Can I sue the police if they pepper-spray me?

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.

Policeman holding up pepper spray in hand

Pepper spray is considered a “less lethal” weapon.

1. What is pepper spray?

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

Less-lethal weapons

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

2. Is pepper spray dangerous?

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

spraying people in multiple bursts
spraying people directly in their eyes
spraying people who are or will be hog-tied
spraying people with preexisting respiratory conditions
failing to give proper medical care to someone after he or she is sprayed

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

Close-up of police hand holding up pepper spray

Police may use pepper spray if it is reasonable under the circumstances.

3. Can I sue the police officer who pepper-sprayed me?

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

reasonable force
under the circumstances¹¹

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.

Headwaters case

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

Damages

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

Our California Civil Rights Lawyers Can Help.

Group of law firm receptionists with headsets

Call our law firm for legal advice. We offer free consultations.

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.

Legal References:

Our California Civil Rights Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
See National Institute of Justice, Pepper Spray’s Effects on a Suspect’s Ability to Breathe (December 2001) (“In Japan, samurai warriors threw rice-paper bags filled with pepper extracts at the eyes of their enemies to cause temporary blindness. Chinese soldiers heated red peppers in hot oil to form an irritant smoke to be blown over enemy lines.”) Another publication notes the historical use of pepper-based products in another era and another country. See http://www.civilliberties.org/win98spray.html (“Pepper Spray as a police tool first came to the notice of the courts in a footnote describing torture of suspects in India. ‘During the discussions which took place on the Indian Code of Criminal Procedure in 1872, some observations were made on the reasons which occasionally lead native police officers to apply torture to prisoners. An experienced civil officer observed, ‘There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.'”)
The pepper spray used today was initially developed as a bear and dog repellant. Its entry into routine law enforcement is generally attributed to suspect marketing efforts by a former F.B.I. agent. The agent ultimately went to prison for taking $57,500 in kickbacks from a pepper spray manufacturer. See http://www.nytimes.com/1996/05/20/us/former-fbi-agent-is-sentenced-to-prison.html?pagewanted=1.
According to one tactical weapons supply website: “Pepper spray is an inflammatory agent as opposed to an irritant like Mace. It causes immediate closing of the eyes, difficulty breathing, runny nose, and coughing. The duration of its effects depend on the strength of the spray but the average full effect lasts around thirty to forty-five minutes, with diminished effects lasting for hours. Internationally pepper spray is banned for use in war by the 1972 Biological Weapons convention but not for internal security use.” The website for another company, The Pepper Spray Store, explains the differences between pepper spray and tear gas or mace.
Charles Heal, a former marine who recently retired as LAPD’s “product tester” for new weapons of this ilk, explained: “‘Lethal weapons are defined by their capability, non-lethal are defined by their intent.” See Alec Wilkinson, Non-Lethal Force: Looking for Ways to Stop Violent Criminals without Killing Them, published in The New Yorker (June 2, 2008). At this stage, such weaponry (which also goes by names like less than lethal, controlled force, soft kill, mission kill, and minimal force) includes: impact weapons like batons and projectiles; living weapons like dogs; irritants; malodorants; obscurants; electrical weapons like tasers; psychological weapons like ultra-loud noises or bright lights; reactants; and soporifics.
See ACLU report, supra, footnote 8.
See Torres v. City of Madera (2008) 524 F.3d 1053 [multiple claims filed in the case in which officer mistook her Glock for her taser and shot and killed handcuffed suspect in the back of cruiser]
One author who studied the evolving phenomenon of non-lethal weapon use (dating back to the fire hoses and cattle prods of the Civil Rights era) concluded: “The result is what appears to be the first arms race in which the opponent is the general population.” See Ando Arike, The Soft-Kill Solution: New Frontiers in Pain Compliance, published in Harper’s Magazine (March 2010) As an example of a new development in crowd control, Arike points to Raytheon’s Active Denial System, which “works like a giant, open-air microwave oven, using a beam of electromagnetic radiation to heat the skin of its targets to 130 degrees and force anyone in its path to flee in pain.” Arike argues that this arms race is generated by the perceived need of economic elites to prevent mass uprising. (“In this new era of triage, as democratic institutions and social safety nets are increasingly considered dispensable luxuries, the task of governance will be to lower the political and economic expectations of the masses without inciting full-fledged revolt. Non-lethal weapons promise to enhance what military theorists call ‘the political utility of force,’ allowing dissent to be suppressed inconspicuously.”)
See American Civil Liberties Union, Pepper Spray Update: More Fatalities, More Questions (June 1995). See also Lynne Wilson, The Use and Abuse of Pepper Spray (undated), putting the possible death toll related to pepper spray at 60; and Ella Baker Center for Human Rights, When Police Play Russian Roulette.The Case for a Moratorium on Police Use of Pepper Spray (undated), which puts the possible death toll at 100 and concludes that pepper spray is “a defective product, a health and safety hazard, and a potentially lethal weapon. Additionally, it is a weapon that has been used by law enforcement officers in discriminatory ways, and also, impermissibly, as an instrument of torture.”
See NIJ Pepper Spray study, infra. Note that the study involved healthy males and was focused on respiration. It may have limited reliability given that “all subjects wore goggles.”
See Graham v. Connor (1989) 490 U.S. 386 (“Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it…. its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id at 396)
The case also involved additional protesters and demonstrations at two other locations.
See Headwaters Forest Defense v County of Humbolt (9th Cir. 2000) 240 F.3d 1185 (“In 1997, the Humboldt County Sheriff’s Department organized a special response team comprised of Special Services Deputies to deal with the environmental protests. The officers selected for the team were those with special training and experience in the use of a Makita grinder to remove lockdown devices safely. By the fall of 1997, one of the officers had used a Makita grinder to remove hundreds of lock-down devices from the arms of environmental protesters. He had done so safely, without causing injuries to either himself or the protesters. Nevertheless, because a Makita grinder generates sparks when used, the defendants claim to have had a growing concern about the danger involved in using it. So, in the summer of 1997, the Humboldt County Sheriff’s Department explored alternatives for affecting the arrest of environmental protesters in lock-down devices – including the use of oleoresin capsicum aerosol (“OC” or “pepper spray”). Defendants Lewis and Philp consulted a certified trainer in the use of pepper spray, the county’s risk manager, and its district attorney. And they read much of the available literature on the subject. By summer’s end, defendants concluded that the use of a lock-down device by any protester – even an otherwise nonviolent protester who posed no danger to the public, himself, or the arresting officers – constituted ‘active resistance’ to arrest, warranting police use of pepper spray as a ‘pain compliance technique.'” Id at 1191)
Id at 1193.
See 42 U.S.C. 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”)
Headwaters, infra, at 1205.
See Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F.3d 1125, on remand.
See http://cityroom.blogs.nytimes.com/2007/08/09/the-abner-louima-case-10-years-later.
See http://www.nopepperspray.org.

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