5-308 - Force Option- Hand-Held Chemical Aerosols

The purpose of this policy is to ensure that members who carry weapons and force devices, and who use weapons and force devices, including chemical aerosols, adhere to the force guiding principles described in P&P 5-301. The force guiding principles include, but are not limited to, the Sanctity of Life (as incorporated below), the Duty to De-escalate, and Objectively Reasonable, Necessary, and Proportional Force.

MPD and its members shall uphold the sanctity of life (P&P 0-102 and P&P 5-301) by striving to protect and preserve human life in all situations and keep the community and MPD members safe from harm.

This policy addresses hand-held, pressurized, containerized, chemical aerosols. Chemical munitions are covered by P&P 5-313.

Chemical Aerosols as Intermediate Weapons

The MPD approved chemical aerosol is an intermediate weapon.

Chemical aerosols are generally intended to cause the eyes and respiratory tract to become inflamed and irritated. Physical effects can include involuntary closing of the eyes, the sensation of difficulty breathing, coughing, discharge of mucous, lack of coordination and nausea. When properly used, chemical aerosols are usually effective in incapacitating most people temporarily, without permanent injury, though the effectiveness varies from person to person.

Civil Disturbances and Assemblies

During civil disturbances and assemblies, chemical aerosols, regardless of canister size, shall only be discharged when authorized in accordance with P&P 7-805.

Conditions for Use

Chemical aerosols may only be used on a person in accordance with the factors and requirements described below. In addition to the conditions in this policy, the use of chemical aerosols must be objectively reasonable, necessary, and proportional, and members shall use the lowest degree of force necessary (P&P 5-301). When using chemical aerosols members must apply the critical decision-making model (CDM) (P&P 7-801) to continually assess the situation and modulate their use accordingly as the subject behavior changes.

Permitted use

Chemical aerosols may be used when objectively reasonable, necessary, and proportional, on a person who is actively resisting or to prevent imminent physical harm.

People in restraints

1. Members shall not use chemical aerosols on any person who is handcuffed or otherwise physically restrained, unless the person presents an imminent threat of physical harm to the safety of the member, the person themselves, or others.

2. Prior to using chemical aerosols on the physically restrained person, members must first attempt to exercise additional control over the person using empty hand techniques other than strikes (P&P 5-306), when feasible.
3. Members shall only use chemical aerosols against the physically restrained person once all feasible empty hand techniques other than strikes (P&P 5-306) have been attempted by the member, and if the imminent threat of physical harm persists.

Compliant and passively resisting people

Members shall not discharge chemical aerosols at people who are complying with orders or are passively resisting as defined by policy.

Restricted use on people in a car

Members shall not discharge chemical aerosols at a person in a car, unless all of the following apply:

• The person presents an imminent threat of physical harm to a member or others.
• No reasonably effective alternative exists, meaning lower degrees of force or alternatives to force such as de-escalation techniques and tactics did not work, would not work, were not feasible or were too unsafe to attempt (P&P 5-301).

1. Members shall consider whether incapacitating the driver with the chemical aerosol poses risks to passengers or others nearby and shall consider whether there are others nearby or passengers in the vehicle who could be adversely affected.
2. If members discharge chemical aerosols at a person in a car, members shall allow available air circulation, which could include opening doors or windows or allowing the person to exit the vehicle.

Consider vulnerable people

Members must consider the possible heightened risk and adverse societal reaction to the use of chemical aerosols upon certain people.

1. Unless such force is necessary to protect the member, the person posing the risk, or another person from objectively imminent physical harm, members shall not discharge chemical aerosols at a person when a reasonable officer would know that the person is:

• Pregnant.
• Elderly.
• A small minor.
• A visibly frail person.
• A person with a pre-existing condition (such as asthma, emphysema, bronchitis, or heart ailment) that may be aggravated by the chemical aerosol.

2. Members shall also consider whether there is a risk of exposing vulnerable people who may be nearby when discharging chemical aerosols.

People swallowing narcotics

Discharging chemical aerosols to prevent the swallowing or ingesting of narcotics is prohibited. See P&P 7-350 for requirements around medical treatment when a person may have swallowed narcotics or have narcotics in their mouth.

Tactics and Requirements When Using Chemical Aerosols

Only deliver chemical aerosols to intended people

Members shall only discharge chemical aerosols at intended people and shall exercise due care to minimize exposure of non-targeted people. Members shall consider the risk of unintended exposure.

Warning required

Prior to discharging a chemical aerosol, members shall provide oral warnings indicating that they intend to use chemical aerosols unless the person submits to their authority, when it is feasible to do so (in accordance with P&P 5-301).

1. Members shall allow a reasonable amount of time for a person to comply with a warning, when feasible to do so.

2. The warning shall only occur in situations that a member reasonably believes may result in the use of the chemical aerosol.

Re-assess after discharge

Chemical aerosols that emit a stream shall be discharged in one to two second bursts, except in rare circumstances where there is an imminent threat of physical harm and pausing to reassess is not feasible. After each discharge of a chemical aerosol members shall stop, re-assess the situation and subject behavior, and determine whether any subsequent discharges are objectively reasonable, necessary, and proportional.

Separate uses of force

Each discharge of a chemical aerosol is a separate use of force that members must separately justify as objectively reasonable, necessary, and proportional.

Treatment and Aid for Chemical Aerosol Exposure

1. In addition to standard medical treatment after uses of force (in accordance with P&P 5-301 and P&P 7-350), post exposure treatment for a person that has been exposed to the chemical aerosol shall include as many of the following as possible:

• Removing the affected person from the area of exposure.
• Exposing the affected person to fresh air.
• Rinsing the eyes and skin of the affected person with cool water (if available).
• Placing the person in an upright seated position, or if that is not feasible, in the side recovery position.

2. A person who has been exposed to a chemical aerosol shall not be left lying on their stomach once handcuffed or restrained.
3. Members shall keep a person exposed to the chemical aerosol under close observation until they are released to medical or other law enforcement personnel and shall watch for symptoms of a significant adverse reaction, which could include, but are not limited to blistering, burns, difficulty breathing, excessive pain, visual disturbance, or an altered mental state.

1. If the person exhibits such symptoms after having flushed the affected areas, or the person indicates that they have a pre-existing condition (such as asthma, emphysema, bronchitis, or a heart ailment) that may be aggravated by the chemical aerosol, members shall arrange for immediate transportation to a hospital for medical treatment.

4. When transferring custody of a person that has been exposed to chemical aerosols, the members shall notify the entity accepting custody of the exposure.

Training Required

MPD members shall only be issued, carry and use chemical aerosols if they have successfully completed approved annual training on chemical aerosols.

Specifications for Chemical Aerosols

1. Every sworn member shall carry a 4 oz. canister of chemical aerosol on their person at all times while working in uniform.

2. Canisters larger than 4 oz. may be carried by members when authorized by a supervisor.
3. Members shall not carry expired canisters of chemical aerosol. Prior to expiration, members shall coordinate with the Range to exchange the older canister for a replacement.
4. Members are only authorized to carry chemical aerosols that are issued by the Department. Personally owned chemical aerosols, or those issued by another agency, are not authorized to be carried or utilized while a member is acting in their official MPD capacity.
5. Authorized chemical aerosols are:

1. Aerko, 1% CS/1% OC Solution.

• Freeze +P 4 oz 2k3.
• Deep Freeze 15.7 oz MK9 Streamer.

2. Defense Technology OC Solution.

• 12oz MK9 Streamer, .2%.

• 12oz MK9 Streamer, .4%.
• 12oz MK9 Streamer, .7%.
• 12oz MK9 Streamer, 1.3%.

3. Sabre OC Solution.

• 16oz MK9 Streamer, .67%.
• 16oz MK9 Streamer, 1/3%.

4. Defense Technology OC Solution- these shall only be carried by MPD SWAT members when directed by the SWAT supervisor.

• 12oz MK-9S Vapor, .7%.
• 12oz MK-9S, Vapor 1.3%.

• Actively Resisting:

  The person’s actions are intended to prevent a member from placing the person in custody or taking control of the situation but are not directed at harming the member. A person’s reaction to pain caused by a member, and a person’s purely defensive reactions to force, do not constitute active resistance. Oral statements alone do not constitute active resistance.

  Examples include:

  • Walking or running away after being informed they are not free to leave, are detained, or are under arrest.
  • Forcefully resisting the member’s grip.
  • Holding onto a fixed object after being given a lawful command to move or let go, in a situation other than a protest or demonstration (P&P 7-805).
• Assembly: An assembly is a group of people gathered together in one place for a common purpose.
• Carry Weapons and Force Devices: Having a weapon or force device on one's person. This includes having it in a pocket, holster, or backpack or similar container, as well as having it slung or having it in hand.
• Chemical Aerosol: Aerosol, hand-held, pressurized, containerized chemical aerosol agents that emit a stream or vapor. (P&P 5-308)
• Chemical Munition: Munitions designed to deliver chemical munition agents from a launcher or be propelled by hand. (P&P 5-313)
• Civil Disturbance: A civil disturbance, also known as civil disorder or civil unrest, is when a gathering or assembly becomes violent or involves a collective threat of imminent violence, including but not limited to, assaults, significant property damage, arson fires, and bodily injury to people.
• Complying with Orders: The person is following direction or lawful orders given.
• Critical Decision-Making Model: A tool that allows members to organize situational factors and inform their decisions as they respond to police incidents of all degrees of complexity. All sworn members are trained in using the critical decision-making model (CDM). (P&P 7-801)
• De-escalation: Techniques and tactics to reduce the intensity of a situation. These strategies serve to increase the likelihood of voluntary compliance, minimize the need to use force, and uphold the sanctity of life by enabling members to resolve situations without the use of force or with the lowest degree of force necessary. (P&P 7-802)
• Deliver Chemical Aerosols: When a discharged chemical aerosol comes into contact with a person (when a person is sprayed).
• Discharge Chemical Aerosols: Using the actuator to release the contents from the canister, regardless of whether it impacts the intended person.
• Empty Hand Technique:

  Force that employs the member's own body as the mechanism of force (also called bodily force). Empty hand techniques do not include the use of an intermediate or improvised weapon. (P&P 5-306) Empty hand techniques include the following:

  1. Body Weight to Pin: Using body weight to pin a person to the ground or floor, or to a fixed object while the person is lying down.
  2. Control Pressure: Pressing a person into a fixed object, while the person is not lying down (such as applying pressure while the person is against a vehicle or building).
  3. Control or Escort Hold: Temporary holding of part of the person's body, such as the hand, wrist, arm or shoulder, to physically control or direct the person.
  4. Joint Manipulation: Forcefully controlling a person's joint to limit or direct movement. This also includes locks such as wristlocks, armbars, shoulder locks, joint locks, etc.
  5. Pressure Point Compliance: Directed touch pressure that is delivered to gain compliance and may result in brief transitory pain.
  6. Shove: A forceful or severe push, intended to suddenly displace the person or disrupt their balance. Shove does not involve the deliberate blow of a strike.
  7. Takedown: Bodily force used by the member that compels a standing or seated person to the ground or floor, or forceful actions that result in the person ending up on the ground or floor (whether intentional or unintentional).
     1. Two-officer or single-officer takedown.
     2. A push, pull or shove (including baton pushes and baton shoves) that results in the person ending up on the ground or floor.
     3. A vehicle extraction that ends on the ground or floor.
     4. Tackling the person.
     5. A leg sweep.
  8. Touch Contact: Gentle or moderate force applied to a person who offers minimal or no resistance. Touch is intended to create space, guide or move someone, but is not forceful.
  9. Weaponless Strike: A deliberate hit or blow intended to cause injury or pain. Strikes are more aggressive and are intended to achieve pain compliance or incapacitate the person. Strikes can involve a kick, punch, slap, knee, or any similar action.
• Feasible: Objectively reasonably capable of being safely done or carried out.
• Imminent Threat:

  A threat is imminent when all of the following apply:

  • It can be articulated with specificity.
  • It is reasonably likely to occur absent action by the law enforcement officer.
  • It must be addressed through the use of objectively reasonable, necessary, and proportional force without unreasonable delay.

  A fear of future harm is only an imminent threat if it must be addressed without unreasonable delay, no matter how great the fear or likelihood of harm.

• Intermediate Weapon: Weapons that are not intended to cause death or serious physical injury and are not empty hand techniques. These include CEWs, chemical aerosols, chemical munitions, impact projectiles, and batons.
• Munitions: Types

  Chemical Agent Munitions: Munitions designed to deliver chemical agents from a launcher or be propelled by hand.

  Less-Lethal Impact Munitions: Impact munitions which can be fired, launched, or otherwise propelled.

  Direct Fired Munitions: Less-lethal impact munitions that are designed to be direct fired at a specific target.

  Indirect-Fired Munitions: Less-lethal non-direct impact munitions that are discharged toward a surface in front of a target, intended to impact the subject following contact with the surface.

• Objectively Imminent Physical Harm:

  Aggressively Resisting or Assaultive:

  The person displays the intent to imminently harm the member, themselves or another person.

  • Taking a fighting stance (such as clenching and raising fists into a boxer pose or a substantially similar action).
  • Punching, kicking, or otherwise striking.

  Aggravated Aggressive Resistance or Aggravated Assault:

  The person displays the intent to imminently harm the member, themselves or another person, and the person’s actions are likely to result in great bodily harm or death.

  • Use of a firearm.
  • Use of a blunt or bladed weapon.
  • Extreme physical force.
• Passively Resisting: The person is not complying with a member's commands and is uncooperative but is taking only minimal action to prevent a member from placing the person in custody or taking control of the situation. Examples include: • Standing stationary and not moving upon lawful direction. • Falling limply and refusing to use their power to move (becoming "dead weight"). • Verbal non-compliance: Using language that signals an intention to avoid or prevent being taken into custody but does not signal an intent to cause physical harm.
• Physically Restrained: Restraint or restrain refers to a member's use of force to physically restrict the free movement of a person's body.
• Special Weapons and Tactics Team: A specialized police unit trained and equipped to handle high-risk situations beyond the scope of regular patrol, such as armed barricades, hostage rescues, and high-risk warrant service.
• Subject Behavior:

  Subject Behavior: The actions, language, demeanor and conduct exhibited by a person. The behaviors are used to categorize and assess the degree of cooperation, resistance, or threat posed by the person.

  Complying with Orders: The person is following direction or lawful orders given.

  Passively Resisting: The person is not complying with a member’s commands and is uncooperative but is taking only minimal action to prevent a member from placing the person in custody or taking control of the situation. Examples include:

  • Standing stationary and not moving upon lawful direction.
  • Falling limply and refusing to use their power to move (becoming "dead weight").
  • Verbal non-compliance: Using language that signals an intention to avoid or prevent being taken into custody but does not signal an intent to cause physical harm.

  Actively Resisting: The person’s actions are intended to prevent a member from placing the person in custody or taking control of the situation but are not directed at harming the member. A person’s reaction to pain caused by a member, and a person’s purely defensive reactions to force, do not constitute active resistance. Oral statements alone do not constitute active resistance. Examples include:
  • Walking or running away after being informed they are not free to leave, are detained, or are under arrest.
  • Forcefully resisting the member’s grip.
  • Holding onto a fixed object after being given a lawful command to move or let go, in a situation other than a protest or demonstration (P&P 7-805).
  Objectively Imminent Physical Harm:
  Aggressively Resisting or Assaultive: The person displays the intent to imminently harm the member, themselves or another person. Examples include:
  • Taking a fighting stance (such as clenching and raising fists into a boxer pose or a substantially similar action).
  • Punching, kicking, or otherwise striking.
  Aggravated Aggressive Resistance or Aggravated Assault: The person displays the intent to imminently harm the member, themselves or another person, and the person’s actions are likely to result in great bodily harm or death. Examples include:
  • Use of a firearm.
  • Use of a blunt or bladed weapon.
  • Extreme physical force.

• Use of Force:

  An intentional contact, directly or indirectly (such as through a weapon or force device), with someone’s body, that causes pain or injury or restricts, controls or directs someone’s movement. Intentionally placing someone in fear of such contact or threatening such contact can also constitute force. This includes, but is not limited to:

  • The use of any weapon, substance, vehicle, equipment, tool, device or animal that inflicts pain or produces injury.
  • Any physical strike to any part of the body.
  • Any physical contact or threat of contact by the member or a weapon that causes or threatens to cause pain or injury.
  • Any physical contact or threat of physical contact by the member that results in physical restriction or manipulation of movement.
  • Unholstering or displaying a weapon when engaged with a subject or subjects, or pointing a weapon at a person.
• Use Weapons and Force Devices: Activating or applying a weapon's or force device's mechanical functions, pointing a weapon, or making contact with a person with the weapon or force device. This includes discharging a weapon such as a firearm, chemical aerosol, or impact projectile launcher, deploying a CEW, performing a CEW warning alert, activating a CEW, laser painting a person, applying handcuffs or restraints, and making bodily contact with a person with a baton or other impact weapon.
• Using Empty Hand Technique: Using force that employs the member's own body as the mechanism of force (also called bodily force).