O'Reilly: Pepper Spray Is a Food Product

[Gawdzilla Sama]

In Marin.

Never mind, found a recipe.

[Schneibster]

Good luck with that.

[Coito ergo sum]

Did you bother to look at the hundreds of people standing all around the police on the grass? That's what police call a "potential flash riot" waiting to happen.

While the police may want a crowd of people standing around to be a "potential riot," that isn't the case. Every march, protest or demonstration involves a lot of people standing around - hundreds - even thousands of people all around. The police's job is to protect and serve that crowd of protesters. The mere fact that there are hundreds of people standing around is not cause to use pepper spray.

Nor did they use pepper spray on the surrounding crowd. They only used it on persons who were actually breaking the law. But the presence of many other persons in a crowd around the protesters is legitimately a concern for the police, who have the duty of KEEPING THE PEACE, particularly in potential riot situations. They get to gauge the tenor and mood of the crowd when deciding whether or not to disperse it BEFORE it turns into a riot. So long as people are acting peaceably and lawfully, they will just observe, but when some of the crowd decide to break the law, they have full authority to move in and arrest them. If the situation deteriorates as a result, and the rest of the crowd becomes unruly and threatening, they can order them to disperse, and can use chemical weapons to cause them to disperse if they refuse.

The fact that they didn't use the spray on the surrounding crowd is evidence that they did not see the surrounding crowd as a thread.

No, it just means they didn't see them as an IMMEDIATE threat nor as lawbreakers. But any time a hostile crowd gathers around police trying to arrest protesters it's a dangerous situation that requires a firm hand by the police to maintain order.

They didn't act against the crowd that you're saying was "hostile." They took action against seated protesters who were not posing any threat to anyone. And, being a "lawbreaker" doesn't mean they are justified in using pepper spray. If the gathering crowd was hostile and was actually threatening the police, then they MAY have had a justification to address THAT hostility and THAT threat - but, they didn't. The gathering crowd did not present a justification to pepper spray the seated "lawbreakers." And, the alleged "lawbreaking" that was actually occurring, if indeed it was lawbreaking, which is not clear at all (merely not following a pig's instructions is not "lawbreaking" - not in and of itself - if I'm on a public way, and a cop tells me to move along - and I respond - go fuck yourself you piece of shit - I have not broken the law - not just on those facts - I know cops want to think that they have the right to order people around ANYTIME THEY WANT - but, they technically don't. They often have the practical "power" to do so, and they have no shame in using that power vigorously, though.)

They aren't allowed to use pepper spray on people just because they are breaking the law, just like they aren't allowed hit people with their hands just because they are breaking the law.

They are allowed to use reasonable and appropriate physical force to enforce the law or effect an arrest, and pepper spraying protesters who are obstructing and resisting is both reasonable and appropriate under the totality of the circumstance.

There was no "resisting." They didn't try to arrest the protesters who were seated. It is not "resisting" to fail to respond to police commands. If the cops tried to cuff them, and the people tried to pull away, then it can rise to the level of "resisting without force" (a petty bullshit misdemeanor that is alleged anytime a suspect "tenses up" while being arrested). But, that's it. And, there can't be any "resisting" unless the cop tries to take the person into custody. Saying "get up and move along" or get up so we can cuff you" and having people sit there and not move - that ain't resisting - not in the US.

And, "obstructing a public way" is not sufficient cause for cops to pepper spray anyone. If people are where they have no right to be, then the cops should tell them to leave, and if the people don't listen then the cops should arrest them, and if the people resist arrest, then the cops can use force to effect the arrest. But, you don't get to pepper spray people to make sure you've rendered them incapacitated because you want to arrest them after you've pepper sprayed them.
/

Certainly, many things are "legitimate concerns" for police. But, just because something is a "legitimate concern" that doesn't give them the right to spray people with pepper spray.

Quite right. What gave them the AUTHORITY (not the "right") was the law, which the protesters were breaking, and the law that authorizes the use of physical force by a police officer.

I know cops think like you do. But, you are wrong. The fact that the protesters were breaking the law does not mean the cops have carte blanche to pepper spray them. The law does not give cops the authority to pepper spray people once a cop thinks the people are breaking the law. We don't even know what law the cops thought these people were breaking? Do you know? What California statute or local city ordinance was being broken?

If a cop comes to my house and sees my neighbor trespassing on my lawn, that might constitute misdemeanor trespass. Cops do not have the authority to pepper spray the trespasser. By your argument, however, the fact that a person is breaking the law, like misdemeanor trespassing authorizes the use of physical force. No it doesn't. It authorizes the cops to arrest. IF the person ACTUALLY resists arrest, then the cop has authority to use additional force to subdue the suspect. But, he does not have the authority to preemptively pepper spray someone who does nothing more than refuse to obey a command, or who sits down and refuses to get up.

I think ANY crowd of people - and any car pulled over by the side of the road - is a "legitimate concern" for police. Police pull over a speeder, and ask him to get out of the car -- the guy refuses - pepper spray appropriate? Of course not. Legitimate concern? Of course.

Actually, you're exactly wrong. If you get pulled over and the officer orders you out of the car, he's doing so for his own safety, to separate you from any potential weapons inside the car. He is in control of the situation, you are not. If you refuse, he can bust your window, drag you out by the arm or hair, or pepper spray you,

No no -- here is where you are bass-fucking-ackwards. He can ask you to get out of the car (or order you, whatever), and if you refuse and sit there, he can certainly break the glass. He can open the door, and he can grab you and use physical force to pull you out. He can, if you forcibly resist his attempt, he can pepper spray you. If you just sit still and don't fight against him, but require him to lift your entire weight and drag you limply out of the car, he cannot lawfully pepper spray you.

He can not, if you fail to obey his command, bust the window and immediately fill your eyes with pepper spray. That is fucking not within his authority. Power, yes. We all know a cop will make up whatever bullshit he has to to justify what he did, and most of the time he'll get away with it, so you better, as a practical matter, if you know what is good for you, follow the cocksucker's instructions to the letter. But, does he have the lawful "authority" to pepper spray you for the mere fact of failing to obey his command? Not a fucking bit.

or potentially shoot you if you present a deadly threat to him.

If if if if if. Of course if you present a deadly threat he is justified in shooting a suspect. If someone presents a deadly threat to ANYONE, cop or not a cop, they are justified in shooting the person. But we're not talking about that. We're talking about a person who sat there and did nothing except disobey the flatfoot's commands.

That happens all the time and the police are almost always justified in their use of force, and pepper spray, to get someone out of a vehicle who is refusing to do so.

Not for mere refusal. They use the pepper spray (when they are justified in using it) when the person gets violent. They first attempt to open the door, and extract the suspect, without use of pepper spray. They can't crash the window and use the billy club or flashlight upside the guy's head either -- not just because the person refuses to lower the window. You're wrong.

Oh, again, I know cops exceed their authority all the time, and then they make stuff up like "I saw him lunge at me" or "he resisted by struggling and I thought he was going for my gun" and shit like that - unverifiable stuff. I cop has a lot of leeway and are given the benefit of the doubts that are constitutionally supposed to belong to the accused. That's the reality of the situation. But, if we are talking about a fact pattern where we all agree that a person sat there and did not move, and simply did not obey the officer's commands and would not assist the officer in effecting the arrest, the officer is not permitted to use the pepper spray. If an arrest is attempted and the person does start resisting the attempted arrest, then the right to use things like pepper spray kicks in.

Sure the police can gauge the tenor of crowds. But, they didn't try to disperse the crowd. They pepper sprayed a few people who were sitting down, without trying to cuff them first.

They don't have to try to cuff them first. They were trying to get them to move without having to arrest them.

Fuck them. They don't have the right "get them to move without having to arrest them." The people there thought they had a legal right to be there. They didn't obey the instructions of the asshole cops because they didn't think the cops were correct. The cops alternatives are to keep asking them to move, or arrest them. They don't have the right to spray seated individuals without first trying to arrest them.

If I'm in a park and a cop comes up to me and says, "pick up your pic-a-nic basket, and move along - leave this park." And, I say, "fuck you, dick. I am not leaving, because I have a right to be here." And, the cop says, "no you don't, you are subject to arrest if you don't leave." And, I say, "fuck off pig." He is not entitled to pepper spray me. If he takes me into custody, and in so doing, I start resisting, then he can swat me with the flashlight or maybe pepper spray me, whatever is reasonable. But, he just doesn't have the LAWFUL authority to pepper spray me because I won't obey his command to leave a park.

Pepper spray, like tear gas, is a good way to get people who are refusing to move to do so without having to arrest or fight with them.

It's a great way. But, they aren't lawfully allowed spray or teargas seated people - or even crowds - whose only action is to stand there, or sit there, and disobey the police.

Perhaps they should have called for a paddy-wagon and some more back up, and then forcibly removed the sitting protesters.

Why wait? They had the appropriate tools with them, and they used them appropriately.

They didn't have to. They could have tried to cuff someone. If that person resisted, spray him. They did not use pepper spray appropriately by hosing down seated alleged "lawbreakers" who were doing nothing other than refusing to follow the commands of the police. I guarantee that will be born out by the investigation.

The protesters WERE behaving peaceably

No, they were not. They were resisting arrest

Dude - when did the "arrest" actually begin? There was no attempt to arrest prior to the pepper spray. Therefore, they could not have been resisting arrest.

and obstructing the police,

Obstructing the police is not always a crime. And, they weren't obstructing the police. They were sitting on the ground. That is not "obstructing" anyone.

and obstructing a public sidewalk.

That's what the cops say, but it's not at all clear that that was happening, and even if they were obstructing a public sidewalk, that fact does not itself justify using pepper spray. Until the attempted arrest, which did not occur until after the pepper spray, the cops were not justified in using the pepper spray.

Those are crimes. Committing a crime is not a "peaceable" act.

Some are, some aren't. Trespassing can be peaceable. Unlawfully being in a place it's not legal to be in can be peaceable. Forgery, insider trading - all peaceable. You, like most cops, generalize too much.

The folks standing around on the lawn were acting peaceably, the protesters were not.

So were the seated individuals who were pepper sprayed.

- that's why the police weren't disbursing the surrounding crowd.

As I understand it, the whole thing started because the Chancellor told the Police Chief to keep ANY students or other persons from erecting a camp on the campus. It was only a small contingent who decided to protest the police being there by obstructing and resisting arrest. The rest were being monitored to ensure they didn't set up a camp, and would have been dispersed had they tried to do so.

One can't "resist arrest" prior to a cop trying to arrest you. A copy saying "move along now... get out of here" and people saying "go fuck yourself, pig" is not "resisting arrest."

The police wanted to keep certain people from blocking that "way" (or so the police say). Fine. They should have picked the people up bodily, one at a time, and hauled them away.

There's absolutely nothing in the law that requires police to "haul away" a protester who is resisting arrest without using pain-compliance techniques.

NOBODY RESISTED - not on the film I saw. They sat on the ground. That's not resisting.

Police can and do use all sorts of pain-compliance techniques, including handholds, batons, and chemical sprays, in order to induce people to move on their own. It's perfectly legitimate and court-approved. Doing so reduces the potential for violent resistance and injury to police officers and greater injury to arrestees. You fail to understand the continuum of force that police are authorized to use.

No no. It is you that fails to understand. There was no violent resistance, and nobody resisted arrest at all prior to being pepper sprayed.

That is, if the people were, in fact, doing something illegal.

Which they clearly were.

Not at all clear. What statute or ordinance was violated?

"Not listening to Johnny Law make arbitrary commands" is not per se illegal.

[Seth]

They didn't act against the crowd that you're saying was "hostile."

Potentially hostile.

They took action against seated protesters who were not posing any threat to anyone.

They were breaking a number of laws. This justifies the use of force to remove/arrest them.

And, being a "lawbreaker" doesn't mean they are justified in using pepper spray.

Not in and of itself. However, combined with all the other circumstances of the moment, as I've pointed out several times and you insist on ignoring, the police may use pepper spray, or other forms of force, to remove the protesters from their unlawful position and/or arrest them. It's the totality of the circumstances that justifes the use of pepper spray, not any one thing or another.

If the gathering crowd was hostile and was actually threatening the police, then they MAY have had a justification to address THAT hostility and THAT threat - but, they didn't.

Yup.

The gathering crowd did not present a justification to pepper spray the seated "lawbreakers."

It may have, and probably did. With a potential riot crowd around them, the police need to project authority to prevent things from going south. But that's just one rather small factor in the overall situation that justified the use of force.

And, the alleged "lawbreaking" that was actually occurring, if indeed it was lawbreaking, which is not clear at all (merely not following a pig's instructions is not "lawbreaking" - not in and of itself - if I'm on a public way, and a cop tells me to move along - and I respond - go fuck yourself you piece of shit - I have not broken the law - not just on those facts - I know cops want to think that they have the right to order people around ANYTIME THEY WANT - but, they technically don't.

Actually, you're mostly wrong...again. The police DO have the authority to order you to move along any time they deem it necessary to do so for public safety reasons, and can arrest you for obstruction for refusing to do so and charge you with resisting arrest if you resist them. Your recourse is to challenge the arrest or citation in court, where, if the officer was acting outside his authority, you will be acquitted of obstruction, but may still be convicted of resisting arrest.

This is because the law specifically states, as I have cited, that it is NOT a defense to a charge of resisting arrest that the police officer was making an unlawful arrest, so long as he was acting "under color of authority." The reason for this requirement that you submit peacefully to arrest, even an unlawful arrest, is to protect both police officers and citizens. Your recourse for an unlawful arrest is in court.

There is a rather vague exception to this rule when it comes to self-defense in the event that a police officer is using unlawful and unconstitutional physical force that is excessive and unnecessary to effect an arrest, like the Rodney King incident. In egregious cases, the courts have held that citizens are justified in using force in self-defense, even deadly force, against a police officer who is not acting within the scope of his authority by using excessive force.

I doubt this incident would qualify because the protesters were not attempting to stop the spraying or flee from the police to escape an unlawful attack, they were in fact determined not to be moved.

They often have the practical "power" to do so, and they have no shame in using that power vigorously, though.)

They have wide latitude in determining when it is necessary to clear an area and the courts support this authority most often. Yes, they can exceed their authority, but that's a matter for the court to decide...after you've been arrested for obstructing. Now, it may be that the protesters will be acquitted of obstructing the sidewalk (though I doubt it) and yet may still be convicted of resisting arrest (if they were so charged...I haven't heard exactly what the charges were) even if they are acquitted of obstruction.

They aren't allowed to use pepper spray on people just because they are breaking the law, just like they aren't allowed hit people with their hands just because they are breaking the law.

They are allowed to use reasonable and appropriate physical force to enforce the law or effect an arrest, and pepper spraying protesters who are obstructing and resisting is both reasonable and appropriate under the totality of the circumstance.

There was no "resisting." They didn't try to arrest the protesters who were seated. It is not "resisting" to fail to respond to police commands. If the cops tried to cuff them, and the people tried to pull away, then it can rise to the level of "resisting without force" (a petty bullshit misdemeanor that is alleged anytime a suspect "tenses up" while being arrested). But, that's it. And, there can't be any "resisting" unless the cop tries to take the person into custody. Saying "get up and move along" or get up so we can cuff you" and having people sit there and not move - that ain't resisting - not in the US.

Linking arms to prevent the police from taking them into custody is resisting arrest. I don't know whether they were actually arrested or not, it's not clear to me from the articles I read. If the police merely used pepper spray to move them off the sidewalk without having to wrestle with them, then there would be no resisting arrest charge. My assumption is that there were two objectives: to move them from the sidewalk and then to take them into custody and either book them or cite them on the spot. So, you are correct that if there was no attempt to arrest, then there can be no resisting charge. However, the obstruction charge still applies. It all depends on what the police intended to do with the individuals after they broke up the group.

And, "obstructing a public way" is not sufficient cause for cops to pepper spray anyone.

Yes, it is, if they link arms and refuse to move.

If people are where they have no right to be,

They were.

then the cops should tell them to leave,

They did.

and if the people don't listen then the cops should arrest them,

Not sure if they did or not, but they don't have to if they don't want to.

and if the people resist arrest, then the cops can use force to effect the arrest.

The police can use force to effect any arrest. What DEGREE of force they can use depends entirely on the instant circumstances they are facing.

But, you don't get to pepper spray people to make sure you've rendered them incapacitated because you want to arrest them after you've pepper sprayed them.

Sure they do. Police do this all the time when someone is threatening to use force or is refusing to obey a lawful order to surrender peacefully to arrest. They use pepper spray, tasers, batons, hands and other types of force to cause the person to either submit or be rendered incapable of resisting them. An arrest is a dynamic process, you see, not some discreet thing. Once a police officer determines that he has legal authority to arrest someone, he is permitted to decide within broad restrictions, what and how much force to use to effect that arrest, and that judgment is based on his professional opinion regarding the tenor of the situation, the demeanor of the person being arrested, and the potential for resistance or violence, and can be anything from simply asking the suspect to come along without even touching them to using a firearm to threaten deadly physical force, and much in between.

In this case, the physical resistance of the protesters that they demonstrated by linking arms and saying "you'll have to go through us" was sufficient indication of an intent to resist, perhaps violently, both attempts to move them along and/or arrest them. These actions by the protesters justified the use of pepper spray to incapacitate them in order to prevent the necessity of using more harmful forms of force.
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Certainly, many things are "legitimate concerns" for police. But, just because something is a "legitimate concern" that doesn't give them the right to spray people with pepper spray.

Quite right. What gave them the AUTHORITY (not the "right") was the law, which the protesters were breaking, and the law that authorizes the use of physical force by a police officer.

I know cops think like you do. But, you are wrong. The fact that the protesters were breaking the law does not mean the cops have carte blanche to pepper spray them.

Quite right, but a strawman argument. I have never said they have "carte blanche" to use pepper spray, I've said that IN THIS INSTANCE, the totality of the circumstances made it reasonable to do so.

The law does not give cops the authority to pepper spray people once a cop thinks the people are breaking the law.

Correct, but still a strawman, as I've noted above.

We don't even know what law the cops thought these people were breaking? Do you know? What California statute or local city ordinance was being broken?

I'm assuming "obstructing a public highway or passageway" and "obstructing police" ordinances similar to the ones I've cited for Colorado. I'm also giving the police the benefit of the doubt because they are professionals and know the local laws, which are likely to mirror in main those I've cited. If you think there are no laws prohibiting obstructing a sidewalk and obstructing police in Davis, California, then feel free to do the research. I'm not going to bother because most communities and states have such laws and ordinances, and most campuses, being familiar with protests, also have rules and regulations about such things. I seriously doubt the UC Davis police, or the Davis police, would have undertaken what they did without any legal justification for doing so.

If a cop comes to my house and sees my neighbor trespassing on my lawn, that might constitute misdemeanor trespass. Cops do not have the authority to pepper spray the trespasser.

Not simply for trespassing. However his actions and demeanor when contacted by the police, even before he's been formally arrested, may well justify the use of pepper spray, or a bullet. You're posing strawman and red herring arguments now.

By your argument, however, the fact that a person is breaking the law, like misdemeanor trespassing authorizes the use of physical force. No it doesn't. It authorizes the cops to arrest. IF the person ACTUALLY resists arrest, then the cop has authority to use additional force to subdue the suspect.

You don't understand. Arresting someone IS a use of physical force, in every instance. It is the act of taking a person into custody and restraining his ability to move about. The degree of force used may vary from mere verbal commands and a show of authority to the use of deadly physical force and every level of force between. How much force is authorized in any arrest depends entirely upon the particular situation and actions of the person being detained.

But, he does not have the authority to preemptively pepper spray someone who does nothing more than refuse to obey a command, or who sits down and refuses to get up.

Yes, he does, if the totality of the circumstances justifies it, as it did in this case. These protesters were not simply "sitting down and refusing to get up." They were actively physically resisting attempts to remove them from the sidewalk that began with verbal commands and culminated in their being sprayed. They were linking arms to prevent police from moving them individually, and they were verbally challenging and threatening the police. That is not simple "passive resistance," that is ACTIVE resistance that justified the elevation of the degree of force necessary to compel obedience to lawful police commands.

If they had been simply sitting, individually, silently, and passively on the sidewalk, then the police would likely NOT have been justified in escalating the use of force, and would have had to simply drag or carry them off or use other pain-compliance techniques like wrist-locks and suchlike to take them into custody.

That's not what the protesters did. The linking of their arms made it difficult and dangerous for the police to try to individually remove and arrest them, so to break up the group, pepper spray was appropriately used, and it worked.

I think ANY crowd of people - and any car pulled over by the side of the road - is a "legitimate concern" for police. Police pull over a speeder, and ask him to get out of the car -- the guy refuses - pepper spray appropriate? Of course not. Legitimate concern? Of course.

Actually, you're exactly wrong. If you get pulled over and the officer orders you out of the car, he's doing so for his own safety, to separate you from any potential weapons inside the car. He is in control of the situation, you are not. If you refuse, he can bust your window, drag you out by the arm or hair, or pepper spray you,

No no -- here is where you are bass-fucking-ackwards. He can ask you to get out of the car (or order you, whatever), and if you refuse and sit there, he can certainly break the glass. He can open the door, and he can grab you and use physical force to pull you out. He can, if you forcibly resist his attempt, he can pepper spray you. If you just sit still and don't fight against him, but require him to lift your entire weight and drag you limply out of the car, he cannot lawfully pepper spray you.

Yes, he can. There is nothing in the law that requires a police officer to subject himself to the dangers of coming into close physical contact with a person refusing to get out of a car. That is a situation fraught with danger for the officer because the individual may have a concealed weapon on or about him, and the officer's ability to control the suspects hands is severely compromised. It's dangerously stupid, in fact, to try to drag someone out of a car if they are refusing to get out, without first taking measures to incapacitate him or induce him to leave on his own. Both pepper spray and tasers are fully justified in such situations, to protect the police from having to wrestle with someone who is refusing to exit the vehicle.

He can not, if you fail to obey his command, bust the window and immediately fill your eyes with pepper spray.

Yes, he can, presuming he's given you several chances to comply with his orders and has warned you that he will use pepper spray before he does so.

That is fucking not within his authority.

Yes, it is.

Power, yes. We all know a cop will make up whatever bullshit he has to to justify what he did, and most of the time he'll get away with it, so you better, as a practical matter, if you know what is good for you, follow the cocksucker's instructions to the letter. But, does he have the lawful "authority" to pepper spray you for the mere fact of failing to obey his command? Not a fucking bit.

Again, you erect a red herring and false dilemma argument. No, he cannot spray you simply for not responding to his command. Yes, he can spray you if the TOTALITY OF THE CIRCUMSTANCES makes it reasonable and appropriate for him to do so BASED UPON your failure to obey combined with the other immediate circumstances he is facing. Your refusal to get out of a car on command, if that refusal continues after several warnings of the threat of escalating force ("If you continue to refuse to leave the vehicle, I will break your window and pepper-spray you"), then doing so is fully justifiable. If, for example, your car has just been disabled after a high-speed pursuit, they don't have even say that, they can go right ahead and break your windows and hose you down because of your prior behavior that justifies the immediate use of an incapacitating agent. It's all completely situational, but the fact is that if you resist long enough, you will get sprayed or tasered, and justifiably so, particularly if you're in a car and you're refusing to get out.

or potentially shoot you if you present a deadly threat to him.

If if if if if. Of course if you present a deadly threat he is justified in shooting a suspect. If someone presents a deadly threat to ANYONE, cop or not a cop, they are justified in shooting the person. But we're not talking about that. We're talking about a person who sat there and did nothing except disobey the flatfoot's commands.

Right. But it's the totality of the circumstances that is weighed in making such decisions, not just passive resistance.

That happens all the time and the police are almost always justified in their use of force, and pepper spray, to get someone out of a vehicle who is refusing to do so.

Not for mere refusal.

Yes, for a mere refusal, if it's persistent or prior acts justify it.

They use the pepper spray (when they are justified in using it) when the person gets violent.

Nope.

They first attempt to open the door, and extract the suspect, without use of pepper spray.

Not necessarily. Depending on the situation they can simply order you out of the car and then break the window and spray you if you refuse. There is NOTHING in the law that requires them to lay hands on you first. They can skip that step in the continuum of force when they deem it reasonable and appropriate to use an escalated degree of force, and someone refusing to leave a vehicle is one of those situations that's very, very dangerous for the police because of the potential for weapons. Police officers are NOT required to climb in the car with you and try to push or pull you out if they think it will compromise their safety. They can order you out, and if you refuse, taser or spray you to incapacitate you before doing so.

They can't crash the window and use the billy club or flashlight upside the guy's head either -- not just because the person refuses to lower the window. You're wrong.

Again, it depends on the totality of the circumstances. If you've just come to a halt after a ten-mile high-speed pursuit, you can bet your damned skippy that they will bust out your window and use whatever non-lethal weapons they have to incapacitate you before dragging you from the vehicle, because you've already demonstrated that you're a threat to them.

If you were pulled over for a license plate violation, they aren't going to be justified in escalating the force absent some suspicion you may be dangerous or a repeated refusal on your part to obey. But at some point, if you just sit there and fail to acknowledge them or refuse to comply, they will escalate the force and break your window and spray or taser you before dragging you out of the car. I guarantee it. And it'll be perfectly lawful for them to do so.

Oh, again, I know cops exceed their authority all the time, and then they make stuff up like "I saw him lunge at me" or "he resisted by struggling and I thought he was going for my gun" and shit like that - unverifiable stuff. I cop has a lot of leeway and are given the benefit of the doubts that are constitutionally supposed to belong to the accused. That's the reality of the situation. But, if we are talking about a fact pattern where we all agree that a person sat there and did not move, and simply did not obey the officer's commands and would not assist the officer in effecting the arrest, the officer is not permitted to use the pepper spray.

Wrong.

If an arrest is attempted and the person does start resisting the attempted arrest, then the right to use things like pepper spray kicks in.

Wrong.

Sure the police can gauge the tenor of crowds. But, they didn't try to disperse the crowd. They pepper sprayed a few people who were sitting down, without trying to cuff them first.

They don't have to try to cuff them first. They were trying to get them to move without having to arrest them.

Fuck them. They don't have the right "get them to move without having to arrest them."

Yes, they do. Why do you think they can fire tear gas canisters at crowds obstructing a street after a hockey game? Because they have the authority to use such force to disperse a crowd that they deem is riotous or that is obstructing the street. They can't do so right off the bat, they have to use other methods to try to obtain compliance first, but eventually their authority to clear the street gives them the power to use all reasonable and appropriate physical force to do so, including pepper spray, tear gas, rubber bullets and water cannon.

The people there thought they had a legal right to be there.

They were wrong. A mistake in one's understanding of the law does not justify lawbreaking, nor does it constrain the police. They were TOLD they were breaking the law and they were TOLD to move, and they DELIBERATELY defied those lawful orders, so they have no excuse at all.

They didn't obey the instructions of the asshole cops because they didn't think the cops were correct.

Tough shit. They don't get to make that determination, the police do.

The cops alternatives are to keep asking them to move, or arrest them. They don't have the right to spray seated individuals without first trying to arrest them.

Wrong.

If I'm in a park and a cop comes up to me and says, "pick up your pic-a-nic basket, and move along - leave this park." And, I say, "fuck you, dick. I am not leaving, because I have a right to be here." And, the cop says, "no you don't, you are subject to arrest if you don't leave." And, I say, "fuck off pig." He is not entitled to pepper spray me.

That's a circumstantial decision, and yes, depending on your demeanor he may spray you or taser you. In a potential riot situation he may poke you with a baton, shove you with a shield, push you with his hands, spray you with pepper spray or Mace, fire a tear-gas cannister, taser you, hit you with his baton, fire rubber bullets or wood baton rounds at you or shoot you with a water cannon to get you to move along WITHOUT trying to arrest you.

If he takes me into custody, and in so doing, I start resisting, then he can swat me with the flashlight or maybe pepper spray me, whatever is reasonable. But, he just doesn't have the LAWFUL authority to pepper spray me because I won't obey his command to leave a park.

Again, a strawman argument. The authority to use pepper spray on you is not triggered merely by your refusal of his lawful order, it's authorized by the totality of the circumstances at that particular moment. What may not be authorized against you, an individual, who is simply mouthing-off and refusing to obey, may be fully authorized against more than a dozen protesters linking arms and threatening officers. It's all circumstantial.

Pepper spray, like tear gas, is a good way to get people who are refusing to move to do so without having to arrest or fight with them.

It's a great way. But, they aren't lawfully allowed spray or teargas seated people - or even crowds - whose only action is to stand there, or sit there, and disobey the police.

Yes, they are, if they deem their authority and need to clear the area requires it.

Perhaps they should have called for a paddy-wagon and some more back up, and then forcibly removed the sitting protesters.

Why wait? They had the appropriate tools with them, and they used them appropriately.

They didn't have to.

They decided they did. They get to make that decision because we have vested that authority in them through the law.

They could have tried to cuff someone.

They could have done any number of things. They chose a particular course of action that was within the law and their authority. That's their choice to make.

If that person resisted, spray him. They did not use pepper spray appropriately by hosing down seated alleged "lawbreakers" who were doing nothing other than refusing to follow the commands of the police. I guarantee that will be born out by the investigation.

I guarantee you it will not. The were not, as you falsely claim, "doing nothing other than refusing to follow the commands of the police." They were actively resisting attempts to remove them by linking arms, they were challenging the police to remove them and they were obstructing the police's attempts to do so, all of which, combined with the other circumstances at the time, made spraying them reasonable and appropriate, from the legal perspective. Those protesters were in a place they had no lawful authority to be at that moment, they had been ordered to leave and warned they would be sprayed, and they were actively resisting attempts to persuade them to move voluntarily. That's adequate justification to spray them.

The protesters WERE behaving peaceably

No, they were not. They were resisting arrest

Dude - when did the "arrest" actually begin? There was no attempt to arrest prior to the pepper spray. Therefore, they could not have been resisting arrest.

Doesn't really matter because they were obstructing the sidewalk and the police.

and obstructing the police,

Obstructing the police is not always a crime.

It is if it meets the standard in the law, which this protest clearly did.

And, they weren't obstructing the police. They were sitting on the ground. That is not "obstructing" anyone.

No, they were sitting on the sidewalk, not the ground, which is "obstructing a highway or passageway." The "obstructing police" occurs merely by their refusal to leave the area when lawfully commanded to do so.

and obstructing a public sidewalk.

That's what the cops say,

The videotape proves that beyond any doubt.

but it's not at all clear that that was happening,

It's unequivocally clear. The video is proof. The statements by one of the participants are proof.

and even if they were obstructing a public sidewalk, that fact does not itself justify using pepper spray.

Again with the equivocation. No, that fact "itself," in isolation and without considering any other circumstances, does not justify the use of pepper spray, but you are eliding all the OTHER circumstances that DID justify the use of pepper spray that must be considered as a part of the analysis of whether the use was authorized or not.

Until the attempted arrest, which did not occur until after the pepper spray, the cops were not justified in using the pepper spray.

Again you're wrong. Police may use force to disperse a crowd without first attempting to arrest them. Happens all the time. All perfectly legally.

Those are crimes. Committing a crime is not a "peaceable" act.

Some are, some aren't. Trespassing can be peaceable. Unlawfully being in a place it's not legal to be in can be peaceable. Forgery, insider trading - all peaceable. You, like most cops, generalize too much.

No criminal offense is peaceable. Violations of the law are inherently violations of the peace, but this really not important. They were committing crimes, they were justifiably ordered to disperse, they refused to do so, they were forced to do so. That's just how it works.

The folks standing around on the lawn were acting peaceably, the protesters were not.

So were the seated individuals who were pepper sprayed.

Nope, the were disobeying the lawful orders of a peace officer.

- that's why the police weren't disbursing the surrounding crowd.

As I understand it, the whole thing started because the Chancellor told the Police Chief to keep ANY students or other persons from erecting a camp on the campus. It was only a small contingent who decided to protest the police being there by obstructing and resisting arrest. The rest were being monitored to ensure they didn't set up a camp, and would have been dispersed had they tried to do so.

One can't "resist arrest" prior to a cop trying to arrest you. A copy saying "move along now... get out of here" and people saying "go fuck yourself, pig" is not "resisting arrest."

Again with the equivocation. It's not the speech that triggered the use of force, it was the use of force and obstacle combined with the totality of the circumstances that justified it.

The police wanted to keep certain people from blocking that "way" (or so the police say). Fine. They should have picked the people up bodily, one at a time, and hauled them away.

There's absolutely nothing in the law that requires police to "haul away" a protester who is resisting arrest without using pain-compliance techniques.

NOBODY RESISTED - not on the film I saw. They sat on the ground. That's not resisting.

That's not the point. The police were inducing them to leave their unlawful location. They can use force to do that too. They don't have to arrest anyone to be legally justified in using force to clear an area.

Police can and do use all sorts of pain-compliance techniques, including handholds, batons, and chemical sprays, in order to induce people to move on their own. It's perfectly legitimate and court-approved. Doing so reduces the potential for violent resistance and injury to police officers and greater injury to arrestees. You fail to understand the continuum of force that police are authorized to use.

No no. It is you that fails to understand. There was no violent resistance, and nobody resisted arrest at all prior to being pepper sprayed.

They resisted the order to move, which constitutes a crime.

That is, if the people were, in fact, doing something illegal.

Which they clearly were.

Not at all clear. What statute or ordinance was violated?

I've cited the statutes for Colorado. I'm certain there are California statutes that are pretty much the same. Feel free to look up and cite the California laws if you think they are substantially different. This is pettifoggery.

"Not listening to Johnny Law make arbitrary commands" is not per se illegal.

Again with the equivocation and pettifoggery. Nobody said it's "per se" illegal, what makes it illegal is the totality of the circumstances, and the commands given in this situation were anything but "arbitrary."

[Azathoth]

I will just repost this seeing as you so conveniently missed it last time Seth. The Supreme Court of the US disagrees with you.

http://openjurist.org/276/f3d/1125/head ... v-the-coun

No. 98-17250

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed January 11, 2002
Corrected January 30, 2002

On Remand from the United States Supreme Court D.C. No. CV-97-03989-VRW

Counsel Mark Hughes, Denver, Colorado, for the plaintiffs-appellants.

Nancy K. Delaney, Eureka, California, for the defendants-appellees.

Margaret C. Crosby, for amicus curiae, American Civil Liberties Union Foundation of Northern California.

Before: Myron H. Bright,1 Harry Pregerson, and William A. Fletcher, Circuit Judges.

Pregerson, Circuit Judge

1
Nine environmental activists and an environmental group brought this action, under 42 U.S.C. §§ 1983, against the County of Humboldt, the Humboldt County Sheriff's Department, Eureka City and its police department, and several individual officers, alleging that the officers' use of pepper spray on the activists' eyes and faces during three peaceful protests constituted an excessive use of force in violation of their Fourth Amendment rights. We previously issued an opinion, which is reported at 240 F.3d 1185 (9th Cir. 2001), in which we reversed the district court's decision to grant summary judgment on qualified immunity grounds to Humboldt County Sheriff Dennis Lewis ("Lewis") and Chief Deputy Sheriff Gary Philip ("Philip"), the defendants who initially authorized the use of the pepper spray on the nonviolent protestors. We also reversed the district court's decision to enter judgment in favor of Humboldt County, the City of Eureka, and their respective police departments following trial and a hung jury.

2
The Supreme Court granted certiorari, vacated our judgment, and remanded this case to us for further consideration in light of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 1251, 150 L.Ed.2d 272 (2001), in which the Supreme Court describes the way in which to proceed when state officials assert qualified immunity in a §§ 1983 excessive force action. Having reviewed the facts and circumstances of this case in light of Saucier, this panel reaffirms its conclusion that Lewis and Philip are not entitled to qualified immunity.2

[Seth]

I will just repost this seeing as you so conveniently missed it last time Seth. The Supreme Court of the US disagrees with you.

http://openjurist.org/276/f3d/1125/head ... v-the-coun

No. 98-17250

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed January 11, 2002
Corrected January 30, 2002

On Remand from the United States Supreme Court D.C. No. CV-97-03989-VRW

Counsel Mark Hughes, Denver, Colorado, for the plaintiffs-appellants.

Nancy K. Delaney, Eureka, California, for the defendants-appellees.

Margaret C. Crosby, for amicus curiae, American Civil Liberties Union Foundation of Northern California.

Before: Myron H. Bright,1 Harry Pregerson, and William A. Fletcher, Circuit Judges.

Pregerson, Circuit Judge

1
Nine environmental activists and an environmental group brought this action, under 42 U.S.C. §§ 1983, against the County of Humboldt, the Humboldt County Sheriff's Department, Eureka City and its police department, and several individual officers, alleging that the officers' use of pepper spray on the activists' eyes and faces during three peaceful protests constituted an excessive use of force in violation of their Fourth Amendment rights. We previously issued an opinion, which is reported at 240 F.3d 1185 (9th Cir. 2001), in which we reversed the district court's decision to grant summary judgment on qualified immunity grounds to Humboldt County Sheriff Dennis Lewis ("Lewis") and Chief Deputy Sheriff Gary Philip ("Philip"), the defendants who initially authorized the use of the pepper spray on the nonviolent protestors. We also reversed the district court's decision to enter judgment in favor of Humboldt County, the City of Eureka, and their respective police departments following trial and a hung jury.

2
The Supreme Court granted certiorari, vacated our judgment, and remanded this case to us for further consideration in light of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 1251, 150 L.Ed.2d 272 (2001), in which the Supreme Court describes the way in which to proceed when state officials assert qualified immunity in a §§ 1983 excessive force action. Having reviewed the facts and circumstances of this case in light of Saucier, this panel reaffirms its conclusion that Lewis and Philip are not entitled to qualified immunity.2

Interesting case, but not precisely on-point. In the cases cited, there was no potential for a riot as the events took place with a small number of protesters inside an office. Under those circumstances the particular use of pepper spray, particularly refusing to wash the protester's eyes out, was found to be unreasonable by the 9th Circuit (a notoriously liberal court I might add...and the most-reversed court in the land).

It will be interesting to see how (and if) things work out in this situation, particularly given the statement of a participant who stated directly that they had "surrounded" the police at one point and were telling them that to leave they would have to "go through them (the protesters" to escape. Add to that the large crowd surrounding the police and the potential for flash mob violence and the situations are only vaguely analogous. As I've said before, tear gas and pepper spray are FREQUENTLY used by police to disperse crowds who are unruly and are interfering with the police or who are obstructing public rights of way.

What may be objectively unreasonable when it involves eight protesters inside an office with many police may be objectively reasonable when it involves hundreds of people in a potential riot situation.

But thanks for the scholarship. I'd be interested to know what the county court finally ruled.

[Azathoth]

I think this is the most relevant part of that judgement

Defendants asserted at trial that the protestors' use of "black bears" constituted " `active' resistance to arrest," meriting the use of force. The Eureka Police Department defines "active resistence" as occurring when the"subject is attempting to interfere with the officer's actions by inflicting pain or physical injury to the officer without the use of a weapon or object." 240 F.3d at 1202-3. Characterizing the protestors' activities as "active resistance" is contrary to the facts of the case, viewing them, as we must, in the light most favorable to the protestors: the protestors were sitting peacefully, were easily moved by the police, and did not threaten or harm the officers. In sum, it would be clear to a reasonable officer that it was excessive to use pepper spray against the nonviolent protestors under these circumstances.

[Seth]

I think this is the most relevant part of that judgement

Defendants asserted at trial that the protestors' use of "black bears" constituted " `active' resistance to arrest," meriting the use of force. The Eureka Police Department defines "active resistence" as occurring when the"subject is attempting to interfere with the officer's actions by inflicting pain or physical injury to the officer without the use of a weapon or object." 240 F.3d at 1202-3. Characterizing the protestors' activities as "active resistance" is contrary to the facts of the case, viewing them, as we must, in the light most favorable to the protestors: the protestors were sitting peacefully, were easily moved by the police, and did not threaten or harm the officers. In sum, it would be clear to a reasonable officer that it was excessive to use pepper spray against the nonviolent protestors under these circumstances.

Well, the Eureka Police Department definition of "active resistence" is the problem here. The court was using THAT metric to determine how "active" the resistance was, rather than taking an objective look at what the protesters were doing and what the obligation of the police was to remove them from private property. The court also noted that the facts of the case showed that unlike the UC Davis protesters, these protesters did not "threaten or harm" the police (not that that's the only criteria by any stretch of the imagination), whereas the UC Davis event took place under potential riot situations in the midst of a large crowd.

Also, I take issue with the court's assertion that officers could "easily move" the protesters, which is plainly not the case. The whole reason the protesters were wearing the "black bear" devices was exactly and precisely to make it very difficult to impossible to move them. The device is designed to link the protesters together so that they cannot be arrested and carted off one-by-one by the police. That's why they use them. The court obviously has never tried to "easily move" persons who are trespassing who have linked themselves together in ways that make it very difficult to remove them.

The court claimed that the officers could use a power grinder to remove the devices, which is true, but the protesters were inside an office where using a power grinder would throw sparks, cause damage and potentially start a fire.

I believe the 9th Circuit was plainly in error, which is not in the least bit unusual for them, being the most liberal and oft-overturned court in the federal circuit.

I'd be interested to know if the 9th Circuit's ruling was appealed back to the SCOTUS again or if the judgment of the county court was appealed yet again after its reconsideration.

[Schneibster]

I think the stupid po-lice use every excuse they can to use force, and that the ones like that need to be thrown off the force. They're not all stupid. But the bad ones contaminate the newbies as much as they can.

This is a liability problem. Every police should be bonded or refused coverage under the jurisdiction's insurance and fired. Fuck up and you lose the bond and you can never get another. Just like semi drivers. That would fix this fuckin' quick. The police union would have a fucking fit. I wouldn't.

[Coito ergo sum]

They didn't act against the crowd that you're saying was "hostile."

Potentially hostile.

Every crowd is "potentially" hostile. Thus, if you are correct, the cops would have the lawful authority to unilaterally determine any crowd to be potentially hostile, order them disbursed, and spray them. Potential hostility is not sufficient. Even being actually "hostile" is not sufficient. Crowds have a right to be hostile - just look at any Nation of Islam rally.

They took action against seated protesters who were not posing any threat to anyone.

They were breaking a number of laws. This justifies the use of force to remove/arrest them.

What laws were being broken (please cite the statute) that were not a function of merely not following the police's orders. Being in a park? Sitting on a walkway?

And, being a "lawbreaker" doesn't mean they are justified in using pepper spray.

Not in and of itself. However, combined with all the other circumstances of the moment, as I've pointed out several times and you insist on ignoring, the police may use pepper spray, or other forms of force, to remove the protesters from their unlawful position and/or arrest them. It's the totality of the circumstances that justifes the use of pepper spray, not any one thing or another.

No, see what I "ignore" is the stuff that you say were "circumstances" and which from watching the video I can see that what you say happened, just didn't happen. It might have at some point in the future or at a different rally, but some of the things you use as justifications for the spraying were not happening at the time.

If the gathering crowd was hostile and was actually threatening the police, then they MAY have had a justification to address THAT hostility and THAT threat - but, they didn't.

Yup.

They didn't actually threaten the police. Are you yupping that?

The gathering crowd did not present a justification to pepper spray the seated "lawbreakers."

It may have, and probably did. With a potential riot crowd around them, the police need to project authority to prevent things from going south. But that's just one rather small factor in the overall situation that justified the use of force.

It didn't, and it wouldn't. The crowd gathering round was no different than any other crowd, and was no more of a potential riot crowd than any crowd of protesters.

And, the alleged "lawbreaking" that was actually occurring, if indeed it was lawbreaking, which is not clear at all (merely not following a pig's instructions is not "lawbreaking" - not in and of itself - if I'm on a public way, and a cop tells me to move along - and I respond - go fuck yourself you piece of shit - I have not broken the law - not just on those facts - I know cops want to think that they have the right to order people around ANYTIME THEY WANT - but, they technically don't.

Actually, you're mostly wrong...again. The police DO have the authority to order you to move along any time they deem it necessary to do so for public safety reasons,

If it actually is necessary to do so for public safety reasons, like if you have to move aside to let a firetruck or emergency vehicle in. But, not just because "they deem it."

and can arrest you for obstruction for refusing to do so and charge you with resisting arrest if you resist them. Your recourse is to challenge the arrest or citation in court, where, if the officer was acting outside his authority, you will be acquitted of obstruction, but may still be convicted of resisting arrest.

No - if the arrest was not lawful, then you are generally entitled, in most places in the US, to resist it. If the underlying charge for which you were arrested was bogus, then you have a right to resist that arrest. There have been efforts around the country to erode this traditional American right, which was cherished as a fundamental liberty interest to rightfully resist unlawful police action, but hopefully those efforts will fail.

This is because the law specifically states, as I have cited, that it is NOT a defense to a charge of resisting arrest that the police officer was making an unlawful arrest, so long as he was acting "under color of authority."

That's not correct. There is no such legal term as "acting under color of authority." It's "acting under color of law." And, if a police officer is acting under color of law and in so doing violates one's civil or constitutional rights, then he can be sued under 42 USC Sec. 1983. If a police officer is trying to unlawfully arrest you, you have a right to resist. "The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.WAINWRIGHT V. CITY OF NEW ORLEANS, 392 U. S. 598 http://supreme.justia.com/us/392/598/case.html

The reason for this requirement that you submit peacefully to arrest, even an unlawful arrest, is to protect both police officers and citizens. Your recourse for an unlawful arrest is in court.

That's the new trend and what police would love. Police really love to be able to force citizens to kowtow to arbitrary police commands. But, it ain't Constitutional.

Id.