There's a gap in Scott Olsen's memory for the night of Oct. 25, 2011.
The Iraq War vet remembers leaving his tech job in the San Francisco Bay Area and taking a BART train to join an Occupy Oakland protest against economic and social inequality.
He remembers standing near protesters who faced off with Oakland police officers bristling with riot gear.
He remembers being carried away by other protesters.
But not the moment when a "bean bag" round fired from an officer's 12-gauge shotgun crashed into the left side of his head, fracturing his skull and inflicting a near-fatal brain injury that forced him to relearn how to talk.
What happened to Olsen was not unique or isolated. Time and again over the past two decades - from L.A. to D.C., Minneapolis to Miami - peace officers have targeted civilian demonstrators with munitions designed to stun and stop, rather than kill. As many as 60 protesters suffered head wounds during recent Black Lives Matter events, including bone fractures, blindness and traumatic brain injuries.
For years, activists and civil libertarians worldwide have urged police to ban less-lethal projectiles from use for crowd control. The United Kingdom ceased using them that way decades ago.
MRIs from 2011 (left) and 2013 show the initial and then permanent damage Scott Olsen incurred after an officer's 12-gauge shotgun crashed into the left side of his head, fracturing his skull and inflicting a near-fatal brain injury.(Scans courtesy of Scott Olsen)
But an investigation by USA Today and KHN found little has changed over the years in the United States.
Beyond the Constitution and federal court rulings that require police use of force to be "reasonable," there are no national rules for discharging bean bags and rubber bullets. Nor are there standards for the weapons' velocity, accuracy or safety. Congress and state legislatures have done little to offer solutions.
While locations and demonstration types vary, a pattern has emerged: Shooting victims file lawsuits, cities pay out millions of dollars, police departments try to adopt reforms. And, a few years later, it happens again. Law enforcement officers, typically with limited training, are bound only by departmental policies that vary from one agency to the next.
Sometimes referred to as kinetic impact projectiles, less-lethal ammunition includes bean bags (nylon sacks filled with lead shot), so-called rubber bullets that actually are tipped with foam or sponge and paintball-like rounds containing chemical irritants. Velocity and range vary greatly, but they can travel upwards of 200 mph. The rounds were developed to save lives by giving police a knock-down option that can disable threats from a safe distance without killing the target.
But, over decades of use, munitions that originally were touted as safe and nonlethal have proven otherwise:
- In 2000, a protester at the Democratic National Convention in Los Angeles lost an eye. Seven years later in the same city, scores of migrant-rights demonstrators were wounded amid a fusillade of less-lethal rounds.
- In 2001, when rioting broke out in Tucson after the University of Arizona lost the NCAA men's basketball championship game, a student lost an eye to a bean bag.
- In 2003, 58 people were injured in Oakland when officers launched a barrage of wooden pellets and other devices during anti-Iraq War protests. To settle court claims, the city adopted new crowd control policies. Eight years later, Olsen was struck down.
- In 2004, in Boston, a college student celebrating a Red Sox victory was killed by a projectile filled with pepper-based irritant when it tore through her eye and into her brain.
The past two months have been especially telling, with dozens maimed or hurt amid Black Lives Matter demonstrations: Photographer Linda Tirado, 37, lost an eye after being hit by a foam projectile in Minneapolis. Brandon Saenz, 26, lost an eye and several teeth after being hit with a "sponge round" in Dallas. Leslie Furcron, 59, was placed in a medically induced coma after she was shot between the eyes with a bean bag round in La Mesa, California. And, in Portland, Oregon, 26-year-old Donavan La Bella suffered facial and skull fractures when he was shot by a federal officer with a less-lethal round.
"Nothing has changed," said attorney Elizabeth Ritter, 59, one of several people shot in the head by an impact munition at a 2003 protest in Miami. A video later surfaced showing police supervisors laughing about her shooting. "It's fairly sickening to me. We have a systemic, deeply ingrained problem."
Nothing has changed. It's fairly sickening to me. We have a systemic, deeply ingrained problem.
Attorney Elizabeth Ritter, 59, one of several people shot in the head by an impact munition at a 2003 protest in Miami
'We're just in a circle'
From a law enforcement perspective, less-lethal weapons are essential tools in a continuum of force. A sponge-tipped round or a pouch full of pellets can stop a violent act without putting the officer in peril — and without killing the suspect.
Police leaders typically condemn the indiscriminate firing into peaceful crowds but characterize such incidents as conduct violations rather than weaponry problems.
Steve Ijames, a retired officer who developed programs for the International Association of Chiefs of Police, blames "boneheaded policemen” and a training gap for the misuse of arms. Law enforcement instruction focuses almost entirely on how to use less-lethal force against individual suspects, Ijames noted, and not on crowd-control scenarios that occur only sporadically.
Still, when demonstrations morph into disturbances, less-lethal devices are often dusted off and pressed into duty.
"What is the alternative?" asked Sid Heal, a retired commander from the Los Angeles County Sheriff's Department. "We're stuck with the tools we have. And if you take one away, we're going to have to go to something else, and it will probably be harsher."
The National Institute of Justice spent hundreds of thousands of dollars on initiatives to collect data and start developing national standards for less-lethal weapon safety after the Boston student's death in 2004. Funding dried up after a few years, and the efforts died.
Against that backdrop, Congress has shown little interest in regulating bean bags and rubber bullets. And national law enforcement leadership groups have repeatedly punted when given an opportunity.
After the fatal police shooting of Michael Brown in 2014 in Ferguson, Missouri, a bill introduced in the U.S. Senate in 2014, 2015 and 2017 would have banned state and local law enforcement from using key federal grant dollars for less-lethal weapons. The measure never made it out of committee.
In 2017, a coalition of law enforcement groups representing police leaders and unions, which gathered to study use of force, published a consensus policy and discussion paper. The groups advocated a ban on police use of martial arts weapons — but did not extend it to less-lethal munitions.
A White House task force established after the Ferguson protests recommended "annual training" but little more for less-lethal weapons.
In June, 13 U.S. Senate Democrats asked the Government Accountability Office, the investigative arm of Congress, to investigate the alleged misuses of rubber bullets and bean bags against Black Lives Matter demonstrations.
The Justice Department's inspector general has launched an investigation of federal officers' response to protest activity in Portland and Washington, D.C., the watchdog announced Thursday. Leaders of the House Judiciary, Homeland Security and Oversight committees this month had asked the office to review federal officers' "violent tactics" used against protesters in those cities and elsewhere.
And, in California, several Democratic legislators introduced a measure in June that would ban the police use of less-lethal munitions to disperse demonstrators. Except in riot conditions, the proposed law says, kinetic energy projectiles "shall not be used by any law enforcement agency against an assembly protected by the First Amendment."
Charles Mesloh, a former police officer, a certified instructor and a longtime researcher on less-lethal weapons, said the status quo is "unacceptable," but he sees little chance that national standards will be imposed for training, weapon safety and use.
"I've been doing this long enough, I just — we're just in a circle," said Mesloh. "We'll have some lip service … and there’ll be some mandated training, and then we'll just go right back to where we were."
Los Angeles: Searching for a less-lethal alternative
Carol Sobel, a Los Angeles civil rights attorney, keeps an unusual photo on her desk. It shows her with a goose-egg wound to her forehead and two black eyes. What's not visible in the picture is the concussion, sinus fracture and more than six months of headaches.
That's the impact of a police projectile that struck her between the eyes as she stood outside the 2000 Democratic National Convention with a mainly peaceful crowd.
“My head snapped back and it hurt,” she said. “It was inconceivable to me that someone would shoot me in the face.”
Over the past two decades, Los Angeles police have repeatedly used less-lethal firepower on demonstrators, injuring hundreds and generating lawsuits that Sobel helped prosecute.
Los Angeles police turned to bean bags as an alternative to live ammo after 1992 rioting triggered by the acquittal of officers who beat a Black man named Rodney King. As violence swept the city, police at first hunkered down, doing little to maintain order, then launched an aggressive crackdown. Ten people were killed by officers.
In the aftermath, the department was criticized simultaneously for brutality and for failure to defend the community. Bean bag rounds and later 40mm projectiles emerged as options that were supposed to allow officers to protect themselves and the city without deaths or lawsuits.
With the new arsenal, police in 2000 descended on protesters at MacArthur Park during the convention. Witnesses said demonstrators were shot in the back with rubber bullets as they tried to disperse. The city approved $4.1 million in payments to more than 90 people hurt during the melee.
Among the shooting victims was Melissa Schneider, who secured a $1.4 million settlement after being blinded in one eye. Two decades later, Schneider said she still wakes up with excruciating pain where the eye used to be and frequently vomits as a result of migraines.
Schneider said she was shaken watching internet videos of protesters injured in recent Black Lives Matter demonstrations: "I immediately started sobbing — not for me, but for them and the journey they had ahead," she said. "Things need to change. And it's really sad. It's been 20 years, and this is still happening."
Seven years after Schneider was maimed, Los Angeles police were back in MacArthur Park using batons, horses and less-lethal rounds during an immigrant-rights protest. More than 250 people were injured. An internal review determined projectiles were launched into crowds and at peaceful protesters. Although such weapons are supposed to be used to stop lawbreakers, no demonstrator was arrested.
This time, city taxpayers forked out $13 million to settle civil complaints. The Police Department agreed to four years of court supervision, with rules banning the use of less-lethal rounds against peaceful protesters.
By 2015, amid a national controversy over police killings, Los Angeles police leaders were touting less-lethal weapons as part of a kinder, gentler approach. The agency in 2017 adopted a progressive policy requiring officers to try de-escalation tactics before opening fire.
But in May, when protests erupted after the death of George Floyd, police in Los Angeles unleashed bean bags and sponge rounds. A lawsuit filed by Black Lives Matter alleges "that the training of the LAPD in the use of these potentially lethal weapons was absent, seriously deficient, or intentionally indifferent to the known serious harm that can result." The complaint, with Sobel as lead attorney, seeks an emergency ban on the use of less-lethal arms for crowd control.
Lawyers for the city argued a blanket ban would hamstring efforts to maintain law and order.
Los Angeles police leaders declined to be interviewed for this article because it deals with personnel matters and issues that "will eventually be fleshed out in a complete, independent after-action report."
Sobel said she's seen it all before: "There is absolutely no institutional memory in the LAPD. That’s No. 1. And No. 2 — they don’t care.”
Boston: 'Everything just kind of went away'
Victoria Snelgrove leaned against a railing of a parking garage at Fenway Park, waiting for the crowd to dissipate so she could drive home from a raucous Red Sox celebration. Then Boston police fired the projectile that tore through her eye and into her brain.
The home team had just defeated the New York Yankees to win the 2004 American League Championship. Sox fans rejoiced in the streets around the stadium. After some set fires and threw bottles, police began launching projectiles.
Snelgrove, a 21-year-old college student and sports enthusiast who aspired to be an entertainment reporter on television, slipped into a coma. Her parents made the excruciating decision to remove life support hours later.
The family collected $5 million in damages — reportedly the city's largest settlement in history at the time. Snelgrove's death spurred Boston police to convene a panel to figure out what went wrong.
Among the commission's findings: Boston had acquired its launchers less than a year earlier, without an adequate understanding of safety issues. The manufacturer had suggested rounds would not break the skin.
But a second protester had a projectile lodged in his forehead, and a third suffered a gaping wound to the cheek.
The commission said police needed more training on how to use less-lethal weapons, particularly in crowd-control situations. It called for the National Institute of Justice to collect and disseminate comprehensive information on a burgeoning array of less-lethal projectiles. And it urged the federal government to develop minimum safety standards with a testing program overseen by an independent agency such as the institute.
Those recommendations were championed by Sen. Ted Kennedy, who said, “The growing use and the false sense that they are completely safe are leading to the kind of avoidable tragedy that shocked all of us in Boston.”
NIJ awarded grants to a Wayne State University researcher, Cynthia Bir, to help develop standards. Over several years, study groups were formed. Testing modes were developed.
Then, according to Bir, Tasers and other equipment became more widely used by police. As interest in rubber bullets and bean bags waned, the Great Recession depleted funding. Research efforts dissolved along with prospects for standards for less-lethal weapons.
"NIJ gave us a fair amount of funding to look at this issue and then … the focus switched to Tasers," Bir said. "Everything just kind of went away."
The NIJ did not respond to multiple emails seeking comment.
Rick Wyant, a forensic scientist who served on an NIJ panel, said standards could be imposed by tying them to federal law enforcement grants. Otherwise, unregulated arms can continue putting the public at risk, he said.
"I can go in my garage and develop something, and if I get a [police] chief to sign off on it and deploy it, that's all that needs to happen," Wyant said.
'Policing has to have a reckoning'
U.S. law enforcement and defense agencies spend about $2.5 billion annually on less-lethal weapons and ammunition, according to Anuj Mishra, an analyst with MarketsandMarkets, a research firm based in India. That’s almost half the global total and includes sales of tear gas and Tasers as well as projectile weapons.
Mishra said less-lethal weapons sales have taken off with a proliferation of new products. More than a half-dozen companies supply U.S. police departments with plastic and rubber bullets, paintball-type rounds, launchers and less-lethal projectiles fired from 12-gauge shotguns.
Sales are driven by personal relationships, internet advertising and trade shows where police try out the latest models on shooting ranges, industry executives say.
"Cops are always looking for gadgets. They're always looking for new technology," said Eugene Paoline, professor of criminal justice at the University of Central Florida. "They like toys."
"Cops are always looking for gadgets. They're always looking for new technology. They like toys."
Eugene Paoline, professor of criminal justice at the University of Central Florida
Less-lethal weapons became part of a national conversation after the deadly 2014 shooting of Michael Brown, a Black teenager, in Ferguson, Missouri. As police agencies responded to protests with military-style tactics, criticism mounted from medical, civil rights and activist groups that condemn the use of less-lethal projectiles to break up demonstrations.
Physicians for Human Rights, for example, contends that kinetic-impact bullets "are not an appropriate weapon to be used for crowd management and specifically for dispersal purposes."
Rohini Haar, an emergency room physician and researcher at the University of California-Berkeley, co-authored research in 2017 with Physicians for Human Rights on the damage inflicted by less-lethal rounds. A study of nearly 2,000 shooting victims found that 3% died and 15% were permanently disabled.
Haar's takeaway: "Policing has to have a reckoning," and that would include a ban on rubber bullets and more regulation of all less-lethal weapons in crowd-control scenarios.
By contrast, police and government inquiries after the Ferguson protests resulted in no clear guidelines for the use of plastic and bean bag rounds. A task force created by President Obama, which urged federal investigations of inappropriate use of police equipment and tactics during demonstrations, recommended little more than "annual training."
Eleven of the nation's top law enforcement leadership organizations in 2017 developed what they called a "National Consensus Policy on Use of Force." The white paper lacks detailed direction for less-lethal munitions while stressing that even vague guidance is "not intended to be a national standard by which all agencies are held accountable."
In the aftermath of George Floyd demonstrations, that report was updated this month. But wording on less-lethal weaponry remained the same: It urges police to ban martial arts weapons such as blackjacks and nunchucks, but avoids a recommendation on less-lethal projectiles, leaving decisions to individual agencies.
Terrence Cunningham, who took part in the review as president of the International Association of Chiefs of Police, said after inquiries for this story that he now supports a consensus policy for less-lethal munitions. "We definitely need some kind of foundational standards," said Cunningham, now the association's deputy executive director.
Meanwhile, the Police Executive Research Forum, a nonprofit think tank, last year convened 225 police chiefs, officers, industry representatives and academics for yet another symposium on police use of force. The forum’s 45-page report endorses less-lethal arms as a sometimes controversial part of the law enforcement toolkit and emphasizes that the weapons “often do not work as desired.”
'Bad optics' and 'unfunded mandates'
Law enforcement experts point out there are about 18,000 police forces in the United States, and it may be impossible to develop homogeneous standards or practices that work in communities ranging from New York City to Minooka, Illinois.
"Most agencies in America are 50 people or less. They don't have big budgets," said Don Kester, head of training for the National Tactical Officer Association. "You write a [detailed] policy and all the chiefs say you've created an unfunded mandate" for equipment and training.
The alternative — and the reality — is a system in which each agency decides which weapons to use, what training to provide and what policies to enforce.
All operate on the same underlying function, as spelled out by Ed Obayashi, an attorney and deputy chief of California's Plumas County Sheriff's Office: "to inflict pain to gain compliance and to disperse a crowd." If protesters ignore police instructions, he added, firing on the overall crowd could be justified depending on circumstances.
Obayashi allowed that videos taken during recent Black Lives Matter demonstrations presented "bad optics" for less-lethal weapons. But a full story can't be presented from films, he said while asserting that the overall response by U.S. peace officers was "very controlled and did not cause a measurable number of serious injuries."
"When law enforcement gives an order to disperse, and that doesn't happen, we don't have a lot of options," agreed Wade Carpenter, the police chief in Park City, Utah, who oversees IACP's firearms and tactical committees. "Whenever we have individuals that are trying to incite these riots, there is a level of force that has to be used."
Oakland: 'A series of cascading events'
If Scott Olsen struggles to recall what happened when police shot him with a bean bag round, his sentiments about the Oakland Police Department are crystal clear: "I think bad things," Olsen, now 33, said during a recent phone interview.
The projectile that struck Olsen's head in 2011 was launched despite previous, similar incidents that resulted in lawsuits, independent investigations, court orders and police reforms.
James Chanin, an Oakland attorney who filed some of the civil actions, and won settlements, tells about a "long history of alleged civil rights violations" by the city's police force.
In April 2003, protesters against the Iraq War blocked a Port of Oakland entrance at a marine terminal. A lawsuit described how police moved to break up the demonstration, firing wooden dowels to skip them off the ground at protesters, shooting bean bag rounds into the crowd, and setting off stinger grenades that scattered chemical irritants and small balls.
Sri Louise Coles, a lead plaintiff in one of the cases, alleged in a lawsuit that she suffered face and neck wounds from a projectile and additional injuries when an officer rammed her with a motorcycle.
In settling that case, Oakland agreed to new crowd-control and management policies. Less-lethal munitions "shall not be used for crowd management, crowd control or crowd dispersal," the policy instructed, and such devices "may never be used indiscriminately against a crowd or group of persons."
Eight years later, Olsen was near the front of an Occupy Oakland demonstration when police declared the gathering an illegal assembly and ordered the crowd to disperse.
Officers then launched a fusillade of less-lethal munitions, including the round that struck Olsen.
As other protesters rushed to his aid, an Oakland police officer deployed a chemical canister into the group, an independent investigation later found.
Police said afterward they did not see Olsen had been wounded, so they did not fulfill a mandatory requirement to render medical aid and immediately start a formal investigation of the shooting. The independent investigation commissioned by the city called the Police Department’s account "unsettling and not believable."
The review also said the decision to use less-lethal munitions "may or may not have been reasonable" based on the Police Department's existing policy at the time. "We recommend that further research should be conducted to identify and evaluate other munitions that are less prone to cause injuries, but are still effective as crowd control devices," the reviewers concluded.
The review compared the city's crowd-control effort to an aviation disaster caused not by a single mistake but by "a series of cascading events." In Oakland's case, the tragedy stemmed in part from years of "diminishing resources" and "increasing workload."
The city ultimately agreed to a $4.5 million settlement with Olsen.
Once again, Oakland revised policies and training. For several years, Chanin said, the cycle of protests, shootings and lawsuits seemed to stop.
Then George Floyd demonstrations broke out, and so did the less-lethal weapons. According to a federal complaint filed in June by the Anti Police-Terror Project, Oakland officers indiscriminately launched projectiles, flash-bangs and tear gas into crowds and at individuals.
Attorneys for both sides in the case stipulated to an agreement that forbids Oakland police from using less-lethal weapons against demonstrators.
For Olsen, now tending bee colonies and chickens on a small Wisconsin farm, the memory with a hole came flooding back.
"We passed these regulations and policies to control the use of less-lethal weapons," he said. "It's heartbreaking to see other people's lives affected as mine was. … Police have shown they do not care about these kinds of controls, so the next step is to take those weapons away from them."
Elizabeth Lawrence, Hannah Norman and Liz Szabo of KHN contributed to this story.
This article was reprinted from khn.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.