Pepper Spray Incidents Backfire In California and Oregon; When Is Pepper Spray Excessive Force?

Occupy LA protesters march on November 17, 2011 in Los Angeles, CA.

Occupy LA protesters march on November 17, 2011. Credit: shalunts / Shutterstock.com

It’s been a week of escalation in the Occupy Wall Street movement, with police actions being coordinated across the country, allegedly with assistance from the U.S. Department of Homeland Security. No aid in sniffing out that story from the MSM, by the way.

But two pepper spray incidents, one in California and one in Oregon, have backfired in the court of social and alternative media public opinion. It remains to see if officers will be disciplined, but the California incident seems a clear case of excessive force based on decisions made by the U.S. Court of Appeals, Ninth Circuit.

Portland, Oregon

In Portland, Oregon, 20-year-old Liz Nichols was being crushed between riot police and mounted police when she was pepper-sprayed in the face at close range.

“It felt like my face, ears and hands were on fire,” she said. [...] Next time you get pepper sprayed, keep your mouth shut, she said [the police] told her.

The photo, as you can guess, went viral.

Portland Police Chief Mike Reese “said his bureau will be reviewing video of the incident.” In NY City, a police commander who used pepper spray against OWS members in the early days of the protest was found to have “used pepper spray outside departmental guidelines.”

In Eugene, OR, a policy that went into effect in 2000 authorized the use of pepper spray “only on individuals who may harm themselves, officers, or others.” That was certainly not the case with the 5-foot-tall Nichols.

Davis, California

At UC Davis, one of the top 10 public universities in the country, students responded to the pepper-spraying of peaceful protesters by peacefully forcing the officers to retreat. According to the #OccupyDavis blog, in addition to the seated protesters who were sprayed, “reporters from CBS13 were pepper sprayed, and reporters from the campus paper, the Aggie, were hit with batons.”

UC Davis spokesperson Karen Nikos told the Sacramento Bee that, “35 to 45 UC Davis and city of Davis police officers … confronted approximately 50 protesters. She said the crowd grew to about 200 people, including many spectators.” The California Regents recently approved a 9 percent hike in a behind-closed-doors vote.

An assistant professor has called for Chancellor Linda P.B. Katehi to resign.

No word yet on disciplinary action for UC Davis Police Lt. John Pike, the officer who wielded the spray can “as if he’s dousing a row of bugs with insecticide.” KCRA reported that at least one woman left the scene in an ambulance because of chemical burns.

Note that at least in Connecticut, police and corrections officers are directed to use pepper spray in short 1-second bursts (pdf). That is not what officer Pike did at UC Davis. In addition, in Connecticut, use of pepper spray is predicated on a “reasonable belief that there is a need to defend himself or a third person from the use or imminent use of physical force.” Of course, that condition is not evidenced at UC Davis, either, (the students were seated) although it is one of the factors the courts use to judge whether an officer engaged in excessive force.

Watch this clip from UC Davis to see how those additional 150 acted. Stay with it ’til the end. You may be inspired.

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There’s More

On Tuesday night in Seattle, a 4-foot 10-inch, 84-year-old woman, a priest and a pregnant woman were among those doused with pepper spray. The protesters were blocking downtown intersections during rush hour. About 600 demonstrated Thursday night during the National Day of Action where “police were hardly noticeable.”

Here is a first-hand report from freelance report Ansel Herz (also two YouTube clips on his site) who was among those pepper-sprayed Tuesday night. He was trying to film Seattle police piling up on a protester who had been standing on the sidewalk as police continued to push the protesters back away from the street:

When one protester seemed to puff his chest out aggressively, face-to-face with a cop, they grabbed him [and pulled him] behind their police line and seemed to pile on top of him. As I tried to get it on camera, I was hit with a blast of pepper spray directly to the face. I saw it as it reached my eyes…. I wandered in a daze over to the “triage” area, where my eyes were doused a few more times, providing fleeting relief from the pain. But I couldn’t see much of anything and my whole upper body felt like it was on fire for a good 40 minutes, with a recurrence earlier this evening. [...]

Still smarting from the pepper spray, I engaged police officers, including a Sergeant, in conversations later Tuesday night. I told them I had essentially been assaulted while obeying police orders and exercising my rights. They had failed to do their jobs. The officers were polite – one even offered me some chocolates – but none of them apologized or admitted any fault at the time.

What Is Pepper Spray?

Pepper spray, known as Oleoresin Capsicum (OC), is a chemical weapon designed to irritate the eyes and inflict pain; it also affects the respiratory system should it be inhaled.

Its primary ingredient comes from capsicum, the pepper family of plants. Their fruit varies in hotness, from the no-tingle bell pepper to the eyes-burning chili pepper. Capsaicin is the chemical responsible for the spicy heat of the pepper; this heat is measured using the Scoville scale. Pure capsaicin has a Scoville heat unit of 15–16 million; law enforcement grade pepper spray has a Scoville heat unit of 5-5.3 million. The Pimento, Peperoncini and Banana pepper peppers have a Scoville heat unit of 100-900. Tabasco and Cayenne peppers are 30,000-50,000; Tabasco sauce (original) is 2,500-5,000 heat units.

As an agent of pain, pepper spray was adopted by the U.S. Postal Service in the 1980s as a dog repellant (pdf).

Non-Lethal But Sometimes Excessive Force

Pepper spray use by police is considered non-lethal force.

In a ranking of police officer use of non-lethal force in a study of 7,512 arrests (pdf), deploying pepper spray ranked 45.9 on scale of 1 (no action) to 82 (use of handgun); the average ranking was 30.0.

Techniques ranking lower (ie, should be deployed first) included use of handcuffs, threaten use of chemical agent or baton, pressure hold, twisting an arm, kick or hit suspect, or chase suspect in a car. As you can see from the YouTube clip, the situation on campus was not one where these earlier actions in a use of force continuum had been deployed.

The Ninth Circuit Court (August 26, 2011, pdf) describes the factors that must be considered when evaluating a claim of excessive force (emphasis added). The situation on campus fails here, also:

The Ninth Circuit then addressed the plaintiffs’ allegations of excessive force by balancing the intrusion on their individual Fourth Amendment interests against the countervailing governmental interests at stake. This requires the court to balance: 1) the severity of the crime, 2) whether the suspects posed an immediate threat to the safety of the officers or others, 3) whether the suspects were actively resisting arrest by flight, and 4) any other exigent circumstances. (p 16455, 7) [...]

Of the three factors we traditionally examine in determining the governmental interest, the most important is whether the individual posed an immediate threat to officer or public safety. (p 16455, 8 ) [...]

In addition to immediate safety threats, in determining whether there is a sufficiently strong governmental interest to justify a given use of force we must consider “the severity of the crime at issue.” (p 16458, 10) [...]

Finally, in assessing the governmental interest in force we consider whether the suspect “was actively resisting arrest or attempting to evade arrest by flight.” (p 16459, 11) [...]

In Headwaters II, we held that police officers employ excessive force in violation of the Fourth Amendment when they use pepper spray upon an individual who is engaged in the commission of a non-violent misdemeanor and who is disobeying a police officer’s order but otherwise poses no threat to the officer or others. (p 16465, 16)

Oregon is included in the region covered by the Ninth Circuit Court of Appeals.

Headwaters Case

The Headwaters case has a long history, but here is the 5-cent version.

In 1997, a handful of environmentalists protested the cutting of old growth timber in the California Headwaters Forest. The Humboldt County Sheriff’s Department used pepper spray to break up the protest. The Ninth Circuit Court of Appeals determined the officers used excessive force. The U.S. Supreme Court vacated the Ninth Circuit decision in light of Saucier v. Katz, a SCOTUS decision in an animal rights protest that gave additional powers to the police. In Headwaters II, the Ninth Circuit Court followed the SCOTUS direction to review the decision and again affirmed that the use of pepper spray was excessive force. In April 2005, a jury affirmed the Ninth Circuit’s determination that the use of pepper spray was excessive force.

See Lundberg v. County of Humboldt, 2005; Headwaters Forest Defense, v. County of Humboldt, 2002; Headwaters Forest Defense, v. County of Humboldt, Remand from SCOTUS, 2001; Headwaters Forest Defense, v. County of Humboldt, 2000; and No Pepper Spray On Non-Violent Protesters.

FBI on Pepper Spray and Thomas Ward’s Guilty Plea

If you see references to the FBI’s endorsement of pepper spray, look closely to see if the author also notes that FBI agent Thomas Ward, the person responsible for the research, “pleaded guilty to accepting a $57,500 kickback from a pepper spray company.” That was 1996; he was sentenced to two months in prison and he was fired from the FBI.

After Ward’s conviction, the ACLU of Southern California called on the FBI to “immediately retract and rescind” all documented research on pepper spray and begin a “neutral investigation” into the substance. The FBI responded that although it was reviewing the studies, it continues to believe that OC “should continue to be used by its agents as a less-than- lethal weapon and an alternative to lethal force.” (p 9, pdf)

Note: If you can find the pepper spray policy for Davis CA and Portland OR police departments, I’ll update the story. But my GoogleFoo is weak on these specifics.

Edited to add photo from LA, details about Seattle.