Is Davis Pepper Spray Incident Excessive Force?

Humboldt Co. pepper spray 1997

The video of police dousing pepper spray across the faces of a line of seated, passive protesters was called “chilling” by University of California, Davis Chancellor Linda Katehi.  But it may have broader ramifications.  A federal appeals court back in 2002, in another famous pepper spray incident , ruled that officers are not immune from potential liability for claims of excessive force when they use pepper spray on peaceful protesters.

Thanks to Trevor Timm at Electronic Frontier Foundation for the reminder of this decade-old precedent.

Thae 2002 case grew out of protests in Humboldt County by a group opposed to logging of ancient redwoods in the Headwaters Forest.  A famous video back then showed police officers in Eureka using Q-tips to swab the corners of the eyes of protesters as they had their arms linked inside steel cylinder’s known as “black bears.”

“It would be clear to a reasonable officer that it was excessive to use pepper spray against the nonviolent protestors under these circumstances,” wrote Judge Harry Pregerson of the 9th U.S. Circuit Court of Appeals in the 2002 case.

To be sure, no one has been sued in the Davis incident and no one has accused the officer using the spray of excessive force.  But Chancellor Katehi did say she would appoint a task force to investigate the incident.

In the Humboldt County case back in 2002, the protesters were allowed to pursue excessive force claims against two sheriffs’ deputies.

In that case, the “black bear” was described as a cylinder with a rod welded into the center.  Protesters placed their arms into the cylinders and attached steel bracelets worn around their wrists to the rods by using mountain climbers’ carabiners.  When in place the device immobilized their arms and prevented separation.  The protesters could release the carabiner at any time from inside, but the police could only cut off the cylinders with a metal grinder.

In 1997 Humboldt County sheriffs’ deputies began using pepper spray to force protesters to release themselves.  This was unprecedented, according to the appeals court, and had previously been limited to hostile or violent subjects.

Three protesters sued in 1997 after they were sprayed and sheriff’s deputies refused to give them water to wash their eyes in order to force them out of the “black bears.”

 After they refused to release, officers forced the heads back on four of the protesters and swabbed the corners of their eyes using Q-tips containing pepper spray.

The four did not release and the pepper spray was left for 20 minutes, including a second application, but ultimately the deputies sprayed water into the eyes of the four to dilute the pepper.

Eventually they were carried out of the building on stretchers, two protesters released and two others had to be cut from the cylinders using grinders.

The 9th Circuit judges concluded that the two deputies named in the suit were not protected by traditional immunity applied to officers because their actions was “plainly in excess of the force necessary under the circumstances.”

The appeals court remanded the case to U.S. District Judge Vaughn Walker for a federal trial in Humboldt County.

Pregerson pointed out the pepper spray was unnecessary to subdue, remove or arrest the protesters.  Officers could have removed the protestors from the site with the steel cylinders still on their arms and removed them with electric grinders in a few minutes, without causing pain or injury to the protestors.

He rejected the county argument that the “black bears” constituted “active resistance to arrest” meriting use of force.

He pointed out in 2002 that state-wide police practice and protocol “clearly suggests that using pepper spray against nonviolent protestors is excessive.”

Case:  Headwaters Forest Defense v. Burton,  No. 98-17250

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