n a recent Section 1983 federal court case involving allegations of excessive force, the plaintiff claimed an officer sprayed him with pepper spray six times, from 5 to 10 seconds during each spray, and subsequently sprayed him "multiple times" from 5 to 10 seconds each time. The officer stated he sprayed the plaintiff twice, from 2 to 3 seconds each time. Whose version of the same event can be confirmed or debunked, as clearly the extreme disparity in testimony is more than could be explained by normal differences in perception?
On its face, the plaintiff's assertions are certainly overstated, as the manufacturer's content specifications for the particular product in question is for only 22 seconds of spray, while the defendant claims he was sprayed a minimum of 40 to a maximum of at least 80 seconds (assuming "multiple times" meant at least twice). Was the plaintiff mistaken, or did the plaintiff lie to bolster his excessive force claim? How can the officer's version be substantiated or negated? In this case, the officer also stated that he used the same pepper spray canister in a subsequent use-of-force incident, showing that the canister was not emptied in the incident in question. If that could be substantiated, which was not possible at the time, it could have some bearing on the case, in a subjective but not definitive way.
This case demonstrates a universal problem in providing objective and substantive information on the amount of pepper spray (force) used in a use-of-force incident. Nevertheless there is a simple, efficient, and cost-effective policy and procedural solution.
It is common for law enforcement agencies to have policies and procedures involving firearms, their use, and supporting documentation. Requiring personnel to use department-issued or -regulated firearms, the type of ammunition used, and the number of rounds allocated makes it relatively simple to document the number of rounds expended and what firearm was discharged in an incident where deadly force was employed. After such an incident an officer's firearm and ammunition are routinely placed into evidence. The number of rounds remaining in the firearm and other unfired ammunition with the officer can be compared to shell casings at the scene or in the firearm to account for all the rounds issued to that officer. This can then be compared to the number of rounds fired during the incident.
Electronic control weapons provide a programmed memory that documents the date, time, number, and duration of any discharge. Access to and retrieval of this information can be strictly controlled. Agencies using electronic control weapons can regulate the type and number of cartridges issued to their personnel. Documentation of the programmed memory and discharged cartridges can be inventoried as evidence after an incident where an electronic control weapon has been used.
The ability of law enforcement agencies to definitively substantiate and document the specific amount of force used in incidents involving firearms or electronic control weapons is a significant factor in preventing and negating allegations of unnecessary, improper, or excessive use of force or defending such cases should they go to trial.
How then can law enforcement agencies provide the same definitive and conclusive specifics for incidents involving the use of pepper spray as they do for firearms or electronic control weapons? An agency's policy on pepper spray should include the following statement: "It is the policy of this department to account for and document any discharge of pepper spray by personnel in the performance of their duty."
The related procedures are as follows:
1. "Officers are only authorized to carry and use pepper spray canisters approved and issued by the department. The use of any other pepper spray equipment or product is expressly prohibited, except under exigent circumstances, which must be justified and documented as soon as practical under the circumstances."
The purpose of this procedure is to ensure adequate department control over what pepper spray its officers use. The "exigent circumstances" provision allows for the rare situation, such as a large disturbance or riot, where officers may have to rely on an additional supply of pepper spray from another law enforcement organization or outside supplier and may not have sufficient time to properly inventory it.
2. "The department will control and document the issuance of every canister of pepper spray procured, including the brand, model, serial number, date of procurement, date of issue, purpose of issuance (personal defense, training, and so on), and names and signatures of the issuing individual and person to whom it is issued, except under exigent circumstances. Only canisters that are full and have intact safety tabs will be issued for personal defense."
This procedure provides for inventory control and documentation of all pepper spray products procured by the department. The distribution of canisters with intact safety tabs ensures that only new and unused canisters are issued.
3. "After any discharge of an issued canister of pepper spray, regardless of amount and whether intentionally or accidentally, in the performance of an officer's duties, the officer issued the canister will follow established procedures for submitting the canister as evidence. Canisters used for training will be returned to [controlling individual or unit] at the end of the training session or as soon as practical."
Submitting all pepper spray canisters where there has been a discharge, intentionally or unintentionally, provides the necessary chain of custody and documentation as for any other evidence. It also means that pepper spray canisters have been controlled as evidence as a matter of policy prior to any question or allegation that arises over their use. Most importantly, the canisters are then available for scientific examination of the remaining contents should such an examination be necessary. The amount of expended pepper spray can be objectively and conclusively determined by calculating the quantity of the remaining content and subtracting that from the initial volume as established by the manufacturer's specifications.
This procedure also ensures that officers will be held accountable for any discharge of pepper spray and the amount discharged.
4. "After a canister has been submitted into evidence, a new and unused canister will be issued as a replacement as soon as practical."
Issuing new and unused canisters ensures that the department and the officers using pepper spray for personal defense will continuously be able to control and document each and every usage.
5. "All partially or completely expended canisters of pepper spray will be destroyed and documented in accordance with established department procedures for the disposal of evidence and property. Canisters that have been held for evidentiary purposes will not be destroyed or returned to inventory for training purposes until the associated case has been officially concluded or adjudicated and there is no longer a requirement to retain it."
As with any volatile substance, pepper spray canisters must be disposed of to eliminate potential contamination of unsuspecting individuals or use by unauthorized people. Canisters held for evidentiary purposes should not be destroyed or used for training purposes until the incident or case is officially concluded and there is no purpose in retaining evidence.
These procedures augment those policies pertaining to pepper spray, use of force, report preparation, training, and evidence control that are commonly in place with most law enforcement agencies. Examples of these policies include, but are not limited to, the following:
- When the use of pepper spray is warranted
- Required documentation for the discharging of pepper spray
- Training required prior to the issuance of pepper spray for self-defense
The cost of implementing these procedures is relatively low for several reasons. First, the cost of pepper spray canisters is nominal, especially if purchased in bulk. Second, the shelf life of pepper spray canisters is limited (due to the depressurization and leakage that occurs with all aerosol products) and, therefore, periodic replacement is required even if there are no discharges. Third, and perhaps most important, the potential fiscal ramifications of civil liability pertaining to the use of pepper spray outweigh the minimal additional expense of replacing canisters whenever there is a discharge. Heading off one tort claim or lawsuit or successfully defending against a claim of excessive force would likely save sums far beyond any expense required to implement these procedures.
In the case cited at the beginning of this article, had these procedures been in place, the officer's canister would have been inventoried as evidence and subsequently submitted to a lab, and the amount of remaining pepper spray and, therefore, the amount expended, could have been ascertained. This evidence could have substantiated the officer's statements. Substantiating the officer's account would also lend credence to his overall credibility and cast doubt on the plaintiff's integrity. Needless to say, these would be crucial factors in determining the ultimate outcome of the case.
Fortunately, in this particular case, the defendant officer prevailed on the excessive force charge without these procedures in place. Nevertheless others might not be so fortunate. It is imperative that a department's policies and procedures incorporate the ability to control and document the issuance and use of pepper spray and to conclusively determine the amount of spray expended in a given incident. ■