AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
Pepper Spray (OC), Tear
Gas and Chemical Agents,
and Assault and Battery: Chemical
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