Over the last decade police agencies have turned to the use of pepper-spray as an alternative on their use of force options list. While pepper-spray seems to have significantly reduced injuries to suspects caused by impact weapons, pepper-spray has not been litigation-free.

A high-profile case from the 9th Circuit Court of Appeals established that the use of pepper-spray against passively resistant protestors violates constitutional protections *1Headwaters involved a group of protestors who were involved in a demonstration at the Pacific Lumber Company. The protestors had locked themselves together with “black bears.” When sheriff’s deputies arrived at the demonstration, the supervisor decided to use pepper-spray on the protestors. The protestors were warned. When they failed to release themselves, officers applied pepper-spray at close range and even used Q-tips to apply pepper-spray to some protestors’ eyes. The court noted that officers made no attempt to negotiate with the protestors; did not flush out their eyes though the protestors were screaming in pain; and with respect to at least some of the protestors, the pepper-spray did not cause the protestors to release the lock. The court also noted that when the pepper-spray did not work, officers were able to remove the protestors in pairs on a stretcher in under 2 minutes and cut the locks off using the Makita grinders in less than 10 minutes.

The use of pepper-spray on these protestors was not a split-second decision. In fact, Humboldt County had been dealing with environmental protestors for some time. The county had a special response team to deal with these types of protestors. The response team was trained in the use of Makita® grinders that could be used to cut locking mechanisms such as the “black bear” from the protestors. Prior to the events in question Sheriff Lewis and Chief Deputy Philp “consulted a certified trainer in the use of pepper spray, the county’s risk manager, and its district attorney. And they read much of the available literature on the subject.” Lewis and Philp concluded that the use of a lock-down device by an otherwise non-violent protestor who posed no danger to the public, the officer or him/herself constituted “active resistance to arrest” warranting the “use of pepper spray as a pain compliance technique.”

The United States Court of Appeal for the 9th Circuit began its review of the reasonableness of the use of pepper-spray on non-violent protestors by citing the analysis of Graham v. Connor*2 The court thus balanced the governmental need to apply the pepper- spray against the countervailing rights of the protestors to bodily integrity. The court began by distinguishing pepper-spray from pain compliance techniques that police officers can immediately terminate upon compliance. The pain from pepper- spray only passes with time and proper flushing, thus compliance would not terminate the infliction of this use of force. In concluding that the actions of the protestors did not justify the use of pepper-spray, the court noted that the protestors could not “evade arrest” since they had limited their own mobility; further, they were not actively resisting the officers but merely being passively non- compliant. The need for arrest as a government interest was insignificant since the protestors were only guilty of trespassing, a minor offense. As such, applying the standards from Graham, the use of force here was unreasonable.

A second case involving the use of pepper-spray to a non-physical, non-compliance situation confronted by a police officer reached a similar conclusion to the 9th Circuit Court. *3 Mary Martinez was stopped for operating a motor vehicle 10 mph over the speed limit by Trooper Perry Boyd of the New Mexico State Police. The court described Martinez as a 280 pound middle-aged woman. At the time of the stop Boyd noticed that Martinez’ license had been defaced; she indicated that children at her school had defaced the license. A computer check by Boyd revealed an active warrant for a Mary Martinez with the same date of birth as the plaintiff in this case.

Trooper Boyd asked Martinez to step out of the car. She verbally refused, indicating that she wanted to see the trooper’s identification. By all accounts Martinez never physically resisted the trooper’s commands. Trooper Boyd prevailed upon Martinez such that she stepped out of her car and was handcuffed. Trooper Boyd led her back to his cruiser and demanded that she get in. Martinez refused, again stating that she would not comply until she was shown Trooper Boyd’s identification. Boyd refused to show her the identification, but instead decided to spray her with mace to force her compliance. Boyd sprayed Martinez as she stood handcuffed on the side of his police car.

The Court of Appeals for the 10th Circuit held that it would be unreasonable to use mace in an effort to force compliance from a person who is restrained in handcuffs and is only being verbally resistant. As in Headwaters, the court noted that Boyd had other alternatives available to him such as showing her the identification or waiting for the arrival of backup. At the point she was sprayed she was not physically resisting; she was being arrested on a warrant for a minor offense issued for a person with similar information to her; and she was restrained and thus not a flight risk. Applying the principles from Graham the use of force here was unreasonable. The court also refused to grant qualified immunity to the officer, reasoning that any reasonable police officer would know that it is unreasonable to spray a handcuffed, non-physical suspect who was standing beside a cruiser being verbally non-compliant.

The United States Court of Appeal for the 11th Circuit reached a similar conclusion in Vineyard v. Wilson and Stanfield.*4 Terri Vineyard filed a lawsuit against Sheriff Wilson and Officer Stanfield of the Walker County Sheriff’s office. Vineyard’s first contact with Officer Stanfield occurred when Stanfield stopped by Vineyard’s house to notify her that a complaint had been made about her son by a neighbor. The neighbor had indicated that Vineyard’s son had given beer to his son. Officer Stanfield warned Terri Vineyard and others who were attending a cookout at Vineyard’s home not to give beer to the neighbor’s son.

Vineyard and two friends left the party and went to get Vineyard’s son at another neighbor’s house. As they returned with Vineyard’s son they passed the complaining neighbor’s house and words were exchanged. This prompted Officer Stanfield to return to Vineyard’s house. He began to question Vineyard about the altercation with the neighbor but, according to Vineyard, refused to listen to what had transpired. Vineyard was placed under arrest and handcuffed behind her back. On the way to the station a heated exchange took place with insults being hurled like a volley-ball between Vineyard and Officer Stanfield. The exchange concluded when Officer Stanfield stopped the cruiser on a dark road, opened the rear door, pulled Vineyard’s head back and sprayed her with two or three bursts of pepper- spray. The court noted that Vineyard is 5’3” tall and 130 lb. while Officer Stanfield is 6’0” tall and 200 lb. Officer Stanfield admitted to spraying Vineyard, but indicated that he sprayed her after she kicked his seat, threatened to get out of the car, and attempted to kick and spit at him.

In analyzing the use of force against Vineyard, the court examined the factors enunciated in Graham v. Connor. “To balance the necessity of the use of force used against the arrestee’s constitutional rights, a court must evaluate several factors, 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.’” The court continued: “In determining if the force was reasonable, courts must examine (1) the need for the application of force, (2) the relationship between the need and the amount of force used, and (3) the extent of the injury inflicted.” Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight.”

The court noted that courts previously addressing the use of pepper-spray have “consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.” *5Based on Vineyard’s account of the facts, it is abundantly clear to us that during the jail ride Stanfield used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham. Vineyard was arrested for offenses of minor severity, handcuffed, secured in the back of a patrol car, and posing no threat to Officer Stanfield, herself or the public. In addition the jail ride was four miles and relatively short. There was also a glass or plastic partition between Stanfield and Vineyard.” The court concluded that Officer Stanfield was not entitled to summary judgment.


*1 See, Headwaters v. County of Humboldt, (9th Cir. No. 98-17250, 2000).*Back… 

*2 Graham, 490 U.S. 386 (1989). *Back… 

*3 See, Mary Martinez v. New Mexico Department of Public Safety, 47 Fed. Appx. 513 (10th Cir. 2002) *Back… 

*4 Vineyard v. Wilson and Stanfield. 311 F.3d 1340 (11th Cir. 2002).*Back… 

*5 See, Citing, Headwaters, 276 F.3d 1125 (9th Cir. 2002), Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001), Lalonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000), and Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994) *Back…

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