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Cooling off with pepper spray decision

November 23rd, 2011 · 6 Comments

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.

Tags: Court · Crime · Politics

6 responses so far ↓

  • 1 Kolea // Nov 23, 2011 at 11:33 am

    I read the 9th Circuit’s ruling when the link was first shared the other day. I fear the 9th Circuit may be out of touch with dominant thinking across the US judiciary and the dominant attitude with police departments across the country.

    It appears most cops have no trouble with the pepper spraying of non-violent demonstrators. A large segment of the public has been disturbed by recent police tactics, but I worry they may simply adjust their expectations of what is acceptable levels of repression rather than exert the sort of pressures which might force the cops to back off.

    Many of these “non-lethal” methods for inflicting pain were initially justified as softer alternatives to more brutal techniques. But once introduced, they often replace less brutal methods. The use of pepper spray, tear gas, tasers, concussion gernades, batons, “rubber” bullets, etc., is becoming normalized and there is a risk police departments, the public AND THE COURTS will come to view it as acceptable.

    Having visited countries under the control of genuine fascist dictatorships, I object to the easy way in which the word is used so casually by folks angry about police repression and domestic surveillance. The US is not fascist. But we are at risk of moving in that direction, as the economic disruptions continue to destroy the more benign social ties and make life more brutal. I see signs of semi-fascist attitudes gaining more and more influence within the Republican Party, forcing their leaders to mouth inane positions with little fear of it affecting their electability–at least, within Republican primaries. Much of Fox News could continue, unaffected, if open fascists were to seize control of the State.

    The leading bloc within the US Supreme Court also represents a semi-fascist outlook, as we saw with their celebration of the Executive Powers of the Commander-in-Chief–at least, while the position was held by one of their fellow reactionaries. With Obama in charge, not so much enthusiasm for the “unitary executive.”

    That section of public opinion which is, for now, shocked by the police repression we see in the videos, is our best bulwark against creeping fascism. If they get habituated to it, we face an even bleaker future.

  • 2 Mark // Nov 23, 2011 at 12:42 pm

    Good points and conclusion Kolea. In regard to “creeping fascism” the coordination of responses by the municipal leaders and involvement of Federal Agents in the crackdowns is a deep concern. Both Mayors Quan and Bloomberg stated that they had networked with 18+ other mayors before the unilateral escalation of violence against protestors. Other reports investigated if agents from Homeland Security had influence in NYC and perhaps elsewhere.

    So after ignoring the protestors, then slandering them through media, the current establishment tactic seems to be to inhibit more people from joining the protests for fear of violence against them by police. What might the next escalation of repression tactics involve?

    On the legislative end, attempts at disabling the internet have been in full swing. A major one known as the Blacklist Bill was defeated by the Senate this past week. Lobbyists are attempting to make ISPs liable for enforcement of copyright laws across their platforms. This would have the effect of eliminating net neutrality and openness.

    All these things together could indeed be a slippery slope toward fascism, should be monitored and stopped. The Occupy Movement will in time be a process that re-imagins the functions of US government and character of our society. We should protect, encourage, respect and support US youth as they figure our how to create a new civics and our more functional, fair and uncorrupt future.

  • 3 hugh clark // Nov 23, 2011 at 1:48 pm

    I am a product Humboldt State and worked five years in news in Eureka and I know the Redwood territory well.

    Cops and sheriff people there have a checkered record, at best. Even district attorneys have proven less than desirable people.

    In a general way, I think law enforcement is enamored by new tools — pepper spray or taser guns. I agree they are less lethal means of protecting legitimate law enforcement efforts. I think, however, there is a hair-trigger mentality out there.

    Better training and better screening might cure many of these issues.

  • 4 Richard Gozinya // Nov 23, 2011 at 5:56 pm

    Kolea: “I fear the 9th Circuit may be out of touch ”

    Truer words were never spoken.

  • 5 Palolo lolo // Nov 23, 2011 at 8:35 pm

    If the police have things-guns,rubber bullets,pepper spray,tanks-http://www.americablog.com/2011/11/tampa-police-hosts-to-occupy-tampa-rnc.html
    they will use them sooner or later.

  • 6 Kolea // Nov 24, 2011 at 9:08 am

    @Richard,

    The 9th Circuit has a history of being more liberal than the other circuits, but that may be to their credit, as the Federal courts have been packed with conservative “activist judges” over the past few decades.

    I hope you do not think it is excessively “liberal” for them to rule that police need restraint before resorting to pepper-spraying non-violent protestors?

    Above, I used quotation marks around the phrase “non-lethal” when speaking of some of the methods police have come to use to force compliance with their wishes. I did that because all these methods are USUALLY non-lethal, but sometimes cause the death of the target, something the “non-lethal” term masks. BY coincidence, I came across this article this morning about an elderly, deaf, disabled man killed by being tazed by a NC cop while he was riding a bike:

    http://www.wral.com/news/local/story/10415249/

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