The Bottle and the Wind
At 01:20 Agent Duarte responds to a bar's lot where a man, 6'4" and roughly 260 pounds, is swinging a broken bottle at the air and yelling at patrons. Two women stand within 8 feet, filming. Wind is about 15 mph blowing from the man toward Duarte and his partner. Duarte has OC (a 5% MK-3 canister, about 3 years old, not shaken recently), a baton, and handcuffs. He closes to 10 feet and deploys a one-second burst at the man's face. The spray drifts; the partner and one of the women begin coughing. The man drops the bottle, is handcuffed prone, and says "I can't breathe" repeatedly. He is kept prone for 6 minutes until EMS arrives. He is later found to have asthma and a blood alcohol of .21.
1. Was OC an appropriate force option here, and what should have been done differently in the deployment itself?
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The selection: a broken bottle swung at people is an impact weapon capable of laceration and serious injury, so an intermediate, non-deadly tool is defensible in principle. The man outweighed Duarte substantially and was armed with glass - hands-on control would have been worse. The choice of OC is defensible; the execution is not.
What went wrong:
- Wind. 15 mph blowing from the subject toward the agent means every burst is a cross-contamination event. That was observable before the canister came out.
- Bystanders. Two women within 8 feet. The foreseeable effects on them were never weighed.
- Positioning. Duarte's correct move was to reposition crosswind or upwind, put a vehicle between himself and the man, and use distance and voice to hold the man while backup closed.
- Canister. A 3-year-old canister that has not been shaken may be weak or near expiration. Check dates and shake the canister before the shift, and know the pattern of your own tool.
Better sequence: cover and distance first; loud, single commands to drop the bottle; move the women back; coordinate with the partner so one covers and one sprays; then a short burst at the eyes from a position where the drift goes away from everyone else, and move after spraying - spraying and standing still is how you get cut.
Legal frame: the force must be proportional to the threat and must not create unreasonable risk to bystanders. Contaminating a crowd is a force decision, not an accident.
2. Evaluate the six minutes of prone restraint. What medical risks were present and what should have been done?
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The risk stack in this one subject:
- Positional asphyxia - a 260-pound man handcuffed prone, with weight and time against him.
- OC exposure - burning, tearing, and bronchoconstriction; the airway is compromised before the restraint even starts.
- Asthma - unknown at the time, but a history of respiratory disease is common and must be assumed once a person says they cannot breathe.
- Alcohol at .21 - depressed respiratory drive, poor judgment, reduced ability to report distress accurately, and an elevated risk of aspiration.
The rule: "I can't breathe" is a medical emergency and a statement of fact, not a negotiation. It ends the prone position.
What should have happened:
- Get him off his stomach as soon as he is controlled - seated, semi-seated, or on his side. No knee on the back, neck, or chest at any point.
- Continuous monitoring - breathing, color, responsiveness, speech, and repeated checks. Assign one person to that task and nobody else.
- EMS early, not at six minutes. Ask the man if he has asthma, medical conditions, medications.
- Talk to him - coaching breathing calms the subject and gives continuous evidence of airway status.
- Document verbatim what he said and when, what was done in response, and the time EMS was requested and arrived.
Why it matters: a death after restraint is investigated as a homicide until proven otherwise, and the difference is usually the position and the delay in recognizing distress - both of which are decided by the agent on the scene.
3. What decontamination duties exist, and how should the use-of-force report be structured?
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Decontamination - for the subject:
- Move him to fresh air, keep him upright, and do not let him lie down and rub his face.
- Water for flushing if available; remove contaminated clothing; do not rub the eyes; remove contact lenses if present and easily removable.
- Do not let him hold his face or touch his eyes with contaminated hands; avoid transferring spray to your own face when handcuffing.
For the partner and the bystander:
- Same fresh air and flushing; note in the report that they were exposed and what was offered.
- Decontaminate or change the partner's contaminated gear before he drives or handles prisoners.
- Note the women's exposure even if they refuse aid - refusal must be documented.
Report structure:
- Threats as perceived - bottle, size, proximity of bystanders, commands given and whether they were followed.
- Options considered and rejected - hands-on, baton, disengagement, waiting for backup - and why OC was selected.
- Deployment specifics - distance (10 feet), duration (one second), number of bursts, wind direction and speed, canister percentage and expiration, whether it was shaken.
- Effects - on the subject, on the partner, on bystanders.
- Post-force care - position, monitoring, statements made, EMS request and arrival times, aid offered.
- Evidence - the canister, the bottle, and any phone footage the women shot; identify them as witnesses.
Professional habit: write the report as if the canister, the footage, and the medical records will all be read against it. Vague descriptions of OC deployment are what turn a justified response into a sustained complaint.