Pepper Spray Abuse and The Constitution?
In assessing the use of force applied to Occupy Wall Street protestors it is important to understand the concept of the “Use of Force Continuum” and the appropriate level of response that comes with each step of that continuum. That is to say, there is a corresponding acceptable level of appropriate enforcement response for each level of subject behavior. In the world of law enforcement, there are several levels of subject classification, they range from Passive Compliant, someone who follows the officer’s orders, to Active Aggressor, someone who actually attacks an officer. People who are blocking a roadway are acting as passive non-compliant offenders, (subjects). The normal use of force for such activity is what is known as control techniques (i.e techniques or actions that have a low probability of causing connective tissue damage, lacerations or broken bones). These would be the use of pressure points, kicks, stuns and arm lock transport or being dragged / carried away from the scene. The next level above passive non-compliant is the active resistor, those who are actively trying to resist a police officer or actively impede him in carrying out a lawful order. It is at this level that pepper spray, baton strikes and physical takedowns are used. As such the police officers at U.C. Davis had clearly upped the level of response beyond what is generally considered appropriate and there has been a nationwide condemnation of their behavior. What some won’t seem to accept, the use of pepper spray on passive resistant protestors, like those at U.C. Davis, constitutes an excessive use of force by law enforcement authorities. The protestors at U.C. Davis were clearly passive resistors who should have been dealt with what are called control techniques.
As it turns out one of the developers of pepper spray feels the same way that I and many others do. In the article “Pepper Spray’s Fallout, From Crowd Control to Mocking Images; http://www.nytimes.com/2011/11/23/us/pepper-sprays-fallout-from-crowd-control-to-mocking-images.html?_r=1&emc=eta1, Kamran Loghman, who helped develop pepper spray into a weapons-grade material with the Federal Bureau of Investigation in the 1980s, said the incident at Davis violated his original intent. Quoting Mr. Logham: “I have never seen such an inappropriate and improper use of chemical agents.” Moreover: “Mr. Loghman, who also helped develop guidelines for police departments using the spray, said that use-of-force manuals generally advise that pepper spray is appropriate only if a person is physically threatening a police officer or another person…The New York Police Department says pepper spray should be used chiefly for self-defense or to control suspects who are resisting arrest.”
So what will be the likely fallout from the various excessive use of force incidents that have now marred several of the OWS demonstrations? Well in the opinions of some legal experts the use of pepper spray on passive protestors is clearly unconstitutional: “its use as a crowd-control device, particularly when those crowds are nonthreatening, is an excessive and unconstitutional use of force and violates the right to peaceably assemble…The courts have made it very clear that these type of devices can’t be used indiscriminately and should be used only when the target poses a physical threat to someone,” said Michael Risher, staff attorney for the A.C.L.U. of Northern California.” What’s more in this day and age of viral video’s the very act of the officers being caught on tape is evidence of this violation of use of force protocols. Again quoting the abovementioned article: “But the public rarely witnesses such scenes, and that was one of the reasons that the video from Davis was so powerful. It captured many elements — seated protesters being doused with a bright orange spray by campus officers, whose body language appeared surprisingly casual.” Needless to say the fallout from these excessive use of force incidents hasn’t even come down to earth as of yet. Be prepared for a spate of lawsuits related to these unfortunate incidents over the next few weeks and months.