‘Blowin’ in the Wind’ – Pepper Spray and the Police in New York

Pepper spray has been in the news lately. For instance, you’re probably aware of the incident captured in the video below: a couple of uniformed goons soaking California college students with the stuff.
Sadly, the only thing that’s unusual about this casual act of brutality is that the public and the press sat up and took notice of it. Things just like it – and worse – happen all the time.

This next YouTube entry provides an example. The video’s had at least a million and a half views, and shows the pepper spray treatment applied to protesters in New York. You have to be on your toes to make out the police officer doing the spraying, but the effects of his action are very, very obvious.

The officer, who sweeps in from the right in a white shirt, has been identified as a deputy inspector with the New York City Police Department. In other words, he’s a supervisor. His grasp of department guidelines could be stronger, however, as it seems his prank violated them: it’s cost him ten days’ vacation time. This administrative sanction may well have been because he committed a vicious assault on harmless civilians. On the other hand, we note that some of his colleagues were downwind when he cut loose.

So, just what is pepper spray, and if you can’t douse disgruntled citizens with it, just for being disgruntled (at least when other cops are standing next to them), who can you use it on, and when?

Fox News has made news by opining that pepper spray is ‘a food product, essentially‘. Apparently fair and balanced minds can differ on this. Pepper spray, or more properly, oleoresin capsicum, can be a thousand times more potent than an actual pepper, and pepper is by no means the only ingredient. It’s not surprising, therefore, that federal courts consider pepper spray a ‘dangerous weapon’. In United States v. Mosley. an appeals court noted that

pepper spray can “cause extreme pain and prolonged impairment of bodily organs. The spray burns the face [and] nostrils, restricts breathing passages, and causes blindness. It causes “a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx.

The court concluded that “Pepper spray not only has the potential to cause physical injury, but that is the very point of the device: It is “designed to cause intense pain.”

The use of pepper spray is fairly obviously, then, an application of ‘force’, as acknowledged, for instance, in the NYPD’s Patrol Guide. Force, under New York Law, can be used “when and to the extent” an officer reasonably believes that it’s necessary to make an arrest, prevent an escape or to fend off a physical threat.

The New York State Police, as recorded in an appellate decision, Passino v. State of New York, consider this ‘compliance technique’ to be a “level four use of force-defensive tactic”. It’s to be used only after “placement of a hand on the arrestee” hasn’t worked and before either the “use of physical force” (presumably something in the nature of slugging) or “the use of deadly physical force.”

The use of pepper spray was found justified in Passino, where the arrestee was drunk and belligerent. In fact, the use there seems to typify its intended use.

However, pepper spray could not have been authorized in the New York City incident we’ve discussed. In the first place, the NYPD’s own guidelines say to “[a]void discharging pepper spray indiscriminately over a large area for disorder control.” In the second, it’s not justified under state law: the victims were offering no resistance whatsoever to any legitimate authority being exercised by the police.

Even had there been any ‘resistance’, the use of pepper spray would not be authorized if that resistance was ‘passive’. Per the patrol guide, an officer can’t use it on “subjects who passively resist (e.g., going limp, offering no active physical resistance).” This is consistent with New York case law (see People v. McDaniel) that there is no “statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest.”

Don’t sprint down to the nearest public place to go limp, though. While going limp may not be resisting arrest, a “defendant’s mere refusal [to] comply with a police officer’s order to leave a location where he/she has no right to remain constitutes a physical act sufficient to establish a prima facie case of Obstructing Governmental Administration in the Second Degree” (see People v. Kleckner).

And remember, as well, that “going limp” and linking arms, as the students seem to have been doing at UC Davis at the time they were attacked, are different things. Linking arms could be considered ‘affirmatively acting’ to resist the arrest.

Be that as it may, it appears that the man who developed pepper spray as a weapon in the 1980s is horrified by the kind of abuse depicted in videos like those above. We’ve embedded an interview with him in which he claims to have developed guidelines for its use that were flagrantly violated in the California incident. We’d like to take this opportunity to welcome him to our world.