Court rules police may be liable for pepper ball injuries


Police officers may be held liable for injuring someone with a pepper ball intended to disperse a crowd, a federal appeals court decided Wednesday.

The unanimous ruling by a three-judge panel of the 9th Circuit U.S. Court of Appeals was a setback for police agencies defending themselves against lawsuits arising out of the Occupy movement. Students from UC Davis have sued police for dousing them with pepper spray, and UC Berkeley students have sued campus police for using batons during a protest. Oakland also has been sued by Occupy protesters.

Wednesday’s ruling stemmed from an April 2004 incident in which UC Davis and city police tried to disperse a crowd at a party by shooting pepper balls, which break on impact and spray a powder akin to mace or pepper spray.


About 1,000 people were at a Davis apartment complex to celebrate UC Davis’ annual Picnic Day. The police wanted to break up the party because the street was congested, partygoers had parked illegally and some minors were drinking alcohol, the court said. Police in riot gear entered the complex, and an officer fired a pepper ball into an area where UC Davis student Timothy Nelson was standing with friends.

The pepper ball hit the sophomore in the eye and caused permanent damage, eventually leading Nelson to lose a football scholarship and drop out of the university, the court said.

Writing for the court, Judge Stephen Reinhardt said police used excessive force. “A reasonable officer would have known that firing projectiles, including pepper balls, in the direction of individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable,” he wrote.

Police officers generally cannot be held liable for damages in a civil lawsuit. They lose immunity if it can be shown that their actions violated a “clearly established” constitutional right.

The court said the police violated Nelson’s 4th Amendment right to be free of unreasonable seizure, and that earlier court rulings should have alerted police that their actions were illegal.

Nelson and other students said in depositions they never heard an order to disperse. After he was hit, Nelson collapsed, fell into bushes and writhed in pain for as long as 15 minutes, the court said.

“After he was incapacitated, the police did not place him under arrest but rather walked past him as he lay on the ground,” the court said. “Upon learning of an injured partygoer, [an officer] investigated Nelson to determine whether there was a possibility that he could be charged with any crime and concluded that there was not. “

Adante Pointer, a lawyer for Nelson, said the case should proceed to trial. Nelson, who eventually returned to UC Davis but could not play football again, now teaches overseas, Pointer said. “He was a linebacker, a high school All-American from Dixon,” Pointer said. “He was living out his dream and playing football in college and had it all snatched from him.”

John A. Whitesides, an attorney for the City of Davis, said the defendants may ask for a larger panel of the 9th Circuit to reconsider the case. He said the police were being threatened at the party and that the ruling minimized the pressure the officers faced.