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Monthly Law Journal Article: Staff Use of Force Against
Prisoners--Part III: Use of Chemical Weapons, 2008 (11) AELE Mo.
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 prisoner claimed that two correctional officers used excessive force when
they administered pepper spray to gain his compliance with an order to submit
to wrist restraints. Upholding summary judgment for the officers, a federal
appeals court found that the evidence did not clearly refute the trial
court’s finding that one officer did not intentionally apply pepper spray
to the plaintiff’s genitals or that the decision to use pepper spray in
general was not a pretext to punish the prisoner but instead a direct response
to his refusal to comply with orders. Ward v. Smith,
#15-2583, 844 F.3d 717 (8th Cir. 2016).
an inmate did not comply with an officer's orders to back up to a cell door to
be placed in restraints, the officer sprayed a chemical agent into the cell,
subsequently issuing the prisoner a major misconduct ticket. Overturning
qualified immunity for the officer in an excessive force lawsuit, a federal
appeals court ruled that there was a genuine factual issue of whether, as the
prisoner claimed, he was sleeping and covered from head to toe in his blanket
at the time the chemical agent was sprayed into the cell. If the facts were as
the prisoner alleged, rather than as the officer stated, then the use of force
would have violated clearly established law. Roberson v. Torres, #13-1405, 770
F.3d 398 (6th Cir. 2014).
A prisoner claimed that
his Eighth Amendment rights were violated when a sergeant pepper-sprayed him
because he refused to return to his cell after showering. He further claimed
that another officer then turned off the water, which prevented him from
rinsing off the pepper spray for ten to fifteen minutes. A federal appeals
court upheld summary judgment for the defendant on the excessive force claim,
noting that the prisoner had been warned that he would be pepper sprayed if he
did not comply with orders, and that he either threw an object at or spit at
the sergeant three times, with a small quantity of pepper spray used after each
act of defiance. There was no indication of a malicious intent to harm or that
the force used was excessive. The other officer was entitled to qualified
immunity on the delayed decontamination claim, as the prisoner failed to
establish that he acted with deliberate indifference to a serious medical need.
Burns v. Eaton, #13-1730, 2014 U.S. App. Lexis 9596 (8th 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.).
An inmate got involved in a fight with officers who
were taking him to administrative segregation. The officers used pepper spray
on him, threw him on the floor and put leg restraints on him, and one of them
allegedly turned his left wrist upward in a sharp motion, dislocating it. He
claimed that the use of force had continued against him at a time when he was
not resisting. The court found that the officers were entitled to qualified
immunity on the excessive force claims, but not on the claim that one of them
acted with deliberate indifference in delaying allowing him to wash off the
pepper spray. Claims against one officer for alleged retaliatory death threats
were also allowed to go forward, Santiago v. Blair, #11-3693, 2012 U.S. App.
Lexis 26854 (8th Cir.).
A prisoner was entitled to receive vegetarian
meals on religious grounds. When an officer brought him a non-vegetarian
breakfast, he alleged put his fingertips on the open food port in his cell
door. He claimed that the officer them sprayed him with pepper spray with no
warning. His lawsuit claimed that the use of the spray was excessive force, and
that denying him a vegetarian meal violated his equal protection rights.
Qualified immunity was denied on the excessive force claim because it was not
clear from the officer's version of the incident that force was required or
that the prisoner posed a threat. The force used seem extensive and disproportionate
to the level of the disturbance created by the prisoner putting his fingertips
on the port. The court rejected his equal protection claim as he was not
treated any different than any other prison when an officer did not know that
he was supposed to receive a vegetarian meal. Furnace v. Sullivan, #10-15961,
2013 U.S. App. Lexis 1110 (9th Cir.).
An inmate in an Illinois maximum security
facility claimed to have been exposed to fumes at least eight times when guards
used pepper spray against other prisoners. He also claimed that this aggravated
his glaucoma, although he never sought medical treatment for it. He asserted
that officers ignored requests, after pepper spraying incidents, to air out
cells. The prisoner failed to establish that the warden knew that he had been
exposed to pepper spray fumes or that he suffered from glaucoma, which was
thereby aggravated. Claims against the warden for deliberate indifference were
therefore properly rejected. Flournoy v. Schomig, #09-3610, 2011 U.S. App. Lexis
8303 (Unpub. 7th Cir.).
A Texas prisoner presented claims of excessive
force against two officers that were "plausible." He alleged that
after he refused to remove his arm from a cell food slot when he was denied a
meal that they threatened him with a beating and threatened to break his arm.
After he withdrew his arm, they allegedly returned with a team who sprayed a
chemical agent into his cell. He again thrust his arm through the slot, and one
officer allegedly used excessive force, twisting and snapping his finger,
causing it to break. The court found that, if the facts were as alleged, there
was no showing that the use of the chemical spray was necessary, or that it was
justified to allegedly intentionally break his finger. Dismissal of the lawsuit,
therefore, was premature. Moss v. Brown, #10-10207, 2010 U.S. App. Lexis 25570
(Unpub. 5th Cir.).
A federal appeals court ruled that a prisoner
asserting a claim for excessive use of force failed to show that prison guards
acted "maliciously and sadistically for the very purpose of causing him
harm" when using pepper spray on him after he repeatedly refused to comply
with orders to cease holding his blanket up to his cell door. Horne v.
Rutledge, #09-17378, 2010 U.S. App. Lexis 20564 (Unpub. 9th 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.).
Ten mentally ill or "otherwise
vulnerable" inmates claimed that the use of chemical agents against them
constituted cruel and unusual punishment. The prisoners settled their claims
against the individual officers, and the court later entered judgment in favor
of two of the remaining plaintiffs on claims that repeated sprayings of such
inmates under a use of force policy violated the Eighth Amendment. Upholding an
award for these plaintiffs, a federal appeals court ruled that the defendants
had waived any challenge they might have had to the application of a
"deliberate indifference" rather than stricter legal standard, that a
deceased inmate could still be a prevailing plaintiff entitled to an award of
attorneys' fees despite his death rendering moot any injunctive relief about
him being further sprayed, and that the trial court did not clearly err in
finding that a plaintiff had suffered psychological injury from being subjected
to the spray. An injunction was upheld against the "non-spontaneous"
use of chemical agents on the one remaining plaintiff without consultation with
the correctional department's trained mental health staff. Thomas v. Bryant,
#09-11658, 2010 U.S. App. Lexis 17419 (11th Cir.).
A correctional officer used no more force than
necessary against an inmate who kicked his cell door, yelled profanity, refused
orders to stop, and threw some object from his bed at the officer. The use of a
short burst of pepper spray against the prisoner was not excessive under the
circumstances. Easley v. Dept. of Rehabilitation and Correction, #2009-05277,
2010 Ohio Misc. Lexis 110 (Ct. of Claims).
An officer did not use excessive force in
employing pepper spray to control an unruly inmate and compel him to comply
with her orders. After he was pepper sprayed, he was examined by psychiatric
staff members, who concluded that he should be placed on suicide watch, after
which he was transferred to a floor where such prisoners were housed. The
detainee had no due process right to a hearing prior to his transfer there.
Sanchez v. McCray, #08-13503, 2009 U.S. App. Lexis 22800 (Unpub. 11th Cir.).
A guard used a burst of oleoresin capsicum (O.C.)
spray against a prisoner who made an aggressive move toward an officer while
being escorted from his cell to be searched for contraband. The action took
place after the prisoner had also disobeyed a direct order. After the incident,
the prisoner was kept in four-point restraints for three and a quarter hours.
Rejecting claims of excessive force, a federal appeals court found that jail
personnel properly regarded him as a dangerous, high-risk prisoner in light of
a past history of escape, and found that the use of the O.C. spray was proper
under the circumstances. The court also found no evidence that the cell where
the plaintiff was restrained was poorly ventilated or small, or that the
defendant guards, who did not try to wash the spray off of him, knew that he
claimed to be experiencing continued discomfort from the spray. Scroggins v.
Davis, #07-15514, 2009 U.S. App. Lexis 21383 (Unpub. 11th Cir.).
Prisoner failed to present a viable claim that
excessive force was used against him on either of two occasions that he was
subjected to pepper spray. In the first instance, he used a profane name
against a prison employee, retreated into his cell when ordered to go to
another unit, and refused to move before pepper spray was used to compel his
compliance. As for the second incident, the prisoner himself admitted he was
resisting being handcuffed, and that he was asked four times to get in his cell
before the pepper spray was used. Thompson v. Carani, CV 106-099, 2008 U.S.
Dist. Lexis 97455 (S.D. Ga.).
Prisoner failed to show that the force used against
him in his cell was excessive, or that engaging in further discovery would
establish that. The evidence showed that the prisoner refused to obey commands
to allow guards to secure his cell door properly by releasing control of a food
slot in the door, that he was warned that failure to obey would result in the
use of chemical agents and the sending of a "move team" into his
cell, and that he was restrained by force when he failed to comply. Poe v.
Texas Dept. of Criminal Justice, No. 08-20148, 2009 U.S. App. Lexis 706 (Unpub.
Estate of deceased prisoner and his heirs could
not pursue, in federal civil rights lawsuit, claims arising from the death of
the prisoner, allegedly shot in the head with a plastic bullet by a prison
employee, and pepper sprayed by other prison employees who allegedly then
placed a plastic bag over his head to increase the harm suffered from the
burning effect of the pepper spray. The plaintiffs, in alleging only negligence
by the defendants in causing the death failed to show that the defendant
supervisory personnel did anything that they should have known would cause
prison employees to take actions that would violate constitutional rights.
State law claims were time barred, based on the plaintiffs' prior filing of a
state court lawsuit that they voluntarily dismissed before attempting to raise
such claims in the federal court proceeding. Provencio v. Vazquez,
1:07-CV-0069, 2008 U.S. Dist. Lexis 73255 (E.D. Cal.).
In a inmate's lawsuit claiming that corrections
officers violated the Eighth Amendment in failing to adequately decontaminate
him after subjecting him to pepper spray, and in holding him in restraints for
eighteen hours, a federal court ruled that a reasonable officer could have believed
that allowing the prisoner to briefly shower before he was placed into
restraints, as well as rinse his eyes with saline, was adequate to avoid a
rights violation. Normally, the effects of pepper spray are gone after 45
minutes. Claims related to the decontamination were therefore rejected. Further
proceedings were ordered, however, as to whether an officer could have believed
that it was reasonable to restrain the prisoner for eighteen hours, when it was
disputed whether the prisoner made threatening gestures or verbal threats.
Montgomery v. Johnson, Case No. 7:05CV00131, 2008 U.S. Dist. Lexis 74256 (W.D.
When a prisoner refused to obey a jailer's orders
during a disagreement, creating a disturbance, there was a need to use force
and a short burst of pepper spray was not excessive. The prisoner's assertion,
however, that he was confined in a small cell following the incident and was
not allowed to wash off the spray was sufficient to state a claim for excessive
use of force. Danley v. Allen, No. 07-12328, 2008 U.S. App. Lexis 17837 (11th
Summary judgment should not have been entered
against a prisoner on his excessive force claims since there were genuine
factual disputes as to whether officers used force against him, including pepper
spray, after he had begun to comply with their orders to him. Additionally, he
allegedly was not warned before the use of the pepper spray, was not permitted
to clean up after its use, and was then handcuffed to a bench and denied
bathroom breaks, food, and water during that restraint. Walker v. Bowersox, No.
06-3118, 2008 U.S. App. Lexis 11507 (8th Cir.).
Prisoner failed to show that officers violated
his rights in using pepper spray in the process of extracting another inmate
from a cell near his. The officers were not shown to have acted with malicious
and sadistic intent, but instead used the pepper spray to restore discipline
when the other inmate refused to comply with their orders. The officers also
followed written policies designed to minimize other inmates' exposure to the
fumes of the pepper spray. Allen v. Bosley, No. 06-16541, 2007 U.S. App. Lexis
25933 (9th Cir.).
Prison officials were not entitled to summary
judgment on prisoner's claim that the use of pepper spray against him constituted
excessive force. A reasonable jury could conclude, from the evidence presented,
that the prisoner had not advanced on the prison officials in a threatening
manner, and that the use of the pepper spray had not been necessary to keep
order. Barber v. Pinion, No. 1:04CV00118, 2007 U.S. Dist. Lexis 72982
Use of one burst of pepper spray against inmate
who refused orders to move from solitary confinement to general housing was not
objectively unreasonable under clearly-established law, so that defendant
prison lieutenant who did so was entitled to qualified immunity. The plaintiff
inmate had refused to move because he was allegedly fearful of his safety in
the general population. Thomas v. Comstock, No. 04-41696, 2007 U.S. App. Lexis
6159 (5th Cir.).
Two correctional officers were not entitled to
summary judgment when there were factual issues about whether they used
excessive force and pepper spray against female inmate at a time when she was
allegedly not actively resisting them. Johnson v. Blaukat, No. 05-3866, 2006
U.S. App. Lexis 16091 (8th Cir.). [2006 JB Aug]
The use of a chemical agent to extract a prisoner
from his cell did not violate his rights when it was used only after he
repeatedly disobeyed orders to come out by himself. Eccleston v. Oregon, No.
04-36122, 168 Fed. Appx. 760 (9th Cir. 2006). [N/R]
Sheriff and officers were not entitled to summary
judgment in prisoner's lawsuit challenging their use of pepper spray against
him at county jail. Factual issues existed as to how long he was sprayed, and
whether he was "adequately irrigated" afterwards or allowed to suffer
unnecessarily. Court also holds that the plaintiff was not required to exhaust
available administrative remedies prior to pursuing his excessive force
lawsuit, pursuant to 42 U.S.C. Sec. 1997e, since he was now a former prisoner.
The requirement to exhaust such remedies only applies to current prisoners.
Norton v. City of Marrietta, Ok, No. 04-7133, 432 F.3d 1145 (10th Cir. 2005).
Correctional officer's alleged action of making
an inmate wait from five to ten minutes before he could wash pepper spray from
his face and eyes was not a violation of the Eighth Amendment when the prisoner
had failed to comply with an order to enter his cell before being subjected to
the spray. Kervin v. Barnes, No. 05-1443, 144 Fed. Appx. 551 (7th Cir. 2005).
Detainee suffering from paranoid schizophrenia,
acute psychosis, impulse-control disorder, and "polysubstance abuse"
could not assert disability discrimination claims since his impairments,
because they could be corrected "or mitigated" by medication, did not
constitute disabilities. Jail personnel did not use excessive force in using
pepper spray to subdue him when he actively resisted his transfer to a hospital
for treatment, and did not violate his right to receive adequate medical
attention. Atwell v. Hart County, Kentucky, No. 03-6421, 122 Fed. Appx. 215
(6th Cir. 2005). [2005 JB Dec]
Prisoner's claim that he was sprayed with a
chemical agent that damaged his lungs was insufficient to show an imminent
danger of serious physical injury sufficient to allow him to proceed as a
pauper with his federal civil rights lawsuit despite his prior failure, as a
frequent filer of civil rights lawsuit, to make progress towards the repayment
of unpaid filing fees from previously filed lawsuits. The complaint was
dismissed on the basis of the three strikes rule, as required by 28 U.S.C. Sec.
1915(g), barring a prisoner from proceeding as a pauper after having three
lawsuits dismissed as frivolous, except in cases of a risk of imminent physical
harm. Because four months had elapsed between the alleged injury and the filing
of the lawsuit, the prisoner could not show a risk of imminent danger. Cosby v.
Gray, 124 Fed. Appx. 595 (10th Cir. 2005). [N/R]
Federal appeals court upholds jury's award of $29
million in compensatory and $27.5 million in punitive damages against two
deputy sheriffs for causing pre-trial detainee's death through use of excessive
force. Failure to show that the death was caused by any official policy or
custom, or by deliberate indifference to a widespread pattern of violation of
jail policies, required summary judgment on claims against county sheriff. Mere
number of uses of pepper spray did not show that it was being misused. Estate
of Moreland v. Dieter, No. 03-3734, 2005 U.S. App. Lexis 743 (7th Cir.). [2005
Officer did not violate prisoner's right to be
free of cruel and unusual punishment in spraying him with a chemical agent when
the facts showed the officer acted in a good faith effort to maintain or
restore discipline and not malicious or sadistically to cause him harm. Davis
v. Cannon, #02-41596, 91 Fed. Appx. 327 (5th Cir. 2004). [N/R]
Prison employees did not use excessive force by
spraying prisoner with pepper spray after he refused to exit a shower. The
evidence showed that they applied the force used in a good-faith effort to
maintain or restore discipline, and not maliciously to cause injury or pain. A
videotape of the incident showed that the prisoner refused to obey several
direct orders to leave the shower before the use of the pepper spray.
Additionally, the use of the spray only caused discomfort, rather than any
physical injury. Jennings v. Mitchell, No. 03-1922, 93 Fed. Appx. 723 (6th Cir.
Jury verdict in favor of correctional officers'
use of tear gas against prisoners locked in their cells during prison riot
upheld. Plaintiff prisoners were not entitled, in the absence of a showing of
"bad faith," to instructions to the jury that would have allowed it
to infer that "missing evidence" such as video footage of the gassing
incident would have been unfavorable to the defendant officers. Beaudry v.
Corrections Corporation of America, No. 02-6073, 331 Fed. 3d 1164 (10th Cir.
2003). [2003 JB Sep]
Correctional officer's use of mace in the course
of quelling disturbance among death row inmates was not malicious or sadistic.
Genuine issues remained as to whether commander of special response team failed
to adequately control and instruct subordinates in suppressing confrontational
prisoners or allowed the excessive use of "lethal levels" of gas and
other chemical agents before ordering entry into death row unit. Death row
prisoners could not pursue claims against unidentified officers concerning the
use of excessive force. Combs v. Wilkinson, #00-4270, 315 F.3d 548 (6th Cir.
2002). [2003 JB Apr]
Prison officials were not liable for
prisoner's injuries from being struck in the head by a tear gas canister fired
during an inmate disturbance, when there was no showing that the canister was
fired maliciously or sadistically. Torres-Viera v. Laboy-Alvarado, #01-2712,
311 F.3d 105 (1st Cir. 2002). [2003 JB Mar.]
Prison officials use of pepper spray to quell a fight
in a cell between two prisoners in which one threatened to kill the other did
not constitute an excessive use of force, even if a second application of
pepper spray was administered after the prisoners began to cough, but before they
were restrained. Appeals court rules, however, that officials were not entitled
to qualified immunity from a deliberate indifference to medical needs claim by
other prisoners in the cell block that the vapors drifted into their cells and
they were not given showers or medical attention for four hours. Clement v.
Gomez, # 01-16088, 2002 U.S. App. Lexis 15659 (9th Cir.). [2002 JB Sep]
Federal appeals court upholds award of $10,002
against a correctional officer who allegedly "orchestrated" an unnecessary
soaking with pepper spray of two inmates confined to their cell five hours
after a prison riot had been quelled. Officer allegedly instructed a co-worker
to soak the cell with pepper spray after one of the inmates questioned his
alleged calling out "Niggers get naked." Lawrence v. Bowersox,
#01-1813, 2002 U.S. App. Lexis 14657 (8th Cir.). [2002 JB Sep]
Prisoner's claim that officials' use of tear gas
to enforce lockdown was an excessive use of force was contradicted by videotape
showing that prisoners, including the plaintiff, did not return into their
cells when the order to do so was initially given. Prisoner's claim that he
"begged" for medical attention but that prison employees would not
help him was also contradicted by videotape which showed officers asking him
whether he needed medical attention and him replying that he did not.
Fairweather v. Giles Dalby Correctional Facility, 154 F. Supp. 2d 921 (N.D.
Tex. 2001). [2002 JB Mar]
284:115 Correctional officer did not impose cruel
and unusual punishment when he sprayed an inmate in the face with pepper spray
after the prisoner refused a direct order from his work supervisor and
"questioned" an order from the officer. Jones v. Shields, #99-1869,
207 F.3d 491 (8th Cir. 2000).
239:164 Requirement that prison guard undergo
"mace training," involving her being sprayed in the face with pepper
mace did not violate her right to due process or privacy or shock the
conscience; federal court finds requirement "rationally related" to
correctional department's interest in encouraging officers to "take
care" when using pepper mace, to discourage "indiscriminate use"
of it, and to teach the importance of "prompt remediation" of its
effects. Ryder v. Freeman, 918 F.Supp. 157 (W.D.N.C. 1996).
229:3 Policy directive on use of chemical agents,
such as mace, against resisting prisoners did not create constitutionally
protected liberty interest for violation of which Michigan state prisoner could
sue correctional officer. McLaurin v. Morton, 48 F.3d 944 (6th Cir. 1995).
[Cross-reference: Defenses: Qualified Immunity]. » Editor's Note: One
other federal appeals court has also ruled that a denial of summary judgment
based on qualified immunity was immediately appealable even though the second
claim of two civil rights damage claims would proceed to trial even if the
qualified immunity appeal was successful. Green v. Brantley, 941 F.2d 1146
(11th Cir. 1991). In Schrob v. Catterson, 967 F.2d 929 (3d Cir. 1992), on the
other hand, the court did not allow an immediate appeal of the denial of a
motion to substitute the United States as a defendant (it would have replaced
the individual defendants, thus relieving them of liability on certain claims)
where the defendants would still be required to go to trial on other civil
rights claims even if the substitution occurred.
238:155 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).
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