Daily Archives: November 23, 2011

Cooling off with pepper spray decision

After yesterday’s hot exchange of comments over Honolulu’s proposed rail system, I think I’ll try to cool things down by taking another look at the use of pepper spray against peaceful protesters.

A comment in response to Monday’s post pointed to a decade-old decision by the 9th Circuit Court holding the use of pepper spray against nonviolent protests an unlawful excessive use of force, and officials who ordered its use were not immune from civil lawsuits (HEADWATERS FOREST DEFENSE v. COUNTY OF HUMBOLDT).

Protesters at the center of that case linked themselves together using a locking device referred to as a “black bear.” When they refused to move, officers used pepper spray. The protesters sued.

From the court decision:

During three nonviolent protests against the logging of ancient redwood trees in the Headwaters Forest, plaintiffs-appellants (“protestors”) linked themselves together with self-releasing lock-down devices known as “black bears.” ? A “black bear” is a cylinder with a rod or post welded into the center. The protestors placed their arms into the steel cylinders and attached steel bracelets worn around their wrists to the center rods or posts in the “black bears” by using mountain climbers’ carabiners. ? When in place, the devices immobilized their arms and prevented their separation, although the protestors could disengage themselves from the devices by unclipping the carabiners from inside the cylinders. ? From 1990 until the fall of 1997, defendants had forcibly, but safely, removed hundreds of “black bears” from protestors’ arms by cutting the cylinders with a hand-held electric grinder.

Beginning in the fall of 1997, defendants began using olesoresin capsicum aerosol (“OC” or “pepper spray”) to cause the protestors to release themselves from the “black bears.” The use of pepper spray under these circumstances was entirely unprecedented: ?in California, its use was “limited to controlling hostile or violent subjects” and it had never been used in Humboldt County, the State of California, or anywhere in the country against nonviolent protestors.

The decision continued.

Defendants asserted at trial that the protestors’ use of “black bears” constituted “?‘active’ resistance to arrest,’?” meriting the use of force. ? The Eureka Police Department defines “active resistance” as occurring when the “subject is attempting to interfere with the officer’s actions by inflicting pain or physical injury to the officer without the use of a weapon or object.” 240 F.3d at 1202-3. ? Characterizing the protestors’ activities as “active resistance” is contrary to the facts of the case, viewing them, as we must, in the light most favorable to the protestors: ?the protestors were sitting peacefully, were easily moved by the police, and did not threaten or harm the officers. In sum, it would be clear to a reasonable officer that it was excessive to use pepper spray against the nonviolent protestors under these circumstances.

Defendants’ repeated use of pepper spray was also clearly unreasonable. ? As we recently concluded, the use of pepper spray “may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.” ?LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir.2000) (emphasis supplied). ? Because the officers had control over the protestors it would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control, and even less necessary to repeatedly use pepper spray against the protestors when they refused to release from the “black bears.” It also would have been clear to any reasonable officer that the manner in which the officers used the pepper spray was unreasonable. ? Lewis and Philip “authorized full spray blasts of [pepper spray], not just Q-tip applications,” despite the fact that the manufacturer’s label on the canisters of pepper spray defendants used “?‘expressly discouraged’ spraying [pepper spray] from distances of less than three feet.” 240 F.3d at 1195, 1208.

Based on the 9th Circuit decision, the lawsuit went back to court and, in the end, a unanimous verdict by a federal court jury found the county and its officials liable for the unconstitutional use of excessive force. There’s a lot more information about the case on that website.

This brings up the question for us again–what is the Honolulu Police Department’s policy for use of pepper spray and other incapacitating weapons? Do they comply with the guidelines suggested by this 9th Circuit case, which likely remains the controlling law in this judicial circuit.

As an aside, former Honolulu reporter Rick Daysog, now writing for the Sacramento Bee, was dispatched to the UC Davis campus to cover the aftermath of the pepper spray incident.

For more about pepper spray, check out this post from a Scientific American blog.