A three judge panel of the 9th Circuit U.S. Court of Appeals filed an unanimous ruling in Nelson v. City of Davis. The student plaintiff, Timothy Nelson was seriously and permanently injured by the excessive use of force by police in a 2004 incident at UC Davis.
The Court found that the police actions violated a basic constitutional right, the Fourth Amendment right to be free of unreasonable seizure and invalidated qualified immunity for the police, meaning that police could be held liable for damages. This ruling should offer considerable support to Occupiers pressing suit against police and governments for their often brutal and excessive use of force against peaceful protesters.
The incident is described in the decision and some of the details are strikingly similar to reports of police attacks on Occupiers - emphasis in quoted portion is mine:
Timothy Nelson, a former student of the University of California at Davis (“U.C. Davis”), suffered permanent injury when he was shot in the eye by a pepperball projectile fired from the weapon of a U.C. Davis officer when U.C. Davis and City of Davis police attempted to clear an apartment complex of partying students. Officers shot pepperball projectiles in the direction of Nelson and his friends as the students stood in the breezeway of the apartment complex, attempting to leave the party and awaiting instruction from the officers. The officers did not provide any audible warning prior to shooting towards the unarmed and compliant students, and never informed the young partygoers how to appropriately extricate themselves from the apartment complex in order to avoid becoming the target of police force. ...The court ruled that the use of force against Nelson was excessive and that police officers may be held liable for injuries caused by non-lethal weapons used for crowd dispersal in cases of excessive use of force. The court stated that a reasonable officer would have known that the conduct engaged in and similar conduct would be unconstitutional (emphasis mine):
The officers gathered in front of a breezeway in the apartment complex that was described as a “very narrow and confined space.” A group of fifteen to twenty persons had congregated in this breezeway on the ground floor, including Nelson and his friends. The students were attempting to leave the party but the police blocked their means of egress and did not provide any instructions for departing from the complex. ...
A pepperball launched from one of the officers’ guns struck Nelson in the eye. He immediately collapsed on the ground and fell into the bushes where he writhed in pain for ten to fifteen minutes. Although unable to see, Nelson heard the officers proceed past where he lay, but none of them provided assistance. Some time later, Nelson was removed from the scene and driven to the hospital. Later that evening, Lieutenant Pytel, the incident commander at the scene learned that an individual was injured during the dispersal of persons at the apartment complex and sent Wilson to the hospital to ascertain whether that individual was injured by the officers’ use of force and whether that individual had committed a chargeable offense. The officers were unable to find any crime with which to charge Nelson — thus no charge was ever filed against him.
In LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000), and Headwaters I and II, we held that the use of pepper spray, and a failure to alleviate its effects, was an unreasonable application of force against individuals who were suspected of only minor criminal activity, offered only passive resistance, and posed little to no threat of harm to others.The court also cited another case, which may be of interest, decided by the Tenth Circuit, Fogarty v. Gallegos:
Under these precedents, any reasonable officer therefore would have been on notice prior to April 2004 that the application of pepper spray to individuals such as Nelson and his associates, whose only transgression was the failure to disperse as quickly as the officers desired, would violate the Fourth Amendment.
Similarly, our decision in Deorle provides notice to a reasonable officer that the firing of a projectile directed at Nelson or his colleagues would be unreasonable. In Deorle, we held that shooting an individual with a projectile, there a bean bag, that was also known to pose a greater risk of harm if it impacted the eye — and that did impact the victim’s eye — was unreasonable. Deorle, 272 F.3d at 1285-86. Our conclusion was based on the fact that the target was suspected of no crime, only passively resisted officers, and posed a minimal risk of harm.
The Tenth Circuit came to the same conclusion under strikingly similar circumstances. In Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008), the officers used a pepperball gun against plaintiff Fogarty when he attended a large demonstration against the Iraq war on a college campus. Fogarty testified that he did not hear or understand any orders from the police instructing the demonstrators to disperse prior to the use of force and, although arrested at the scene, Fogarty was never charged with any crime. As in the case before us, the Tenth Circuit’s consideration of “each of the Graham factors balance[d] in [the plaintiff ’s] favor.” Id. at 1161. Although the court acknowledged that none of its precedential opinions had discussed the use of pepperballs, it nonetheless held that the officers were on notice that the use of a new pain compliance technique such as pepperballs “against nonviolent misdemeanants who do not flee or actively resist arrest.”There are a number of suits by occupiers currently working their way through the courts; this decision which lays out in fairly plain english a basis for invalidating the immunity of police from liability for actions taken in the line of duty may, with any luck give both individual police and local governments pause before unleashing mayhem or weaponizing non-lethal tools on peaceful protesters.