by Brandi L. Harper, Esq.
Pepper spray is thought to be one of the least intrusive uses of force. However, a claim for excessive force under 1983 can be brought against an officer for improper use of pepper spray. A prime example of a court finding excessive use of force for pepper spray is the case of Headwaters Forest Defense v. The County of Humboldt(2002) 276 F.3d 1125. In that case nine environmental activists and an environmental group brought a section 1983 civil rights actionagainstHumboldtCounty, the county sheriff, city police, and sheriff’s deputies and police officers.
In the fall of 1997, environmental activists staged three nonviolent protests against the logging of ancient redwood trees in the Headwaters Forest along California’s northern coast During each protest, two to seven protesters linked themselves together using self-releasing lock-down devices known as “black bears.” The officers used pepper spray to arrest the protesters. The arrests were videotaped. The videotapes revealed that the officers did not attempt to negotiate with the protesters before applying the pepper spray. The officers used Q-tips to apply the pepper spray to the eyelids of the protesters in some instances in others the officers simply sprayed the pepper spray directly into the faces of the protestors. The protesters were in tremendous pain from the pepper spray as could be seen in the videos.
The protesters sued the officers under section 1983 for violation of their Fourth Amendment rights, claiming that use of the pepper spray was excessive and unreasonable force. The protesters did not receive medical treatment for physical injuries. However they sought damages for pain and emotional trauma, as well as punitive damages. After plaintiffs completed their portion of their case the district court granted qualified immunity as a matter of law to two of the officers and dismissed the case against them. The jury was deadlocked with respect to the claims against the remaining officers and the district court declared a mistrial. The district court set a new trial date and took defendants’ motion for judgment as a matter of law under submission. The district court granted the officers’ renewed motion for judgment as a matter of law.
Ninth Circuit Decision
Plaintiffs appealed and the Ninth Circuit reversed, holding that the district court erroneously granted judgment as a matter of law. The Ninth Circuit then addressed the plaintiffs’ allegations of excessive force by balancing the intrusion on their individual Fourth Amendment interests against the countervailing governmental interests at stake. This requires the court to balance: 1) the severity of the crime, 2) whether the suspects posed an immediate threat to the safety of the officers or others, 3) whether the suspects were actively resisting arrest by flight, and 4) any other exigent circumstances.
The Ninth Circuit disagreed with the district court’s characterization of the “quality of the intrusion.” The district court found the use of pepper spray was minimal because it did not involve the use of deadly force or a significant level of physical force. The Ninth Circuit agreed that fact was relevant, but not dispositive, and reasoned that the evidence suggested that the protesters suffered excruciating pain when the officers applied the pepper spray to their eyelids. The court also disagreed with the district court’s emphasis on the government’s interests in speedy arrests, preventing organized lawlessness, ensuring safety of others, and deference to the officers’ split-second judgment.
Trial Remanded- Jury Verdict
On remand an eight-person federal jury returned a unanimous verdict for the protestors finding the County of Humboldt liable for excessive force in violation of the 4th Amendment. The jury awarded damages of $1 to each of the plaintiffs, who made it clear all along that they weren’t suing for the money, but to bring about a change of policy. Even so the defendants may be required to pay the reasonable attorney fees and costs of the plaintiffs, which will likely exceed $1 million for litigating the case through the trials and appeals.
Moral of the Story
Although pepper stray is not traditionally thought to be excessive force, the way that it is used can easily lead to a claim of excessive force. In this case the officers’ continued spraying of the pepper spray directly into the eyes of the protestors at close range as well as applying the pepper spray with a Q-tip was excessive. This case also brings up several other issues. Such as videotaping of incidents and attorney fee awards. However in regards to pepper spray as in all other uses of force issues be sure that the force used is reasonable given the circumstances. And to go out on a limb if you are applying pepper spray with a q-tip directly on some one’s eyes- probably isn’t reasonable.