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Over the last decade police agencies have turned to
the use of pepper-spray as an alternative on their
use of force options list. While pepper-spray seems
to have significantly reduced injuries to suspects
caused by impact weapons, pepper-spray has not
been litigation-free.
A high-profile case from the 9th Circuit Court of
Appeals established that the use of pepper-spray
against passively resistant protestors violates
constitutional protections *1.
Headwaters involved a group of protestors
who were involved in a demonstration at the Pacific
Lumber Company. The protestors had locked
themselves together with “black bears.”
When sheriff’s deputies arrived at the demonstration,
the supervisor decided to use pepper-spray on the
protestors. The protestors were warned. When
they failed to release themselves, officers applied
pepper-spray at close range and even used Q-tips to
apply pepper-spray to some protestors’ eyes. The
court noted that officers made no attempt to
negotiate with the protestors; did not flush out their
eyes though the protestors were screaming in pain;
and with respect to at least some of the protestors,
the pepper-spray did not cause the protestors to
release the lock. The court also noted that when
the pepper-spray did not work, officers were able to
remove the protestors in pairs on a stretcher in
under 2 minutes and cut the locks off using the
Makita grinders in less than 10 minutes.
The use of pepper-spray on these protestors was
not a split-second decision. In fact, Humboldt
County had been dealing with environmental
protestors for some time. The county had a special
response team to deal with these types of
protestors. The response team was trained in the
use of Makita® grinders that could be used to cut
locking mechanisms such as the “black bear” from
the protestors. Prior to the events in question
Sheriff Lewis and Chief Deputy Philp “consulted a
certified trainer in the use of pepper spray, the
county’s risk manager, and its district attorney. And
they read much of the available literature on the
subject.” Lewis and Philp concluded that the use
of a lock-down device by an otherwise non-violent
protestor who posed no danger to the public, the
officer or him/herself constituted “active
resistance to arrest” warranting the “use of
pepper spray as a pain compliance technique.”
The United States Court of Appeal for the 9th Circuit
began its review of the reasonableness of the use of
pepper-spray on non-violent protestors by citing the
analysis of Graham v.
Connor. *2 The court thus balanced the
governmental need to apply the pepper-
spray against the countervailing rights of the
protestors to bodily integrity. The court began by
distinguishing pepper-spray from pain compliance
techniques that police officers can immediately
terminate upon compliance. The pain from pepper-
spray only passes with time and proper flushing, thus
compliance would not terminate the infliction of this
use of force. In concluding that the actions of the
protestors did not justify the use of pepper-spray,
the court noted that the protestors could
not “evade arrest” since they had limited their
own mobility; further, they were not actively
resisting the officers but merely being passively non-
compliant. The need for arrest as a government
interest was insignificant since the protestors were
only guilty of trespassing, a minor offense. As such,
applying the standards from Graham, the use
of force here was unreasonable.
A second case involving the use of pepper-spray to a
non-physical, non-compliance situation confronted
by a police officer reached a
similar conclusion to the
9th Circuit Court. *3 Mary Martinez was stopped for
operating a motor vehicle 10 mph over the speed
limit by Trooper Perry Boyd of the New Mexico State
Police. The court described Martinez as a 280 pound
middle-aged woman. At the time of the stop Boyd
noticed that Martinez’ license had been defaced; she
indicated that children at her school had defaced the
license. A computer check by Boyd revealed an
active warrant for a Mary Martinez with the same
date of birth as the plaintiff in this case.
Trooper Boyd asked Martinez to step out of the car.
She verbally refused, indicating that she wanted to
see the trooper’s identification. By all accounts
Martinez never physically resisted the trooper’s
commands. Trooper Boyd prevailed upon Martinez
such that she stepped out of her car and was
handcuffed. Trooper Boyd led her back to his cruiser
and demanded that she get in. Martinez refused,
again stating that she would not comply until she
was shown Trooper Boyd’s identification. Boyd
refused to show her the identification, but instead
decided to spray her with mace to force her
compliance. Boyd sprayed Martinez as she stood
handcuffed on the side of his police car.
The Court of Appeals for the 10th Circuit held that it
would be unreasonable to use mace in an effort to
force compliance from a person who is restrained in
handcuffs and is only being verbally resistant. As in
Headwaters, the court noted that Boyd had
other alternatives available to him such as showing
her the identification or waiting for the arrival of
backup. At the point she was sprayed she was not
physically resisting; she was being arrested on a
warrant for a minor offense issued for a person with
similar information to her; and she was restrained and
thus not a flight risk. Applying the principles from
Graham the use of force here was
unreasonable. The court also refused to grant
qualified immunity to the officer, reasoning that any
reasonable police officer would know that it is
unreasonable to spray a handcuffed, non-physical
suspect who was standing beside a cruiser being
verbally non-compliant.
The United States Court of
Appeal for the 11th Circuit reached a similar
conclusion in Vineyard v. Wilson and Stanfield.
*4 Terri Vineyard filed a lawsuit
against Sheriff Wilson and Officer Stanfield of the
Walker County Sheriff’s office. Vineyard’s first
contact with Officer Stanfield occurred when
Stanfield stopped by Vineyard’s house to notify her
that a complaint had been made about her son by a
neighbor. The neighbor had indicated that Vineyard’s
son had given beer to his son. Officer Stanfield
warned Terri Vineyard and others who were
attending a cookout at Vineyard’s home not to give
beer to the neighbor’s son.
Vineyard and two friends left the party and went to
get Vineyard’s son at another neighbor’s house. As
they returned with Vineyard’s son they passed the
complaining neighbor’s house and words were
exchanged. This prompted Officer Stanfield to return
to Vineyard’s house. He began to question Vineyard
about the altercation with the neighbor but,
according to Vineyard, refused to listen to what had
transpired. Vineyard was placed under arrest and
handcuffed behind her back. On the way to the
station a heated exchange took place with insults
being hurled like a volley-ball between Vineyard and
Officer Stanfield. The exchange concluded when
Officer Stanfield stopped the cruiser on a dark road,
opened the rear door, pulled Vineyard’s head back
and sprayed her with two or three bursts of pepper-
spray. The court noted that Vineyard is 5’3” tall and
130 lb. while Officer Stanfield is 6’0” tall and 200 lb.
Officer Stanfield admitted to spraying Vineyard, but
indicated that he sprayed her after she kicked his
seat, threatened to get out of the car, and
attempted to kick and spit at him.
In analyzing the use of force against Vineyard, the
court examined the factors enunciated in Graham
v. Connor. “To balance the necessity of the
use of force used against the arrestee’s
constitutional
rights, a court must evaluate several factors,
including ‘the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by
flight.’” The court continued: “In determining
if the force was reasonable, courts must examine (1)
the need for the application of force, (2) the
relationship between the need and the amount of
force used, and (3) the extent of the injury
inflicted.” Graham dictates unambiguously that the
force used by a police officer in carrying out an
arrest must be reasonably proportionate to the need
for that force, which is measured by the severity of
the crime, the danger to the officer, and the risk of
flight.”
The court noted that courts previously addressing
the use of pepper-spray have “consistently
concluded that using pepper spray is excessive force
in cases where the crime is a minor infraction, the
arrestee surrenders, is secured,
and is not acting
violently, and there is no threat to the officers or
anyone else.” *5 “Based on Vineyard’s account
of the facts, it is abundantly clear to us that during
the jail ride Stanfield used force that was plainly
excessive, wholly unnecessary, and, indeed, grossly
disproportionate under Graham. Vineyard was
arrested for offenses of minor severity, handcuffed,
secured in the back of a patrol car, and posing no
threat to Officer Stanfield, herself or the public. In
addition the jail ride was four miles and relatively
short. There was also a glass or plastic partition
between Stanfield and Vineyard.” The court
concluded that Officer Stanfield was not entitled to
summary judgment.
Citations
*1 See, Headwaters v. County of
Humboldt, (9th Cir. No. 98-17250, 2000).*Back...
*2 Graham, 490 U.S. 386 (1989).
*Back...
*3 See, Mary Martinez v. New
Mexico Department of Public Safety, 47 Fed. Appx.
513 (10th Cir. 2002) *Back...
*4 Vineyard v. Wilson and Stanfield.
311 F.3d 1340 (11th Cir. 2002).*Back...
*5 See, Citing, Headwaters, 276
F.3d 1125 (9th Cir. 2002), Park v. Shiflett, 250 F.3d
843 (4th Cir. 2001), Lalonde v. County of Riverside,
204 F.3d 947 (9th Cir. 2000), and Adams v. Metiva,
31 F.3d 375 (6th Cir. 1994) *Back...
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