Pepper Spray Use Restricted

For the third time in two years, a federal appeals court in San Francisco has issued a decision limiting the circumstances in which police can use pepper spray to subdue nonviolent protesters.

On Friday, in a case growing out of rallies against logging of old-growth redwood trees in the Headwaters Forest area, the U.S. 9th Circuit Court of Appeals ruled that the use of pepper spray against environmental activists by Humboldt County officers constituted excessive force.

The court held 3-0 that the officers’ conduct was unreasonable, even when viewed through the prism of a U.S. Supreme Court decision last year that afforded police more protection from civil lawsuits.

Consequently, the 9th Circuit said Friday that nine protesters are entitled to return to federal district court in San Francisco and go to trial to seek damages against the county sheriff and his chief deputy.

The case concerns the conduct of law enforcement officers during a series of protests in the fall of 1997. Sheriff’s deputies used cotton swabs to dab pepper spray into the eyes of several demonstrators who were staging peaceable protests to prevent Pacific Lumber Co. from cutting the huge redwoods. Additionally, some officers sprayed the caustic chemical directly into the eyes of protesters, despite the fact that manufacturers’ labels on the containers of spray expressly discouraged using the spray from less than three feet away.

The protesters sued, contending that the officers violated their 4th Amendment right to be free from excessive force. The law enforcement officers countered that they were entitled to qualified immunity, and a federal district judge in San Francisco dismissed the case.

In May 2000, the 9th Circuit reversed that decision, saying the officers were not entitled to immunity from lawsuits. “The evidence suggests the protesters suffered excruciating pain” from the use of the pepper spray, the court said. And because the protesters posed no danger to anyone at the time, a jury should decide if the amount of force was unreasonable under the circumstances, the court added.

Last June, in a case called Saucier vs. Katz and stemming from an animal rights protest, the U.S. Supreme Court gave police officers added protection in suits alleging excessive force. The high court ruled 6-3 that a suit alleging excessive force must be dismissed even if the officer’s behavior was unreasonable, so long as a reasonable officer might have made the same mistake under the circumstances in question.

The Supreme Court then vacated the 9th Circuit decision in the Headwaters case and sent it back to the 9th Circuit for reevaluation in light of the Saucier decision.

Under the qualified immunity doctrine asserted by the Humboldt officers, “government officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” according to an earlier Supreme Court decision.

The Saucier decision directs lower federal courts to analyze claims of qualified immunity by answering two questions. First, the lower court must determine whether “in the light most favorable to the party asserting the injury ... the facts alleged show the officer’s conduct violated a constitutional right.”

If the plaintiffs clear that hurdle, then the court must ask whether the right at issue was “clearly established in light of the specific context of the case” so that it would be clear to a reasonable officer that his conduct was unlawful.

Viewing the facts in the most favorable light to the protesters, “a rational juror could conclude that the use of pepper spray against the protesters constituted excessive force and [the officers] were liable for the protesters’ unconstitutional injury,” 9th Circuit Judge Harry Pregerson wrote.

On the second point, “it would be clear to a reasonable officer that using pepper spray against the protesters was excessive under the circumstances,” Pregerson continued.

Judges William A. Fletcher and Myron H. Bright joined in the opinion.

The judges also stressed that the protesters’ tactic of linking arms through 10- to 25-pound steel tubes called “black bears,” which prevent officers from applying pressure to separate them, did not constitute “active resistance to arrest.”

The judges also said that it was “clearly excessive” under the circumstances for the officers to spray the demonstrators and then wait 20 minutes before washing out the protesters’ eyes with water.

The ruling was applauded by Mark Hughes, a University of Denver law professor who represented the plaintiffs. “Now we know that under any standard the police acted unreasonably and illegally.”

A lawyer representing the officers was unavailable for comment Friday.

Margaret Crosby of the ACLU of Northern California, which filed a brief on behalf of the plaintiffs, praised the court for “refusing to exonerate law enforcement officers who deliberately hurt peaceful protesters by using pepper spray as a kind of chemical cattle prod.”