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Pepper Spray Madness
[The author is an attorney in private practice in Seattle, Washington, and a frequent writer on police accountability issues. She is also on the Steering Committee of the National Coalition on Police Accountability. This article first appeared in the Spring 1996 Issue of COVERT ACTION QUARTERLY.]
Imagine that someone has sprayed oleoresin capsicum, a substance 600 times hotter than cayenne pepper, into your face, eyes and nostrils. Imagine that while this is happening, your hands are cuffed behind your back. Or you have asthma or bronchitis. Or a heart condition. Or you're drunk or just plain upset. Chances are, the pain will be intense, breathing will become difficult, your eyes will swell into blindness, you will become disoriented and fall to the ground. Fear and panic will set in. If you are unlucky enough to be in an altercation with the police and you are in restraints on your stomach, you may die.
Last summer, Javier Trejo didn't have to imagine. After his wife, Maria, called police to report that he was drunk and abusive, Orange County, California, sheriff's deputies subdued him with pepper gas and threw him in a holding cell. About an hour later, he was pronounced dead. "I asked the police for help," cried Maria. "I didn't say kill him."
Trejo became one of the 60 in-custody deaths since 1990 in which pepper spray was a contributing factor. Derived from the cayenne pepper plant, oleoresin capsicum (OC) or pepper spray, was officially introduced into the US in the 1980s by the Postal Service as a dog repellent. In 1987, claiming that it produced no long-term health risks, the FBI adopted it as an "official chemical agent." Ever since, in liquid and foam form, OC has gained in popularity among police searching for a non-lethal method of subduing people in street encounters. They claim that it avoids the major drawbacks of other chemical agents: It doesn't blow back on those using it and can be washed off with relative ease. It has the further advantage of not leaving the kinds of injuries that generate brutality complaints.
Echoing advertising by the 200 pepper spray manufacturers, police managers also report that it is "95 percent effective in stopping suspects almost immediately" compared to tear gas or Mace at 60 percent. The International Association of Chiefs of Police asserts not only that OC is better "on violent, intoxicated/drugged and mentally ill individuals," but also that it "has not caused any deaths, even among persons with pre-existing conditions." With this kind of propaganda, it is no surprise that pepper spray has replaced and surpassed police use of Mace on the streets: Virtually every state authorizes it.
CRIME OF PUNISHMENT
While there is no question that pepper spray aerosol is less lethal than a gun and that when used correctly, it causes considerably less physical injury than a baton or an attack dog, it is neither as effective nor as benign as claimed. According to Andrea Pritchett of Copwatch, a citizens group in Berkeley, California, "It's used in addition to other forms of force such as guns, batons and mechanical restraints, not in their place. ... And when you add it to other force methods, pepper spray tends to make a person actually more difficult to control." Nor, she claims, is it likely to reduce excessive force lawsuits against police, since many of California's 28 in-custody deaths have resulted in wrongful death suits.
As for its being benign, the pain, which can last up to 45 minutes, is so intense that the National Coalition on Police Accountability (N-COPA) has called for monitoring pepper spray as a form of torture as defined by the United Nations Convention on Torture and Other Cruel, Inhuman and Degrading Treatment signed by the US last year.
After police chiefs in Britain and Australia tried to add OC to their arsenals, activists argued that it would violate the Chemical Weapons Convention. They cited instances in Israel and Guatemala, as well as in the US, where OC is used not only to control civil unrest and subdue dangerous suspects, but to mete out extrajudicial punishment as a kind of street justice. In a Washington state case, a young black man who had mouthed off to the cops was pepper sprayed after being handcuffed. He was then left in a patrol car with the heat on high for half an hour.
The ACLU has raised additional concerns that the number of deaths in which OC has been a contributing factor may be much higher than the 60 so far documented. For example, although none of the autopsy reports for 26 post-spray deaths studied by its Southern California branch listed pepper spray as a cause of death, the group concluded that "documents recovered ... establish that [California] state scientists have warned for more than two years that so little is known about residual effects of pepper spray that medical examiners may not know what to look for during an autopsy."
It was only in July 1993 that a North Carolina coroner issued the first US autopsy report directly connecting pepper spray to an in-custody death. It noted that Angelo Robinson, a 24-year-old black parolee stopped for disorderly conduct, had bronchitis at the time of his death. "Officers reportedly sprayed Robinson 10-15 times and then placed him in a prone position on the ground while he was handcuffed, a position that has been known to cause death" from positional asphyxia, in which the weight of the body compresses the chest and causes respiratory failure.
As the danger becomes better known, more medical researchers are recognizing OC-related deaths and reporting an alarming nationwide increase: from two in 1992 to 26 in 1993. In addition to better documentation, these figures indicate the exponential increase in pepper spray use by law enforcement agents. In one particularly gruesome incident reported by the National Institute of Justice, police sprayed a youth with so much pepper spray that his clothes were soaked. When he was later shot with an electric stun gun by police, his clothing caught on fire.
PEPPERING PRISONS
If misuse is a problem on the street, it is a disaster in US prisons The Department of Justice (DoJ) and every federal court that has looked at its use in correctional facilities has found abuses. This fall, after more than 100 inmates rioted at the privately-run West Tennessee Detention Facility, prison guards pumped pepper gas into two dormitories seized by the prisoners. In late 1994, the DoJ Civil Rights Division investigated a county jail in Syracuse, New York, and reported "an unacceptably high and improper use of pepper spray ... Nearly every inmate interviewed told ... of excessive and improper use ... particularly when inmates are not resistant and after the inmate has been restrained and presents no danger." One suicidal inmate in Syracuse was restrained with three cans of pepper spray. The prisoner reportedly died shortly afterward from positional asphyxia.
More recently, a federal district court judge in Washington State barred the use of pepper spray in a state juvenile facility. "[I]t should be used," he ruled, "only if there is a threat of equal or greater harm to others or to a substantial amount of valuable property than the pain and danger of harm that the pepper spray presents." Pat Arthur, plaintiffs' attorney in the case, emphasized a lack of training: "If staff aren't trained in other intervention methods, they resort to pepper spray." Calling it "a chemical weapon," she said, "I have seen videotapes of kids who are being sprayed. The pain is so intense: the kid immediately falls to the floor, screaming. There is no question of an injury being suffered."
In at least one other federal case based on the eighth amendment, a South Carolina prisoner sued under 42 U.S.C. §1983 after he was pepper sprayed and chained to a bare metal bunk for eight hours. The court held that doing so in those circumstances, without fumigating the cell or providing medical treatment, could only be interpreted to constitute "punishment" rather than an attempt to quell a disturbance. See: Williams v. Benjamin, 77 F.3d 756 (4th cir. 1996).
WEAPON OF CHOICE
Local community groups, outraged by the startling increase in pepper spray use, are now calling for accountability. Copwatch demanded an outright ban on pepper spray after 37-year-old Aaron Williams, arrested for disorderly conduct, died after being beaten, kicked, and repeatedly pepper-sprayed by San Francisco police officers, probably while in a handcuffed, horizontal position. Following that incident, police commanders conceded that officers had violated official policy against transporting handcuffed prisoners lying face down (raising the danger of positional asphyxia) and had disregarded the warning to pay special attention to suspects acting in bizarre ways. In this, as in other cases, regulations -- even when they exist are often ignored by cops who see pepper spray as a very low level use of force, well below the baton.
According to Allan Parachini of the ACLU, which helped draft the San Francisco policy, Williams died because of a "failure of procedure.... Pepper spray never alone causes death but when it is combined with other restraints, there is a definite risk of fatality. [I]t can be a valuable tool in many different situations. The challenge is to set clear standards regarding how to use it, in what circumstances. ... [I]t doesn't serve anyone's purposes ... when it is used on people in psychiatric distress or on drugs. When used on these people and combined with a hogtie restraint, you are just asking for a fatality."
In California, attorneys for victims who died after being pepper-sprayed are increasingly using product liability claims against manufacturers as part of their lawsuits. The basis of these claims is that the manufacturers knowingly sold a product that was potentially lethal. So far, however, these claims have been dismissed by California courts on the basis that the manufacturers received certification from a state agency prior to distributing the spray and that they are therefore immune from suit. Two of these cases are currently on appeal and a third, involving Aaron Williams death, is pending.
Regardless of injuries and even death resulting from its use, there is not a single federal agency currently responsible for regulation. "Because pepper spray is probably not a food or a drug within the meaning of FDA legislation, the Consumer Product Safety Commission may be the only federal agency with authority in this field." As manufacturers increase their efforts to push the use of pepper spray in prisons, to "disperse crowds", and to "facilitate cell extraction," federal regulation is needed now more than ever. But given the current state of the federal budget, such regulation is unlikely. Equally unlikely is that police will voluntarily restrict use. Pepper spray, despite the risk of death, and precisely because of the instant torture it inflicts, is a weapon of choice.
Imagine that someone has sprayed oleoresin capsicum, a substance 600 times hotter than cayenne pepper, into your face, eyes and nostrils. Imagine that while this is happening, your hands are cuffed behind your back. Or you have asthma or bronchitis. Or a heart condition. Or you're drunk or just plain upset. Chances are, the pain will be intense, breathing will become difficult, your eyes will swell into blindness, you will become disoriented and fall to the ground. Fear and panic will set in. If you are unlucky enough to be in an altercation with the police and you are in restraints on your stomach, you may die.
Last summer, Javier Trejo didn't have to imagine. After his wife, Maria, called police to report that he was drunk and abusive, Orange County, California, sheriff's deputies subdued him with pepper gas and threw him in a holding cell. About an hour later, he was pronounced dead. "I asked the police for help," cried Maria. "I didn't say kill him."
Trejo became one of the 60 in-custody deaths since 1990 in which pepper spray was a contributing factor. Derived from the cayenne pepper plant, oleoresin capsicum (OC) or pepper spray, was officially introduced into the US in the 1980s by the Postal Service as a dog repellent. In 1987, claiming that it produced no long-term health risks, the FBI adopted it as an "official chemical agent." Ever since, in liquid and foam form, OC has gained in popularity among police searching for a non-lethal method of subduing people in street encounters. They claim that it avoids the major drawbacks of other chemical agents: It doesn't blow back on those using it and can be washed off with relative ease. It has the further advantage of not leaving the kinds of injuries that generate brutality complaints.
Echoing advertising by the 200 pepper spray manufacturers, police managers also report that it is "95 percent effective in stopping suspects almost immediately" compared to tear gas or Mace at 60 percent. The International Association of Chiefs of Police asserts not only that OC is better "on violent, intoxicated/drugged and mentally ill individuals," but also that it "has not caused any deaths, even among persons with pre-existing conditions." With this kind of propaganda, it is no surprise that pepper spray has replaced and surpassed police use of Mace on the streets: Virtually every state authorizes it.
CRIME OF PUNISHMENT
While there is no question that pepper spray aerosol is less lethal than a gun and that when used correctly, it causes considerably less physical injury than a baton or an attack dog, it is neither as effective nor as benign as claimed. According to Andrea Pritchett of Copwatch, a citizens group in Berkeley, California, "It's used in addition to other forms of force such as guns, batons and mechanical restraints, not in their place. ... And when you add it to other force methods, pepper spray tends to make a person actually more difficult to control." Nor, she claims, is it likely to reduce excessive force lawsuits against police, since many of California's 28 in-custody deaths have resulted in wrongful death suits.
As for its being benign, the pain, which can last up to 45 minutes, is so intense that the National Coalition on Police Accountability (N-COPA) has called for monitoring pepper spray as a form of torture as defined by the United Nations Convention on Torture and Other Cruel, Inhuman and Degrading Treatment signed by the US last year.
After police chiefs in Britain and Australia tried to add OC to their arsenals, activists argued that it would violate the Chemical Weapons Convention. They cited instances in Israel and Guatemala, as well as in the US, where OC is used not only to control civil unrest and subdue dangerous suspects, but to mete out extrajudicial punishment as a kind of street justice. In a Washington state case, a young black man who had mouthed off to the cops was pepper sprayed after being handcuffed. He was then left in a patrol car with the heat on high for half an hour.
The ACLU has raised additional concerns that the number of deaths in which OC has been a contributing factor may be much higher than the 60 so far documented. For example, although none of the autopsy reports for 26 post-spray deaths studied by its Southern California branch listed pepper spray as a cause of death, the group concluded that "documents recovered ... establish that [California] state scientists have warned for more than two years that so little is known about residual effects of pepper spray that medical examiners may not know what to look for during an autopsy."
It was only in July 1993 that a North Carolina coroner issued the first US autopsy report directly connecting pepper spray to an in-custody death. It noted that Angelo Robinson, a 24-year-old black parolee stopped for disorderly conduct, had bronchitis at the time of his death. "Officers reportedly sprayed Robinson 10-15 times and then placed him in a prone position on the ground while he was handcuffed, a position that has been known to cause death" from positional asphyxia, in which the weight of the body compresses the chest and causes respiratory failure.
As the danger becomes better known, more medical researchers are recognizing OC-related deaths and reporting an alarming nationwide increase: from two in 1992 to 26 in 1993. In addition to better documentation, these figures indicate the exponential increase in pepper spray use by law enforcement agents. In one particularly gruesome incident reported by the National Institute of Justice, police sprayed a youth with so much pepper spray that his clothes were soaked. When he was later shot with an electric stun gun by police, his clothing caught on fire.
PEPPERING PRISONS
If misuse is a problem on the street, it is a disaster in US prisons The Department of Justice (DoJ) and every federal court that has looked at its use in correctional facilities has found abuses. This fall, after more than 100 inmates rioted at the privately-run West Tennessee Detention Facility, prison guards pumped pepper gas into two dormitories seized by the prisoners. In late 1994, the DoJ Civil Rights Division investigated a county jail in Syracuse, New York, and reported "an unacceptably high and improper use of pepper spray ... Nearly every inmate interviewed told ... of excessive and improper use ... particularly when inmates are not resistant and after the inmate has been restrained and presents no danger." One suicidal inmate in Syracuse was restrained with three cans of pepper spray. The prisoner reportedly died shortly afterward from positional asphyxia.
More recently, a federal district court judge in Washington State barred the use of pepper spray in a state juvenile facility. "[I]t should be used," he ruled, "only if there is a threat of equal or greater harm to others or to a substantial amount of valuable property than the pain and danger of harm that the pepper spray presents." Pat Arthur, plaintiffs' attorney in the case, emphasized a lack of training: "If staff aren't trained in other intervention methods, they resort to pepper spray." Calling it "a chemical weapon," she said, "I have seen videotapes of kids who are being sprayed. The pain is so intense: the kid immediately falls to the floor, screaming. There is no question of an injury being suffered."
In at least one other federal case based on the eighth amendment, a South Carolina prisoner sued under 42 U.S.C. §1983 after he was pepper sprayed and chained to a bare metal bunk for eight hours. The court held that doing so in those circumstances, without fumigating the cell or providing medical treatment, could only be interpreted to constitute "punishment" rather than an attempt to quell a disturbance. See: Williams v. Benjamin, 77 F.3d 756 (4th cir. 1996).
WEAPON OF CHOICE
Local community groups, outraged by the startling increase in pepper spray use, are now calling for accountability. Copwatch demanded an outright ban on pepper spray after 37-year-old Aaron Williams, arrested for disorderly conduct, died after being beaten, kicked, and repeatedly pepper-sprayed by San Francisco police officers, probably while in a handcuffed, horizontal position. Following that incident, police commanders conceded that officers had violated official policy against transporting handcuffed prisoners lying face down (raising the danger of positional asphyxia) and had disregarded the warning to pay special attention to suspects acting in bizarre ways. In this, as in other cases, regulations -- even when they exist are often ignored by cops who see pepper spray as a very low level use of force, well below the baton.
According to Allan Parachini of the ACLU, which helped draft the San Francisco policy, Williams died because of a "failure of procedure.... Pepper spray never alone causes death but when it is combined with other restraints, there is a definite risk of fatality. [I]t can be a valuable tool in many different situations. The challenge is to set clear standards regarding how to use it, in what circumstances. ... [I]t doesn't serve anyone's purposes ... when it is used on people in psychiatric distress or on drugs. When used on these people and combined with a hogtie restraint, you are just asking for a fatality."
In California, attorneys for victims who died after being pepper-sprayed are increasingly using product liability claims against manufacturers as part of their lawsuits. The basis of these claims is that the manufacturers knowingly sold a product that was potentially lethal. So far, however, these claims have been dismissed by California courts on the basis that the manufacturers received certification from a state agency prior to distributing the spray and that they are therefore immune from suit. Two of these cases are currently on appeal and a third, involving Aaron Williams death, is pending.
Regardless of injuries and even death resulting from its use, there is not a single federal agency currently responsible for regulation. "Because pepper spray is probably not a food or a drug within the meaning of FDA legislation, the Consumer Product Safety Commission may be the only federal agency with authority in this field." As manufacturers increase their efforts to push the use of pepper spray in prisons, to "disperse crowds", and to "facilitate cell extraction," federal regulation is needed now more than ever. But given the current state of the federal budget, such regulation is unlikely. Equally unlikely is that police will voluntarily restrict use. Pepper spray, despite the risk of death, and precisely because of the instant torture it inflicts, is a weapon of choice.
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