Sonia Sotomayor could declare martial law on Kevin Orcutt's nunchaku
Sergeant Kevin Orcutt stands over me: "Give me your arm, please."
He says it the way stereotypical cops talk, in a monotone demand with just enough polite formality to seem like a request. I know his goal is to handcuff me, so I've clenched my body into a ball. Face to the ground, arms crossed, legs wrapped close. Like a rock, I think. You can't handcuff a rock.
Orcutt crouches and threads one end of a nunchaku under my right arm. He clamps both ends together and twists. "Arm, please, arm, please, arm, arm, arm," he says. The hard polycarbonate plastic presses into the bone and sensitive muscle beneath my biceps. I smash my face against the floor to muffle a groan. The two strands of nylon cord connecting the sticks of the nunchaku enable Orcutt to pull my arm out from under me. The pain increases as he cranks upward. Rock, meet forklift. Soon I unlock my legs and rise to my knees. He uses the nunchaku to direct my arm around my back. After I bring my other wrist around, he releases the pressure. I exhale.
Orcutt laughs and slaps my shoulder. "All I'm doing is using torque," he explains, turning the device in the air.
Seen from a safe distance, the Orcutt Police Nunchaku, or OPN, looks much the same as the traditional Japanese martial arts weapon known as the nunchaku — or "nunchucks," "chuka sticks" and the ultra-colloquial "numchucks" — that unleashed such kung fu fury in 1970s Bruce Lee films. But rather than spinning, flailing and whacking whole gangs of assailants into unconsciousness, a person wielding an OPN is using it for "restraint control" and "pain compliance" on uncooperative suspects or inmates.
So instead of numchucks, think nutcrackers.
"I'm using the tool to wrap and latch onto your limbs," explains Orcutt, this time demonstrating on one of my ankles. "You rotate it here and it accelerates the pressure, causing pretty effective pain. And even if it didn't cause a lot of pain, you're not going anywhere. You can't get up, you can't swing, you can't kick. I really eliminate a lot of your responses. And once again," he says, initiating the torque, "I want your arms. Arms, arms, arms, arms."
He doesn't even have to say "please" this time.
A black belt in jukado, Orcutt was a rookie cop in Thornton almost three decades ago when he got the idea to create the OPN as a police tool. Since then, his company has supplied an estimated 20,000 OPNs to law-enforcement agencies from California to Florida. In Denver, this specialized nunchaku can be spotted doing everything from controlling belligerent drunks in LoDo to shepherding inmates through the corridors of the overcrowded county jail.
When used correctly, the OPN can inflict pain ranging from mild to intense. For Orcutt, however, the nunchaku is not a weapon, but a "tool" or "device" that enables an officer to get immediate control over a suspect and maintain it. This means fewer injuries to officers and suspects during struggles, fewer situations where Tasers and guns get drawn, and fewer court cases involving, say, videotapes of cops beating a man with batons on the side of a road.
"A baton is not generally used as a control device. The training [the officers] had with the baton was for impact techniques," he says of the 1991 incident involving Rodney King and Los Angeles cops. "So the idea of control was not in their thought process; it was, 'Until you comply, we beat.'" If OPNs had been used to subdue King, the infamous videotape that began the sequence of events leading to the L.A. riots would instead have shown officers using their training to "scoop an ankle, fold a leg and pin him. And that would have been the end of it," Orcutt insists.
Yet Orcutt's own invention is not without controversy. In the early '90s, the nunchaku was the focus of several civil-rights lawsuits filed by anti-abortion demonstrators in California, who claimed they'd suffered excessive pain and injury when police used OPNs to remove the protesters blockading abortion clinics. But no court has ever found that the OPN causes lasting injury, "and no one has ever died from an OPN," notes Orcutt. "You're not hearing about lawsuits. You're not hearing about people dying, because the OPN is very low-profile as a tool. If police were out there swinging around like Bruce Lee, there would be articles, lawsuits and complaints. And there just isn't."
But after May 26, when President Barack Obama nominated Sonia Sotomayor to the United States Supreme Court, you were suddenly hearing a lot about the nunchaku.
During Sotomayor's July 14 confirmation hearing, Senator Orrin Hatch, a Republican from Utah, decided to get tough with her about the Second Amendment and referenced a ruling she'd made in December as part of a panel of federal judges on the U.S. Second Court of Appeals. Didn't her decision in Maloney v. Cuomo mean that any state or municipality could create its own complete ban of a weapon?
Sotomayor: Sir, in Maloney, we were talking about nunchuk sticks.
Hatch: I understand.
Sotomayor: Those are martial arts sticks.
Hatch: Two sticks bound together by rawhide or some sort of a...
Sotomayor: Exactly. And — and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull.
Though her words sounded grave, as she spoke them into the microphone, Sotomayor looked as calm and content as one of those smiling Buddha statues, even twirling her hand in the air at one point to illustrate the movement of said "nunchuck sticks." The media and the blogosphere jumped on the exchange as a moment of levity in a very weighty day. The Tonight Show With Conan O'Brien produced an infomercial parody of Sotomayor selling the face-bashing nunchucks spliced with clips of Bruce Lee. "When they outlaw nunchucks only outlaws will smack themselves in the head/groin with 2 sticks connected with rawhide!" wrote a blogger on Daily Kos. A Huffington Post blogger quipped, "I suppose Republicans worry that there's a slippery slope between 'they're taking our nunchucks!' and 'they're taking our guns!' Or something."
Actually, that slippery slope was exactly why the National Rifle Association and other gun-rights groups opposed Sotomayor's nomination. What the chuckling commentators couldn't seem to grasp was that this silly case involving nunchaku could have significant implications for the ability of state and local governments to restrict the possession of guns and other weapons.
The Maloney in Maloney v. Cuomo is an attorney in New York. In 2000, police searched his Long Island home after a phone-company worker mistook a telescope Maloney was peering through for a rifle. They didn't find any guns, but they did find a pair of nunchaku. Maloney had been interested in martial arts since he was a teen, and he practiced with the nunchaku for both exercise and increased dexterity. It was also his preferred weapon for self-defense. "You go to sleep, you're worried about a home invasion, you don't want to have a shotgun by your bed because, you know, that's a little overkill," he explains. "A pair of nunchaku I can leave tucked under my mattress 24/7, with very low risk that my kids are going to pick them up and blow their brains out. So they're handy."
Maloney was charged with a possession of a dangerous weapon, punishable by up to one year in prison.
In 1974, New York politicians had become alarmed that the devices seen in popular martial arts movies were being used by street gangs and young criminals. One assemblyman wrote the governor about the "chuka stick," a particularly dangerous weapon that "has no other purpose than to maim or, in some instances, kill." The state swiftly added the nunchaku to its list of banned weapons, which, at the time, included blunt-force instruments like brass knuckles and blackjacks. While California enacted a similar law, New York is the only state with an all-encompassing ban on nunchaku. It's illegal to buy or sell them, illegal to make them, illegal to perform with them at martial arts demonstrations and illegal to keep them in your own home.
The law made no sense to Maloney. "In New York, anyone who doesn't have a criminal record and can fill out the federal forms at a gun shop can buy a shotgun and have it in their home," he says. "And a shotgun is a whole lot more dangerous weapon than a pair of sticks connected by a cord."
More than 30,500 Americans died from firearms in 2006, according to a National Vital Statistics report put out by the Centers for Disease Control. There are no national statistics on nunchaku-related deaths, and a news database search for "nunchaku" and "death" turns up just one report of a person who died in the U.S. after being struck by a nunchaku, back in Ohio in 1987.
After three years, Maloney was able to get the weapon charge dropped when he pleaded guilty to disorderly conduct. He then sued New York State on the grounds that the nunchaku ban violated his constitutional right to bear arms. The Second Amendment, once the province of pry-it-from-my-cold-dead-hands gun lovers, suddenly became a rallying point for nunchaku enthusiasts; Maloney himself is the founder of NARNIA, the National Alliance for Relief from Nunchaku Intolerance in America.
But when his case finally made it to the Second Circuit, Sotomayor and her fellow federal judges ruled against Maloney. Since the Supreme Court has never ruled that the Second Amendment applies to states, all the court could do was judge whether New York was rational in banning nunchaku as an unusual and dangerous weapon. (Although last year the Supreme Court did overturn parts of the Washington, D.C., handgun ban, the constitutional right to bear arms was deemed relevant because the capital is a federal enclave, not a state.)
Sotomayor elaborated on her decision during her confirmation hearing. Nunchaku "can cause not only serious, but fatal damage," she said. "So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court — because the Second Amendment has not been incorporated against the state — was, did the state have a rational basis for prohibiting the possession of this kind of instrument?"
Maloney's argument against that assertion: the Orcutt Police Nunchaku.
David Kopel, research director for the Golden-based Independence Institute and a Second Amendment expert, flew to Washington to testify at the Sotomayor hearing. Sotomayor's statements and rulings on the nunchaku strike him as "pure declaration" rather than "legal analysis," Kopel says. She essentially said "the ban is rational because [nunchaku] could injure someone," he explains. "That's a rationale that would allow the banning of any gun, bows and arrows, knives, martial arts equipment or, for that matter, baseball bats."
Kopel, too, thinks the OPN is a good argument for why New York's total ban on nunchaku goes too far. "The fact that police officers use nunchaku shows that there's another example of how they have many, many legitimate uses," he says. "Nobody ever claimed that Maloney was going to do anything wrong. All he wanted to do was peaceful martial arts practice. That was undisputed."
Maloney has cited Orcutt many times in written and oral arguments over the years, including a current petition for his case to be heard by the Supreme Court that uses the OPN as an example of how nunchaku are used for "control of and/or self-defense against unarmed attackers." In his effort to get his case heard before the Supreme Court, Maloney says, "I would probably need testimony from someone like Kevin Orcutt."
If the justices side with Maloney and throw out New York's ban on nunchaku, their ruling could trigger a flood of lawsuits across the nation from people arguing that other bans on weapons ranging from assault rifles to switchblades violate their now-incorporated right to bear those arms.
Orcutt not only agrees that his device has "effectively demonstrated the nunchaku's other uses for law enforcement," but he argues that the OPN often acts as a preventative measure to the kind of skull-cracking violence so vividly described by Sotomayor. And he backs this up with a litany of scenarios: a handcuffed suspect is kicking at cops from the back of a patrol car, an estranged husband refuses to release his bear grip on a crying infant, an intoxicated man says he's cooperating but continues to strain against an officer's grip, a mentally ill woman resists coming out of a closet cluttered with unknown items. Such situations could end quickly or end badly — and the primary function of the OPN is to eliminate any wiggle room for escalation. "Restraint and control is the ultimate objective with these," Orcutt says.
Still, since nunchaku can be used for blunt force, Orcutt is supportive of laws that prohibit nunchaku as concealed weapons or being used with intent to commit a crime — as is the case in many states, including Colorado. But he thinks that the New York law that snagged Maloney — and got Sotomayor on the record — is excessive. "A guy has a pair of nunchaku under his bed at his own home and suddenly he's a criminal?" Orcutt says. "Come on."
Had Kevin Orcutt gone to high school in New York rather than Colorado Springs, he might have found himself tempted to break the law. As a senior at Air Academy High School, he began taking martial arts classes at the local community college. "I was a big fan of Bruce Lee," Orcutt remembers. "I was no different than anybody else." But it was his sensei, a master in judo and aikido, who really sparked Orcutt's passion for martial arts. He learned defensive tactics, how to use an opponent's force against him. And when it came time perform his kata to earn his blackbelt, Orcutt chose the nunchaku as his demonstration weapon.
Orcutt majored in law-enforcement studies at Metropolitan State College of Denver, then went on to the police academy and a brief stint with the Wheat Ridge Police Department before transferring to the Thornton Police Department. All along, he continued with his martial arts training — and it gave him some ideas for how police work could be improved.
"When I finally got on the street, I would see these confrontations with officers trying to get someone in cuffs," he recalls. It seemed to him that there was no real process, other than a broad notion that the individual should be brought to the ground. But once there, the event commonly became a "pig pile," with officers struggling to grab legs and arms. "And because you usually had more officers than bad guys, the officers generally won," he adds. "But that doesn't mean you didn't have twisted knees, sprains, scrapes and other injuries."
The nunchaku might provide a way to avoid those problems, Orcutt thought, and he checked out every book in the library he could find. While scholars agree that the weapon emerged in Japan in the seventeenth century, its precise origin is still a matter of debate. Popular belief holds that the nunchaku got its start as either horse bridles or flails for threshing rice that were adapted into weapons by residents of Okinawa after samurai occupiers banned traditional arms. The martial arts books that Orcutt consulted showed nunchaku primarily being used for striking an adversary at close range. There were a few examples of "wrist wraps" to trap an opponent, but that was where the tactic stopped; there was no follow-through.
Orcutt began adapting the method to police work, making the wrap just one step in a process that ended with handcuffing. The crimp provided by the nunchaku could also serve as what police call a "come-along" tool to direct detainees from one place to another. He shared his ideas with the Thornton police chief, who allowed him to do a study with fellow officers using a prototype nunchaku. Orcutt's design featured raised bands of plastic on each stick and a length of cord that allowed for a locking, "wrap-around effect" on a wrist or ankle.
The device worked so well, the Thornton PD decided to issue it to all officers. In 1984, Orcutt got a patent for his invention, found investors and began marketing the device to other law-enforcement agencies. Unlike the popular side-handle baton, the OPN could be attached to a belt — a big advantage for cops getting in and out of cars all day.
In 1988, the San Diego Police Department started its own study of the OPN. After three months, the officers testing it reported 312 uses for the OPN, only ten of which involved impact. Police administrators, who were looking for ways to reduce controversial use-of-force lawsuits, were so pleased that they canceled the last month of the study and began training all their officers in how to use the OPN.
The OPN came in handy when the San Diego police had to deal with members of the radical anti-abortion group Operation Rescue, which had started a national campaign to disrupt abortion clinics through passive resistance. As many as 300 protesters would turn their bodies into a blockade, shutting off clinic entrances and ignoring police orders to vacate. It was a tactic taken straight from the books of Martin Luther King and Mahatma Gandhi: If police try to remove you, go limp; if they hit you, don't strike back. Meet their violence with non-violence. As the civil rights and anti-war protests of the '60s and '70s had showed, one stark image of a cop clubbing a peaceful demonstrator could bring more attention and sympathy to a cause than a thousand letters to the editor. The Operation Rescue protests presented police departments not just with a political challenge, but a logistical one: How do you physically remove 300 limp bodies without officers injuring their backs and necks from sheer lifting alone? The potential workers' comp claims alone seemed daunting.
The answer appeared on the front page of the April 11, 1989, San Diego Union-Tribune: a photo of officers using OPNs leading anti-abortion protesters away. The next day, Orcutt got a call from the Los Angeles Police Department; in L.A., crowds of 2,000 anti-abortion demonstrators were greasing their bodies with oil and taking muscle relaxants to thwart any attempt to remove them from clinic grounds. Orcutt sent a batch of OPNs to L.A., too. Soon he was talking about his invention in the pages of People magazine and during a live appearance on CBS This Morning. At one point, he was supplying his nunchaku to more than 200 agencies.
But the OPN had its critics, too. A Catholic bishop called the nunchaku a "torture device." One morning, Orcutt remembers, he was flipping through the TV channels when he caught televangelist Pat Robertson calling the OPN "the devil's tool." By January 1990, the debate over the use of the nunchaku had turned traditional political alliances on their heads. Pro-choice liberals, who once might have experienced the brunt force of the police during earlier demonstrations, were suddenly cheering on officers from the sidelines of anti-abortion demonstrations. A meeting of the California ACLU chapters erupted into a raucous debate when they couldn't reach consensus on whether Orcutt's nunchaku fit within their guidelines. Meanwhile, conservatives were lashing out at police departments for their brutality against Operation Rescue demonstrators. Then-senator William Armstrong (now the president of Colorado Christian University) decried the pain-compliance tactics as "something we expect to hear about in Nicaragua or Nazi Germany — but not in the United States of America." The conservative Coloradan introduced a bill that allowed the federal government to withhold funds from cities that didn't adopt policies prohibiting the use of excessive force by law-enforcement agencies against individuals engaged in non-violent civil-rights demonstrations; President George Bush signed it into law in 1989.
Operation Rescue filed federal lawsuits against both San Diego and Los Angeles on the grounds that the pain-compliance tactics used by their police departments constituted excessive force; some protesters claimed they had suffered lasting pain and injury from use of the OPN. The cases were watched closely by police departments and civil-rights attorneys across the country, since they dealt with a legal question that had not yet been determined by the courts: Could police inflict pain on non-violent individuals during arrests? Law-enforcement policy on officer use-of-force had always been measured against the yardstick of justification. Cops could legally kill, for example, but only if they perceived their lives to be in danger. They could punch a suspect in the nose, but only if that suspect was threatening the officer with his fists. As the threat level declined, so did the scale of justified force. So what about when the lawbreaker posed no physical threat to an officer but was actively resisting by becoming passive and limp?
The San Diego case went all the way to the Ninth Circuit Court of Appeals in San Francisco. While perceived by the legal community to be the most liberal federal circuit, in 1994 the Ninth Circuit upheld a lower court ruling that police had not used unreasonable force in the anti-abortion protests: The pain caused by the OPN was justified because it amounted to a "controlled force" that could be adjusted as the subject began to comply. The landmark ruling set a precedent that pain-compliance techniques could be used to effect control of non-violent suspects.
But for Orcutt, it was a vindication that came too late.
In 1992, Los Angeles had settled its Operation Rescue lawsuit by agreeing to no longer use the OPN on anti-abortion protesters. The "political climate" in the wake of the Rodney King riots helped convince L.A. to settle, a city attorney said, even though no OPNs were involved in that beating. "The department is concerned about the public perception of their using a tool some people feel is a tool of excessive force," he told the Los Angeles Times.
"Even if you think Operation Rescue is the worst group in the world, you'd have to agree that, if this is allowed against them, it will be used against the Rodney Kings of the world," pronounced one of Operation Rescue's lawyers.
The Operation Rescue lawsuits and Rodney King controversy cooled California on trying innovative police tactics. And for years, police departments across the country were unwilling to even consider adopting new tools, particularly seemingly exotic ones like the nunchaku.
"It wasn't so much about OPNs, because they weren't involved, but everybody just shut down — every department," Orcutt says. "They wouldn't look at anything, they wouldn't do anything, they wouldn't change anything, because they were afraid. For years after Rodney King, I couldn't get anyone to even look at this thing: 'Maybe in a few years we'll take a look, but for right now the chief isn't going to do anything.' Just when this device was starting to take off."
In the late '90s, though, the law-enforcement industry was suddenly electrified by a new "non-lethal" weapon. This updated Taser model required less training than the OPN and was effective at subduing more violent suspects; it was also less lethal than a gun. Many police departments that wouldn't look at the OPN decided to try the Taser. And soon the retractable baton was introduced, too. Part of the OPN's appeal had been its size, but the retractable baton is even smaller than the nunchaku, even though it can extend to several feet. The retractable baton, too, requires less training, which is appealing to cash-strapped departments that want a tool every officer from rookies to veterans can pick up and use.
Orcutt himself is one of the Thornton PD's Taser trainers. The Taser is a useful weapon in some circumstances, he says, but high-profile deaths and lawsuits have caused many departments to review their use-of-force guidelines regarding the shock device. When deciding to tase a suspect, officers have no way of knowing if that person has a heart condition, for example. Often people getting into fights with police have consumed drugs or other intoxicants; they're sometimes flush with adrenaline. And then their body gets hit by 50,000 volts. "The problem for us as law-enforcement officers is we don't know how much drugs you've got in your system," Orcutt explains. "When we contact you, we've got to get control of you, but when a death occurs, we're put under scrutiny for how we used it."
There are also times when a Taser simply isn't appropriate, such as in tight quarters, or when other officers might get electrocuted. "I don't consider it physical control," Orcutt explains. "I consider it a stunning effect for a brief period, now under extreme scrutiny and limitation. For most people, that's enough and they'll cooperate. But there are some who'll take one after another. They're drunk enough, dumb enough, stubborn enough, whatever. Now when you get into multiple cycles with that Taser, the risk factor starts to get higher and higher that something bad could happen."
In June, Larimer County agreed to pay $225,000 to the family of a 35-year-old man who died after being tasered by officers in 2005; the coroner's office found that his death had been caused by the electrical shock combined with drugs in his system. Another Taser suit is pending against Lafayette, filed by the parents of a 22-year-old man who was tasered while running from police. In this case, the coroner's office cited a mix of physical exertion, electrical shock and an irregular heartbeat caused by a pre-existing heart condition as the cause of death.
Although no death or even serious injury has been directly attributed to the OPN, there have been several instances where an OPN was involved in the death of suspect. The most controversial was in 1999, when former pro football player Demetrius DuBose was shot dead by police in San Diego. Police had been called after the former Buccaneers linebacker entered a neighbor's house and fell asleep. Questioned by the cops, DuBose refused to be handcuffed and tried to flee. Officers used pepper spray and nunchaku in an attempt to restrain him, but during a scuffle, DuBose managed to take both officers' nunchaku away. Then, as he appeared to be advancing toward them with the weapons, the officers shot him twelve times.
An autopsy showed that DuBose had alcohol, cocaine and ecstasy in his system and that he was killed by the gunshots, not the OPNs. But a federal civil-rights lawsuit filed by the family questioned the amount of training the officers had been given in the use of the OPNs and claimed that poor training had increased the chances of the confrontation turning deadly. A jury cleared the officers and the department of wrongdoing in 2003, but in San Diego, once Orcutt's biggest market, the weapon took another blow from all the publicity.
The Denver Sheriff Department made the OPN standard-issue in 1990, and it's proved invaluable ever since, according to Bill Lovingier, director of corrections. "It puts a handle on a bag of cement," he says. "It's very difficult and awkward, but this really closes that gap. It's an effective tool for pain compliance without causing significant injury, really no matter where it's applied."
Once a captain at the county jail, Lovingier remembers a time when two inmates were fighting. "They were really bear-hugging at some point, but they're trying to strike each other laying on the floor," he says. "I applied it to an individual's leg and pulled back, and he couldn't get away quick enough from the other guy."
The Denver Police Department finally adopted the OPN in 2000 after several years of lobbying by Captain Eric Rubin, who runs the city's police academy. "It has the ability to put a very quick end to an altercation," he says. "We don't want to have a prolonged fight with someone." He estimates that more than 150 officers have opted to go through the training required to carry the tool, though not all of them ultimately chose to use the nunchaku, since it comes with continuous training requirements. Over the last seven years, Denver sheriff and police officers have filled out 262 use-of-force reports for incidents involving an OPN. But Richard Rosenthal, director of the Office of Independent Monitor, who oversees any complaints filed by citizens, says he's not aware of "single sustained complaint against an officer or deputy for use of that instrument."
The OPN was among the tools that the DPD and other agencies planned to use to handle the 50,000 protesters rumored to be coming to Denver for the Democratic National Convention last August. The DPD pulled in Orcutt to train officers on how to use the OPN to control passive demonstrators; he spent a week offering several trainings each day. "Not every police officer gravitates to this device immediately," he explains. The main focus of the training involved the possibility that protesters would link arms to create blockades that would stop traffic. Orcutt had the officers sit on the ground and instructed them to do everything possible to not get pulled apart. Then Orcutt came in, slipped one end of an OPN around an arm or leg and quickly disassembled the group, officer by officer.
But the overflowing mass of demonstrators predicted by protest groups failed to materialize, and the glut of officers on the streets were already loaded with shields, batons and chemical sprays. No one needed to use an OPN, and there were no front-page photos giving Orcutt's invention free advertising.
Orcutt is hoping to retire from the force soon, at which point he can devote himself to promoting his nunchaku full-time. And if Maloney has his way, some of Orcutt's OPN promotion will take place from the witness stand while building his case for the Supreme Court. "There's no Bruce Lee 360 spins, curls or figure eights with these," Orcutt says. "If Sonia Sotomayor could see a demonstration of this weapon from someone like me, I think she might have a different opinion about how nunchaku can be used."
His favorite demonstration involves having a person lying face-down on the ground, trying to fight being handcuffed. The person is not a threat, Orcutt points out, "so you can't strike them. And you can't taser them. With the OPN, I won't touch you. I won't hit you. But I will get your arm."
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