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Civil Liability of
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Pepper Spray (OC), Tear Gas and Chemical Agents,
and Assault and Battery: Chemical
Monthly Law Journal Article: Civil Liability for the Use
of Pepper Spray, Tear Gas, and Chemical Agents - Part 1, 2014 (4) AELE Mo.
L. J. 101.
Monthly Law Journal Article: Civil Liability for the Use
of Pepper Spray, Tear Gas, and Chemical Agents - Part 2, 2014 (5) AELE Mo.
L. J. 101.
A federal appeals court held
that a trial court erred in submitting to a jury the question of whether
officers violated clearly established law in allegedly using excessive force
during a May Day protest. The
question of whether a particular constitutional right is "clearly
established," as part of the qualified immunity analysis, is to be decided
by the judge. Additionally, as to claims against one officer who used pepper
spray against a demonstrator, the trial court properly denied his motion for
judgment as a matter of law on the basis of qualified immunity, as there was
evidence from which a jury could have reasonably decided that this use of force
was retaliatory. Morales v. Fry, #14-35944, 873 F.3d 817
(9th Cir. 2017).
An arrestee claimed that a police officer used excessive force by choking him and using pepper spray against him in the course of an arrest for taking eight pairs of shorts from a store. Upholding a denial of qualified immunity to the officer on an excessive force claim, a federal appeals court ruled that a jury could find that excessive force was used in the deployment of pepper spray or use of choking since the force was on a non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor, While some use of force was reasonable here, it was not reasonable to immediately use significant force. The right not to be pepper sprayed or choked under these circumstances was clearly established. Tatum v. Robinson, #16-1908, 2017 U.S. App. Lexis 9342 (8th Cir.).
A man was working at his family's dairy
farm when a fight broke out which he and ten other people witnessed.
Approximately 20 state and local police officers arrived on the scene after the
fight ended. One local officer questioned the man about what he had witnessed.
A state trooper then yelled at him to take his hands out of his pockets. The
man claimed he complied, although he remarked that his hands were cold as he
had been milking cows all day. He then started to walk away, having already
told his story to the officer. The trooper, subsequently assisted by other
officers, then allegedly grabbed, tackled, punched, kicked, and pepper sprayed
the man. He subsequently disputed the man's version of events, asserting that
the altercation began when the man resisted efforts to force his hands out of
his pockets, and that the man struck him and tackled him. Because of these
factual disputes, summary judgment for the officers on excessive force claims
was improper. Santini v. Fuentes, #14-2938, 2015 U.S. App. Lexis 13552 (3rd
Cir.).
A male motorist who was
an insulin-dependent diabetic become lightheaded driving home, and pulled over
on the shoulder of the road. He took glucose tablets and either fell asleep or
became unconscious. A deputy approached the truck and knocked on the window,
attempting to identify himself. The driver stated in a mumble that he was
trying to recover from low blood sugar, but the deputy believed him to be intoxicated
and radioed for another officer engaged in DWI enforcement. The motorist, when
the second officer arrived, stated that he should "leave me the fuck
alone." He refused several requests that he exit the vehicle, so both
officers pulled him out by his legs, causing him to hit the ground. The driver
continued to resist, trying to return to the truck and stating that he had a
gun in his waistband when they tried to handcuff him. The gun was removed and
thrown, and the motorist asked the officers if they were "stupid," as
the gun could have discharged. The officers used pepper spray and struck the
motorist. EMS personnel arrived, and treated the motorist for hypoglycemia and
a nosebleed. Blood alcohol tests for intoxication were negative, and the driver
had a broken rib. Upholding a grant of qualified immunity to the officers, a
federal appeals court ruled that even had the officers realized that the driver
was suffering from hypoglycemia, the driver still refused to comply with orders
and was belligerent and impaired, justifying the use of force. The level of
force used was objectively reasonable. Schoettle v. Jefferson County, #14-1993,
2015 U.S. App. Lexis 9729 (8th Cir.).
Police responded to a 911 call regarding a verbal
argument between a man and his girlfriend. The man had locked the woman out,
with her keys inside the apartment, but no physical attack had occurred. The
man did not want to talk to the officers. One of them prevented him from
closing the door, entered his home, and refused to leave. The man called his
attorney and did not comply with a demand that he get off the phone. An officer
told him that he was under arrest, and two officers each grabbed one of his
wrists, resulting in a struggle on the floor. The officers lacked consent, a warrant,
or exigent circumstances to enter the home, and they lacked probable cause to
arrest him for theft of his girlfriend's keys. There was, however, a disputed
issue of fact as to whether the officers had probable cause to arrest the
plaintiff for disorderly conduct, as the arrestee denied that he had yelled at
the officers. Hawkins v. Mitchell, #13-2533, 2014 U.S. App. Lexis 11906 (7th
Cir.).
A man claimed that officers who came to his house
to arrest his brother under a warrant used excessive force against him when he
answered the door, lying on top of him, using a chokehold, and using pepper
spray. The jury awarded the plaintiff over $2 million in damages, which was
reduced by $500,000 to $1,611,656.52 by the trial court. A federal appeals court
found that the jury's award and their decision to believe the plaintiff's
version of the incident were supported by the evidence, and that the officers
were not entitled to qualified immunity. It rejected the officers' argument
that if they mistakenly believed that the plaintiff was resisting them that
they could use any amount of force as they were only entitled in that instance
to use force reasonably necessary. A "reasonable officer would have known
it violated clearly established law to use a chokehold on a non-resisting
arrestee who had surrendered, pepper-spray him and apply such knee pressure on
his neck and back that it would cause the collapse of five vertebrae in his
cervical spine."It also found that the trial court failed to adequately explain
its reasons for reducing the amount of attorneys' fees and in denying the
plaintiff pre- and post-judgment interest, so further proceedings were
required. Barnard v. Theobald, #11-16655, 2013 U.S. App. Lexis 13415 (9th
Cir.).
An arrestee who appeared intoxicated actively
resisted officers both during the process of being arrested and when taken into
jail. He was handcuffed and pepper sprayed. Then, at the jail, when he
continued to resist, he was held down and a Taser was applied to him three
times in the stun mode. He was held face down, ceased breathing, and was taken
to a hospital where he died. A medical expert for the plaintiff expressed the
opinion that his cause of death was traumatic asphyxia due to compression of
his neck and back while being restrained. A federal appeals court ruled that
the defendant officers were entitled to qualified immunity when there was
insufficient evidence to support the strangulation theory, since only the
expert's conclusory opinion supported it. That opinion was contradicted by
other evidence, including the testimony of all the officers and two EMTs.
Burdine v. Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013
Fed. App. 376N, 2013 WL 1606906 (Unpub. 6th Cir.).
A federal appeals court upheld a jury verdict in favor
of a city and its officers in a lawsuit over the shooting and killing of a
suicidal cocaine intoxicated man armed with a powerful gun with a long range.
Negotiations by an emergency response team sent to his apartment failed to
persuade him to drop his weapon or come out, and the use of tear gas had been
justified to try and subdue him because it was believed that he posed an
imminent threat to others in the area. Given that the room was dark and filled
with tear gas, and that the officers' accounts differed as to how far his arm
was extended when an officer shot and killed him, the fact that he had not
previously verbally threatened others during the standoff did not establish
that he had not pointed his gun at officers as they entered. Estate of Escobedo
v. Martin, #11-2426, 2012 U.S. App. Lexis 25443 (7th Cir.).
After a traffic stop for an expired registration,
a motorist drove off, and the officer pursued him, stopping him a second time
and using pepper spray against him. The motorist pulled a gun and shot the
officer four times before running him over twice, killing him. A civilian
witness to the incident approached the shooter and asked him to drop his gun.
When he refused, the witness himself drew a gun and shot and killed him. He feared
that the man might shoot either him or his son, who had gone to try to assist
the dying officer. The dead motorist's father filed a federal civil rights
lawsuit against the dead officer, the town and its police officials and the
civilian shooter. A federal appeals court upheld summary judgment for the dead
officer and the town, as the plaintiff failed to present any evidence showing
that the officer had violated the motorist's rights in any way. There was no
evidence that the initial stop was without grounds, and he had not shown that
the car's registration was then current. The court also rejected arguments that
excessive force had been used by the officer during the second stop. Kenney v.
Floyd, #12-163, 2012 U.S. App. Lexis 24699 (1st Cir).
When President Bush was dining at a restaurant
during his 2004 reelection campaign, groups of demonstrators both in favor of
and opposed to his re-election attempted to gather outside. A federal appeals
court has ruled that, if the facts were as alleged, Secret Service agents
violated the First Amendment by forcing protesters opposed to the President to
move further away from the restaurant than where they permitted supporters of
the President to rally. This was enforcement of a content-based restriction. The
agents were not entitled to qualified immunity. The court also found that state
and local police supervisors could not be held liable for the alleged use of
excessive force against the anti-Bush demonstrators, including the use of
pepper spray, clubs, and shoving, since there was no indication that they were
personally involved. Moss v. United States Secret Service, #10-3615, 2012 U.S.
App. Lexis 7077 (9th Cir.).
A federal trial jury awarded $2.58
million against a town and six officers for actions taken involving the use of
pepper spray against 23 individuals attending a baptismal party at a house. No
damages were awarded to another 56 plaintiffs who attended the same party. The
federal appeals court ruled that the judgment appeared to have allowed 13 of
the successful plaintiffs to improperly receive double recovery for their
injuries--once on their federal claims against the officers and once on their
state law claims against the town on the basis of vicarious liability for the
officer's actions. The appeals court ordered that, on remand, the judgment be
amended to avoid the possibility of double recovery. Duran v. Town of Cicero,
#08-2467, 2011 U.S. App. Lexis 16360 (7th Cir.).
A sheriff's deputy grabbed the wrist of a motorist who
had not been wearing his seatbelt, and who attempted to flee on foot when
ordered to stop. When the man broke away, the deputy used a Taser on him,
subsequently also using pepper spray and placing his knee on the man's back. In
a lawsuit for excessive use of force, a federal appeals court upheld a jury's
decision to award only a dollar in nominal damages. It rejected the plaintiff's
argument that the pain of being tasered should always be enough to support a
more substantial amount of compensatory damages. The court noted that the jury
might have reasonably believed that the use of the Taser was justifiable in
this case, and that only the subsequent force used was excessive. Frizzell v.
Szabo, #10-2955, 647 F.3d 698 (7th Cir. 2011).
An officer's use of pepper spray and a baton
against a motorist who disobeyed orders to get back in his vehicle was an
"intermediate" use of force that "while less severe than deadly
force, nonetheless present a significant intrusion upon an individual's liberty
interests." It is "rarely necessary, if ever," a federal appeals
court stated, "for a police officer to employ substantial force without
warning against an individual who is suspected only of minor offenses, is not
resisting arrest, and, most important, does not pose any apparent threat to
officer or public safety." The motorist did not resist, but merely sat on
the curb, so he could proceed with his excessive force claim. Young v. County
of Los Angeles, #09-56372, 2011 U.S. App. Lexis 17829 (9th Cir.).
Police believed that a motorist who veered off
the road, and disobeyed orders to exit his vehicle was intoxicated. He was
actually diabetic, and suffering from hypoglycemia. The officers physically
pulled him from his car, struck him, and used mace on him as he resisted their
efforts. After a paramedic recognized the driver's diabetic condition, he was
transported to a hospital, where he subsequently died. The officers, under
these circumstances, were not liable for the motorist's death, based on the
reasonableness of their belief that he was intoxicated. Padula v. Leimbach,
#10-3395, 2011 U.S. App. Lexis 17996 (7th Cir.).
An officer's use of pepper spray to effect an
arrest of a man he had observed, weeks earlier, driving with a suspended
driver's license was not unreasonable under clearly established law. The
arrestee squared off facing the officer and stuck his arms out in a
"T," giving the officer probable cause to make an arrest for
resisting, whether or not the man was arrested for the prior traffic violation under
a valid warrant. Brooks v. City of Aurora, #10-3265, 2011 U.S. App. Lexis
13662 (7th Cir.).
An officer was not entitled to qualified immunity
in a lawsuit over his alleged use of pepper spray against a woman who he
claimed tried to hit him after he followed her son from a drug raid into her
house. Factual issues concerning whether the woman actually tried to hit the
officer, and whether he actually used the pepper spray had to be resolved,
precluding the appeals court from upholding the officer's immunity defense.
Bomar v. City of Pontiac, #10-2161, 2011 U.S. App. Lexis 13400 (6th Cir.).)
While a sheriff's deputy did have probable cause
to arrest a city employee, there was a factual issue as to whether the use of
pepper spray against the arrestee was excessive. The arrestee had allegedly
elbowed the deputy while going through an employee entrance security checkpoint
at a city building, and responded with a profane statement when ordered to
stop. While there was probable cause to arrest the plaintiff for failing to
obey a lawful order, his version of the incident, in which he denied making
physical contact with the deputy or making the profane statement, if true,
would render the deputy's use of pepper spray and action in taking him to the
ground an excessive use of force. Howard v. Wayne County Sheriff's Office,
#09-2171, 2011 U.S. App. Lexis 5270 (Unpub. 6th Cir.).
State police followed a motorist to his home after
observing him speeding and driving erratically. When they approached his
vehicle and ordered him to exit, he did so, but began screaming obscenities at
them. The motorist smelled of alcohol and he resisted being patted down,
leaning backwards and knocking into an officer, and again trying to push back
into the officer. He was placed under arrest, but refused to cooperate with
being handcuffed, so two bursts of pepper spray were used to accomplish this.
Even while handcuffed, he continued to resist, requiring a third pepper spray
burst to subdue. He was convicted of DUI and resisting arrest, and sued the
officers for excessive use of force. A federal appeals court ruled that the use
of the pepper spray against the plaintiff, who was resisting arrest, was an
objectively reasonable use of force. Revak v. Lieberum, #09-4179, 2010 U.S.
App. Lexis 22466 (Unpub.3rd Cir.).
An arrestee claimed that an officer used
excessive force in arresting him, including the use of pepper spray. The
officer, during a traffic stop of the plaintiff, suspected that he might be
wanted for a criminal offense. The arrestee claimed that the officer struck him
several times with a flashlight after he slipped on a patch of ice, jumped on
him after he began to run and fell to the ground, used pepper spray against him
after he had already been subdued and handcuffed, and ignored his protests that
he was in pain in forcibly moving him from the ground to a police vehicle.
Because it was disputed whether the officer used the pepper spray on the
arrestee before or after he was handcuffed, the excessive force claim
concerning the use of the pepper spray survived summary judgment. Tracy v.
Freshwater, #08-1769, 2010 U.S. App. Lexis 21238 (2nd Cir.).
An arrestee seated in the booking room of a jail
was subjected to a short burst of pepper spray, and subsequently placed in the
back of a patrol car for approximately an hour. He claimed that he was never
allowed to decontaminate, and that his repeated complaints of breathing
problems and repeated requests for medical attention after he was removed from
the car were ignored. In an excessive force lawsuit, he claimed that he
developed Reactive Airway Dysfunction Syndrome (RADS) from the lengthy pepper
spray exposure. A federal appeals court held that the plaintiff had adequately
established that an officer was aware of his serious need for medical
attention, but ignored it, which stated a claim for violation of his Fourteenth
Amendment rights. Nasseri v. City of Athens, #09-11473, 2010 U.S. App. Lexis
7297 (Unpub. 11th Cir.).
Officers acted in an objectively reasonable
manner in their gradual escalation of the use of force against a yelling,
cocaine intoxicated man who they encountered while responding to a 911 call
indicating that shots had been fired. The suspect ran from the officers, threw
something at them, and charged at one officer. He exhibited great strength and
the officers used increased force as he continued to resist efforts to subdue
him, beginning with verbal warnings, and subsequently using pepper spray, hand
and arm manipulation techniques, and finally a Taser, following which the man
continued to struggle, but the officers were at last able to handcuff him
behind his back while he was facedown. The man died following the struggle, but
the court noted that the officers had used no force at all until he attacked
one of them, and that they reacted to a "rapidly evolving, volatile
situation" with "measured and ascending responses." Galvan v,
City of San Antonio, #08-51235, 2010 U.S. App. Lexis 11114 (Unpub. 5th Cir.).
Deputies responding to complaints of loud music coming
from a party encountered an off-duty deputy who was providing music at the
party. When told to turn off the music, he allegedly responded in a
"confrontational" tone, and was sprayed with pepper spray in the
face. He then pulled out his cell phone, and a deputy pointed his pistol at
him, shouting, "gun." The off-duty deputy was arrested. In a federal
civil rights lawsuit over the incident, the appeals court held that the
deputies were not entitled to qualified immunity, as it was not clear that they
had probable cause to arrest the off-duty deputy for "waving a gun,"
and there was a genuine factual issue as to whether the use of the pepper spray
was excessive, given the minor nature of the infraction involved, and the
absence of physically aggressive action by the arrestee. Howell v. Sheriff of
Palm Beach County, #09-10940, 2009 U.S. App. Lexis 22592 (Unpub. 11th Cir.).
An arrestee's wife had called 911 after he hit
her, but hung up without saying anything. After the call was traced to the
couple's house, officers responded, but were unable to see or speak to the
wife. When they tried to speak to the husband, he went inside the house. They
then went around to the back, where they saw the husband sitting on the porch.
He was allegedly "evasive" when they spoke to him, and they tried to
arrest him as he tried to reenter the home. Officers then used pepper spray
against him and tried to "stun strike" him because of his combative
response. The appeals court ruled that the 911 call established exigent circumstances,
and that the force used was reasonable because of the resistance exhibited by
the arrestee. Nail v. Gutierrez, #08-3872, 2009 U.S. App. Lexis 16587 (Unpub.
7th Cir.).
A college student filed an excessive force
lawsuit against police after he suffered injuries from pepperball launchers
that officers fired at bottle-throwing students in a disorderly crowd of up to
1000 people at a party, in the course of attempting to disperse the crowd. The
plaintiff's own deposition testimony appeared to indicate that he was not in an
area near a doorway when officers fired, thereby suggesting that he was not an
intended target of the shooting, but he subsequently presented deposition
testimony of two supporting witnesses indicating that he was in the doorway
area at the time. The trial court granted the defendants' motion for summary
judgment, applying a "sham affidavit" rule which states that a party
may not avoid summary judgment by creating a factual dispute with his own
testimony through the conflicting evidence of other witnesses. A federal
appeals court reversed, however, finding that the rule did not go as far as the
trial court applied it. The rule applies, the court indicated, when a party
literally attempts to manufacture a "bogus dispute with himself to defeat
summary judgment," such as by creating a "sham affidavit." In
this case, the plaintiff "points to deposition testimony given under oath
by other ... witnesses who had a different viewpoint from the plaintiff's and
who had not suffered head injuries sufficient to cause temporary
blindness." Since the grant of summary judgment was based on an improper
application of the "sham affidavit" rule, the trial court was
reversed, and further proceedings ordered. Nelson v. City of Davis, #07-16905,
2009 U.S. App. Lexis 14765 (9th Cir.).
A police officer was not entitled to qualified
immunity for the allegedly unnecessary and excessive use of pepper spray
against a man he arrested outside a bar, also allegedly twisting his ankle in a
manner that injured him while securing him following arrest. The arrestee was
then allegedly unconscious, and the officer supposedly used his foot and leg as
a "lever to turn him over." The arrestee had approached the officer
to complain that he had been attacked in a bar fight, and contended that he had
not been told that he was under arrest or not to walk away when the officer
sprayed his face with pepper spray at a time he was not actively resisting
arrest. Grawey v. Drury, No. 07-2584, 2009 U.S. App. Lexis 11181 (6th Cir.).
While an arrestee with a brain aneurysm
failed to establish a basis for excessive force claims against a township,
individual officers were not entitled to qualified immunity on his assertions
that their alleged use of pepper spray to subdue him, combined with wrestling
him to the ground and repeatedly punching him caused further injuries in
violation of his constitutional rights. Jackson v. Tinicum Township, No.
07-1988, 2009 U.S. App. Lexis 2704 (Unpub. 3rd Cir.).
County police officers, a city police officer, and an FBI
agent were conducting surveillance on a street when they thought they saw a
burglary in progress at a house. They entered the house, and encountered two
children, one of whom they tackled, pointing a gun at his head, and using mace
against him, while the second child watched. Other children were in a vehicle
outside the home with their mother, and officers attempted to stop it. In a
lawsuit brought by the mother and her six children, a federal trial court
granted the FBI agent summary judgment on claims concerning the alleged seizure
of the vehicle and its occupants, since there was no evidence that he was
anywhere near the vehicle at the time, and could not be held vicariously liable
for the alleged actions of the other defendants concerning the vehicle, since
they did not act at his direction or even with his knowledge. The appeals court
denied the motion by the FBI agent, the city officer, and one of the
county officers for summary judgment on claims by one child who was inside the
house for excessive use of force. The court ruled that the alleged spraying of
the child with mace while two other defendants allegedly held guns to his head
could constitute "excessive" use of force. Couden v. Duffey, No.
03-369, 2008 U.S. Dist. Lexis 9681 (D. Del.).
Officers did not use excessive force in response
to a belligerent motorist who shouted and refused to comply with their
directions to step to the curb, lower his voice, and calm down. When he
resisted their attempts to place handcuffs on him, they tackled him to the
ground and applied arm locks for purposes of restraint. After that too proved
unsuccessful, they then used pepper spray. The court ruled that no reasonable
officer would have thought that the defendant officers applied excessive force
under the circumstances, and that the officers were entitled to qualified
immunity. Mierzwa v. U.S., No. 07-3362, 2008 U.S. App. Lexis 13523 (Unpub. 3rd
Cir.).
Journalists claimed that FBI agents, while
executing a search warrant at a condominium building, grabbed and assaulted
them, and used pepper spray and metal batons against them when they entered a
gated area. The agents were using the building's fences and security structure
in an attempt to restrict the flow of people into the area, and allegedly did
not give them a chance to exit before using force against them. The court found
that there was no special First Amendment right of access by the press to enter
property that was not in the public domain. The court found, however, that some
of the journalists' Fourth Amendment claims were improperly dismissed. The
appeals court ruled that "mere obstinance" by a crowd did not justify
the use of force when there is no showing that crowd members posed a public
safety threat or that any other law enforcement considerations were at risk.
The court ruled, therefore, that Fourth Amendment excessive force claims by
individual journalists could proceed, while the rejection of all First
Amendment claims was upheld. Asociacion de Periodistas de Puerto Rico v.
Mueller, No. 07-2196, 2008 U.S. App. Lexis 12783 (1st Cir.).
A federal jury returned a $2.58 million verdict
against the town of Cicero and five officers, as well as a jail employee for
actions taken during a September 2000 baptismal party in which 79 plaintiffs
claimed that officers used pepper spray against attendees. The award was made
in favor of 23 of the plaintiffs, which no damages were awarded to 56 of the
plaintiffs. Alejandro Duran, et al. v. Town of Cicero, et al., No. 01 C 6858
(U.S. District Ct., N.D. Ill.), reported in Chicago Daily Law Bulletin, Volume:
154 Issue: 033 (February 15, 2008).
Arrestee's allegation that a police officer used
mace on him after he had been handcuffed and subdued was sufficient to defeat
the officer's motion to dismiss in an excessive force lawsuit, when there was
no evidence that the arrestee was acting violently, posing a threat to others,
or resisting arrest at the time. Hall v. Alabama Dept. of Public Safety, No.
06-15743, 2007 U.S. App. Lexis 23099 (11th Cir.).
Utah state troopers were entitled to qualified
immunity on their use of pepper spray on a motorist who continued to resist
them and disregard their instructions throughout a fifty-minute traffic stop.
Under these circumstances, the troopers acted objectively reasonably in using
pepper spray against her. Mecham v. Frazier, No. 05-4297, 2007 U.S. App. Lexis
21810 (10th Cir.).
Police officers were not entitled to qualified
immunity for allegedly spraying pepper spray inside a house filled with 34
people after telling several of them to "get inside" the house when
they arrived. If, as the plaintiffs claimed, they were subjected to pepper
spray after they were detained, without any provocation, that would violate
their clearly established constitutional rights. Duran v. Sirgedas, No.
05-4278, 2007 U.S. App. Lexis 10338 (7th Cir.).
Police officers did not violate a man's rights by
using pepper spray on him in the back seat of their car, where they placed him
after finding him intoxicated. The officers feared that he was suicidal, based
on his behavior, and were trying to assist him. He was unsecured in the
backseat of the car because he was uncooperative, and he started kicking the
plexiglass separating the front and backseats, and beating his head on it. The
pepper spray was only used after it was clear that repeated orders would not
cause him to stop this behavior, and after the man was given a warning about
the use of the spray, and was motivated by a fear that the man might harm
himself. After they cleaned the residue of the pepper spray off of his face
outside the police/fire station, he attempted to stand up, despite their
statements that he should not try to do so, and fell, hitting his head and
suffering injuries that allegedly led to his death from a swelling on his
brain. The court found that the decedent would not have suffered his fatal fall
except for his own conduct in disregarding the warnings of the defendant
officers, so that they could not be held liable for his death. Cabaniss v. City
of Riverside, No. 06-3546, 2007 U.S. App. Lexis 8271 (6th Cir.).
In a lawsuit over the death of a man weighing
almost 350 pounds with PCP and cocaine in his bloodstream who allegedly
struggled with police and resisted their attempts to arrest him outside a fast
food restaurant, the plaintiffs claimed that the officers used excessive force,
unnecessarily striking him with metal batons and causing him to suffer
respiratory failure from positional asphyxia when they sat on him, after spraying
a chemical irritant (pepper spray) in his face. The trial court found that the
plaintiffs sufficiently stated a claim that the officers who apprehended him
used excessive force against him, as the confrontation began simply because
firefighters who encountered him perceived him as creating a
"nuisance," which is "not the type of crime" permitting
officers to use a greater use of force. It was disputed whether the decedent
subsequently was resisting arrest, or was simply trying to position himself so
that he could breathe. Additionally, the plaintiffs in the case alleged that
the officers used pepper spray against the decedent after he was already face
down and was being handcuffed, which the court stated, if true, could also
constitute an excessive use of force. The officers were not entitled to
qualified immunity because a reasonable officer might have known that engaging
in the alleged acts violated the decedent's right to be free from excessive
force. The court granted a motion to dismiss claims by the plaintiffs against
the firefighters, who left the scene before some of the incidents that resulted
in the decedent's death, and against police supervisors and a fire chief. It
denied a motion to dismiss claims against the police officers involved in the
incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis
75430, 2006 WL 2987820 (S.D. Ohio). [N/R]
Use of gas gun against demonstrators outside the
home where INS agents were executing warrants to remove Cuban boy Elian Gonzalez
was objectively reasonable when demonstrators were attempting to interfere and
threw objects at the agents. Dalrymple v. U.S., No. 05-14375, 2006 U.S. App.
Lexis 20922 (11th Cir.). [2006 LR Oct]
Deputy sheriffs were not entitled to summary
judgment in an excessive force lawsuit by woman arrested by them in her home
pursuant to a warrant. Her version of the events, including that they beat her
with a billy club and jumped on her after she was incapacitated by pepper spray
and was only passively resisting, if true, showed an excessive use of force.
The use of pepper spray was not excessive, however, since she was hiding from
them under a blanket in a closet at the time, and could have been thought to be
planning to "ambush" them. Shreve v. Jessamine County Fiscal Court,
No. 05-6271, 2006 U.S. App. Lexis 16957 (6th Cir.). [2006 LR Sep]
Police officers, including S.W.A.T team members,
were entitled to qualified immunity for surrounding the home of a man who had
fired shots into the air and ground nearby, entering the home forcibly without
a warrant, and using pepper gas and a flashbang in an attempt to flush him out.
Assuming that the use of a second flashbang, which burned down the house, was
excessive, it still did not violate any "clearly established right."
Factual disputes about whether the suspect was still armed and was threatening
officers at the time they shot and killed him, however, barred qualified
immunity for the officers on a claim that the use of deadly force was
excessive. Estate of Bing v. City of Whitehall, No. 05-3889, 2006 U.S. App.
Lexis 19287 (6th Cir.). [2006 LR Sep]
Officer was not entitled to qualified immunity on
arrestee's claim that he sprayed pepper spray in his face while he was lying on
the ground with both hands cuffed and another officer on top of him. Such use
of force, after the arrestee had been subdued, if true, could not be said to be
objectively reasonable as a matter of law. Henderson v. Munn, No. 05-1403, 2006
U.S. App. Lexis 5010 (8th Cir. February 28, 2006). [2006 LR Apr]
Officers were not entitled to qualified immunity
on arrestee's claim that they used excessive force by using pepper spray
against him and hitting him repeatedly with a baton while he was seated in his
truck after a traffic stop. Arrestee claimed that he had not resisted the
officers or tried to flee, and that he was "passive" and cooperative.
Reed v. City of Lavonia, No. 3:03-CV-111, 390 F. Supp. 2d. 1347 (M.D. Ga.
2005). [N/R]
Police officers who encountered an intoxicated
man who threatened his wife, disabled her car, and refused to cooperate with
being arrested and handcuffed did not act unreasonably in using physical force
and mace to subdue him. They could reasonably believe, under the circumstances,
that he posed a threat to his wife, children, others present, and themselves.
Wilson v. Flynn, No. 04-2491, 2005 U.S. App. Lexis 24555 (4th Cir.). [2006 LR
Jan]
Officers did not use excessive force in utilizing
pepper spray against suspect, handcuffing him, using control holds against him,
tripping and hitting him, and putting him in a prone position until medical
personnel could arrive when he was hallucinating and "obviously
deranged," had armed himself with two weapons, had previously stabbed his
wife, and showed his intent to harm the officers by rushing at them with a
screwdriver. No liability for injuries which allegedly resulted in suspect's
death. Wheeler v. City of Philadelphia, No. Civ.A. 04-3792, 367 F. Supp. 2d 737
(E.D. Pa. 2005). [N/R]
Officers' use of chemical spray against an
arrestee and pushing of him was not excessive force when he was on top of a man
on the floor with blood on the floor around them when they arrived at his
apartment, and the arrestee was not cooperative with them. Officers had no obligation
to believe arrestee's claim that he had acted in self-defense after the other
man, his brother-in-law, had attacked him in an intoxicated condition. Lindsay
v. Bogle, No. 02-6201, 92 Fed. Appx. 165 (6th Cir. 2004). [N/R]
Federal appeals court upholds $900,000 jury award
to family of adult non-verbal autistic man who died after officers seeking to
restrain him allegedly continued to use pepper spray and to lay on top of his
body after he was handcuffed, hobbled, and laying on his stomach on the ground,
no longer resisting. Continued use of such force at that point, the court
rules, violated clearly established law, and jury's award was not excessive.
Champion v. Outlook Nashville, Inc., No. 03-5068, 380 F.3d 893 (6th Cir. 2004).
[2004 LR Nov]
Officer had probable cause to arrest a woman when
he entered a bingo hall and observed her fighting with another woman in the
middle of a crowd of people. The officer could only act on what he knew, and
did not have any knowledge as to which woman had initiated the fight, or
whether the arrestee was at fault. His use of pepper spray to stop the fight
was not an excessive use of force under the circumstances. Esters v. Steberl,
No. 03-506, 93 Fed. Appx. 711 (6th Cir. 2004). [N/R]
Officers were entitled to qualified immunity for
arresting a motorist for refusal to obey orders to exit his vehicle to sign a
speeding citation and for arresting his brother, a passenger, for interference
with the officers in repeatedly advising the driver not to obey them. Use of
pepper spray was also justified when vehicle occupants, in response to officer
reaching his hand inside the vehicle, began to roll the window up on his arm.
Lawyer v. City of Council Bluffs, No. 03-1032, 361 F.3d 1099 (8th Cir. 2004).
[2004 LR Aug]
Officers did not use excessive force in first
using pepper spray and then shooting a motorist who pulled a knife on them
after initially refusing to submit to a stop on suspicion of intoxicated
driving. Gaddis v. Redford Township, #02-1483, 364 F.3d 763 (6th Cir. 2004).
[2004 LR Aug]
Officers acted reasonably in using pepper spray
in an attempt to subdue an emotionally disturbed suicidal man who was armed
with an axe and had previously taken hostages, and in shooting and killing him
when he responded to the pepper spray by lifting the axe and running towards
them. Isom v. Town of Warren, No. 03-1765, 360 F.3d 7 (1st Cir. 2004). [2004
LR May]
Family of mentally disturbed man who allegedly
committed "suicide by cop" could not pursue California state law
negligence lawsuit for wrongful death against city and officers following
summary judgment for the defendants in their prior federal civil rights
lawsuit. Appeals court also finds no violation of California state
constitutional rights. City of Simi Valley v. Superior Court (Bayer), No.
B166917, 4 Cal. Rptr. 3d 468 (Cal App. 2003). [2003 LR Dec]
Officer was not required to give advance warning
of his use of pepper spray in his attempt to subdue a man, armed with a walking
stick, who was suspected of having already used it to inflict serious injury on
a woman in a laundromat who was observed bleeding profusely from her head at
the scene. Further, his use of deadly force was also justified when the suspect
appeared ready to attack him and refused orders to drop the stick. McCormick v.
City of Fort Lauderdale, No. 01-16567, 333 F.3d 1234 (11th Cir. 2003). [2003
LR Sep]
Use of hog-tie restraint against arrestee who had
a head wound and had been sprayed with pepper spray, and was also allegedly
compliant at the time of the restraint, was an excessive use of force, and
officers were not entitled to qualified immunity from possible liability for
arrestee's subsequent death from positional asphyxia. There was also evidence
to show that county officers widely used hog-tie restraints but that no
training in the use of such restraints was provided. Garrett v. Unified
Government of Athens-Clarke County, 246 F. Supp. 2d 1262 (M.D. Ga. 2003). [2003
LR Jul]
There was a genuine issue of fact as to whether an
officer's use of pepper spray was reasonably necessary to subdue a man being
arrested for disorderly conduct, but the officer did not engage in deliberate
indifference to the arrestee's serious medical needs by failing to immediately
call an ambulance after the use of the spray, in the absence of any evidence
that the delay caused any harm. The evidence further showed that the arrestee
declined the officer's offer to give him a towel and water to flush out his
eyes. Mantz v. Chain, 239 F. Supp. 2d 486 (D.N.J. 2002). [N/R]
Estate of aspiring "rap" musician who
died when officers' use of pepper spray against him allegedly triggered a fatal
asthma attack reaches $2.7 million settlement with city in wrongful death and
civil rights lawsuit. Officers mistakenly believed that the decedent, seen
riding in a taxi, was involved in the murder of a fellow officer and allegedly
kicked and beat him in the course of the arrest, leaving his asthma inhaler at
the scene of the arrest after using the pepper spray on him. Estate of Faison
v. City of Orange, No. 00-1944 (KSH) U.S. District Court (D.N.J.), June 25,
2002, reported in The National Law Journal, p. B3 (Sept. 30, 2002).[N/R]
After a four hour armed standoff and failed
negotiations, it was reasonable for officers to fire tear gas into a mentally
disturbed man's vehicle to extricate him after he had previously shot at police
and refused to surrender. No liability for "excessive force" or
subsequent confrontation that led to his death. Bayer v. City of Simi Valley,
No. 01-55736, 43 Fed. Appx. 36 (9th Cir. 2002). [2002 LR Dec]
Officer's use of pepper spray was not unreasonable when
arrestee had been climbing stairs toward the officer, screaming threats to harm
him and gesturing wildly with his arms, ignoring the officer's order to stay
back. Jim v. County of Hawaii, #00-16979, 33 Fed. Appx. 857 (9th Cir. 2002).
[N/R]
Officers acted objectively reasonably in
forcing a diabetic motorist to a stop and forcibly removing him from his truck
through the use of pepper spray, baton blows, and bites from a police dog when
his erratic driving was serious enough that people might have been killed by
it, and he refused to comply with lawful orders once he was stopped. Moore v.
Winer, 190 F. Supp. 22d 804 (D. Maryland 2002). [2002 LR Jul]
Use of O.C. (pepper spray) by officer attempting
to handcuff "belligerent" person who ignored officers' requests and,
at the least, passively resisted arrest was not an excessive use of force.
Issues of fact existed, however, as to whether an officer held the arrestee
around the neck and subjected him to an unreasonable risk of serious injury,
causing a broken neck. Fultz v. Whittaker, 187 F. Supp. 2d 695 (W.D. Ky. 2001).
[2002 LR Jun]
Arrestee's standing conviction for obstructing an
officer barred his excessive force claim against the arresting officer for
using pepper spray against him, since an award in his favor would imply the
invalidity of his conviction. California intermediate appeals court rules.
Susag v. City of Lake Forest, No. D038608, 115 Cal. Rptr. 2d 269 (Cal. App.
2002). [2002 LR May]
Officers used reasonable force in subduing woman
with chemical spray and pushing her to the ground when an altercation broke out
as she was attempting to "directly interfere" with officer's attempts
to maintain order and resisted arrest for attempting to interfere with the
arrest of her son. Jackson v. City of Bremerton, No. 99-36159, 268 F.3d 646
(9th Cir. 2001). [2002 LR Feb]
347:163 U.S.
Supreme Court orders further proceedings as to whether officers were entitled
to qualified immunity in lawsuit brought by anti-logging protesters claiming
that the use of pepper spray to compel their compliance with law enforcement
orders was an excessive use of force. Humboldt County v. Headwaters Forest
Defense, #00-1649, 2001 U.S. LEXIS 5482.
345:133 Married couple who triggered alarm when
they entered lit, apparently open convenience store were properly awarded
damages for false arrest and assault based on deputies treatment of them after
arriving on the scene and finding no evidence of crime; deputy used excessive
force against wife by spraying her twice in the face with "OC" spray
at close range; appeals court reduces damages awarded as excessive. Park v. Shiflett,
No. 00-1809, 250 F.3d 843 (4th Cir. 2001).
342:84 Officer who sprayed arrestee in the face
with pepper spray a second time while she was sitting in the back seat of a
police vehicle with her hands handcuffed behind her was liable for $1,000 in
compensatory and $40,000 in punitive damages, as well as $12,877.97 in
attorneys' fees and costs. Blackledge v. Carlone, 126 F. Supp. 2d 224 (D. Conn.
2001).
339:35 UPDATE: Federal appeals court reinstates
lawsuit over use of pepper spray to compel compliance by anti-logging
protesters, disagrees with trial judge who ruled that no reasonable juror could
view its use in these circumstances as excessive force. Headwaters Forest
Defense v. County of Humboldt, #98-17250, 211 F.3d 1121 (9th Cir. 2000).
339:36 African-American arrestees stated claim
for racial discrimination based on assertion of city practice or custom of
using pepper spray and excessive force against them based on race; alleged
breaking of arrestee's arm, use of pepper spray against him, and biting by
police dog during "unnecessary" subduing was conduct which, if true,
no reasonable officers could have believed was warranted. Wilkerson v. Thrift,
124 F. Supp. 2d 322 (W.D.N.C. 2000).
325:9 Arrestee could not seek to impose liability
on city for alleged policy of failure to supervise and discipline officers for
misuse of pepper spray when the evidence showed that city trained officers in
its use, required them to report its use in a form reviewed by supervisors, and
plaintiff himself failed to file any complaint with the department about its
use against him. Horrington v. City of Detroit, 49 F.Supp. 2d 1022 (E.D. Mich.
1999).
323:163 Use of pepper spray was not excessive
force when used to compel arrestee's compliance with handcuffing; arrestee was
"agitated" and repeatedly refused to be handcuffed, instead swearing
at officers. Passino v. St. of N.Y., 1999 N.Y. App. Div. Lexis 4219, 260 A.D.2d
915, 689 N.Y.S.2d 258.(A.D. 1999).
"The deterrent effects of oleoresin capsicum
on assaults against police," 1 (2) Police Quarterly 1-2 (1998). Summary:
"OC had a statistically significant deterrent effect on violence against
police, reducing assaults on officers an average of about 32 per month" in
the Baltimore County, MD, Police Dept. Subscription info: PERF/ACJS (888) 202-
4563.
320:115 Officers did not violate union
demonstrators' First Amendment rights by using tear gas to disperse rally
outside factory after picketers refused to disperse; blowing of tear gas into
nearby homes did not violate clearly established privacy rights of homeowners;
court rejects inadequate training claim in absence of specific evidence.
Ellsworth v. City of Lansing, 34 F.Supp. 2d 571 (W.D. Mich. 1998).
318:91 City was not liable for death of arrestee
caused by cocaine poisoning after he swallowed drugs officers were attempting
to get him to expel from his mouth; officers' use of Heimlich maneuver and
pepper spray were not unreasonable under the circumstances; no deliberate
indifference or inadequate training on the part of the city was shown.
Singleton v. City of Newburgh, 1 F.Supp. 2d 306 (S.D.N.Y. 1998).
314:20 Use of pepper spray to compel compliance
by anti-logging protestors was a reasonable use of force; federal trial judge
rules that no reasonable juror could view its use in these circumstances as
excessive force. Headwaters Forest Defense v. County of Humboldt, 1998 U.S.
Dist. Lexis 16953 (N.D.Cal.).
306:84 Jury awards $45 million to surviving
family of 25- year-old double amputee motorist who died following altercation
with officer who pulled him over; pepper spray and neck hold used to restrain
motorist. Mallet v. City of Phoenix, Phoenix Superior Court, Phoenix, Arizona,
reported in the Chicago Tribune, p. 16 (March 13, 1998).
305:70 Officer had probable cause to take
depressed man into protective custody based on his consumption of alcohol,
number of pills which appeared to be missing from his medication, and his phone
call to psychologist; use of pepper spray to restrain man and take him to
hospital was reasonable when officer had reason to believe man might be
attempting suicide. Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997).
299:166 Officers were not entitled to qualified
immunity on use of pepper spray to attempt to disburse demonstrators outside
factory involved in labor strike Lamb v. City of Decatur, 947 F.Supp. 1261 (CD
Ill 1996).
286:148 Use of pepper spray to force arrestee to
disgorge crack cocaine from his mouth was a reasonable use of force and was not
"outrageous" U.S. v. Holloway, 906 F.Supp. 1437 (D.Kan 1995).
Arrestee who lost an eye receives $273,000
settlement in suit alleging unreasonable use of aerosol spray and inadequate
medical care while in custody Goodman v. Montgomery County, U.S. Dist. Ct., M.D.
Ala., No CV-92-H-1170-N (May 29, 1993), reported in 37 ATLA L. Rep.56 (March
1994).
City could be liable for officer's spraying mace
into arrestee's face Griffith v. City of Monrovia, 184 Cal.Rptr. 709 (Super
1982).
Court awards $400,000 against District of
Columbia for officers' misuse of tear gas during grievance ride to capital
District of Columbia v. Colston, 468 A.2d 954 (D.C App. 1983).
Injunction against use of mace can not be granted
in light of Lyon's, a Supreme Court case involving choke holds Curtis v. City
of New Haven, 726 F.2d 65, (2nd Cir. 1984).
Use of mace not excessive when intoxicated
arrestee tried to kick officer; no indifference to medical needs shown when
medical attention not requested Dayton v. Sapp, 668 F.Supp. 385 (D. Del. 1987).
" See also: Defenses:
Statute of Limitations, Defenses: Notice
of Claim