This guest post was authored by Judith S. Islas

Last November UC Davis police donned in riot gear used pepper spray on a group of student protestors at an “occupy” movement demonstration held on the university campus.  That pepper spray incident was captured on video. It triggered an internet and media frenzy, multiple investigations and lawsuits, and became the topic of a vigorous national debate and UC-wide policy review on the use of force by campus police on student protestors.  While these pepper spray lawsuits are still in their early stages, earlier  this month, the Ninth Circuit U.S Court of Appeals issued a decision in another Davis case, this one involving “pepper balls,” an encapsulated version of pepper spray.  This initial pepper spray case, Nelson v. City of Davis, is bound to have a significant impact as the November 2011 pepper spray cases, wind their way through the courts.

The pepper ball incident involved in the court decision occurred during the UC Davis annual “Picnic Day” festivities in 2004, when City and campus police tried to disperse a crowd of about 1,000 students congregated at an apartment complex near campus for “the biggest party in history.”  After unsuccessful efforts to break up the party, and observing an individual rocking a car, underage drinking, bottles breaking, scores of illegally parked vehicles, and being asked by the apartment owner to evacuate the partygoers, a group of 30 to 40 police officers in riot gear assembled at the apartment complex.

What happened next triggered the lawsuit.  Upon entering the apartment complex, the officers formed a skirmish line and moved through the crowd directing partygoers to disperse, but the crowd did not disband.  Unable to control the huge crowd or obtain compliance with their exit orders, three officers shot pepper balls towards a group of 15 to 20 students who were near the exit. One pepper ball accidentally struck Timothy Nelson in the eye.  He collapsed and was temporarily blinded.  Later, students in the group of 15 to 20 near the exit claimed they were trying to leave the party, but could not because the police were blocking the exit path. They claimed they raised their hands to signal compliance and asked the officers what they should do, but the officers did not respond. The officers agreed that it was extremely difficult to communicate due to the raucous noise level, the huge crowd, and their protective headgear. They claimed this prompted their use of pepper balls. As a result of the pepper ball hitting him in the eye, Nelson suffered permanent visual impairments, underwent multiple surgeries, and had to withdraw from UC Davis after losing his athletic scholarship.

Nelson sued the officers, claiming their conduct violated the Fourth Amendment prohibition on unreasonable seizure.  The officers claimed they did not unlawfully seize Nelson, but if they did, they were entitled to qualified immunity, which shields public officials from damages in a civil suit.

The Court first found the officers unlawfully seized Nelson.  Despite the officers’ explanations that they did not personally target Nelson and did not intend the pepper balls to hit his eye, the Court found that Nelson had become immobilized by police conduct and, therefore, had been seized.  Next, the Court evaluated whether the seizure was reasonable and, therefore, lawful.  The Court focused on: (1) whether the use of pepper balls is more than a minimal intrusion, because it causes immediate and uncontrollable pain; (2) whether the use of pepper balls to disperse the crowd violated both Commission on Peace Officer Standards and Training (POST) guidelines and the officers’ own training directives; and (3) whether Nelson and his friends were engaged in or were arrested for a crime based on their conduct at the apartment complex.  If they were not, this would have, significantly reduced any justification for use of force. The Court found the use of pepper balls was not reasonable and, therefore, Nelson’s seizure was unlawful.

The Court next analyzed the officers’ claim of qualified immunity. Qualified immunity is an important protection for public officials to limit their susceptibility to suit for damages for performing their duties as public officials.  However, qualified immunity only protects public officials from liability for damages when their conduct does not violate clearly established statutory or constitutional rights; it applies only where the violation of the constitutional right was not clearly established at the time it occurred.   In analyzing whether the officers were entitled to qualified immunity, the Court acknowledged that, in 2004 when the incident occurred, there was no binding precedent specifically involving the use of pepper balls.  But, the Court noted, “officials can be on notice that their conduct violates established law even in novel factual situations” and an officer is not entitled to qualified immunity on the ground the law is not clearly established every time a novel method is used to inflict an injury.  The Court held that, to show the Constitutional violation was clearly established, Nelson did not need to establish the officers’ specific conduct had previously been declared unconstitutional, but only that the unlawfulness was apparent given preexisting law.  The Court then concluded that, at the time of the pepper ball incident in 2004, the law was clearly established on the use of pepper spray and concussive force, which are the combined ingredients that make a pepper ball.  Therefore, it was clearly established that the officers’ conduct violated Nelson’s Fourth Amendment rights.  Based on that, the Court rejected the officers’ plea for qualified immunity.

This case, paves the way for Nelson to obtain damages against the officers involved in the pepper ball incident.  The case also promises to be of critical importance as students injured in the November 2011, pepper spray incident at UC Davis seek damages from the officers who issued the orders and shot pepper spray in that incident.  Stay tuned…