Nelson v. City of Davis: Campus Police Officers Who Injure Nonthreatening Students with Pepper Spray May be Committing a Constitutional Offense
by Richard Fossey - October 05, 2012
In Nelson v. City of Davis, the Ninth Circuit made clear that campus police officers who fire dangerous projectiles at non-threatening students are engaged in the use of unreasonable force.
Last November, campus police officers at University of California-Davis responded to a group of Occupy protesters with pepper spray. Bystanders captured the scene on their cell phones, and a video of the incident went viral. Millions of people went to YouTube to watch a UC Davis police officer calmly spewing pepper spray into the faces of passive student protesters sitting on a campus sidewalk.
Across the nation, the higher education community responded to the pepper-spray incident with outrage. UC Davis commissioned a report on the event, which was strongly critical of the police and campus administrators (Edley & Robinson, 2012). The University of California System also prepared a report, which was critical as well (Stripling, 2012). The University of California paid a money settlement to students who sued over the assault (Gordon, 2012), but the local prosecutor said the incident did not warrant the filing of criminal charges against the officers who administered the pepper spray (Smith, 2012).
Jonathan Stein, a UC Davis student regent, publicly acknowledged that UC officers erred when they used pepper spray on nonviolent students. "We did an injustice to our students that day at Davis, and some amount of recompense is appropriate, Stein admitted (Gordon, 2012).
In July 2012, the Ninth Circuit Court of Appeals issued an opinion about another pepper-spray incident involving UC Davis police officers. This incident occurred in 2004, several years before the 2011 incident that gained national attention. In Nelson v. City of Davis (2012), The Ninth Circuit made clear that police officers who injure nonviolent students with pepper spray may be violating their victims constitutional rights.
NELSON V. CITY OF DAVIS: CAMPUS POLICE FIRE PEPPERBALL SHELLS AT NONTHREATENING STUDENTS
On October 16, 2004, about a thousand people gathered at an off-campus apartment complex near UC Davis to participate in the universitys annual Picnic Day festivities. Described by one participant as the biggest party in history, the event attracted so many people to the apartment complex that traffic became gridlocked and partygoers began parking illegally (pp. 872-873).
Municipal police officers from the city of Davis responded to this disturbance by issuing parking tickets and citations for underage drinking. Later, they decided to disperse the crowd, and they called for backup. Campus police officers from UC Davis responded, and the assembled officers donned riot gear.
Three UC Davis officers at the scene were armed with pepperball guns, which the court described as paintball guns that fire rounds containing oleoresin capsicum (OC powder), also known as pepper spray. These rounds break open on impact and release OC powder into the air, which has an effect similar to mace or pepper spray (p. 878). Pepperballs, when fired from pepperball guns, have an initial velocity of 350 to 380 feet per second.
In order to break up the crowd, police officers formed a skirmish line and moved through the apartment complex issuing dispersal orders. A majority of the crowd could not hear the dispersal orders due to the raucous noise of the party, and few people dispersed.
Officers then gathered in front of a breezeway in the apartment complex, where 15 to 20 students had gathered. Students said later that they tried to leave the party but were prevented from doing so because the police blocked their exit. Somewhere in the complex, people began throwing bottles, but none of the students on the breezeway engaged in any threatening behavior.
At some point, officers fired their pepperball guns at the students on the breezeway. Timothy Nelson, a UC Davis student, was struck in the eye. He collapsed on the ground, writhing with pain. Temporarily blinded, he was driven to a hospital. After enduring multiple surgeries to repair the ocular injury he sustained, Nelson suffered a permanent loss of visual acuity (p. 874).
Nelson sued the City of Davis several municipal police officers, and three UC Davis officers, claiming a violation of his constitutional rights. The police officers moved for summary judgment, arguing that they were entitled to qualified immunity from suit. Under Nelsons version of events, a federal trial court ruled, the officers had used unreasonable force against him and had violated his constitutional right under the Fourth Amendment to be free from unreasonable seizures by the police.
NINTH CIRCUIT: UC DAVIS OFFICERS SHOULD HAVE KNOWN NOT TO FIRE PEPPER SPRAY
On appeal, the officers maintained that they had not intentionally restricted Nelsons freedom when a projectile hit his eye and thus had not seized him for purposes of the Fourth Amendment. Rather, the officers argued, they had fired pepperballs to disperse the crowd, intending for the contents of the rounds to douse the crowd in a tactic called area contamination.
But the Ninth Circuit rejected this argument. Although Nelson may been struck in the eye with a pepperball that was intended to impact his body elsewhere, or was physically hit by the projectile when the officers sought only to spray him with its contents, the legal consequences of the officers actions is that a seizure of Nelson occurred (p. 877).
Moreover, the court continued, not only had the officers seized Nelson, they had unreasonably seized him. It was undisputed, the court wrote, that the officers did not reasonably believe Nelson or his friends posed a threat to the officers safety. Nelson had not thrown a bottle at the officers; nor had he resisted arrest. At most, Nelsons failure to comply with an officers command to disperse--a command that Nelson apparently did not hear--rose to the level of passive resistance. In the courts view, Nelson did nothing that would justify the use of a non-trivial amount of force (p. 881).
The police officers then argued that even if they violated Nelsons constitutional right to be free from an unreasonable seizure, that right had not been clearly established at the time the Picnic Day incident occurred. Therefore, they contended, they could not be sued personally for violating Nelsons constitutional rights.
The Ninth Circuit rejected this argument as well. According to the court, a reasonable officer should have known that the firing of the pepperball gun toward Nelson and his friends, given the minimal governmental interests at stake, was in violation of Nelsons clearly established Fourth Amendment right, even when that force was applied in the larger context of crowd dispersal (p. 887). Therefore, the trial court had ruled correctly that the officers were not entitled to qualified immunity from being sued.
CONCLUSION AND IMPLICATIONS
In Nelson v. City of Davis, the Ninth Circuit made clear that campus police officers who fire dangerous projectiles at non-threatening students are engaged in the use of unreasonable force. And if this conduct results in a serious injury like the injury Nelson suffered, the officers who caused the injury have committed a constitutional violation.
The Nelson case, involving a 2004 event, raises troubling questions about the pepper spray incident that occurred at UC Davis in November 2011. If UC Davis officers were on notice in 2004 that attacking nonthreatening students with pepper spray could be a constitutional offense, then certainly the officers who sprayed pepper spray in the faces of passive student protesters last November should have been on notice as well.
The University of California has settled with the students who were attacked last November and promised to institute procedures to make sure a similar incident never occurs again. But the question remains, why did the November 2011 attack occur in the first place? Did UC Davis police officers use pepper spray on peaceful protesters due to poor training or is the incident an indication that the University of California has an insufficient regard for the health, safety, and dignity of its students?
Edley, C.F. & Robinson, C. F. (2012). Response to Protests on UC Campuses. University of California. http://campusprotestreport.universityofcalifornia.edu/documents/protest-report-091312.pdf
Gordon, L. (2012, September 13). UC to pay settlement in Davis pepper spray case. Los Angeles Times (online edition). http://articles.latimes.com/2012/sep/13/local/la-me-uc-pepper-spray-20120914
Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012).
Smith, D. (2012, September 20). Yolo DA wont file charges in UCD pepper-spraying. Sacramento Bee (online edition). http://www.sacbee.com/2012/09/20/4836866/yolo-da-wont-file-charges-in-ucd.html#mi_rss=Our%20Region
Stripling, J. (2012, April 11). Scathing report on UC-Davis pepper-spray incident faults chancellor and police. Chronicle of Higher Education (online edition). http://chronicle.com/article/UC-Davis-Pepper-Spray-Report/131496/