LAPD decides no change to pepper spray policy is needed

Under fire for an incident in which pepper spray was used on a handcuffed suspect in Venice, the Los Angeles Police Department announced Tuesday that a review had concluded that there was no need to change its policy regarding use of the spray.

An internal investigation into possible excessive force against the officer was ruled “not resolved” by Police Chief William J. Bratton, which means that the complaint could not be sustained nor the officer exonerated because of conflicting evidence, LAPD sources said.

In cases that are “not resolved,” officers do not normally suffer a penalty -- and no penalty was possible in this case anyway because the officer involved had left the LAPD last year.

A department statement said a review of “policies and guidelines” as they related to the use of Oleoresin Capsicum spray had concluded that no changes were needed.

“OC spray is a highly effective, non-lethal tool that is necessary for officers to use when trying to de-escalate a confrontation with an uncooperative and/or combative suspect,” Bratton said in a statement issued Tuesday by his office while he was on vacation.

Peter Bibring, an attorney with the American Civil Liberties Union of Southern California, called the department’s decision “troubling.”

In a letter to the commission, Bibring called for a ban or limit on the use of pepper spray on suspects restrained in handcuffs or placed in patrol cars. He contended that the idea that the LAPD “has looked into the policy, and it warrants no changes, amounts to a dismissive demand that the public simply trust that the department’s policies are appropriate.”

The Venice incident was caught on videotape by a bystander. Civil rights activists were outraged that an officer used pepper spray on handcuffed suspect Benjamin Barker and left him enclosed in a patrol car so that the painful effects of the spray were intensified.

Assistant Police Chief Jim McDonnell told the Police Commission on Tuesday that the department had completed its review of a complaint investigation involving the Feb. 8, 2005, incident at Venice Beach.

McDonnell said Barker, 30, was arrested on Ocean Front Walk after callers to 911 reported that Barker had attacked a store owner and was spitting on patrons and challenging them to fight.

“After handcuffing Barker, officers tried to put him in the back of a police car,” McDonnell said.

“At one point Barker spit on an officer, who then used Oleoresin Capsicum spray on the suspect,” he said.

Bratton initiated an administrative complaint investigation after the videotape was sent to the independent monitor overseeing LAPD compliance with a federal consent decree enacted after the Rampart corruption scandal.

“We have now completed that investigation, and as much as we would like, in the spirit of transparency, to be able to spell out exactly what that involved, we are precluded from doing that by state law restrictions on the release of information related to confidential personnel investigations,” McDonnell said.

The refusal to publicly announce the results was viewed by the ACLU attorney as a setback for open government.

“Good policing depends on public trust of the police, and public trust is undermined when the department decides behind closed doors what kind of behavior is appropriate and what is not,” Bibring wrote in his letter to the commission. “The public is entitled to know what conduct the LAPD thinks is acceptable.”

Department sources said the evidence in the case, including two eyewitnesses who said Barker was not moving his legs into the patrol car, was so conflicting that a complaint against the officer could not be sustained or disproved.

Still, the Police Commission has directed its inspector general to conduct his own review of the LAPD investigation, including a look at whether policy changes for the use of pepper spray are warranted.

McDonnell said the review of the policy issues looked at the circumstances under which pepper spray was used and compared it with the policies of other law enforcement agencies.

The department policy allows pepper spray to be used on suspects deemed to be “combative,” and officials said spitting on an officer is considered combative.

LAPD officials said pepper spray normally affects a suspect for 5 to 10 minutes and rarely causes serious health problems.

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patrick.mcgreevy@latimes.com