When pepper spray is reasonable
Police typically rely on pepper spray for situations when they need to subdue groups of people at the same time.[2] This usually occurs during protests that have gotten out of hand, riots, or raids. Examples of when using pepper spray is probably justifiable include:
- a fight breaks out between protestors or during sporting events,[3]
- demonstrators are trespassing, threatening passerbyers, or otherwise breaking the law,
- people are rioting after a controversial arrest or court decision,
- police execute a sting operation, and the suspects are resisting, or
- jail inmates are being disorderly[4]
If possible, police should first use verbal commands and/or threats to use pepper spray in an effort to subdue the suspects non-violently.
When pepper spray is excessive
As with most types of police force, law enforcement should use pepper spray as minimally as possible. Once the suspects are subdued, the pepper spray use should cease. Examples when using pepper spray is probably excessive include:
- police spraying pepper spray on peaceful protestors,
- police repeatedly spraying violent protestors after they have already been subdued,
- police spraying a suspect after he/she surrendered and put up no fight,
- police spraying pepper spray on people involved in a brawl without first ordering them to stop, or
- police spraying pepper spray on suspects just for yelling at the police
Furthermore, there is insufficient scientific data regarding the consequences of repeated pepper spray use, especially on people with compromised health. But common sense suggests that repeated or extended use of pepper spray can cause unjustifiable agony or even lasting damage. Therefore, courts are less likely to approve of repeated pepper spray use unless it was necessary to subdue the suspect.
Learn more about police misconduct in Nevada. Victims of unlawful pepper spraying may be able to bring a civil tort lawsuit and/or a Section 1983 lawsuit in Nevada.
See our related article, Is pepper spray legal in Nevada?
Legal References:
- Young v. County of Los Angeles, 655 F.3d 1156 (2011)(“Both pepper spray and baton blows are forms of force capable of inflicting significant pain and causing serious injury. As such, both are regarded as “intermediate force” that, while less severe than deadly force, nonetheless present a significant intrusion upon an individual’s liberty interests.”).
- Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125 (2002)(“the use of pepper spray “may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.” LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000)”).
- See Karen Castro, CCSD police stands by officer’s decision to use pepper spray during high school game fight, LasVegasNow.com (September 18, 2017).
- Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013)(“Use of tear gas in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required. The principle articulated with respect to tear gas also applies to pepper spray. More broadly, it is generally recognized that it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain. However, the court does not require of such officials the legal knowledge culled by the collective hindsight of skilled lawyers and learned.”).
