ACLU Seeks Review of Pepper Spray

The American Civil Liberties Union asked state and federal officials Wednesday to overhaul methods of testing police weapons and to stop using a brand of pepper spray in the wake of an FBI agent’s admission that he took $57,500 from the spray’s manufacturer as he conducted research that eventually endorsed its use.

In addition, the organization recommended that agencies such as the Los Angeles Police Department and the Los Angeles County Sheriff’s Department, which use a different brand of pepper spray, initiate a top-to-bottom review of their policies for using the gas against uncooperative suspects. The ACLU’s call for a ban was limited to the brand implicated in the conflict-of-interest case and recommended that other brands be used instead.

Allan Parachini, public affairs director of the ACLU Foundation of Southern California, said Special Agent Thomas W. W. Ward’s guilty plea to charges of accepting $57,500 from a pepper spray manufacturer represented “one of the most serious law enforcement scandals of our era.”

In fact, Parachini said the “Ward scandal” in some ways exceeds the Rodney G. King beating in terms of its potential impact on law enforcement, since FBI research helped convince police departments across the country that pepper spray was a safe and effective way to subdue suspects.

In Washington, federal officials scrambled to respond to the ACLU charges, then released a detailed defense of pepper spray asserting that no evidence has surfaced to suggest that Cap-Stun, the brand whose owners paid Ward, is unreliable. Although the statement said the FBI is not purchasing any pepper spray while it reviews its purchasing policies, it added that “the FBI has not found any deficiency in the Cap-Stun brand . . . as compared with other brands.”

“The FBI is not aware of any basis for finding that pepper spray is not a safe and effective less-than-lethal weapon for controlling dangerous individuals,” the statement said.

It added, however, that the FBI was reviewing pepper spray testing done by the FBI and other agencies “to determine whether further testing of [pepper spray] is appropriate.”

According to the Justice Department, Ward was receiving about $5,000 a month starting in 1989 from Lucky Police Products, the company that then made Cap-Stun. At the same time, Ward was the FBI’s foremost expert in the use and effects of pepper spray, and based on his research, the FBI decided to purchase Cap-Stun for its agents.

As the head of the FBI’s Less Than Lethal Weapons Program of the Firearms Training Unit, Ward also helped write an important report on the use and effects of pepper spray. That report spurred interest in the use of pepper spray by police agencies across the country. It also dramatically increased sales of Cap-Stun, according to documents filed in connection with Ward’s case.

During the time that Ward was touting the effectiveness of pepper spray generally and Cap-Stun in particular, a company owned by his wife was receiving regular payments from Lucky Police Products, court files say. All told, those payments amounted to $57,500, according to the files.

Pepper spray such as Cap-Stun is made from cayenne extract and produces a stinging sensation that temporarily incapacitates a suspect when sprayed in the eyes. It was adopted by the LAPD and other law enforcement agencies in the wake of the FBI’s conclusion that it was safe and effective.

In theory, the spray gives police a new tool for confronting suspects, one that is more aggressive than simply talking to a combative person but less harmful than striking a suspect with a baton or resorting to a gun. Critics, however, have alleged that the spray’s effectiveness has been overstated and warn that officers could be in jeopardy if they rely on it. When the spray fails to work it can further enrage the suspect, they say.

The LAPD has reported that the spray is effective in about 83% of all cases, though it seems to work less well on suspects who have been using certain drugs or who are experiencing extreme psychological distress.

The spray was ineffective in at least one high-profile LAPD case, the shooting of a woman on a hospital rooftop who had wielded a knife and threatened to harm her child. According to police, officers used spray on her but succeeded only in getting her to release the child. When she allegedly lunged at the officers with her knife, she was shot to death.

Nevertheless, police say pepper spray has proved effective in the vast majority of cases and insist that it provides officers with a valuable tool to avoid having to wield their police batons as they did in the infamous King beating. LAPD officials said Wednesday that even in light of the revelations about Agent Ward, they continued to have faith in the pepper spray used by their officers.

“It’s one of the most effective, nonlethal uses of force that we have,” said Lt. Tony Alba, a spokesman for the department. “It results in almost no injury to anybody. It’s extremely humane.”

But ACLU officials fired off letters to Washington and Sacramento suggesting that in light of the FBI agent’s admitted criminal conduct, a broad new look needs to be taken at the spray and its effectiveness. In the case of Cap-Stun, the ACLU said officials should discontinue its use altogether.

Writing to California Atty. Gen. Dan Lungren, Parachini said the ACLU wanted the state’s top law enforcement officer to notify every law enforcement agency in the state about Ward and to advise them to remove Cap-Stun immediately from their operations. The ACLU also urged Lungren to ask Gov. Pete Wilson to issue an executive order barring police agencies from buying Cap-Stun until the questions raised by Ward’s conduct are resolved.

A spokesman said Lungren had not yet received the letter and therefore could not comment on it. But he added: “We have reviewed over 18,000 uses in California . . . and we have not found one death attributable to pepper spray.” In a separate letter to top federal officials, the ACLU asked the FBI to retract all its pepper spray research and to notify law enforcement agencies that it “regards all of its earlier conclusions about safety, effectiveness and reliability of [pepper spray] as null and void.”

The ACLU also asked the Justice Department to back legislation that would establish a clearance system for approving police products. That system, the ACLU suggested, could be modeled on the Food and Drug Administration’s program for evaluating the safety of new drugs.

Ward faces sentencing in April and could be ordered to serve as much as five years in prison and pay a fine of up to $250,000. According to the plea agreement with prosecutors, however, he has allowed himself to be debriefed by federal authorities, and if they are convinced he has cooperated fully, they will recommend to the judge that the sentence be reduced.