Instead of arresting you, how about some pepper spray?

November 20, 2011 3:22 PM

I'm having an online discussion (which I am trying to keep civil) with a group of people who claim that the police in California have the right to pepper spray anyone who does not obey a police order. How in the world can this be true? I'm not a lawyer - but my gut tells me that there has to be case law to the contrary. Help me out!
posted by dirtmonster to law & government (18 answers total)

someone linked to this case on mefi the other day, can't remember the exact context. this is not legal advice blah blah

http://caselaw.findlaw.com/us-9th-circuit/1332957.html
posted by facetious at 3:30 PM on November 20, 2011

sorry forgot the link
posted by facetious at 3:30 PM on November 20, 2011

There has been a strong movement toward militarizing the police for more than a decade now, even pre-9/11. I don't know that it means that the police have explicitly been given the "right" to pepper spray peaceful protesters, but it certainly means that they have been steadily empowered by the legal system to act in such a brutal, authoritarian manner. See, for example, The Roots of the UC-Davis Pepper-Spraying and Why I Feel Bad for the Pepper-Spraying Policeman (dreadful headline for a pretty informative article).
posted by scody at 3:33 PM on November 20, 2011 [2 favorites]

The case facetious linked was brought up in this blog by someone covering the peppering, specifically in the tenth update.
posted by logicpunk at 3:33 PM on November 20, 2011

Every police district has policies regarding its escalating continuum of use of force. The continuum works something like this: I'm arresting someone and he's not cooperating and now a use of force is both justified and legal. Where do I start? Pushing and shoving? Do I hit him with a baton first, or go right to the pepper spray? Must I hit him with a baton before resorting to pepper spray? What about punching? Is a closed fist to the jaw OK? Where does a taser have a role? When is a flurry of bullets OK?

The policies exist so you're not asking a police officer to respond to a guy with a knife with only harsh language, while at the same time keeping them from shooting jaywalkers.

So, yes, in theory, you can land on a set of circumstances (or a particular set of policies) where pepper spray is absolutely A-OK.

But whether those policies are implemented, trained and followed correctly is a completely different question.
posted by Cool Papa Bell at 3:34 PM on November 20, 2011 [1 favorite]

Keep in mind a few things:

1) Police dept.policies (In this case, the University of California police) are not law. They can have a policy saying their officers can do X, Y and Z, but that doesn't make it legal.

2) Some of the officers involved in the Davis incident have been suspended/placed on leave. While this is a minor punishment, it reflects the fact that the UC police dept. feels their actions violated its policies in some way.

3) It remains to be seen if criminal or civil charges will be filed against these officers.
posted by drjimmy11 at 3:48 PM on November 20, 2011 [7 favorites]

Just to give a little more fuel to what may be going on in your argument, I suspect your adversaries are saying these actions where justified because the students were "resisting arrest."

This is a term that often refers to people physically fighting the police, but in this case the students were merely linking arms and refusing to move. I don't know whether police departments have separate policies for active, physical resistance and passive, non-violent resistance, but I can't imagine they wouldn't.
posted by drjimmy11 at 3:51 PM on November 20, 2011

I was reading through the comments section of the recent post on boing boing regarding this and someone has posted the following regarding legality. I have not looked up the penal code s/he is referring to and am not a lawyer so cannot confirm this is true, but it may be something you can look up:

Move or you will be arrested, then if and only if they resist arrest can force be used, ONLY enough force to arrest. That is legal. MOVE or we will assault you, that is in no way a lawful order. The use of pepper spray in California is ILLEGAL if it is not used in self defense, the law is the law, There is NO exception in the law for police. This officer needs to do jail time along with the others who conspired to commit assault. WILL he be arrested cuffed as per proper police procedure, will he be booked and placed in a cell like any other citizen accused of a crime. NO because despite the constitutional prohibition of the creation of a separate class WE have one. THE DA should do jail time if he refuses to prosecute. California Penal Code Section 12403.7 (a) (8)

(g) Any person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense and is punishable by imprisonment in a state prison for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one
thousand dollars ($1,000), or by both the fine and imprisonment, except that, if the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of his or her official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable by imprisonment in a state prison for 16 months or two or three years or by a fine of one thousand dollars ($1,000), or by both the fine and imprisonment.
posted by butterteeth at 3:54 PM on November 20, 2011 [2 favorites]

This post has a lot of good links. Like this, with CSU guidelines on use of weapons.
posted by gingerbeer at 7:38 PM on November 20, 2011 [1 favorite]

And an ACLU report on pepper spray in California, from 1995.
posted by gingerbeer at 7:42 PM on November 20, 2011

Policemen do not have rights except insofar as being people they share the same rights we all do. They have legal boundaries around their permitted behavior. There is no 'right' to torture people with pepper spray. People have rights, like the right to peacefully assemble in order to petition the government with their grievances. This right supersedes any law or policy a police department may cite. Rights are not privileges, they cannot be revoked by a government, they are inherent. The action of that policeman in Davis was torture, pure and simple, meant to stifle dissent and political speech that threatens authority.
posted by diode at 7:54 PM on November 20, 2011

[Do not turn this into an argument. Answer the question please, thanks.]
posted by jessamyn at 8:25 PM on November 20, 2011 [1 favorite]

I don't know very much about specific state laws and policies governing the police use of force in California. I suspect that some of them vary from department to department. However, if you'd like to know about the constitutional rules governing the use of non-deadly force by police-- which are often the basis for a civil-rights lawsuit-- the standard is set forth in a case called Graham v. Connor.

According to Graham, the constitutionality of police use of force is judged deferentially ("must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and "must embody allowance for the fact that police officers are often forced to make split-second judgments-- in circumstances that are tense, uncertain, and rapidly evolving") and depends on several facts "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."

Now, as you might imagine, that fact-specific, deferential inquiry means that there isn't a clear-cut answer to your question. But for an example of a court dismissing a lawsuit against a police officer who pepper-sprayed somebody for disobeying orders, see Mecham v. Frazier.
posted by willbaude at 9:29 PM on November 20, 2011 [2 favorites]

They've been doing it since at least 1971. That's when I was part of a crowd that failed to obey an order to disperse in San Bernardino, CA. We were gassed by San Bernardino's new (at the time) toy.It was a pepper fogger machine mounted on the back of military surplus Jeep CJ so it looked like a Rat Patrol type machine gun when we first saw it. The police chief was on TV the next day bragging about how effective it proved to be and how it was capable of completely covering an area the size of a football field in something like 30 seconds.
posted by buggzzee23 at 9:42 PM on November 20, 2011

The author of logicpunk's link has an update: Ten Things You Should Know About Friday’s UC Davis Police Violence. He claims they were out of compliance:

5. University of California Police are not authorized to use pepper spray except in circumstances in which it is necessary to prevent physical injury to themselves or others.

From the University of California’s Universitywide Police Policies and Administrative Procedures: “Chemical agents are weapons used to minimize the potential for injury to officers, offenders, or other persons. They should only be used in situations where such force reasonably appears justified and necessary.”

Of course, this depends on your definition of "justified and necessary."
posted by troyer at 10:14 PM on November 20, 2011 [1 favorite]

There may have been some precedent from the case Headwaters Forest Defense, et al. v. County of Humboldt, et al. where some nonviolent protestors were pepper sprayed. These protestors sued the officers and, after taking it all the way to the 9th circuit, won a decision that the officers were not protected under what is known as "qualified immunity". I am not a lawyer, but it sounds to me like what the officers did here may not have been deemed illegal by the state, but that the protestors eventually won a civil action suite. Summary from Alternet and the full case at Justia.

A particularly relevant section from Justia, which sounds very similar to the situation at Davis is quoted below. It seems like most jurisdictions only sanction the use of pepper spray on those actively resisting officers or who can be deemed an immediate threat:

(1) the California Department of Justice had only approved the use of pepper spray on "hostile or violent" subjects; (2) the California Highway Patrol's use of force policy specifically prohibits the use of pepper spray as it was used here; and (3) pepper spray had never before been used in this manner in Humboldt County, the State of California, or anywhere in the nation. They also conceded that Humboldt County's only written policy statement on the proper use of pepper spray described it as a "defensive weapon, " only to be used in "attempting to subdue an attacker or a violently resisting suspect, or under other circumstances which underthe law permit the lawful and necessary use of force . . . by . . . chemical agent."
posted by sophist at 1:04 AM on November 21, 2011

Thanks everyone - I should be able to put something together that will at least contradict the silliness of these folks, even if it won't change their minds!
posted by dirtmonster at 3:57 AM on November 21, 2011

Two different concepts here, I think:

1- They have the same rights of self defense as anyone else. I do not believe (but I could be wrong) that police officers have any more rights than anyone else. If they feel threatened, they can respond with the same legal self defense tactics that any citizen is afforded.

2- What the other person is probably arguing is more that the police have an obligation to maintain order. So, for the purposes of this thought experiment, if the crowd needs to be dispersed for some public safety or other legal reason, they are obligated to go into the crowd and start asking/ordering/forcing them to disperse. Doing so exposes them to potential hostility that a regular citizen might not encounter, which means they may have to exercise their rights of self-defense.
posted by gjc at 6:03 AM on November 21, 2011