School Officers’ Pepper Spray Policy Declared Unconstitutional In Alabama
High school public safety officers employed by the Birmingham Police Department (BPD) in Alabama violated the constitutional rights of students by using pepper spray against them “unnecessarily” and then failing to adequately decontaminate the children, according to a decision by US District Court Judge Abdul K. Kallon.
The ruling in the class action lawsuit brought by eight Birmingham City School students represented by the Southern Poverty Law Center (SPLC) did not find the use of pepper spray against students was a violation of law. It also did not ban chemical agents from use in schools. However, the judge determined it was “unnecessary for the [officers] to spray most if not all of the plaintiffs.”
The court ordered [PDF] the SPLC and BPD to devise a training plan to ensure School Resource Officers (SRO) do not use pepper spray for “basic school discipline.” The plan must be submitted to the court by November 15, 2015.
The chemical agent used by SROs is called Freeze +P and is manufactured by Aerko International. Freeze +P is a combination of pepper spray and tear gas and is marketed as “the most intense  incapacitating agent available today.”
In one incident outlined in the lawsuit, a tenth grader in her fifth month of pregnancy was sprayed in the face with Freeze +P and handcuffed after an SRO told her to “calm down” because she was upset a classmate had made inappropriate sexual comments to her.
“It felt like somebody cut my face up and poured hot sauce in,” she told the court.
The judge concluded the violations were in accordance with the BPD’s own use of force policies, which instruct officers to respond to resistance with “a degree of force one to two levels greater than the resistance itself.” This policy led to incidents in schools in which officers used pepper spray on students who were verbally noncompliant.
It is evident from the trial SROs used Freeze +P as a “standard response” for non-threatening behavior typical of teenagers, such as talking back and challenging authority.
BPD policy states that “time alone may be an adequate decontamination measure,” which the judge found to “fall far short of those suggested by Freeze +P’s manufacturer and the defendant’s own experts.” SROs left teens to writhe in pain without decontaminating them even though “each of the high schools has science labs with eye wash stations, showers in the lockers, and bathroom sinks with showers and soap.”
Birmingham Police Chief A.C. Roper was fully aware of the policy, which permitted officers to spray students and then do nothing to “alleviate their pain.” This was enough to hold Roper liable for violating the rights of students when officers failed to decontaminate them.
The court was “profoundly disturbed” by the “cavalier attitude” SROs had towards using Freeze +P against students. One SRO joked in his testimony that it was “a potent nasal decongestant for individuals with sinus problems.”
Judge Kallon wrote that he was left with the impression that officers didn’t think Freeze +P was a “big deal,” and it appeared as though officers believed using chemical agents on students was easier than “more hands-on approaches,” even if they caused less pain.
The officers “seem to take the eyebrow-raising position that school children are less deserving of protection from harm at the hands of overzealous law enforcement officers than adults when the harm occurs at school,” according to Kallon.
“[T]he court declines to adopt the position that children in public schools have a reduced expectation of being free from the infliction of excessive force by law enforcement officers.”