You know, I thought I understood the law on police use of police use of pain compliance in general and pepper spray as a tool of pain compliance in particular. Then I went looking for footnotes. Now I doubt if there even IS any clear or unambiguous law on police use of pepper spray.
In particular: can anybody find me even one settled case outside the 9th District Court of Appeals? Everybody seems to be basing what little argument they have on 1994 Forrester v San Diego (California), 1998 LaLonde v Riverside (California), and 2002 Humbolt v Riverside (California). I KNOW that cops have used pepper spray outside of California before this year! And I KNOW that the other 8 courts look askance at the 9th Circuit! And yet none of these cases has made it to the US Supreme Court, and I can't find a single case from any other circuit. Has NOBODY outside of California ever sued a cop for pepper spraying them? Or are there such cases, and nobody propagandizing for either side, for the cops or for the protesters, thinks to cite them?
Here's what I think is the law, or least what the cops think the law is, based on yet another review of those three cases:
Nobody disputes the right of a cop to use any tool or weapon at his disposal when somebody is in physical danger, as long as his response is "proportional" to the threat (can't shoot someone dead for threatening to punch someone) and stops as soon as the threat is over (can't shoot them again after they surrender). This is such settled law that it is hardly debated; all these cases assume it; none of these cases have anything to do with anybody being in immediate physical danger before the cop decided to use force. They have to do with what happens when the cop gives you an order, and you refuse to obey it. Specifically, they have to do with what happens after the cop says the magic word "arrest," as in "you are under arrest," because as far as the cops (and most courts) are concerned, it is fundamental and unchallenged law that once you are under arrest, the cop has the legal authority to order you to do almost anything, and the authority to do anything necessary to make you obey him if you don't immediately do so.
What are the limits on "do almost anything to make you obey"? In Forrester v San Diego, the police decided that the previous tactic of dealing with passively resisting protesters, namely carrying them out after they go limp, was injuring too many cops and not a few of the protesters. So they decided to use "pain compliance:" inflict physical pain on any limp or otherwise disobedient arrestees until they stop disobeying. The 9th Circuit upheld this. In LaLonde v Riverside, a guy who was pepper-sprayed in the process of a (frankly, bullshit) arrest inside his own home complained that the cops refusing him first aid once he was no longer resisting constituted torture for its own sake, for punishment's sake, not pain compliance, and the 9th Circuit agreed with him and held the arresting officer liable. In Headwaters v Humboldt, similarly, protesters were able to prove that the cops kept applying pepper spray to them once they had surrendered, and in intentionally egregious ways like pouring the liquid directly into their eyes, and again withheld first aid; once they established these facts, to the district court's satisfaction, the court ruled against the cops.
So, here's what I think I understand:
Until the cop says "you are under arrest," if you're not hurting someone or threatening to hurt someone, he cannot hurt you. If he does, he's the one breaking the law, not you.
Once the cop says "you are under arrest," and you disobey any order he gives you, then unless that order would result in you or somebody else being physically injured, then "Katie, bar the door." He can torture you to his heart's content, with his bare hands or or his boots or using any tool or weapon handy to him, as long as he doesn't intentionally permanently injure you and as long as first aid is provided as soon as you obey. As far as the law is concerned, as soon as you decided to disobey a direct order while under arrest, you volunteered for whatever comes next.
Can't obey, because the cop tazed or sprayed you? We're still waiting for some court to unambiguously rule on that; all I can say is, "sucks to be you." All I can point to is the Rodney King civil suit, in which a jury narrowly ruled that at some point, the cops who were kicking the crap out of him because he wouldn't get up and quietly go to jail, should have noticed that he could no longer get up and quietly go to jail, and should have stopped. But that ruling was narrow (all of the taser hits, all of the punches, all of the clubbings, and all but the last couple of kicks and stomps were ruled to be entirely legal), the videotape evidence was hideous, and the case was nationally politicized; and even so, the civil suit wasn't appealed, so nobody knows what the 9th circuit would have ruled.
(Postscript: Don't live in the 9th circuit? Then, as much as I hate to say it, under our constitutional form of government, the law is what the cops say it is until somebody appeals the case. At best, you can hope that they're assuming that their circuit court would rule the same as the 9th. And given that the 9th is the closest thing the US has to an anti-cop federal court, why would they assume that?)
(Second postscript: It should also go without saying that no court has ruled, nor is there any other law, that if you disobey a cop after he places you under arrest he has some legal obligation to torture you into complying, only that he has the discretion to do so if he thinks that it's the best thing to do in each specific situation. There is almost certainly nowhere near enough training or practice that goes into informing that decision.)