflated the reported prevalence of use of force incidents, this body of research is

THE CONSEQUENCES OF COUNTING ENERGY WEAPON PUNCTURES AS INJURIES

unhelpful to practitioners and police executives seeking to better understand- ing correlates of force. Police executives interested in implementing policies and training to reduce the use of force will find little or no value in current reports using these expanded measures of force. When expanded measures of use of force include actions that are not recognized by law enforcement offi- cials or the courts as uses of force, the resulting reported correlates of force are virtually meaningless for policy and training. Contrary to early use of force studies, much of the recent academic research debating the measurement of the use of force seems unconnected to actual police practice and public conse- quences.

While expanding the measures of use of force may be considered an important academic endeavor, police agencies and the public are continually searching for effective means to reduce the use of force. With the exception of a handful of recent studies examining the impact of less-lethal weapons (e.g. MacDonald et al., 2009; Smith et al., 2007), the research community has little to offer about the types of policies, equipment, training, and managerial oversight that are most effective at reducing use of force incidents without compromising officer safety. The research on CEWs is most promising because it addresses critical issues regarding injuries that are important to both the police and the public.

Policy and Research Implications Even if one believes that the puncture wounds should be measured and

included as injuries, efforts to do so are likely to prove fruitless. Just as homi- cides are more reliably reported than more minor crimes, force-related deaths, and major injures are more reliably reported than minor injuries. Thus, we can assume that even if agencies required the reporting of routine CEW punctures, full compliance will be elusive (this includes the present study and

Downloaded by [Robert Kaminski] at 16:06 14 May 2013 we assume that CEW punctures and other forms of minor injury, such as skin/eye irritation from pepper spray and other physical force tactics, were underreported). Indeed, none of the agencies studied by Terrill and Paoline, and few of those studied by Smith et al. (2009) had policies requiring the reporting of routine CEW punctures. In the original Smith et al. (2009) study, some officers in 6 of the 12 agencies reported dart punctures as injuries while other officers in the same agencies did not. This finding is consistent with Terrill and Paoline’s reporting that officers are provided little guidance on the criteria for suspect injury associated with the use of CEWs. For example, in the Seattle Police Department (one agency studied by Smith et al. (2009) that captured detailed information on injuries associated with CEWs), dart punc- tures were reported as injuries in 47.8% of the 437 cases where dart contacts with suspects were verified. If this represents the “typical” experience of agencies with CEWs, then we might expect about half of all CEW deployments in dart mode to produce dart probe penetration to the skin. Yet in the Phoenix

22 KAMINSKI ET AL.

Police Department (another agency examined by Smith et al. (2009)), only 56 of the more than 800 CEW deployments (6.9%) in dart mode produced a reported puncture injury. Again, this suggests the lack of an agency mandate to report CEW dart punctures as injuries. Taken together, the available evi- dence from agencies that have participated in two of the largest CEW-related injury studies to date (Smith et al., 2009; Terrill & Paoline, 2011) suggests that most law enforcement agencies do not require the reporting of CEW dart punc- tures as injuries in the typical case of minor skin penetration in a nonsensitive area.

Given the scrutiny that use of force incidents often produce and the care with which many agencies document such incidents, a likely reason that agen- cies do not require the reporting of CEW punctures as injuries is that they are deemed unimportant and the natural consequence of the use of the weapon itself, worthy of documentation only if the “injury” produced is unusual or more severe than expected. Further, although Terrill and Paoline recommend the use of prospective observational studies as a remedy for measurement concerns, as a practical matter they hardly seem worth the time, effort, and expense to capture such trivial wounds. Prospective observational studies such as those advocated by Terrill and Paoline are highly inefficient as they have to sample a large number of police–citizen interactions over a long period of time to capture enough uses of physical force of any meaningful magnitude, no less injuries of any substance. Public safety will be better served by measuring and studying ways to reduce more serious injuries to both officers and citizens.

We agree with Terrill and Paoline that policing scholars should come to an agreement on how to define force-related injuries. However, the inclusion of routine punctures from CEWs as injuries moves the definition of force-related injuries in the direction of an “all harms” orientation, which raises the question of whether other injuries should be operationalized as well. Should the pain experienced from being “tased” or from the application of a pain compliance technique without visible injury be included in injury measures? Should redness

Downloaded by [Robert Kaminski] at 16:06 14 May 2013 and irritation to the skin from an officer grabbing a citizen or from pepper spray

be included as injuries? It is interesting to note that the TASER International literature cited by Terrill and Paoline to make their case for defining CEW punc- tures as injuries also mentions skin irritation, yet little attention is given in their discussion to including this as an injury. Moreover, they assert that the use of CEWs may cause socio-psychological injury, which raises the question of whether or not to include suspect psychological and emotional distress as inju- ries as well. This expansion of the definition of injury would eventually make the measure of “injury” virtually synonymous with the use of any force or even the arrest process itself, which would make any analysis on the connection between force techniques and any form of injury pointless.

The decision to include or exclude dart punctures as injuries while at the same time excluding other harms from the definition of injury highlights that the definition of injuries resulting from force incidents is a social construct. We agree with Terrill and Paoline that the effort to define this construct should be

THE CONSEQUENCES OF COUNTING ENERGY WEAPON PUNCTURES AS INJURIES

evaluated “in light of the practical implications of our research” (p. 28). Given this consideration, whether or not CEW routine punctures are included as an injury does not appear to be informative to a more general policy decision on whether agencies should adopt CEWs or eliminate them from their force reper- toire. Based on the findings presented here, counting dart punctures as a suspect injury only creates a significant correlation between CEW use and minor injuries (when measured along a continuum of injury). Thus, the appropriate question is whether the inclusion of dart punctures as an injury informs policy considerations on when CEWs should be used relative to other force options.

In consideration of the analysis of suspect injuries alone (see Table 4, Models 1.2 and 2.2), the force options coded as “other force” (canine, impact munitions, batons, etc.) should be placed above CEWs on the force continuum given they represent the only force options associated with a significant increase in serious injuries (though ideally, their individual effects should be examined). At the same time, the analysis suggests CEWs should be placed above the level of pepper spray as a result of the significant decrease in minor

injuries associated with the latter option. 9 The injury distinction resulting from the decision to include or exclude CEW dart punctures then rests in relation to soft-hand, hard-hand, and takedown force options. When routine punctures are excluded (Table 4, Models 1.1 and 2.1), CEWs, along with soft-hand techniques, are not significantly associated with minor injuries, whereas hard- hand and takedown techniques are associated with significant increases in the odds of minor injuries. If punctures are included, the odds of minor injuries associated with CEWs are considerably higher than hard-hands and takedowns (Models 1.2 and 2.2). Thus, based on suspect injuries, accepting routine dart punctures as injuries would suggest CEWs should be placed above hard-hard techniques and takedowns as a force option.

This evaluation of dart punctures, however, carries an injury inflation bias for CEWs relative to other force options. As noted earlier, routine dart punc- tures are similar to what is produced by a medium gage hypodermic needle,

Downloaded by [Robert Kaminski] at 16:06 14 May 2013 and if they are defined and counted as injuries under the guise of including all physical harms, then we should also be counting any skin irritation that occurs from the application of pepper spray, pressure point control tactics, joint locks, handcuffing, and so forth. Under such a scenario, injury rates associated with these tactics also would increase to varying degrees. This would undoubt- edly shift the evaluation of CEW injuries relative to other force options. Pepper spray, in particular, would have an injury profile exceeding that of CEWs if routine dart punctures and skin irritation from OC are counted. These effects, however, generally are less serious than lacerations, abrasions, or significant bruises. This is arguably the logic for why most use-of-force researchers to date have not defined them as injuries, which we believe is the

9. Of course, we would expect the injury reduction effects of OC to reverse if, say, skin/eye irrita- tion were counted as injuries. In this case, pepper spray exposure would be synonymous with injury.

24 KAMINSKI ET AL.

proper practice. Consequently, we believe the analytical models presented in this study that exclude routine CEW punctures provide a more meaningful anal- ysis of the risk of injury relative to other force options.

Although officer injuries is not the focus of the present study, any policy conclusions related to defining CEW dart punctures as injuries should also be considered in the light of their potential impact on officers. If dart punctures are routinely counted as injuries, then CEWs will begin to be associated with higher rates of suspect injury instead of lower rates. This may cause law enforcement leaders to consider restricting the use of this weapon only to cir- cumstances where blunt impact weapons or deadly force are permissible, or even a more extreme move to eliminate department use of CEWs to reduce rates of suspect injuries. Officers would then have to more often employee alternative forms of force that require physical contact between officers and suspect (e.g. grabbing, takedowns, punching, kicking, and hand-held impact devices), tactics that empirical research has consistently shown to be positively associated with both suspect and officer rates of injury (Alpert & Dunham, 2000; Kaminski, Rojek, Smith, & Alpert, 2012; Meyer, 2009; Smith et al., 2007; Terrill & Paoline, 2011). For example, although Smith et al. (2007) did not find a statistically significant association between CEWs and injuries to officers, they observed that officer use of soft and hard empty hand tactics significantly increased the odds of injury. Paoline et al., (2012) also found that hands-on weaponless tactics (grabbing/escorts, pressure point tac- tics, takedowns, and empty hand/leg strikes) significantly increased the odds of officer injury. The logical conclusion of these findings is that increases in the use of tactics requiring physical contact increases the risk of suspect physi- cal resistance or outright assaults on officers, which increase the likelihood of officer injury. If defining routine CEW dart punctures as injuries results in greater restrictions on the use of CEWs, officer injury rates are likely to increase.

In summary, the weight of the available research to date suggests that CEWs Downloaded by [Robert Kaminski] at 16:06 14 May 2013

reduce the odds of suspect and officer injury when minor dart punctures are not counted as injuries. The fact that injuries tend to increase when other types of force are used in conjunction with CEWs and that CEW use alone is associated with a decreased incidence of injury or the effects are benign sug- gests that CEWs are an effective option for stopping suspect resistance with minimal harmful effects. Without question, CEWs often produce minor dart punctures to the skin. From a cost/benefit perspective, however, this harm should be balanced against the greater harm that is likely to occur if officers must use alternative types of force to control a resistant suspect. The effort to redefine CEW-related injuries to include minor skin punctures associated with the intended functioning of the weapon attempts to shift the rhetoric of force in a manner that few researchers and even fewer practitioners have heretofore seemed willing to embrace.

THE CONSEQUENCES OF COUNTING ENERGY WEAPON PUNCTURES AS INJURIES

Acknowledgements This research was supported by funding from the National Institute of Justice

(grant 2005-IJ-CX-0056). The description and findings presented within this report are from the authors, and do not necessarily represent the official positions of National Institute of Justice. The authors would like to thank the anonymous reviewers for their constructive comments.

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