Judge: Police Can No Longer Pepper-Spray Students for Minor Misbehavior at School

By Emma Brown, The Washington Post

02 September 15

olice officers used excessive and unconstitutional force when they pepper-sprayed students for minor misbehavior at school, a federal judge has ruled.

The decision comes in response to a lawsuit filed in 2010 by the Southern Poverty Law Center on behalf of eight high school students in Birmingham, Ala., all of whom had been pepper-sprayed by school resource officers.

Lawyers for Birmingham Police Chief A.C. Roper had argued at trial that officers have greater latitude to use force against students than against the general public because of the need to maintain a safe environment at school.

The judge rejected that argument, calling it an “eyebrow-raising position that school children are less deserving of protection from harm at the hands of overzealous law enforcement officers than adults when the harm occurs at school.”

“The court declines to adopt the position that children in public schools have a reduced expectation of being free from excessive force,” wrote Judge Abdul K. Kallon, of the U.S. District Court for the Northern District of Alabama.

“The rights of these students have been vindicated,” said Ebony Howard, an attorney for the Southern Poverty Law Center. Howard said the decision should push schools nationwide to reevaluate their enforcement tactics and reexamine the training that school police officers receive.

A spokesman for the Birmingham police department declined to comment on the judge’s decision.

The ruling comes as the nation debates police officers’ use of force, particularly in African American communities, and as the Obama administration urges schools to examine harsh discipline tactics that disproportionately affect minority students. Birmingham’s students are predominantly black.

One of the plaintiffs, 15-year-old K.B., was sprayed by an officer after she would not stop crying in the hallway. She was five months pregnant, and she was upset because a male student had just cursed at her and called her a derogatory name. After she was sprayed, she vomited.

“It felt like somebody cut my face up and poured hot sauce in,” K.B. testified, according to court documents.

Another plaintiff, 16-year-old B.J., argued with two school officials who were trying to search his pockets. They threw him up against a wall, where an officer sprayed him, threw him to the ground, kneeled on his back and handcuffed him.

In neither incident did the teen resist the arresting officer or pose a safety threat, the judge wrote, and in both incidents the officers used excessive and illegal force.

The other six students either resisted arrest or tried to flee, and therefore officers were legally justified in using pepper spray, Kallon wrote. But he questioned whether the weapon was really warranted in those incidents, too.

“Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional,” he wrote.

In all eight students’ cases, officers used the chemical Freeze +P, described by its manufacturer as “the most intense incapacitating agent available today,” according to court documents. And in every case, after the incident ended, the officers failed to help students wash their eyes, change clothes and otherwise decontaminate themselves in accordance with manufacturer instructions.

That too constituted excessive and unconstitutional force, Kallon ruled.

There are 16 school resource officers working in Birmingham’s eight high schools, which enroll about 8,000 students, according to court documents.

Kallon sharply criticized officers’ “cavalier attitude” toward the use of Freeze +P, which causes coughing, gagging and burning of the eyes and skin. Between 2006 and 2014, officers sprayed 199 students with Freeze +P in 110 incidents, according to court documents. In only one of those incidents did students have weapons of their own.

“Frankly, the defendant S.R.O.s’ own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert’s testimony that Freeze +P inflicts ‘severe pain,'” Kallon wrote.

He went on to write that the court was “profoundly disturbed” by some of the testimony at trial and “especially taken aback” by the spraying of the pregnant student.

“The trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers — i.e. backtalking and challenging authority,” Kallon wrote.

The judge stopped short of banning pepper spray from schools altogether, finding that it might be necessary to maintain school safety in case of fights or other violent behavior.

He ordered police to sit down with the plaintiffs to come up with a plan for improved training and procedures for the use of pepper spray, and he said Chief Roper must remind officers that “enforcement of school discipline is not part of their job description and that Freeze +P is not suited for general crowd control.”

Kallon also ordered Birmingham police to begin decontaminating students sprayed with Freeze +P, including by giving them a change of clothes; washing their skin and eyes; and placing them in front of a fan.