ACLU Urges CA Appeals Court to Declare Use of Pepper Spray Dangerous and Cruel

August 12, 1999 12:00 am

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SAN FRANCISCO–Non-violent environmental protestors who sued Humboldt County authorities over the use of pepper spray are entitled to a jury trial, the American Civil Liberties Union of Northern California told a federal appeals court today.

In a friend-of-the-court brief filed on behalf of the demonstrators, the ACLU said that a lower court erred in ruling that the application of pepper spray to nonviolent protestors engaged in civil disobedience constituted “reasonable force” under the law. On the basis of that finding, the court dismissed the case after a jury deadlocked over the matter.

The ACLU argues in its brief that in justifying the denial of a jury trial, the district court and Humboldt officials overstated the constitutional authority to use pain compliance on demonstrators engaged in civil disobedience and understated the harmful impact of pepper spray.

On three separate occasions during the protest, Humboldt law enforcement authorities applied Q-tips soaked in pepper spray directly to the eyes of the protesters, who had linked their hands inside metal sleeves.

“The ACLU believes that the use of pepper spray as a kind of chemical cattle prod on nonviolent demonstrators resisting arrest constitutes excessive force and violates the Constitution,” said Margaret C. Crosby, an ACLU of Northern California staff attorney who wrote the brief with Police Practices Director John Crew.

“Certainly, a jury should be afforded an opportunity to evaluate this new experimental use of a chemical weapon.”

The friend-of-the-court brief summarizes empirical, scientific and toxicological research on pepper spray. “Scientific literature refutes the repeated depiction, by the trial judge and by Humboldt, that pepper spray is a benign organic substance that causes only transient discomfort,” the ACLU’s Crosby said.

“In fact, pepper spray ingredients, alone and in combination with solvents that create the weapon, have a variety of physiological effects,” she added. “Courts have recognized that pepper spray may be a dangerous chemical weapon, resulting in liability to government or private parties, or incarceration to criminal defendants.”

The Ninth Circuit Court of Appeals ruled earlier this year, in the context of sentencing guidelines for criminal defendants, that pepper spray may constitute a dangerous weapon. Federal sentencing guidelines define a dangerous weapon as “capable of inflicting death or serious bodily injury,” causing “extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; requiring medical interventions such as surgery, hospitalization or physical rehabilitation.”

The ACLU brief argues that the use of pepper spray on environmental demonstrators requires a jury evaluation under established constitutional standards. The single most important consideration in assessing reasonable use of force is whether the suspect poses an immediate threat to the safety of the officers or others.

“The Humboldt authorities arrested peaceful demonstrators, seated, linked and locked into a metal device,” Crosby said. “They were dramatizing their commitment to protecting old-growth redwood trees. They were not menacing anyone.”

Pepper spray weapons – both their active ingredients and their chemical solvents and propellants — may have damaging short and long-term effects on a number of body systems and functions. These weapons are particularly dangerous for people with compromised health status and for young people.

“Pepper spray’s effects on the respiratory, ophthalmologic, and neurologic systems may be severe,” Crosby added. “Studies also show that pepper spray may produce carcinogenic effects and disrupt the body’s temperature regulation system.”

The ACLU brief details animal studies, research and case studies involving humans. The report includes incidents of correctional officers suffering physical injuries during training exercises with pepper spray; emergency room reports of eye injuries from pepper spray; children hospitalized after accidental exposure to pepper spray; spice workers suffering respiratory ailments from long-term exposure to pepper spray’s active ingredients; and cancer rates in countries with high consumption of hot peppers.

The brief was submitted to the Ninth Circuit Court of Appeals. The name of the case is Headwaters Forest Defense v. County of Humboldt.

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