In 1997, four kindred spirits locked themselves together to protest the logging of ancient redwood trees. Northern California cops responded by searing their eyes with pepper spray.
The protesters did not give up. Not on trees and not on constitutional rights. They persevered through the pain and then they sued the cops that made them endure it.
Their struggle was far from easy. At times their case soared as high as the United States Supreme Court. It took ten years, but finally, they won. A jury agreed that the cops used excessive force in violation of the protesters’ constitutional rights.
If you have been unreasonably pepper-sprayed by cops, you might have a court case too. Our California Civil Rights Lawyers represent victims of all types of police abuse. We can help you understand your rights and fight for justice.1
This article is about pepper spray. If you have questions after reading it, please contact our California Civil Rights Lawyers for a consultation.
This article covers:
You might also be interested in our related articles California Police Misconduct and Civil Rights Violations and Police Use of Tasers.
Pepper spray is a chemical substance derived from red-hot cayenne pepper. It dates back at least to the time of the samurai.2 Pepper spray is also known as “OC,” for the chemical name oleoresin capsicum.3
When OC is sprayed in a suspect’s face or dabbed in his or her eyes, it causes intense burning, inflammation, and temporary blindness. It incapacitates the subject through pain and by causing the eyes to shut. If inhaled, OC causes breathing problems because of respiratory tract swelling.
If all goes well, and there are no complications, symptoms should fade after 45 minutes.4
Pepper spray is one of a growing assortment of “less lethal” weapons available to law enforcement. These weapons are designed to subdue a suspect without resorting to lethal force (for example, shooting the suspect with a gun). Other examples of less-lethal weapons are batons, tasers and police dogs.5
But what if cops don’t use these weapons in a responsible manner? What if cops take advantage of their new arsenal and use the weapons just to harass people they don’t like?
The American Civil Liberties Union puts it this way:
Increased use of pepper spray by law enforcement has raised serious concerns about whether police will use pepper spray to impose a painful chemical “street justice” without resort to criminal charges or the courts.6
Or what if police officers begin to rely on gadgets instead of police work? Or even begin to mix up their weapons?7
You can read more about other “less-lethal” weapons in our related articles Tasers and Police Dogs.
Arrests and Protests
Pepper spray is often used by law enforcement in cases where a suspect is allegedly resisting arrest (California Penal Code 148(a)(1)). The Los Angeles Police Department came under fire for using pepper spray under these circumstances when cops sprayed a homeless man while he was handcuffed in the backseat of a police cruiser.
The LAPD has been cited numerous times for police abuse.
Law enforcement also uses pepper spray for crowd control in civil disobedience situations. You might remember hearing about pepper spray being used against protesters at the 1999 World Trade Organization conference in Seattle. Demonstrators at that event were protesting trade policies they believe lead to global poverty.8
Clearly, pepper spray causes great pain, but there is a debate about whether OC places people in imminent danger or results in lasting health issues.
People have died after being pepper-sprayed, although it is unclear how much the pepper spray contributed to the deaths in those cases in relation to other factors like position asphyxia.
According to an ACLU report, pepper spray may have been linked to as many as 26 deaths in a two-and-a-half-year period alone.9
The report cites a “pitiful lack of scientific data” about pepper spray and expresses particular concern with
A National Institute of Justice study also acknowledged that pepper spray has been associated with deaths. But the NIJ study found that OC does not “pose a significant risk to subjects in terms of respiratory and pulmonary functions” yet it does pose a risk of increased blood pressure.10
If cops unreasonably pepper-sprayed you, there is a chance you can take your case to court. We’ll look at the Northern California case involving the redwoods protesters in a minute, but first let’s review the general law relating to use of force by cops.
When can cops use force?
Police officers play an important role in society. They are charged with protecting us and maintaining law and order. In doing so they may employ a limited amount of force.
But their discretion to use force is not unfettered. The key is that it must be
When cops use too much force — or “excessive” force — with you during an arrest, then it might be time to head to court.
That’s exactly what happened with the redwoods protesters.
The protesters began their journey through the legal system at the Northern California headquarters of Pacific Lumber Company.12 In order to call attention to the destruction of giant redwood trees by timber companies, the protesters ran into the company’s lobby and locked themselves together with a sophisticated device called a “black bear.” Other protesters sang folk songs outside.
Locking devices make it more difficult for cops to arrest people. They have to be cut off with a hand-held electrical grinder (which these cops had been trained to do and had done on many occasions without incident) or unclipped by protesters themselves with a self-release mechanism.
This was not the first demonstration involving logging activity in this neck of the woods. But apparently, cops were getting impatient. Law enforcement had been strategizing for some time about how to deal with these protesters and ultimately decided on the pepper spray tactic that would end with a jury ruling against them.13
Well, the showdown took place as planned:
The Sheriff’s videotape of the incident reveals that the officers never attempted to negotiate with the protesters. Once they made the decision to use the pepper spray, the officers simply warned the protesters repeatedly that if they refused to release themselves from the “black bears” the officers would apply pepper spray to their faces. The protesters tucked their heads into their chests and refused to release. The officers then forced four protesters’ heads back and applied pepper spray with a Q-tip to the corners of their closed eyes. The protesters screamed in pain. The three other protesters, including one who announced that she had asthma, then voluntarily released. The officers put plastic handcuffs on these three protesters and placed them on the couch right next to those still protesting. They remained there for more than an hour, cheering on the others who continued protesting and excoriating the officers for using pepper spray on them. At this point, the officers did not offer to flush out the protesters’ eyes with water.14
It took about another hour and another dousing with OC before all the protesters were finally out of their black bears and on the way to jail for trespass.
Section 1983 case
The plaintiff’s brought a lawsuit under 42 U.S.C. Section 1983 for violation of their Fourth Amendment constitutional rights to be free from unreasonable searches and seizures.15
The first judge to look at the case ruled for the cops. But a higher court, the Ninth Circuit, disagreed:
Whether the officers reasonably needed to apply pepper spray – either with Q-tips to the protesters’ eyelids or by short full blasts into their faces – to arrest the protesters was in dispute. The evidence reveals that the “nature and quality of the intrusion” caused by the pepper spray on the protesters’ bodily integrity under the Fourth Amendment was more than “minimal,” as the district court had concluded. Indeed, the pepper spray caused the protesters “immediate and searing pain”.which the officers could not instantly stop inflicting once the protesters agreed to release themselves from the “black bears”.. The protesters posed no safety threat to anyone. Their crime was trespass. The “black bear” lock-down devices they used meant that they could not “evade arrest by flight”. They were not “menacing” demonstrators seeking to intimidate the police or the public: most were young women; two were minors.. Alternatives were available.16
The court also said that the cops in charge could not hide behind the shield of qualified immunity, which protects government actors from liability unless their actions are way out of bounds.
The Ninth Circuit held firm, holding that, “it would have been clear to any reasonable officer that the manner in which the officers used the pepper spray was unreasonable.”17
Sometimes we hear about large damage awards in police abuse cases. Abner Louima won $8.7 million dollars for the horrible abuse he suffered at the hands of New York cops.18
But victory can come without a huge pile of money. No doubt Mr. Louima would have wanted to hold these cops accountable even if he didn’t win a large verdict.
The redwood protesters ultimately settled for nominal damages (for example, symbolic damages) and an agreement for attorney’s fees. But that was enough.
As Maya Portugal, who was just 16 years old when officers pepper-sprayed her, said: “‘This is a victory for us. If this is going to stop them from doing this to nonviolent people then it was worth it.”‘”19
If you or a loved one has been abused by police and wrongfully pepper-sprayed and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.