As of August 5, 2016, the Washington Post reported (Fatal Force, Washington Post, https://www.washingtonpost.com/graphics/national/police-shootings-2016/ (last visited Aug. 5, 2016)) that 573 people have been killed by law enforcement in the United States. In the wake of several widely-publicized shootings of suspects, the use of lethal force by law enforcement has become a topic of bitter debate in the United States. While this complex, multi-faceted issue does not have a single, straightforward answer, advances in non-lethal weapons technology could provide more options to law enforcement in the field. In July 2016, two Congressmen from Louisiana submitted a bill to address that very issue by proposing to provide $575 million in funding over five years for research, training, and acquisition of non-lethal weapons for law enforcement.
House Bill 5753 (https://www.congress.gov/114/bills/hr5753/BILLS-114hr5753ih.pdf), introduced by Republican Congressman Garrett Graves and Democratic Congressman Cedric Richmond, has two major provisions. The first is to establish an Office of Non-Lethal Technologies and Techniques (“Office”) within the Department of Justice, focused on non-lethal law enforcement technologies and techniques. The Bill proposes that the Office work in concert with federal law enforcement agencies such as the Department of Homeland Security and the Department of Defense to develop, enhance, and improve non-lethal technologies and techniques. The second provision is to allow the Office to provide grants to state and local law enforcement. Law enforcement can use these grants to improve existing non-lethal force technologies, strategies, and techniques in a number of ways: researching new and improved forms of non-lethal force technology, providing training to law enforcement officers on non-lethal force weapons and techniques, and purchasing non-lethal force technologies.
At a whopping three pages, the bill does not provide any detail on how these provisions would be implemented. It would be impossible to implement without additional legislation. For example, there is no explanation or reasoning to support why the office should be housed within the Department of Justice. The Department of Justice is home to a large number of law enforcement agencies, but the bill does not address any particular agency within the Department of Justice that would be better suited to housing the proposed Office. Additionally, the bill’s only requirement for state and local law enforcement agencies to apply for and receive grants is that the funding be used for research, training, and development of non-lethal technologies. This gives state and local law enforcement a great deal of autonomy to focus in on non-lethal technologies and strategies that are appropriate within their jurisdiction. That in and of itself is not problematic; however, it is an issue when the bill does not provide any definition of non-lethal technologies and strategies.
At first blush the definition of non-lethal may seem obvious, but many weapons and techniques could actually have lethal effects depending on the situation. How will this new office be able to provide grants for non-lethal technology if that term has not been defined in any way? The Department of Defense’s Non-Lethal Weapons Program defines non-lethal weapons (U.S. Department of Defense, Non-Lethal Weapons FAQs, Non-Lethal Weapons Program, http://jnlwp.defense.gov/About/Frequently-Asked-Questions/Non-Lethal-Weapons-FAQs/ (last visited Aug. 5, 2016)) as “weapons, devices, and munitions that are explicitly designed and primarily employed to incapacitate targeted personnel or materiel immediately, while minimizing fatalities, permanent injury to personnel, and undesired damage to property in the target area or environment.” This definition focuses on weapons with reversible effects. The bill could have used this readily-available federal definition of non-lethal weapons as a starting point for defining non-lethal technologies or techniques. Providing a definition of non-lethal technologies would have added critical context and framework to the proposal.
Although the bill is so brief that it is basically inoperable as written, it does provide a starting point for legislative discussion about how to undertake providing non-lethal options to law enforcement. Hopefully, this bill is just the beginning of more meaningful legislation focused on these non-lethal technologies and solutions.
–Jackie Collier is a 3L at Suffolk Law School and Chief Content Editor, Journal of High Technology, JD Candidate, May 2017