Civil Liability
of Law Enforcement Agencies & Personnel

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Pepper Spray (OC), Tear Gas and Chemical Agents,
and Assault and Battery: Chemical

     Monthly Law Journal Article: Civil Liability for the Use of Pepper Spray, Tear Gas, and Chemical Agents - Part 1, 2014 (4) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Civil Liability for the Use of Pepper Spray, Tear Gas, and Chemical Agents - Part 2, 2014 (5) AELE Mo. L. J. 101.

     A federal appeals court held that a trial court erred in submitting to a jury the question of whether officers violated clearly established law in allegedly using excessive force during a May Day protest. The question of whether a particular constitutional right is "clearly established," as part of the qualified immunity analysis, is to be decided by the judge. Additionally, as to claims against one officer who used pepper spray against a demonstrator, the trial court properly denied his motion for judgment as a matter of law on the basis of qualified immunity, as there was evidence from which a jury could have reasonably decided that this use of force was retaliatory. Morales v. Fry, #14-35944, 873 F.3d 817 (9th Cir. 2017).

     An arrestee claimed that a police officer used excessive force by choking him and using pepper spray against him in the course of an arrest for taking eight pairs of shorts from a store.  Upholding a denial of qualified immunity to the officer on an excessive force claim, a federal appeals court ruled that a jury could find that excessive force was used in the deployment of pepper spray or use of choking since the force was on a non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor, While some use of force was reasonable here, it was not reasonable to immediately use significant force. The right not to be pepper sprayed or choked under these circumstances was clearly established. Tatum v. Robinson, #16-1908, 2017 U.S. App. Lexis 9342 (8th Cir.).

    A man was working at his family's dairy farm when a fight broke out which he and ten other people witnessed. Approximately 20 state and local police officers arrived on the scene after the fight ended. One local officer questioned the man about what he had witnessed. A state trooper then yelled at him to take his hands out of his pockets. The man claimed he complied, although he remarked that his hands were cold as he had been milking cows all day. He then started to walk away, having already told his story to the officer. The trooper, subsequently assisted by other officers, then allegedly grabbed, tackled, punched, kicked, and pepper sprayed the man. He subsequently disputed the man's version of events, asserting that the altercation began when the man resisted efforts to force his hands out of his pockets, and that the man struck him and tackled him. Because of these factual disputes, summary judgment for the officers on excessive force claims was improper. Santini v. Fuentes, #14-2938, 2015 U.S. App. Lexis 13552 (3rd Cir.).
     A male motorist who was an insulin-dependent diabetic become lightheaded driving home, and pulled over on the shoulder of the road. He took glucose tablets and either fell asleep or became unconscious. A deputy approached the truck and knocked on the window, attempting to identify himself. The driver stated in a mumble that he was trying to recover from low blood sugar, but the deputy believed him to be intoxicated and radioed for another officer engaged in DWI enforcement. The motorist, when the second officer arrived, stated that he should "leave me the fuck alone." He refused several requests that he exit the vehicle, so both officers pulled him out by his legs, causing him to hit the ground. The driver continued to resist, trying to return to the truck and stating that he had a gun in his waistband when they tried to handcuff him. The gun was removed and thrown, and the motorist asked the officers if they were "stupid," as the gun could have discharged. The officers used pepper spray and struck the motorist. EMS personnel arrived, and treated the motorist for hypoglycemia and a nosebleed. Blood alcohol tests for intoxication were negative, and the driver had a broken rib. Upholding a grant of qualified immunity to the officers, a federal appeals court ruled that even had the officers realized that the driver was suffering from hypoglycemia, the driver still refused to comply with orders and was belligerent and impaired, justifying the use of force. The level of force used was objectively reasonable. Schoettle v. Jefferson County, #14-1993, 2015 U.S. App. Lexis 9729 (8th Cir.).
     Police responded to a 911 call regarding a verbal argument between a man and his girlfriend. The man had locked the woman out, with her keys inside the apartment, but no physical attack had occurred. The man did not want to talk to the officers. One of them prevented him from closing the door, entered his home, and refused to leave. The man called his attorney and did not comply with a demand that he get off the phone. An officer told him that he was under arrest, and two officers each grabbed one of his wrists, resulting in a struggle on the floor. The officers lacked consent, a warrant, or exigent circumstances to enter the home, and they lacked probable cause to arrest him for theft of his girlfriend's keys. There was, however, a disputed issue of fact as to whether the officers had probable cause to arrest the plaintiff for disorderly conduct, as the arrestee denied that he had yelled at the officers. Hawkins v. Mitchell, #13-2533, 2014 U.S. App. Lexis 11906 (7th Cir.).
     A man claimed that officers who came to his house to arrest his brother under a warrant used excessive force against him when he answered the door, lying on top of him, using a chokehold, and using pepper spray. The jury awarded the plaintiff over $2 million in damages, which was reduced by $500,000 to $1,611,656.52 by the trial court. A federal appeals court found that the jury's award and their decision to believe the plaintiff's version of the incident were supported by the evidence, and that the officers were not entitled to qualified immunity. It rejected the officers' argument that if they mistakenly believed that the plaintiff was resisting them that they could use any amount of force as they were only entitled in that instance to use force reasonably necessary. A "reasonable officer would have known it violated clearly established law to use a chokehold on a non-resisting arrestee who had surrendered, pepper-spray him and apply such knee pressure on his neck and back that it would cause the collapse of five vertebrae in his cervical spine."It also found that the trial court failed to adequately explain its reasons for reducing the amount of attorneys' fees and in denying the plaintiff pre- and post-judgment interest, so further proceedings were required. Barnard v. Theobald, #11-16655, 2013 U.S. App. Lexis 13415 (9th Cir.).
     An arrestee who appeared intoxicated actively resisted officers both during the process of being arrested and when taken into jail. He was handcuffed and pepper sprayed. Then, at the jail, when he continued to resist, he was held down and a Taser was applied to him three times in the stun mode. He was held face down, ceased breathing, and was taken to a hospital where he died. A medical expert for the plaintiff expressed the opinion that his cause of death was traumatic asphyxia due to compression of his neck and back while being restrained. A federal appeals court ruled that the defendant officers were entitled to qualified immunity when there was insufficient evidence to support the strangulation theory, since only the expert's conclusory opinion supported it. That opinion was contradicted by other evidence, including the testimony of all the officers and two EMTs. Burdine v. Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013 Fed. App. 376N, 2013 WL 1606906 (Unpub. 6th Cir.).
    A federal appeals court upheld a jury verdict in favor of a city and its officers in a lawsuit over the shooting and killing of a suicidal cocaine intoxicated man armed with a powerful gun with a long range. Negotiations by an emergency response team sent to his apartment failed to persuade him to drop his weapon or come out, and the use of tear gas had been justified to try and subdue him because it was believed that he posed an imminent threat to others in the area. Given that the room was dark and filled with tear gas, and that the officers' accounts differed as to how far his arm was extended when an officer shot and killed him, the fact that he had not previously verbally threatened others during the standoff did not establish that he had not pointed his gun at officers as they entered. Estate of Escobedo v. Martin, #11-2426, 2012 U.S. App. Lexis 25443 (7th Cir.).
     After a traffic stop for an expired registration, a motorist drove off, and the officer pursued him, stopping him a second time and using pepper spray against him. The motorist pulled a gun and shot the officer four times before running him over twice, killing him. A civilian witness to the incident approached the shooter and asked him to drop his gun. When he refused, the witness himself drew a gun and shot and killed him. He feared that the man might shoot either him or his son, who had gone to try to assist the dying officer. The dead motorist's father filed a federal civil rights lawsuit against the dead officer, the town and its police officials and the civilian shooter. A federal appeals court upheld summary judgment for the dead officer and the town, as the plaintiff failed to present any evidence showing that the officer had violated the motorist's rights in any way. There was no evidence that the initial stop was without grounds, and he had not shown that the car's registration was then current. The court also rejected arguments that excessive force had been used by the officer during the second stop. Kenney v. Floyd, #12-163, 2012 U.S. App. Lexis 24699 (1st Cir).
     When President Bush was dining at a restaurant during his 2004 reelection campaign, groups of demonstrators both in favor of and opposed to his re-election attempted to gather outside. A federal appeals court has ruled that, if the facts were as alleged, Secret Service agents violated the First Amendment by forcing protesters opposed to the President to move further away from the restaurant than where they permitted supporters of the President to rally. This was enforcement of a content-based restriction. The agents were not entitled to qualified immunity. The court also found that state and local police supervisors could not be held liable for the alleged use of excessive force against the anti-Bush demonstrators, including the use of pepper spray, clubs, and shoving, since there was no indication that they were personally involved. Moss v. United States Secret Service, #10-3615, 2012 U.S. App. Lexis 7077 (9th Cir.).
       A federal trial jury awarded $2.58 million against a town and six officers for actions taken involving the use of pepper spray against 23 individuals attending a baptismal party at a house. No damages were awarded to another 56 plaintiffs who attended the same party. The federal appeals court ruled that the judgment appeared to have allowed 13 of the successful plaintiffs to improperly receive double recovery for their injuries--once on their federal claims against the officers and once on their state law claims against the town on the basis of vicarious liability for the officer's actions. The appeals court ordered that, on remand, the judgment be amended to avoid the possibility of double recovery. Duran v. Town of Cicero, #08-2467, 2011 U.S. App. Lexis 16360 (7th Cir.).
    A sheriff's deputy grabbed the wrist of a motorist who had not been wearing his seatbelt, and who attempted to flee on foot when ordered to stop. When the man broke away, the deputy used a Taser on him, subsequently also using pepper spray and placing his knee on the man's back. In a lawsuit for excessive use of force, a federal appeals court upheld a jury's decision to award only a dollar in nominal damages. It rejected the plaintiff's argument that the pain of being tasered should always be enough to support a more substantial amount of compensatory damages. The court noted that the jury might have reasonably believed that the use of the Taser was justifiable in this case, and that only the subsequent force used was excessive. Frizzell v. Szabo, #10-2955, 647 F.3d 698 (7th Cir. 2011).
     An officer's use of pepper spray and a baton against a motorist who disobeyed orders to get back in his vehicle was an "intermediate" use of force that "while less severe than deadly force, nonetheless present a significant intrusion upon an individual's liberty interests." It is "rarely necessary, if ever," a federal appeals court stated, "for a police officer to employ substantial force without warning against an individual who is suspected only of minor offenses, is not resisting arrest, and, most important, does not pose any apparent threat to officer or public safety." The motorist did not resist, but merely sat on the curb, so he could proceed with his excessive force claim. Young v. County of Los Angeles, #09-56372, 2011 U.S. App. Lexis 17829 (9th Cir.).
     Police believed that a motorist who veered off the road, and disobeyed orders to exit his vehicle was intoxicated. He was actually diabetic, and suffering from hypoglycemia. The officers physically pulled him from his car, struck him, and used mace on him as he resisted their efforts. After a paramedic recognized the driver's diabetic condition, he was transported to a hospital, where he subsequently died. The officers, under these circumstances, were not liable for the motorist's death, based on the reasonableness of their belief that he was intoxicated. Padula v. Leimbach, #10-3395, 2011 U.S. App. Lexis 17996 (7th Cir.).
     An officer's use of pepper spray to effect an arrest of a man he had observed, weeks earlier, driving with a suspended driver's license was not unreasonable under clearly established law. The arrestee squared off facing the officer and stuck his arms out in a "T," giving the officer probable cause to make an arrest for resisting, whether or not the man was arrested for the prior traffic violation under a valid warrant. Brooks v. City of Aurora, #10-3265, 2011 U.S. App. Lexis 13662 (7th Cir.).
     An officer was not entitled to qualified immunity in a lawsuit over his alleged use of pepper spray against a woman who he claimed tried to hit him after he followed her son from a drug raid into her house. Factual issues concerning whether the woman actually tried to hit the officer, and whether he actually used the pepper spray had to be resolved, precluding the appeals court from upholding the officer's immunity defense. Bomar v. City of Pontiac, #10-2161, 2011 U.S. App. Lexis 13400 (6th Cir.).)
     While a sheriff's deputy did have probable cause to arrest a city employee, there was a factual issue as to whether the use of pepper spray against the arrestee was excessive. The arrestee had allegedly elbowed the deputy while going through an employee entrance security checkpoint at a city building, and responded with a profane statement when ordered to stop. While there was probable cause to arrest the plaintiff for failing to obey a lawful order, his version of the incident, in which he denied making physical contact with the deputy or making the profane statement, if true, would render the deputy's use of pepper spray and action in taking him to the ground an excessive use of force. Howard v. Wayne County Sheriff's Office, #09-2171, 2011 U.S. App. Lexis 5270 (Unpub. 6th Cir.).
    State police followed a motorist to his home after observing him speeding and driving erratically. When they approached his vehicle and ordered him to exit, he did so, but began screaming obscenities at them. The motorist smelled of alcohol and he resisted being patted down, leaning backwards and knocking into an officer, and again trying to push back into the officer. He was placed under arrest, but refused to cooperate with being handcuffed, so two bursts of pepper spray were used to accomplish this. Even while handcuffed, he continued to resist, requiring a third pepper spray burst to subdue. He was convicted of DUI and resisting arrest, and sued the officers for excessive use of force. A federal appeals court ruled that the use of the pepper spray against the plaintiff, who was resisting arrest, was an objectively reasonable use of force. Revak v. Lieberum, #09-4179, 2010 U.S. App. Lexis 22466 (Unpub.3rd Cir.).
     An arrestee claimed that an officer used excessive force in arresting him, including the use of pepper spray. The officer, during a traffic stop of the plaintiff, suspected that he might be wanted for a criminal offense. The arrestee claimed that the officer struck him several times with a flashlight after he slipped on a patch of ice, jumped on him after he began to run and fell to the ground, used pepper spray against him after he had already been subdued and handcuffed, and ignored his protests that he was in pain in forcibly moving him from the ground to a police vehicle. Because it was disputed whether the officer used the pepper spray on the arrestee before or after he was handcuffed, the excessive force claim concerning the use of the pepper spray survived summary judgment. Tracy v. Freshwater, #08-1769, 2010 U.S. App. Lexis 21238 (2nd Cir.).
     An arrestee seated in the booking room of a jail was subjected to a short burst of pepper spray, and subsequently placed in the back of a patrol car for approximately an hour. He claimed that he was never allowed to decontaminate, and that his repeated complaints of breathing problems and repeated requests for medical attention after he was removed from the car were ignored. In an excessive force lawsuit, he claimed that he developed Reactive Airway Dysfunction Syndrome (RADS) from the lengthy pepper spray exposure. A federal appeals court held that the plaintiff had adequately established that an officer was aware of his serious need for medical attention, but ignored it, which stated a claim for violation of his Fourteenth Amendment rights. Nasseri v. City of Athens, #09-11473, 2010 U.S. App. Lexis 7297 (Unpub. 11th Cir.).
     Officers acted in an objectively reasonable manner in their gradual escalation of the use of force against a yelling, cocaine intoxicated man who they encountered while responding to a 911 call indicating that shots had been fired. The suspect ran from the officers, threw something at them, and charged at one officer. He exhibited great strength and the officers used increased force as he continued to resist efforts to subdue him, beginning with verbal warnings, and subsequently using pepper spray, hand and arm manipulation techniques, and finally a Taser, following which the man continued to struggle, but the officers were at last able to handcuff him behind his back while he was facedown. The man died following the struggle, but the court noted that the officers had used no force at all until he attacked one of them, and that they reacted to a "rapidly evolving, volatile situation" with "measured and ascending responses." Galvan v, City of San Antonio, #08-51235, 2010 U.S. App. Lexis 11114 (Unpub. 5th Cir.).
     Deputies responding to complaints of loud music coming from a party encountered an off-duty deputy who was providing music at the party. When told to turn off the music, he allegedly responded in a "confrontational" tone, and was sprayed with pepper spray in the face. He then pulled out his cell phone, and a deputy pointed his pistol at him, shouting, "gun." The off-duty deputy was arrested. In a federal civil rights lawsuit over the incident, the appeals court held that the deputies were not entitled to qualified immunity, as it was not clear that they had probable cause to arrest the off-duty deputy for "waving a gun," and there was a genuine factual issue as to whether the use of the pepper spray was excessive, given the minor nature of the infraction involved, and the absence of physically aggressive action by the arrestee. Howell v. Sheriff of Palm Beach County, #09-10940, 2009 U.S. App. Lexis 22592 (Unpub. 11th Cir.).
     An arrestee's wife had called 911 after he hit her, but hung up without saying anything. After the call was traced to the couple's house, officers responded, but were unable to see or speak to the wife. When they tried to speak to the husband, he went inside the house. They then went around to the back, where they saw the husband sitting on the porch. He was allegedly "evasive" when they spoke to him, and they tried to arrest him as he tried to reenter the home. Officers then used pepper spray against him and tried to "stun strike" him because of his combative response. The appeals court ruled that the 911 call established exigent circumstances, and that the force used was reasonable because of the resistance exhibited by the arrestee. Nail v. Gutierrez, #08-3872, 2009 U.S. App. Lexis 16587 (Unpub. 7th Cir.).
     A college student filed an excessive force lawsuit against police after he suffered injuries from pepperball launchers that officers fired at bottle-throwing students in a disorderly crowd of up to 1000 people at a party, in the course of attempting to disperse the crowd. The plaintiff's own deposition testimony appeared to indicate that he was not in an area near a doorway when officers fired, thereby suggesting that he was not an intended target of the shooting, but he subsequently presented deposition testimony of two supporting witnesses indicating that he was in the doorway area at the time. The trial court granted the defendants' motion for summary judgment, applying a "sham affidavit" rule which states that a party may not avoid summary judgment by creating a factual dispute with his own testimony through the conflicting evidence of other witnesses. A federal appeals court reversed, however, finding that the rule did not go as far as the trial court applied it. The rule applies, the court indicated, when a party literally attempts to manufacture a "bogus dispute with himself to defeat summary judgment," such as by creating a "sham affidavit." In this case, the plaintiff "points to deposition testimony given under oath by other ... witnesses who had a different viewpoint from the plaintiff's and who had not suffered head injuries sufficient to cause temporary blindness." Since the grant of summary judgment was based on an improper application of the "sham affidavit" rule, the trial court was reversed, and further proceedings ordered. Nelson v. City of Davis, #07-16905, 2009 U.S. App. Lexis 14765 (9th Cir.).
     A police officer was not entitled to qualified immunity for the allegedly unnecessary and excessive use of pepper spray against a man he arrested outside a bar, also allegedly twisting his ankle in a manner that injured him while securing him following arrest. The arrestee was then allegedly unconscious, and the officer supposedly used his foot and leg as a "lever to turn him over." The arrestee had approached the officer to complain that he had been attacked in a bar fight, and contended that he had not been told that he was under arrest or not to walk away when the officer sprayed his face with pepper spray at a time he was not actively resisting arrest. Grawey v. Drury, No. 07-2584, 2009 U.S. App. Lexis 11181 (6th Cir.).
      While an arrestee with a brain aneurysm failed to establish a basis for excessive force claims against a township, individual officers were not entitled to qualified immunity on his assertions that their alleged use of pepper spray to subdue him, combined with wrestling him to the ground and repeatedly punching him caused further injuries in violation of his constitutional rights. Jackson v. Tinicum Township, No. 07-1988, 2009 U.S. App. Lexis 2704 (Unpub. 3rd Cir.).
   County police officers, a city police officer, and an FBI agent were conducting surveillance on a street when they thought they saw a burglary in progress at a house. They entered the house, and encountered two children, one of whom they tackled, pointing a gun at his head, and using mace against him, while the second child watched. Other children were in a vehicle outside the home with their mother, and officers attempted to stop it. In a lawsuit brought by the mother and her six children, a federal trial court granted the FBI agent summary judgment on claims concerning the alleged seizure of the vehicle and its occupants, since there was no evidence that he was anywhere near the vehicle at the time, and could not be held vicariously liable for the alleged actions of the other defendants concerning the vehicle, since they did not act at his direction or even with his knowledge. The appeals court denied the motion by the FBI agent, the city officer, and one of the county officers for summary judgment on claims by one child who was inside the house for excessive use of force. The court ruled that the alleged spraying of the child with mace while two other defendants allegedly held guns to his head could constitute "excessive" use of force. Couden v. Duffey, No. 03-369, 2008 U.S. Dist. Lexis 9681 (D. Del.).
     Officers did not use excessive force in response to a belligerent motorist who shouted and refused to comply with their directions to step to the curb, lower his voice, and calm down. When he resisted their attempts to place handcuffs on him, they tackled him to the ground and applied arm locks for purposes of restraint. After that too proved unsuccessful, they then used pepper spray. The court ruled that no reasonable officer would have thought that the defendant officers applied excessive force under the circumstances, and that the officers were entitled to qualified immunity. Mierzwa v. U.S., No. 07-3362, 2008 U.S. App. Lexis 13523 (Unpub. 3rd Cir.).
     Journalists claimed that FBI agents, while executing a search warrant at a condominium building, grabbed and assaulted them, and used pepper spray and metal batons against them when they entered a gated area. The agents were using the building's fences and security structure in an attempt to restrict the flow of people into the area, and allegedly did not give them a chance to exit before using force against them. The court found that there was no special First Amendment right of access by the press to enter property that was not in the public domain. The court found, however, that some of the journalists' Fourth Amendment claims were improperly dismissed. The appeals court ruled that "mere obstinance" by a crowd did not justify the use of force when there is no showing that crowd members posed a public safety threat or that any other law enforcement considerations were at risk. The court ruled, therefore, that Fourth Amendment excessive force claims by individual journalists could proceed, while the rejection of all First Amendment claims was upheld. Asociacion de Periodistas de Puerto Rico v. Mueller, No. 07-2196, 2008 U.S. App. Lexis 12783 (1st Cir.).
     A federal jury returned a $2.58 million verdict against the town of Cicero and five officers, as well as a jail employee for actions taken during a September 2000 baptismal party in which 79 plaintiffs claimed that officers used pepper spray against attendees. The award was made in favor of 23 of the plaintiffs, which no damages were awarded to 56 of the plaintiffs. Alejandro Duran, et al. v. Town of Cicero, et al., No. 01 C 6858 (U.S. District Ct., N.D. Ill.), reported in Chicago Daily Law Bulletin, Volume: 154 Issue: 033 (February 15, 2008).
     Arrestee's allegation that a police officer used mace on him after he had been handcuffed and subdued was sufficient to defeat the officer's motion to dismiss in an excessive force lawsuit, when there was no evidence that the arrestee was acting violently, posing a threat to others, or resisting arrest at the time. Hall v. Alabama Dept. of Public Safety, No. 06-15743, 2007 U.S. App. Lexis 23099 (11th Cir.).
     Utah state troopers were entitled to qualified immunity on their use of pepper spray on a motorist who continued to resist them and disregard their instructions throughout a fifty-minute traffic stop. Under these circumstances, the troopers acted objectively reasonably in using pepper spray against her. Mecham v. Frazier, No. 05-4297, 2007 U.S. App. Lexis 21810 (10th Cir.).
     Police officers were not entitled to qualified immunity for allegedly spraying pepper spray inside a house filled with 34 people after telling several of them to "get inside" the house when they arrived. If, as the plaintiffs claimed, they were subjected to pepper spray after they were detained, without any provocation, that would violate their clearly established constitutional rights. Duran v. Sirgedas, No. 05-4278, 2007 U.S. App. Lexis 10338 (7th Cir.).
     Police officers did not violate a man's rights by using pepper spray on him in the back seat of their car, where they placed him after finding him intoxicated. The officers feared that he was suicidal, based on his behavior, and were trying to assist him. He was unsecured in the backseat of the car because he was uncooperative, and he started kicking the plexiglass separating the front and backseats, and beating his head on it. The pepper spray was only used after it was clear that repeated orders would not cause him to stop this behavior, and after the man was given a warning about the use of the spray, and was motivated by a fear that the man might harm himself. After they cleaned the residue of the pepper spray off of his face outside the police/fire station, he attempted to stand up, despite their statements that he should not try to do so, and fell, hitting his head and suffering injuries that allegedly led to his death from a swelling on his brain. The court found that the decedent would not have suffered his fatal fall except for his own conduct in disregarding the warnings of the defendant officers, so that they could not be held liable for his death. Cabaniss v. City of Riverside, No. 06-3546, 2007 U.S. App. Lexis 8271 (6th Cir.).
     In a lawsuit over the death of a man weighing almost 350 pounds with PCP and cocaine in his bloodstream who allegedly struggled with police and resisted their attempts to arrest him outside a fast food restaurant, the plaintiffs claimed that the officers used excessive force, unnecessarily striking him with metal batons and causing him to suffer respiratory failure from positional asphyxia when they sat on him, after spraying a chemical irritant (pepper spray) in his face. The trial court found that the plaintiffs sufficiently stated a claim that the officers who apprehended him used excessive force against him, as the confrontation began simply because firefighters who encountered him perceived him as creating a "nuisance," which is "not the type of crime" permitting officers to use a greater use of force. It was disputed whether the decedent subsequently was resisting arrest, or was simply trying to position himself so that he could breathe. Additionally, the plaintiffs in the case alleged that the officers used pepper spray against the decedent after he was already face down and was being handcuffed, which the court stated, if true, could also constitute an excessive use of force. The officers were not entitled to qualified immunity because a reasonable officer might have known that engaging in the alleged acts violated the decedent's right to be free from excessive force. The court granted a motion to dismiss claims by the plaintiffs against the firefighters, who left the scene before some of the incidents that resulted in the decedent's death, and against police supervisors and a fire chief. It denied a motion to dismiss claims against the police officers involved in the incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis 75430, 2006 WL 2987820 (S.D. Ohio). [N/R]
     Use of gas gun against demonstrators outside the home where INS agents were executing warrants to remove Cuban boy Elian Gonzalez was objectively reasonable when demonstrators were attempting to interfere and threw objects at the agents. Dalrymple v. U.S., No. 05-14375, 2006 U.S. App. Lexis 20922 (11th Cir.). [2006 LR Oct]
     Deputy sheriffs were not entitled to summary judgment in an excessive force lawsuit by woman arrested by them in her home pursuant to a warrant. Her version of the events, including that they beat her with a billy club and jumped on her after she was incapacitated by pepper spray and was only passively resisting, if true, showed an excessive use of force. The use of pepper spray was not excessive, however, since she was hiding from them under a blanket in a closet at the time, and could have been thought to be planning to "ambush" them. Shreve v. Jessamine County Fiscal Court, No. 05-6271, 2006 U.S. App. Lexis 16957 (6th Cir.). [2006 LR Sep]
     Police officers, including S.W.A.T team members, were entitled to qualified immunity for surrounding the home of a man who had fired shots into the air and ground nearby, entering the home forcibly without a warrant, and using pepper gas and a flashbang in an attempt to flush him out. Assuming that the use of a second flashbang, which burned down the house, was excessive, it still did not violate any "clearly established right." Factual disputes about whether the suspect was still armed and was threatening officers at the time they shot and killed him, however, barred qualified immunity for the officers on a claim that the use of deadly force was excessive. Estate of Bing v. City of Whitehall, No. 05-3889, 2006 U.S. App. Lexis 19287 (6th Cir.). [2006 LR Sep]
     Officer was not entitled to qualified immunity on arrestee's claim that he sprayed pepper spray in his face while he was lying on the ground with both hands cuffed and another officer on top of him. Such use of force, after the arrestee had been subdued, if true, could not be said to be objectively reasonable as a matter of law. Henderson v. Munn, No. 05-1403, 2006 U.S. App. Lexis 5010 (8th Cir. February 28, 2006). [2006 LR Apr]
     Officers were not entitled to qualified immunity on arrestee's claim that they used excessive force by using pepper spray against him and hitting him repeatedly with a baton while he was seated in his truck after a traffic stop. Arrestee claimed that he had not resisted the officers or tried to flee, and that he was "passive" and cooperative. Reed v. City of Lavonia, No. 3:03-CV-111, 390 F. Supp. 2d. 1347 (M.D. Ga. 2005). [N/R]
     Police officers who encountered an intoxicated man who threatened his wife, disabled her car, and refused to cooperate with being arrested and handcuffed did not act unreasonably in using physical force and mace to subdue him. They could reasonably believe, under the circumstances, that he posed a threat to his wife, children, others present, and themselves. Wilson v. Flynn, No. 04-2491, 2005 U.S. App. Lexis 24555 (4th Cir.). [2006 LR Jan]
     Officers did not use excessive force in utilizing pepper spray against suspect, handcuffing him, using control holds against him, tripping and hitting him, and putting him in a prone position until medical personnel could arrive when he was hallucinating and "obviously deranged," had armed himself with two weapons, had previously stabbed his wife, and showed his intent to harm the officers by rushing at them with a screwdriver. No liability for injuries which allegedly resulted in suspect's death. Wheeler v. City of Philadelphia, No. Civ.A. 04-3792, 367 F. Supp. 2d 737 (E.D. Pa. 2005). [N/R]
     Officers' use of chemical spray against an arrestee and pushing of him was not excessive force when he was on top of a man on the floor with blood on the floor around them when they arrived at his apartment, and the arrestee was not cooperative with them. Officers had no obligation to believe arrestee's claim that he had acted in self-defense after the other man, his brother-in-law, had attacked him in an intoxicated condition. Lindsay v. Bogle, No. 02-6201, 92 Fed. Appx. 165 (6th Cir. 2004). [N/R]
     Federal appeals court upholds $900,000 jury award to family of adult non-verbal autistic man who died after officers seeking to restrain him allegedly continued to use pepper spray and to lay on top of his body after he was handcuffed, hobbled, and laying on his stomach on the ground, no longer resisting. Continued use of such force at that point, the court rules, violated clearly established law, and jury's award was not excessive. Champion v. Outlook Nashville, Inc., No. 03-5068, 380 F.3d 893 (6th Cir. 2004). [2004 LR Nov]
     Officer had probable cause to arrest a woman when he entered a bingo hall and observed her fighting with another woman in the middle of a crowd of people. The officer could only act on what he knew, and did not have any knowledge as to which woman had initiated the fight, or whether the arrestee was at fault. His use of pepper spray to stop the fight was not an excessive use of force under the circumstances. Esters v. Steberl, No. 03-506, 93 Fed. Appx. 711 (6th Cir. 2004). [N/R]
     Officers were entitled to qualified immunity for arresting a motorist for refusal to obey orders to exit his vehicle to sign a speeding citation and for arresting his brother, a passenger, for interference with the officers in repeatedly advising the driver not to obey them. Use of pepper spray was also justified when vehicle occupants, in response to officer reaching his hand inside the vehicle, began to roll the window up on his arm. Lawyer v. City of Council Bluffs, No. 03-1032, 361 F.3d 1099 (8th Cir. 2004). [2004 LR Aug]
     Officers did not use excessive force in first using pepper spray and then shooting a motorist who pulled a knife on them after initially refusing to submit to a stop on suspicion of intoxicated driving. Gaddis v. Redford Township, #02-1483, 364 F.3d 763 (6th Cir. 2004). [2004 LR Aug]
     Officers acted reasonably in using pepper spray in an attempt to subdue an emotionally disturbed suicidal man who was armed with an axe and had previously taken hostages, and in shooting and killing him when he responded to the pepper spray by lifting the axe and running towards them. Isom v. Town of Warren, No. 03-1765, 360 F.3d 7 (1st Cir. 2004). [2004 LR May]
     Family of mentally disturbed man who allegedly committed "suicide by cop" could not pursue California state law negligence lawsuit for wrongful death against city and officers following summary judgment for the defendants in their prior federal civil rights lawsuit. Appeals court also finds no violation of California state constitutional rights. City of Simi Valley v. Superior Court (Bayer), No. B166917, 4 Cal. Rptr. 3d 468 (Cal App. 2003). [2003 LR Dec]
     Officer was not required to give advance warning of his use of pepper spray in his attempt to subdue a man, armed with a walking stick, who was suspected of having already used it to inflict serious injury on a woman in a laundromat who was observed bleeding profusely from her head at the scene. Further, his use of deadly force was also justified when the suspect appeared ready to attack him and refused orders to drop the stick. McCormick v. City of Fort Lauderdale, No. 01-16567, 333 F.3d 1234 (11th Cir. 2003). [2003 LR Sep]
     Use of hog-tie restraint against arrestee who had a head wound and had been sprayed with pepper spray, and was also allegedly compliant at the time of the restraint, was an excessive use of force, and officers were not entitled to qualified immunity from possible liability for arrestee's subsequent death from positional asphyxia. There was also evidence to show that county officers widely used hog-tie restraints but that no training in the use of such restraints was provided. Garrett v. Unified Government of Athens-Clarke County, 246 F. Supp. 2d 1262 (M.D. Ga. 2003). [2003 LR Jul]
     There was a genuine issue of fact as to whether an officer's use of pepper spray was reasonably necessary to subdue a man being arrested for disorderly conduct, but the officer did not engage in deliberate indifference to the arrestee's serious medical needs by failing to immediately call an ambulance after the use of the spray, in the absence of any evidence that the delay caused any harm. The evidence further showed that the arrestee declined the officer's offer to give him a towel and water to flush out his eyes. Mantz v. Chain, 239 F. Supp. 2d 486 (D.N.J. 2002). [N/R]
     Estate of aspiring "rap" musician who died when officers' use of pepper spray against him allegedly triggered a fatal asthma attack reaches $2.7 million settlement with city in wrongful death and civil rights lawsuit. Officers mistakenly believed that the decedent, seen riding in a taxi, was involved in the murder of a fellow officer and allegedly kicked and beat him in the course of the arrest, leaving his asthma inhaler at the scene of the arrest after using the pepper spray on him. Estate of Faison v. City of Orange, No. 00-1944 (KSH) U.S. District Court (D.N.J.), June 25, 2002, reported in The National Law Journal, p. B3 (Sept. 30, 2002).[N/R]
     After a four hour armed standoff and failed negotiations, it was reasonable for officers to fire tear gas into a mentally disturbed man's vehicle to extricate him after he had previously shot at police and refused to surrender. No liability for "excessive force" or subsequent confrontation that led to his death. Bayer v. City of Simi Valley, No. 01-55736, 43 Fed. Appx. 36 (9th Cir. 2002). [2002 LR Dec]
    Officer's use of pepper spray was not unreasonable when arrestee had been climbing stairs toward the officer, screaming threats to harm him and gesturing wildly with his arms, ignoring the officer's order to stay back. Jim v. County of Hawaii, #00-16979, 33 Fed. Appx. 857 (9th Cir. 2002). [N/R]    
     Officers acted objectively reasonably in forcing a diabetic motorist to a stop and forcibly removing him from his truck through the use of pepper spray, baton blows, and bites from a police dog when his erratic driving was serious enough that people might have been killed by it, and he refused to comply with lawful orders once he was stopped. Moore v. Winer, 190 F. Supp. 22d 804 (D. Maryland 2002). [2002 LR Jul]
     Use of O.C. (pepper spray) by officer attempting to handcuff "belligerent" person who ignored officers' requests and, at the least, passively resisted arrest was not an excessive use of force. Issues of fact existed, however, as to whether an officer held the arrestee around the neck and subjected him to an unreasonable risk of serious injury, causing a broken neck. Fultz v. Whittaker, 187 F. Supp. 2d 695 (W.D. Ky. 2001). [2002 LR Jun]
     Arrestee's standing conviction for obstructing an officer barred his excessive force claim against the arresting officer for using pepper spray against him, since an award in his favor would imply the invalidity of his conviction. California intermediate appeals court rules. Susag v. City of Lake Forest, No. D038608, 115 Cal. Rptr. 2d 269 (Cal. App. 2002). [2002 LR May]
     Officers used reasonable force in subduing woman with chemical spray and pushing her to the ground when an altercation broke out as she was attempting to "directly interfere" with officer's attempts to maintain order and resisted arrest for attempting to interfere with the arrest of her son. Jackson v. City of Bremerton, No. 99-36159, 268 F.3d 646 (9th Cir. 2001). [2002 LR Feb]
           347:163 U.S. Supreme Court orders further proceedings as to whether officers were entitled to qualified immunity in lawsuit brought by anti-logging protesters claiming that the use of pepper spray to compel their compliance with law enforcement orders was an excessive use of force. Humboldt County v. Headwaters Forest Defense, #00-1649, 2001 U.S. LEXIS 5482.
     345:133 Married couple who triggered alarm when they entered lit, apparently open convenience store were properly awarded damages for false arrest and assault based on deputies treatment of them after arriving on the scene and finding no evidence of crime; deputy used excessive force against wife by spraying her twice in the face with "OC" spray at close range; appeals court reduces damages awarded as excessive. Park v. Shiflett, No. 00-1809, 250 F.3d 843 (4th Cir. 2001).
     342:84 Officer who sprayed arrestee in the face with pepper spray a second time while she was sitting in the back seat of a police vehicle with her hands handcuffed behind her was liable for $1,000 in compensatory and $40,000 in punitive damages, as well as $12,877.97 in attorneys' fees and costs. Blackledge v. Carlone, 126 F. Supp. 2d 224 (D. Conn. 2001).
     339:35 UPDATE: Federal appeals court reinstates lawsuit over use of pepper spray to compel compliance by anti-logging protesters, disagrees with trial judge who ruled that no reasonable juror could view its use in these circumstances as excessive force. Headwaters Forest Defense v. County of Humboldt, #98-17250, 211 F.3d 1121 (9th Cir. 2000).
     339:36 African-American arrestees stated claim for racial discrimination based on assertion of city practice or custom of using pepper spray and excessive force against them based on race; alleged breaking of arrestee's arm, use of pepper spray against him, and biting by police dog during "unnecessary" subduing was conduct which, if true, no reasonable officers could have believed was warranted. Wilkerson v. Thrift, 124 F. Supp. 2d 322 (W.D.N.C. 2000).
     325:9 Arrestee could not seek to impose liability on city for alleged policy of failure to supervise and discipline officers for misuse of pepper spray when the evidence showed that city trained officers in its use, required them to report its use in a form reviewed by supervisors, and plaintiff himself failed to file any complaint with the department about its use against him. Horrington v. City of Detroit, 49 F.Supp. 2d 1022 (E.D. Mich. 1999).
     323:163 Use of pepper spray was not excessive force when used to compel arrestee's compliance with handcuffing; arrestee was "agitated" and repeatedly refused to be handcuffed, instead swearing at officers. Passino v. St. of N.Y., 1999 N.Y. App. Div. Lexis 4219, 260 A.D.2d 915, 689 N.Y.S.2d 258.(A.D. 1999).
     "The deterrent effects of oleoresin capsicum on assaults against police," 1 (2) Police Quarterly 1-2 (1998). Summary: "OC had a statistically significant deterrent effect on violence against police, reducing assaults on officers an average of about 32 per month" in the Baltimore County, MD, Police Dept. Subscription info: PERF/ACJS (888) 202- 4563.
     320:115 Officers did not violate union demonstrators' First Amendment rights by using tear gas to disperse rally outside factory after picketers refused to disperse; blowing of tear gas into nearby homes did not violate clearly established privacy rights of homeowners; court rejects inadequate training claim in absence of specific evidence. Ellsworth v. City of Lansing, 34 F.Supp. 2d 571 (W.D. Mich. 1998).
     318:91 City was not liable for death of arrestee caused by cocaine poisoning after he swallowed drugs officers were attempting to get him to expel from his mouth; officers' use of Heimlich maneuver and pepper spray were not unreasonable under the circumstances; no deliberate indifference or inadequate training on the part of the city was shown. Singleton v. City of Newburgh, 1 F.Supp. 2d 306 (S.D.N.Y. 1998).
     314:20 Use of pepper spray to compel compliance by anti-logging protestors was a reasonable use of force; federal trial judge rules that no reasonable juror could view its use in these circumstances as excessive force. Headwaters Forest Defense v. County of Humboldt, 1998 U.S. Dist. Lexis 16953 (N.D.Cal.).
     306:84 Jury awards $45 million to surviving family of 25- year-old double amputee motorist who died following altercation with officer who pulled him over; pepper spray and neck hold used to restrain motorist. Mallet v. City of Phoenix, Phoenix Superior Court, Phoenix, Arizona, reported in the Chicago Tribune, p. 16 (March 13, 1998).
     305:70 Officer had probable cause to take depressed man into protective custody based on his consumption of alcohol, number of pills which appeared to be missing from his medication, and his phone call to psychologist; use of pepper spray to restrain man and take him to hospital was reasonable when officer had reason to believe man might be attempting suicide. Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997).
     299:166 Officers were not entitled to qualified immunity on use of pepper spray to attempt to disburse demonstrators outside factory involved in labor strike Lamb v. City of Decatur, 947 F.Supp. 1261 (CD Ill 1996).
     286:148 Use of pepper spray to force arrestee to disgorge crack cocaine from his mouth was a reasonable use of force and was not "outrageous" U.S. v. Holloway, 906 F.Supp. 1437 (D.Kan 1995).
     Arrestee who lost an eye receives $273,000 settlement in suit alleging unreasonable use of aerosol spray and inadequate medical care while in custody Goodman v. Montgomery County, U.S. Dist. Ct., M.D. Ala., No CV-92-H-1170-N (May 29, 1993), reported in 37 ATLA L. Rep.56 (March 1994).
     City could be liable for officer's spraying mace into arrestee's face Griffith v. City of Monrovia, 184 Cal.Rptr. 709 (Super 1982).
     Court awards $400,000 against District of Columbia for officers' misuse of tear gas during grievance ride to capital District of Columbia v. Colston, 468 A.2d 954 (D.C App. 1983).
     Injunction against use of mace can not be granted in light of Lyon's, a Supreme Court case involving choke holds Curtis v. City of New Haven, 726 F.2d 65, (2nd Cir. 1984).
     Use of mace not excessive when intoxicated arrestee tried to kick officer; no indifference to medical needs shown when medical attention not requested Dayton v. Sapp, 668 F.Supp. 385 (D. Del. 1987).
     " See also: Defenses: Statute of Limitations,  Defenses: Notice of Claim

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