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Court Rules Police Must Carry Pepper Spray if Told

September 06, 1995|ANNA CEKOLA | TIMES STAFF WRITER

HUNTINGTON BEACH — Amid continuing debate over the safety of pepper spray, a state appellate court has ruled the Huntington Beach Police Department can require officers to carry the spray as part of their standard equipment.

The Huntington Beach Police Officers Assn. sued the department's top brass in 1993, protesting a number of new working conditions, including being required to carry pepper spray, which the officers contended was unsafe.

The spray, which includes cayenne pepper as a main ingredient, is designed to be a non-lethal way to subdue violent suspects and attackers, but has been the focus of state and federal studies to determine if it has caused death and permanent injury.

Orange County Superior Court Judge Richard N. Parslow had issued a preliminary order in response to the lawsuit and barred the city from initiating the new pepper spray requirement.

But in a decision released Tuesday, the 4th District Court of Appeal in Santa Ana reversed the judge's order, ruling that the pepper spray policy was within the managerial power of Police Chief Ronald E. Lowenberg and not subject to contract negotiations with the union.

"Indeed, the selection of the weapons an officer is to carry and the adoption of a 'use of force policy is as closely akin to a managerial decision as any decision can be in running a police department, surpassed only by the decision as to whether force will be used at all,' " Presiding Justice David G. Sills wrote in the panel's unanimous decision, citing a previous ruling.

The appellate court did not address safety questions surrounding use of pepper spray.

A department spokesman welcomed the decision, saying Huntington Beach police had turned to pepper spray to give officers safer alternatives to using their batons in wake of the Rodney King beating and other highly publicized cases of excessive force.

"It's an effective tool which is less lethal and less violent than other choices, such as using a baton," Lt. Dan Johnson said. "We felt all along it was our managerial prerogative to make those decisions. We think that [pepper] spray is an effective and safer way for us to reduce the use of force."

Association President Richard Wright and attorneys representing the union could not be reached for comment Tuesday night. But in court papers cited in the appellate decision, Wright outlined his concerns about pepper spray.

"As a motorcycle officer with the Huntington Beach Police Department, this change in past practice causes serious safety concerns due to the increased risk of puncture and possible officer injury incapacitation in the event of an accident," Wright wrote in a declaration. "In addition, there are still serious officer safety concerns which need to be addressed."

The officers are not alone in raising questions about the safety of pepper spray.

The Southern California chapter of the American Civil Liberties Union released a report in June questioning the safety of pepper spray, while state and federal researchers have been tracking a number of in-custody fatalities in an effort to determine what role, if any, pepper spray played in the deaths.

A study released last month by the International Assn. of Chiefs of Police, however, concluded that pepper spray is a safe and effective alternative that could result in lowered cases of injuries to officers and citizens.

The study, funded by the National Institute of Justice, examined in-custody deaths that occurred subsequent to the use of pepper spray and excluded the agent as a contributory factor. The findings concluded that pepper spray has not caused any deaths, and unlike other chemical agents, will not cause skin problems or burns.

Meanwhile, the Huntington Beach association's lawsuit against the department over working conditions is pending amid continuing negotiations, and officials have not yet decided when they might revive the pepper spray requirement, Johnson said.

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