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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.)


( 14 comments — Leave a comment )
Nov. 22nd, 2011 04:06 am (UTC)
Wow! That is an industrial size can of worms.

I had no idea it was so complicated, or so full of grey areas.
Nov. 22nd, 2011 09:18 am (UTC)
The environment of the courts generally seems to be that if a police officer tells you to do something, you do it, and if you don't, then you shouldn't be afforded any legal protection at all, because your not obeying means you are a criminal and should be treated as such.

I suspect most lawyers tell their clients to shut up and take whatever they're going to get at that point.
Nov. 23rd, 2011 12:04 am (UTC)
The short answer is "Don't Talk To Police" and do watch one of the many YouTube videos by that title.

The long answer is that there is some sketchy case law addressing situations where police are flagrantly acting outside their duties. I say sketchy because most of the litigants are deceased. My advice in such situations is to call for more and/or real police.
Nov. 22nd, 2011 01:13 pm (UTC)
_Humboldt_ is the definitive case here in 9th Circuit for pepper spray.

Quoting California Penal Code Section 835:

"Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

"A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance."

This is backed up by lots of Constitutional and case law. One of the most notable is _Edson [deceased] vs. City of Anaheim_. http://law.justia.com/cases/california/caapp4th/63/1269.html

"Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." (Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 1871-1872, 104 L.Ed.2d 443].) They are, in short, not similarly situated to the ordinary battery defendant and need not be treated the same."

I quibble with one minor point you said above. You said that the cop is allowed to 'torture' you. Sufficient force to overcome resistance -- which is always allowed when the arrest itself is lawful, or in defense of self or others -- is different from excessive force, whether it comes from incompetence (King beating), gross negligence (involuntary manslaughter of Oscar Grant), or a callous disregard for the safety and civil rights of others (Pike spraying).

If individual protesters had been asked to move, and then individually pepper sprayed, I'd have a lot less problems with that -- especially if the conversation had been something like:

"As a police officer, I'm asking you to get up and come with me, as you are under arrest. Are you going to do that? No? I'm going to pepper spray you if you don't. Get up right now and come with me. Last chance. [Display spray, shake spray.] Get up! [pause] [spray, 3 second burst from 3 feet with the handheld projector] [pause] Come on, let go, let's go, over here, let's go. [walk student over to arrest team, which secures hands, searches for weapons, applies decontamination.]"


What I saw was a riot control / corrections technique unleashed on peaceful protesters on a university campus, historically the most highly protected place for free speech. Indiscriminate spraying is like machine-gunning a crowd because one person in it is a fleeing felon.
Nov. 22nd, 2011 01:15 pm (UTC)
To be clear about method of employment: I had a typo. Half-second burst from three feet with a MK-3 or MK-4 device, NOT THE MK-9 WITH A MINIMUM SAFETY DISTANCE OF SIX FEET!
Nov. 22nd, 2011 08:53 pm (UTC)
With respect to your quibble, I'll make my argument brief: I don't see any way to rationalize Forrester v San Diego, which says that it's okay to intentionally inflict pain in order to get someone to do what you want them to, with the ratified UN Convention Against Torture, which says that it's never okay to intentionally inflict pain to get someone to do what you want them to. I believe that the Convention Against Torture supercedes Forrester, or at least that it ought to if we weren't living in a torture state. I consider "pain compliance" to be as repulsive a euphemism as "enhanced interrogation."

I am aware that there is no case law that backs me up on this, and I'm not expecting there to be any. But I call things by their right names.
Nov. 22nd, 2011 11:59 pm (UTC)
OK. I don't agree with your point, but I see it. Pain compliance is a lot better than inflicting lasting physical injury -- in the context of lawful police use of force.

In the context of interrogation neither has any place in a civilized society.
Nov. 22nd, 2011 02:57 pm (UTC)
Almost all cases of police brutality are settled out of court, usually with confidential terms and no admission of fault. That's probably why there is a dearth of case law. Our local Austin paper is trying to raise a fuss over this practice here, on the basis that "settling all these claims has cost the city millions of dollars." Considering that a couple of these settlements had to do with unarmed fleeing suspects being shot in the back, I think the paper doth protest too much. I doubt the taxpayers would want to be on the hook for the massive payout a loss of a civil rights violation case would incur on the city treasury.
Nov. 22nd, 2011 05:51 pm (UTC)
On the other foot, it would generate case law and recommendations for changes to law enforcement methodology.
Nov. 24th, 2011 07:20 am (UTC)
All government is ultimately backed up by the threat of force. That's why bloody revolutions are necessary. I hope The People can take back the government without having to resort to that.
Nov. 24th, 2011 06:06 pm (UTC)
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

Nov. 24th, 2011 06:44 pm (UTC)
Caught me at it, eh? Not very often it's a female cop beating the crap out of someone, though; for some reason, the head-cracker squad is nearly all male.
Nov. 25th, 2011 04:50 am (UTC)
How did "peace officer" end up being "law enforcement officer"? That's part of our problem.
Nov. 25th, 2011 10:18 pm (UTC)
In the words of a character created by former diplomat turned sci-fi writer Keith Laumer, "Ain't nothing more peaceful than a dead troublemaker."
( 14 comments — Leave a comment )