Civil disturbances are by their very definition messy, volatile, unpredictable and potentially dangerous for anyone involved—protestors, police officers, innocent bystanders—and few actions during a civil disturbance receive greater scrutiny than the decision by police to use force. Thus, when the independent review panel investigating the events surrounding the Hell’s Angels ride in Missoula issues its final report, it is all but inevitable that it will include some critique or recommendation on the decision by the Missoula Police Department to use pepper spray to disperse crowds downtown.
According to testimony from Police Chief Pete Lawrenson, the clashes that weekend between police and crowds represent the first and only time in his tenure that riot gear has been deployed by Missoula officers and presumably, the first time that Missoula officers have used pepper spray to disperse a demonstration.
In that respect, Missoula has been very lucky. By some estimates, as many as 90 percent of police departments across the nation have used pepper spray as a tool for dispersing demonstrations, strikes or political protests, a trend that shows no sign of abating. However, whether you see the use of pepper spray or other chemical agents on nonviolent demonstrators as a violation of civil rights or as an effective and less dangerous tool for seeking compliance with police directives, there are lessons to be learned on all sides from the experiences that other states and municipalities have had.
The use of oleoresin capsicum, commonly referred to as “OC” or pepper spray, is a natural derivative of the cayenne pepper plant whose use among law enforcement agencies in the United States dates back some 20 years. Pepper spray was first popularized as a defensive weapon among U.S. postal carriers as a way of repelling aggressive dogs. Then in the late 1980s and early 1990s, pepper spray began to replace other chemical agents such as Mace and tear gas as a tool in many police departments’ “continuum of force,” due to its greater effectiveness and purported lack of any long-term side effects.
Pepper spray operates not only on the principle of pain compliance, which can be intense and severe, but also by its physiological effects on the human body. The initial effect of being sprayed in the face is so shocking that a subject will reflexively shut his eyes, cover his face and assume a defensive posture. Next, the spray causes mucous membranes of the respiratory system to swell, decreasing the amount of oxygen entering the lungs, and thus further pacifying the subject. Other reactions can include severe burning of the skin, involuntary contractions of the eyes, bronchial spasms, gagging, gasping for breath and nausea.
Data from the U.S. Surgeon General reports that pepper spray may also cause “extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization or physical rehabilitation.” Other government studies have found a heightened risk among subjects with compromised respiratory systems, especially juvenile asthmatics, who run a greater risk of respiratory failure from pepper spray exposure.
It is this effect of pepper spray on the respiratory system that has led some police watchdog groups, notably the American Civil Liberties Union (ACLU), to challenge its legal definition as a “nonlethal” weapon. In June 1995, the ACLU of Southern California issued a report detailing 26 fatalities of individuals sprayed with pepper spray between Jan. 1, 1993 and June 1, 1995, a rate, the report finds, that is “slightly fewer than one in every 600 police incidents.”
Then in 1997, the ACLU again got involved in the pepper spray debate following a widely publicized incident in Humboldt County, Calif., in which environmental protestors had chained themselves together to protest the logging of redwood trees. Although the protestors were nonviolent and defenseless, Humboldt County sheriff’s deputies and Eureka police officers used cotton swabs to dab their faces and eyes with pepper spray, a use described by one representative of the ACLU of Northern California as “a kind of chemical cattle prod on demonstrators passively resisting arrest.” Others were sprayed at very close range, creating what is known as the “hydraulic needle effect,” in which caustic particulates are driven deep into the soft tissue.
The ACLU later filed a “friend of the court” brief in the civil rights case brought by some of the protestors, refuting police claims that pepper spray is a benign organic substance that only causes transient discomfort. The brief detailed a host of other health risks associated with pepper spray and included a statement issued by the Defense Technology Corporation of America, the largest supplier of pepper spray to California law enforcement, warning officers to limit its use to one-second bursts. The warning also stated that although studies on the effectiveness of pepper spray had been done, “little or nothing is known about the health risk or toxicity of pepper spray.”
In May, the U.S. Ninth Circuit Court of Appeals ruled in Headwaters Forest Defense v. Humboldt County that the use of pepper spray to subdue nonviolent protestors may be unconstitutional and an “unreasonable use of force” in some circumstances. The ruling did not ban the use of pepper spray altogether, but indicated that there are situations when its use may be inappropriate. Earlier, the same court had ruled that pepper spray may constitute a “dangerous weapon” under federal sentencing guidelines, defining it as “capable of inflicting death or serious bodily injury.”
However, not all conflicts between demonstrators and police have been forced to travel a costly and circuitous legal route. On June 1,1997, police in Eugene, Ore., used pepper spray in an attempt to disperse demonstrators who were protesting the cutting of trees for a city redevelopment project. While attempting to remove some tree sitters, police cut protestors’ pant legs and sprayed their bare skin, while other officers used pepper spray foggers that wafted into a crowd of innocent bystanders.
Although the International Association of Chiefs of Police, which routinely issues “use of force” recommendations to law enforcement agencies, reviewed the Eugene PD’s use of pepper spray and found no wrongdoing on the part of officers, the association did recommend a review of the department’s use-of-force policies. The Eugene PD then agreed to work with the ACLU of Oregon in exchange for dropping their threatened lawsuit, the result of which has been a more enlightened use-of-force policy.
The new policy, which took effect in November 1999, now states that pepper spray may be used only when an individual threatens to harm himself, officers or others, and “should not be used as a means to disperse crowds,” though it may be used to assist officers when making an arrest.
According to Polly Nelson of the Oregon ACLU, some protestors felt that the new policies don’t go far enough, and the ACLU still opposes its use altogether. Similarly, Jan Power of the Eugene Police Department admits that while “we appear to be on the cutting edge of a lot of policy,” the new pepper spray rules “didn’t change our policies significantly.”
Perhaps a more significant outcome of the “June 1 Event” was the level of community involvement, oversight and participation that crept into Eugene’s police policymaking. Nelson notes that the incident helped crystalize the need for a police commission to look at broader policy issues and not just isolated police incidents.
Such policy reviews, though often unpopular among officers who don’t like their decisions to be second-guessed by civilians, can be beneficial for protecting officers themselves. For example, a report issued recently by the ACLU of Washington on the use of force by Seattle Police after the World Trade Organization protests last November found that of the 56 officers who reported injuries relating to the protests, many were directly related to their own use of chemical agents. The Washington ACLU report concludes that many of those injuries could have been avoided if the Seattle Police Department had more clearly defined its use of force criteria for its officers.
The model adopted by the City of Eugene, though far from perfect, could serve as a useful model for Missoula, especially since both cities are of comparable size and political pursuasion, with long histories of nonviolent political demonstrations. And while some might argue that banning the use of pepper spray altogether would result in more dangerous, and perhaps deadly, encounters between police and protestors, an open dialogue with the community about the use of force could prevent Missoula citizens and officers from being burned in the future.