To Spray Again or Not to Spray Again, Why is That Even a Question?

Photo by Spenser on Unsplash

Lucas Strakowski, Associate Member, University of Cincinnati Law Review

I. Introduction

In the wake of the Muslim Travel Ban enacted by President Trump in January 2017, people organized protests across the United States and throughout the world in response.[1] On January 30, 2017, the “Rally for the 99%” march was held close to home in nearby Columbus, Ohio.[2] At this protest, police deployed pepper spray to disperse a crowd of protestors. Several officers then subsequently pepper sprayed already incapacitated individual protestors a second time. Lawsuits against these officers quickly followed.  Part II presents factual background about one of these lawsuits and presents the trial court’s decision and reasoning. Part III presents the 6th Circuit’s analysis and decision on the trial court’s denial of qualified immunity. Part IV will provide background on pepper spray and its effects on a target. Part V will discuss the 6th Circuit’s analysis. Part VI will conclude.

II. “Abdur-Rahim I”: Factual Background and the Trial Court’s Analysis[3]

Ellen Abdur-Rahim participated in the “Rally for the 99%” march.[4] The march lasted from roughly 6:00 PM until sometime after 9:00 PM.[5] Protestors marched from the Ohio Statehouse to the Franklin County Court of Common Pleas, occasionally “flooding” the streets on the route, and then marched back towards the Statehouse around 7:53 PM.[6] During the march back, the protesters disrupted northbound lanes of High Street and 150 to 300 protesters filled the intersection of South High Street and State Street (the “Intersection”) around 8:15 PM and fully blocked traffic in all directions.[7] Within minutes, Columbus Police were on the scene, gave dispersal orders to the protesters, and warned that the police would use chemical agents to force compliance if the protestors ignored the orders.[8] About twenty minutes later, the Lieutenant on scene requested additional officers, and directed officers on-site to don their gas masks in front of the protesters as a show of force.[9] The protesters remained.[10] Around 9:04 PM, after the additional officers had arrived, the Lieutenant ordered all officers to use a two-second spray of mace over the heads of protesters to forcibly clear the Intersection.[11] The protesters quickly dispersed and the Intersection was fully cleared around 9:24 PM.[12] No injuries to officers or protestors occurred other than injuries directly related to pepper spray exposure, and no arrests were made.[13]

Abdur-Rahim was in the “front line” of the crowd, very close to the line of police officers who fired the initial two-second spray.[14] She was behind a large banner and wore a hijab, but the initial spray rapidly seeped through both barriers anyway, which caused her to flee in the opposite direction away from the intersection.[15] Immediately after the first spraying, officers began to clear remaining protesters out of the street.[16] Officer Justin Masters then “used his left hand to give Abdur-Rahim a shove on the shoulder and then sprayed mace in her face.”[17] She experienced burning and pain from the pepper spray for a significant amount of time after the second spraying.[18] It took Abdur-Rahim some time to decontaminate herself, as she traveled from a nearby pizza shop restroom, then asked a nearby EMT for help, and finally obtained a ride to a friend’s house to fully wash off the pepper spray.[19] In addition to the physical trauma she suffered on the night of the protest, her mental health has also suffered since the incident.[20]

Abdur-Rahim brought several claims against Officer Masters.[21] These included a 42 U.S.C. §1983 claim for violating her First Amendment rights to be free from retaliation, a 42 U.S.C. §1983 claim for violating her Fourth Amendment rights protecting against the use of excessive force, and state law assault and battery claims.[22] Importantly, the trial and appellate court came to an express disagreement on the Fourth Amendment excessive force claim, which is discussed below. The parties both moved for summary judgment on all claims.[23]

Since Abdur-Rahim was free before the seizure and Officer Masters used the pepper spray to seize her, the claim would be analyzed using a Fourth Amendment reasonableness of the use of force test and not a Fourteenth Amendment due process test.[24] Courts in the Sixth Circuit approach a Fourth Amendment excessive force claim in segments: (1) the court identifies the seizure at issue, and (2) the court examines whether the force used to affect that seizure was reasonable.[25] The trial court quickly determined that Officer Masters seized Abdur-Rahim as soon as he sprayed her directly with pepper spray.[26] Next, the court analyzed whether the force used to affect the seizure was reasonable.[27] To determine reasonableness of a use of force, courts in the Sixth Circuit use a balancing test with three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.[28] The court also provided the caveat that the factors are not conclusive, but the seizure must ultimately be justified under the “totality of the circumstances.”[29] The court noted that, in the Sixth Circuit, the use of force is unreasonable on a person who is already incapacitated, not under arrest, or not resisting arrest.[30] Moreover, the use of pepper spray has been “specifically limited” as a method of force in the Sixth Circuit.[31] Ultimately, the trial court found that whether the force used on Abdur-Rahim was reasonable contained genuine disputes of material fact, because the video evidence provided did not conclusively show whether Abdur-Rahim was actively resisting police orders or was incapacitated, and the court held that a reasonable fact-finder could decide the issue in favor of either side, precluding summary judgment on the issue.[32]

Officer Masters also moved for summary judgment in favor of a qualified immunity defense to the Fourth Amendment claims.[33] For qualified immunity to be denied to an officer, a constitutional right must have been violated and that right must be “clearly established at the time of the official’s alleged misconduct.”[34] Importantly, unlike a Fourth Amendment reasonableness issue in which disputed facts may be decided either way by the fact-finder, the court views disputed facts under a qualified immunity summary judgment analysis in the light most favorable to the plaintiff.[35] The court further explained that, in the Sixth Circuit, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[36] However, the right does not need to be “a case with the exact same fact pattern, or even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair warning’ that their actions were unconstitutional.”[37] The court noted that the right to be free from physical force when one is not resisting the police is a clearly established right, and that additional use of force after mace has already incapacitated a suspect is excessive force.[38] As such, the court held that, for purposes of the qualified immunity summary judgment analysis, Officer Masters clearly violated Adbur-Rahim’s Fourth Amendment rights to be free from use of excessive force during a seizure, and denied summary judgment in favor of Officer Masters.[39] If the factfinder then determined that the use of force to affect the seizure was unreasonable, Officer Masters could be found liable for a § 1983 Fourth Amendment excessive force claim.[40]

III. “Abdur-Rahim II”: The Sixth Circuit’s Reversal[41]

The district court’s denial of qualified immunity, as it presented an appealable question of law, was then appealed to the Sixth Circuit.[42] The Sixth Circuit refused to follow the reasoning provided by the district court because the district court “failed to define the right [to be free from excessive force] with requisite specificity and failed to identify a case where an officer acted under similar circumstances.”[43] The Sixth Circuit decided that because precedent only identified cases in which the initial use of force was against an individual, and not a crowd, a case in which a second use of pepper spray on an individual who had been incapacitated by a general pepper spraying on a crowd was not sufficiently similar to precedent to put an officer on notice.[44]

The Sixth Circuit emphasized this point by noting that the cases cited by the Plaintiff and by the district court only contained reasonableness of use of force against an individual arrestee who had already been restrained or subdued, an even more narrow set of facts than just the crowd and individual difference.[45] Specifically, the Sixth Circuit stated that Abdur-Rahim had not provided a case that would have put Officer Masters on notice that “it constitutes excessive force to pepper spray directly a lingering individual blocking an intersection after forty-five minutes of dispersal orders and warnings, followed by a general spray over a crowd.”[46] Ultimately, the Sixth Circuit reversed the denial of qualified immunity on the Fourth Amendment issue, but affirmed the district court’s denial of summary judgment in favor of Officer Masters on the state law assault and battery causes of action, and remanded the case.[47]

IV. Background on Pepper Spray and Chemical Irritants[48]

Oleoresin capsicum—the chemical compound name for pepper spray—is a crowd control weapon included in the “chemical irritant” classification of crowd control weapons.[49] “Agent OC,” for short, is essentially a highly concentrated form of hot pepper.[50] It became a law enforcement weapon in the late 1980s, is now available as a spray or gas, and can be found in varying strengths for military or law enforcement use and lower strengths for civilian self-defense.[51] The strength of the weapon itself is derived from the strength of the “capsicum,” which is the chemical in hot peppers that make them “hot.”[52]

Chemical irritants are typically released between a range of one foot to about ten feet from the target, depending on the strength of the weapon, the spray pattern of the dispersal canister, pressure of the spray mechanism itself, and atmospheric conditions.[53] Pepper spray has not been well-studied for its lethality, as the varying concentrations of measurement of capsicum within a particular pepper spray is difficult to verify.[54] Chemical irritants have garnered a reputation as being generally safe with few, if any, long term effects from exposure.[55] However, a medical literature 25-year review of studies on the effects of pepper spray has revealed that, even if it is “safer” than more potent chemical irritants such as chlorobenzalmalononitrile (“agent CS,” the defining component of tear gas), pepper spray has resulted in thousands of injuries over the past 25 years,[56] including over four hundred “severe injuries.”[57]

Pepper spray, because it is a physiological agent and not a pain agent like other chemical irritants, is desirable for law enforcement as it reduces excessive force complaints and litigation because it does not cause pain and suffering above that of the effects themselves.[58] However, as a physiological agent, the reaction to being sprayed by OC is nearly instantaneous.[59] OC causes an immediate burning sensation in any contacted areas, as well as a “burning, tearing, and swelling of the eyes” to such an extent that it blinds or otherwise incapacitates the target.[60] Even as early as 1994, the risks to those with pre-existing conditions such as respiratory problems were noted.[61] Because pepper spray produces a physiological response, a person does not have much, if any, control over the extent of the response.[62] To keep the subject from becoming more violent or disturbed, the DOJ warned that officers should “[reassure the subject] that nothing further will happen to him or her . . . [w]ithout this reassurance, the subject may again become violent from frustration or in an effort to escape discomfort.”[63]

V. Discussion

The Sixth Circuit erred when it reversed the denial summary judgment in favor of qualified immunity in this case; the court should not have granted qualified immunity to Officer Masters. The Supreme Court recently clarified the standards for qualified immunity and whether a constitutional right is “clearly established.”[64] In Kisela v. Hughes, the Supreme Court pointed out that specificity is important in the Fourth Amendment Context because each case is fact-dependent, and that precedent involving “similar facts” can notify an officer that a specific use of force is unlawful, because officers may not be able to determine how excessive force will apply to a factual situation they are confronting.[65] However, the Court also noted that “general statements of law are not inherently incapable of giving fair and clear warning to officers.”[66] In Kisela, the Court reversed a denial of qualified immunity because in a previous case in the same Circuit, with a near identical set of facts, the officer was granted qualified immunity.[67] The Court noted a reasonable officer could have known about the other case and believed that such actions were reasonable considering the previous Ninth Circuit ruling granting qualified immunity and reversed the denial of qualified immunity in Kisela as a result.[68]

The Sixth Circuit held in Abdur-Rahim II that “the right to be free from physical force when one is not resisting the police” is not a “clearly established” right because it is not “particularized” to a case.[69] However, such a right is clearly established under multiple fact patterns as the Sixth Circuit then proceeds to list in the next paragraph.[70] Instead, the Sixth Circuit held that because none of the listed cases involved a general spray over a crowd and then subsequent spray on an individual, a reasonable officer would not have known the conduct was unlawful.[71] This supposition is absurd. The effects of pepper spray on an individual can be, even if only temporarily, catastrophic on body functions. Both briefs in the case acknowledge that Abdur-Rahim was not resisting, but that she crouched in pain and covered her face with her hijab to prevent more of the pepper spray particles from getting onto her face and in her eyes.[72] The second spray was far more violent in its results: it fused Abdur-Rahim’s contacts to her eyes, which trapped the chemical against her eyes and temporarily blinded her as well as burned exposed skin and permeated her clothes.[73] “Reasonable” officers officer were actually on-scene at the protest: instead of pepper spraying individuals a second time, they simply asked people to move to or escorted people to the sidewalk without resorting to further spraying.[74]

Moreover, as the Sixth Circuit itself has noted in the past, somewhat facetiously, that for qualified immunity analysis: “it defeats the purpose of 1983 to define the [clearly established] right too narrowly ([such] as the right to be free of needless assaults by left-handed police officers during Tuesday siestas).”[75] The right to be free from being pepper sprayed while already incapacitated, blinded, hobbled, or otherwise not resisting or posing an issue to officers is sufficiently particularized to be applicable and put an officer on notice, and has been Sixth Circuit precedent for over twenty-five years.[76] The application in this case of such a precedent is straightforward. A reasonable officer would know it is excessive force to use pepper spray on an already incapacitated individual. Since a question of material fact remains on whether Abdur-Rahim was truly incapacitated after the initial spraying, a summary judgment ruling in favor of qualified immunity is not appropriate in this case. Here, viewing the facts in the light most favorable to the plaintiff, is as required in this analysis, the police officer used pepper spray on an already incapacitated individual. As such, Officer Masters should have been precluded from receiving qualified immunity on summary judgment. Moreover, whether the individual is incapacitated to begin with is the only relevant factor, not what caused the incapacitation in the first place. Moreover, an excessive force violation could be established when he subsequently sprayed her directly in the face with no warning, since Officer Masters admitted he knew that Abdur-Rahim was incapacitated, blinded, or otherwise “hobbled” by the initial spraying.

Instead, the Sixth Circuit has expanded the ever-growing shadow of qualified immunity to protect increasingly egregious and violent conduct of police officers committed against people exercising constitutional rights or simply existing in a space to begin with. Regardless, facts that are contested are supposed to be viewed in the light most favorable to the plaintiff. The Sixth Circuit failed to so consider the issue of Abdur-Rahim’s possible incapacitation, and erred when it reversed the district court’s denial of qualified immunity per summary judgment as a result.

VI. Conclusion

The Sixth Circuit’s holding could dangerously encourage police violence against protesters. With the extent of protest activity during recent years, including the Black Lives Matter marches, the Women’s Day marches, the anti-Travel Ban marches, and others, interactions between protesters and police have become both more frequent and more hostile. As pepper spray has been used and studied more thoroughly, it has been discovered that it may not be so harmless as initially thought. To hold a gratuitous use of pepper spray on an already incapacitated or hobbled individual in a protest as “reasonable” may have lasting repercussions in not just the Sixth Circuit but in other Circuits throughout the country.  


[1] See e.g. “Protests erupt at airports nationwide over immigration action,” CBS News, https://www.cbsnews.com/news/protests-airports-immigration-action-president-trump/, (first published Jan 28, 2017, 7:41 PM; updated Jan 29, 2017, 12:50 AM).

[2] Abdur-Rahim v. City of Columbus, 425 F.Supp.3d 935 (S.D. Ohio 2019).

[3] Abdur-Rahim v. City of Columbus, 425 F.Supp.3d 935 (S.D. Ohio 2019). While two plaintiffs are named in this case, the Sixth Circuit appeal that followed was only in regards to the trial court ruling on Ellen Abdur-Rahim’s case, and, as such, this article will only discuss her cause of action, and will not discuss the other Plaintiff, Harrison Kallner.

[4] Id. at 943.

[5] Id. at 941, 942.

[6] Id. at 941.

[7] Id.

[8] Abdur-Rahim I, 425 F.Supp.3d at 942.

[9] Id.

[10] Id.

[11] Id. See also NBC4 Columbus, Columbus Police video shows officers pepper spraying anti-Trump protestors, YouTube (published February 9, 2017), https://www.youtube.com/watch?v=WcyXR1zZVtk&ab_channel=NBC4Columbus (for video of the initial pepper spray deployment, please view the video from about timestamp 17:00 until the end of the video).

[12] Abdur-Rahim I, 425 F.Supp.3d at 942.

[13] Id.

[14] Id. at 943.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Abdur-Rahim I, 425 F.Supp.3d at 944.

[23] Id. at 943.

[24] Id. at 945.

[25] Id. at 947.

[26] Id.

[27] Id.

[28] Id. (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013)).

[29] Abdur-Rahim I, 425 F.Supp.3d at 947.

[30] Id.at 947-8 (citing Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009)).

[31] Abdur-Rahim I, at 948.

[32] Id. at 949.

[33] Id. at 950.

[34] Id. (citing Grawey, 567 F.3d at 309).

[35] Abdur-Rahim I, 425 F.Supp.3d at 950 (“Thus, to the extent that there is a disagreement about the facts, the evidence must be reviewed in the light most favorable to the plaintiff”).

[36] Id. (quoting Roell v. Hamilton Cnty., 870 F.3d 471, 483 (6th Cir. 2017)).

[37] Abdur-Rahim I, 425 F.Supp.3d at 951 (quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)).

[38] Abdur-Rahim I, 425 F.Supp.3d at 951-952.

[39] Id. at 951.

[40] Id. at 945.

[41] Abdur-Rahim v. City of Columbus, Ohio, 2020 WL 5033411 (6th Cir. 2020).

[42] Id. at *2.

[43] Id.

[44] Id. at *3 (“But again, none of our cases has extended [the proposition that the use of force after mace has incapacitated a suspect is excessive] to apply when using pepper spray to disperse a crowd.”).

[45] Id.

[46] Abdur-Rahim II, at *3.

[47] Id. at *4.

[48] For video footage demonstrations of pepper spray’s effects on a subject, see e.g. MSC Self-Defense, Pepper Sprayed! MSC Self Defense Sprays Volunteer! OUCH!, YouTube (September 4, 2011), https://www.youtube.com/watch?v=f__EintzF74&ab_channel=MSCDefense; see also VCU Police, VCU Police: The Dos and Don’ts of Using Pepper Spray, YouTube (May 9, 2016), https://www.youtube.com/watch?v=Vwbt6BFd3dk&ab_channel=VCUPolice.

[49] International Network of Civil Liberties Organizations, Lethal in Disguise: The Health Consequences of Crowd-Control Weapons, 39, (March 1, 2016) [hereinafter “Lethal in Disguise”].

[50] Lethal in Disguise, supra note 47, at 40.

[51] Lethal in Disguise, supra note 48.

[52] Lethal in Disguise, supra note 48.

[53] Lethal in Disguise, supra note 48.

[54] Lethal in Disguise, supra note 48.

[55] Lethal in Disguise, supra note 47, at 39.

[56] See generally Haar, Rohini J., et. al., Health Impacts of Chemical Irritants Used for Crowd Control: A Systematic Review of the Injuries and Deaths Caused by Tear Gas and Pepper Spray, BMC Public Health (Oct. 19, 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5649076/. In total, the study found over seven thousand injuries from pepper spray (referred to as “OC” or “Agent OC” in the study).

[57] Lethal in Disguise, supra note 47,at 48. See also Haar, Rohini J., et al., supra note 54. A “severe” injury in the review is defined as any injury that “necessitate[d] professional medical care, such as lacerations requiring sutures, second- or third-degree burns, airway obstruction, severe ocular trauma, cardiopulmonary disease, or abdominal injuries requiring medical or surgical management.”

[58] U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Technology Assistance Program, Oleoresin Capsicum: Pepper Spray as a Force Alternative, 1, (March 1994).

[59] U.S. Department of Justice, supra note 56.

[60] U.S. Department of Justice, supra note 56, at 3.

[61] U.S. Department of Justice, supra note 56 (“Limitations of Pepper Sprays . . . OC sprays cause upper respiratory inflammation; therefore, they may have detrimental effects on people with preexisting [sic] respiratory problems”).

[62] U.S. Department of Justice, supra note 56,at 1 (noting that one of the touted benefits of OC is that it blinds even subjects who are under the effects of potent substances like PCP, while “pain-based” crowd control weapons have little effect on such subjects).

[63] U.S. Department of Justice, supra note 56, at 4.

[64] Id. at 1152 (2018).

[65] Id. at 1152-3. The Court notes that caselaw does not require a case directly on point for a right to be clearly established but that existing precedent must have placed the statutory or constitutional question “beyond debate.”

[66] Id. at 1153.

[67] See generally Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir. 2005). In both Kisela and Blanford, the police responded to a man acting erratically. Further, in both cases, the police shot the suspect after he had refused to obey (possibly unheard) commands to drop his weapon. In both cases, the police believed the suspect to be an immediate threat, and the Court of Appeals in Blanford granted qualified immunity.

[68] Kisela v. Hughes, 138 S.Ct. at 1153-4.

[69] Id. at *2. This holding is also peculiar because even the brief for defendant acknowledges the “right to be free from physical force when one is not resisting the police is a clearly established right,” without any additional need for the plaintiff to further particularize the right. See Reply Br. Def.-Appellant Justin Masters, 2020 WL 1976581, *4 (Westlaw 2020).

[70] The Sixth Circuit lists some cases involving pepper spray, noting that excessive force was found when:

(1) an already blinded and incapacitated suspect was then pepper sprayed after complying with police orders,

(2) an already pepper sprayed suspect was subsequently beaten,

(3) a suspect was pepper sprayed after placing hands against a wall and was not otherwise resisting police orders,

(4) a suspect who was not threatening others’ safety, did not flee, and was also restrained was subsequently pepper sprayed,

(5) a suspect was pepper sprayed twice but officers did not inform that the suspect was under arrest or that he committed a crime, and did not preemptively warn about the use of pepper spray, or

(6) the officer ultimately conceded there was “no cause to spray”.

See Abdur-Rahim v. City of Columbus, Ohio, 2020 WL 5033411 at *3.

[71] Id.

[72] Rep. Br. Def.-Appellant Justin Masters, at *11-12; Corrected Br. Pl.-Appellee Ellen Abdur-Rahim, 2020 WL 1503318, *6-7 (Westlaw 2020). Furthermore, it is irrelevant whether Officer Masters knew or did not know if Abdur-Rahim could not see because of the initial pepper spray as stated in the Reply Brief. See Rep. Br. of Def.-Appellant Justin Masters at *12. He apparently admitted in a deposition that he knew that the protesters, including Abdur-Rahim, could not see where they were going due to the initial pepper spray deployment. Corrected Br. Pl.-Appellant, at *9. Even if he had not admitted to knowing of the likelihood of Abdur-Rahim already being incapacitated, the question is not Masters’s own knowledge but what a reasonable officer would know regarding exposure to pepper spray. A reasonable officer would likely know how fast and effective pepper spray is, and how someone who has been subjected to the effects of pepper spray is effectively incapacitated.

[73] Corrected Br. Pl.-Appellee Ellen Abdur-Rahim, at *7-8.

[74] Rep. Br. Def.-Appellant Justin Masters, at *12.

[75] Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012).

[76] See generally Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994).

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