Pepper Sprays: Fourth Amendment to Eighth…

Pepper Sprays: Fourth Amendment to Eighth…

Recently we were asked if we might consider being an expert witness in a trial involving police officers swabbing liquid from a pepper-based personal defense spray into the eyes of protesters. It appears the protesters had illegally chained themselves in inconvenient places, and were blocking legal entry and exit.

In some jurisdictions the police would reroute traffic, block off the protesters so they couldn’t get hurt, and leave them until they wanted to leave, something that often starts to happen when it gets cold, or when the protesters need to pee.

In other jurisdictions the police would simply cut the chains or pipes (the chains are often put in pipes to make access to the locks difficult).

In this jurisdiction officers apparently gave the protesters the opportunity to leave, then, in this case, clinically put the inflammatory liquid in their eyes in order to cause enough pain to induce them to leave. While we have not read the depositions – the judge apparently decided not to allow the expert testimony – it is our impression that the feeling was that the protesters had been given several warnings, and that the time for diplomacy had ended, and that action needed to be taken.

While nobody can doubt that the action taken was certainly better than wiring their genitals to a battery, or sticking a plunger up their butts, there was still some feeling – at least on the part of those whose eyes participated in this experiment – that this set of actions was not reasonable under the Fourth Amendment.

Because we were the ones who introduced pepper based sprays to the law enforcement community at the 1988 ASLET (American Society for Law Enforcement Trainers) conference, and are therefore indirectly responsible for its use in this – and every other – case, it seems appropriate for us to comment on the use of these products.

It was our intention, both with the introduction of the original product at the 1988 ASLET conference, and the introduction of training in use of personal

defense sprays for line officers at the 1989 ASLET conference, to extend the range of options available to officers under the Fourth Amendment. While teargas and riot gas had traditionally been used at the same level of force as impact weapons, Aerosol Subject Restraints – ASRs, as capsaicin-based sprays came to be known (the term was coined by William J. “Doc” McCarthy of Indianapolis) were accepted as being usable at below the level of hard empty-hand control. That is to say, officers could use them before they actually hit the person.

The reason for this is that tear gas and riot gas are irritants that work by causing pain. While this makes them good for crowd control (you want to have people move away from the discomfort) they are, by definition, not very effective for controlling pain-resistant subjects, who – again by definition – didn’t feel pain. Keep in mind that people can be pain resistant because they are drunk, or on drugs, or really angry, or crazy. These are the categories of people most likely to be fighting cops in the first place.

ASRs, on the other hand, are inflammatory agents. When the atomized liquid is inhaled, it inflames the capillaries of the mucous membranes in the throat, doubling the person over with uncontrollable coughing (which makes capsaicin-based products inappropriate for crowd control). It doesn’t matter whether the person is pain-sensitive or pain-resistant: Inflammation at a capillary level is not a voluntary action. The object of the game is to take a physically resistant, generally pain-resistant, subject and restrain them so that neither they, nor the officer, will get hurt.

As it happens, when an ASR is sprayed directly on the skin (as opposed to being breathed out of the air), rapid inflammation of tissues causes dermal discomfort in pain-sensitive people, but this discomfort is an unfortunate artifact of the inflammation, and not a control factor. Indeed, during training, the ASR Instructors Council recommends that trainees’ exposed skin be slathered with some protective agent, such as Derma Shield or Derma Plus (http://www.dermashieldusa.com/, http://www.dermashield.co.uk/), which will prevent any dermal discomfort, and thus simulate pain-resistance on the part of the officer being trained.

When protesters, expressing civil disobedience, chain themselves, they have some expectation that they will be arrested and, possibly, punished by the judicial system. However, they expect that this arrest and punishment will take place within the constraints of the Fourth Amendment, which mandates reasonable search and seizure.

The question, then, becomes one of whether taking protesters – who are exercising non-violent civil disobedience and who are arguably causing inconvenience, but no real danger – and dropping an inflammatory agent in their eyes to cause discomfort, rather than to restrain – they are already chained and self-restrained – remains in the realm of reasonable seizure, or does it now become cruel and unusual punishment, which is precluded by the Eighth Amendment. Having been sprayed in training and in testing more times than any sane person would willingly admit, we think it falls into the area of cruel and unusual punishment.

It is up to supervisors to make sure this doesn’t happen. While it may have seemed a good idea a good idea to someone to save time by dropping an inflammatory liquid in the eyes of the protesters, a lot more time has been and will be spent in court than was saved.

Several thousand years of diplomatic experience indicates that hasty actions can save a little time up front, and be, short term, extremely emotionally satisfying, but are likely to cost a lot in time and money (and careers) on the back end. We therefore suggest that, given the choice, spending a little annoying time up front in diplomatic negotiation is almost always better than spending a lot of time and money at the back end.

This is as true for hasty business actions by representatives of the company as it is for government agencies acting under color of law.

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