Washington’s Blog 
November 22, 2011
While everyone knows that the use by police on peaceful protesters is brutal, many don’t realize it is illegal … and can cause lasting damage.
Pepper Spray Can Seriously Injure … Or Kill
The ACLU reported  in 1995:
“An Army study concluded that pepper spray’s active ingredient, “is capable of producing carcinogenic effects, sensitization, cardiovascular toxicity, as well as possible human fatalities.”
Wikipedia notes :
For those with asthma, taking other drugs, or subject to restraining techniques which restrict the breathing passages, there is a risk of death. The Los Angeles Times has reported at least 61 deaths associated with police use of pepper spray since 1990 in the USA. The American Civil Liberties Union (ACLU) documented 27 people in police custody who died after exposure to pepper spray in California since 1993. However, the ACLU report counts any death occurring within hours of exposure to pepper spray. In all 27 cases, the coroners’ report listed other factors as the primary cause of death, though in some cases the use of pepper spray may have been a contributing factor.
The US Army concluded in a 1993 Aberdeen Proving Ground study that pepper spray could cause “[m]utagenic effects, carcinogenic effects, sensitization, cardiovascular and pulmonary toxicity, neurotoxicity, as well as possible human fatalities. There is a risk in using this product on a large and varied population”. However, the pepper spray was widely approved in the US despite the reservations of the US military scientists after it passed FBI tests in 1991. As of 1999, it was in use by more than 2000 public safety agencies.
The head of the FBI’s Less-Than-Lethal Weapons Program at the time of the 1991 study, Special Agent Thomas W. W. Ward, was fired by the FBI and was sentenced to two months in prison for receiving payments from a peppergas manufacturer while conducting and authoring the FBI study that eventually approved pepper spray for FBI use. Prosecutors said that from December 1989 through 1990, Ward received about $5,000 a month for a total of $57,500, from Luckey Police Products, a Fort Lauderdale, Florida-based company that was a major producer and supplier of pepper spray. The payments were paid through a Florida company owned by Ward’s wife.
Pepper spray has been associated with positional asphyxiation of individuals in police custody. There is much debate over the actual “cause” of death in these cases. There have been few controlled clinical studies of the human health effects of pepper spray marketed for police use, and those studies are contradictory. Some studies have found no harmful effects beyond the effects described above.
Direct close-range spray can cause more serious eye irritation by attacking the cornea with a concentrated stream of liquid (the so-called “hydraulic needle” effect).
Pulitzer-Prize winning science writer Deborah Blum writes  today in Scientific American:
One hundred years ago, an American pharmacist named Wilbur Scoville developed a scale to measure the intensity of a pepper’s burn. The scale … puts sweet bell peppers at the zero mark and the blistering habanero at up to 350,000 Scoville Units.
Commercial grade pepper spray leaves even the most painful of natural peppers (the Himalayan ghost pepper) far behind. It’s listed at between 2 million and 5.3 million Scoville units. The lower number refers to the kind of pepper spray that you and I might be able to purchase for self-protective uses. And the higher number? It’s the kind of spray that police use, the super-high dose given in the orange-colored spray used at UC-Davis.
As pointed out in the 2004 paper, Health Hazards of Pepper Spray, written by health researchers at the University of North Carolina and Duke University, the sprays contain other risky materials….
The more worrisome effects have to do with inhalation – and by some reports, California university police officers deliberately put OC spray down protestors throats. Capsaicins inflame the airways, causing swelling and restriction. And this means that pepper sprays pose a genuine risk to people with asthma and other respiratory conditions.
And by genuine risk, I mean a known risk, a no-surprise any police department should know this risk, easy enough to find in the scientific literature. To cite just three examples here:
1) Pepper Spray Induced Respiratory Failure Treated with Extracorporeal Membrane Oxygenation
2) Assessing the incapacitative effects of pepper spray during resistive encounters with the police.
3) The Human Health Effects of Pepper Spray.
That second paper is from a law enforcement journal. And the summary for that last paper notes: Studies of the effects of capsaicin on human physiology, anecdotal experience with field use of pepper spray, and controlled exposure of correctional officers in training have shown adverse effects on the lungs, larynx, middle airway, protective reflexes, and skin. Behavioral and mental health effects also may occur if pepper spray is used abusively.
Pepper spray use has been suspected of contributing to a number of deaths that occurred in police custody. In mid-1990s, the U.S. Department of Justice cited nearly 70 fatalities linked to pepper-spray use, following on a 1995 report compiled by the American Civil Liberties Union of California. The ACLU report cited 26 suspicious deaths; it’s important to note that most involved pre-existing conditions such as asthma. But it’s also important to note a troubling pattern.
In fact, in 1999, the ACLU asked the California appeals court to declare the use of pepper spray to be dangerous and cruel. That request followed an action by northern California police officers against environmental protestors – the police were accused of dipping Q-tips into OC spray and applying them directly to the eyes of men and women engaged in an anti-logging protest.
“The ACLU believes that the use of pepper spray as a kind of chemical cattle prod on nonviolent demonstrators resisting arrest constitutes excessive force and violates the Constitution,” wrote association attorneys some 13 years ago.
And the pregnant Seattle protester who was was pepper sprayed in Seattle  says that she miscarried due to the pepper spraying .
The Use of Pepper Spray Is Illegal
The use of pepper spray in war is banned by the Geneva Convention.
It is also illegal in the circumstances it was used in Seattle and Davis. As Daily Kos notes :
Non-violent protesters may sue police and the municipality of county that employs them under this Federal law, 42 United States Code Section 1983 if they have been pepper sprayed while peacefully protesting, whether or not the protesters were arrested.
Here’s the language of the law in question:
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The use of pepper spay by law enforcement against non-violent protestors has been found to be a violation of of the 4th amendment rights of the protesters in the case ofLundberg v. Humboldt , which is the controlling precedent in the 9th Circuit, which has jurisdiction over any cases brought against the police for their actions in Seattle and Oakland. In its 2001 opinion regarding the Lundberg case, the 9th Circuit held that non-violent protestors who did not present a threat to the safety of the public or to law enforcement officials, even though they had committed the misdemeanor offense of trespass, could sue the governmental authorities and law enforcement officials who had pepper sprayed them, reversing the trial court’s decision to dismiss the case on the basis that the authorities had “limited immunity” to violate the civil rights of individuals engaged in non-violent civil disobedience.
The use of pepper spray against non-violent protestors who pose no threat to police or to the public, has been deemed grounds for legal action against the police under Section 1983 for a violation of your 4th amendment rights.
I strongly suggest to anyone who was pepper sprayed, beaten with batons or otherwise assaulted by the police in Oakland and Seattle that you consult with a lawyer, either with the ACLU, National Layers’ Guild or a private attorney specializing in lawsuits based on civil rights violations and police abuse and use of excessive force. It seems clear to me that the 9th Circuit precedent would allow lawsuits against the authorities who used pepper spray and other “pain compliance techniques” used against OWS protesters and bystanders to proceed without any argument by the authorities of qualified immunity from litigation based on their brutal acts of unnecessary violence.
University of California Police are not authorized to use pepper spray except in circumstances in which it is necessary to prevent physical injury to themselves or others.
From the University of California’s Universitywide Police Policies and Administrative Procedures : “Chemical agents are weapons used to minimize the potential for injury to officers, offenders, or other persons. They should only be used in situations where such force reasonably appears justified and necessary.”
… UC police are not authorized to use physical force except to control violent offenders or keep suspects from escaping.
Another quote from the UC’s policing policy: “Arrestees and suspects shall be treated in a humane manner … they shall not be subject to physical force except as required to subdue violence or ensure detention. No officer shall strike an arrestee or suspect except in self-defense, to prevent an escape, or to prevent injury to another person.”