Police denied immunity in pepperball injury case, rules 9th Circuit

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While the Taser is probably the most common culprit when it comes to excessive force lawsuits involving less-than-lethal devices, last week the 9th Circuit gave the go ahead to a college student’s §1983 claim against police officers who shot pepperballs to disperse a crowd attending a campus party.

Picnic Day at the University of California at Davis is one of those typical events that give college students another excuse to party. The Picnic Day celebration on April 16, 2004, proved to be particularly memorable. Approximately 1,000 people gathered at the Sterling Apartment complex for what participants hoped would be “the biggest party in history.”

Complaints of rampant underage drinking and widespread illegal parking soon went out to both the U.C. Davis campus police and the Davis Police Department. The owner of the apartment complex was concerned that the party was getting out of hand and communicated those concerns to the police.

Officers started working the margins of the crowd, telling partygoers that they were trespassing and had to leave. But the crowd wasn’t dispersing fast enough to suit the officers, so at some point they shot pepperballs into the crowd.

A pepperball is a non-lethal crowd control weapon. It consists of a projectile that is fired at a relatively low velocity. The pepperball fragments upon impact, releasing a cloud of pepper spray.

Timothy Nelson was student at U.C. Davis on April 16, 2004. Nelson happened to be with a group of friends gathered in the “breezeway” of the Sterling Apartment complex just as police officers shot their a barrage of pepper balls.

Nelson claims he was struck in the eye by a pepperball. Temporarily blinded, Nelson was taken to the hospital. He later regained his sight, but allegedly suffered a permanent loss of visual acuity that caused him to lose an athletic scholarship and withdraw from school.

Nelson later sued several city and campus police officers, and the city of Davis under §1983, alleging that the use of pepperballs violated his Fourth Amendment right to be free of unreasonable seizure.

The district court denied the officers claim of qualified immunity. On appeal before the 9th Circuit, the officers contended that Nelson was never individually targeted when they shot pepperballs and, therefore, it could not be said that was “seized” under the Fourth Amendment.

The 9th Circuit rejected this argument.

“[T]he precise manner in which the officers’ intentional use of force was ultimately experienced by Nelson does not affect the determination that a seizure has occurred,” the court said. “Although Nelson may have been struck in the eye with a pepperball that was intended to impact his body elsewhere, or was physically hit by the projectile when the officers sought only to spray him with its contents, the legal consequence of the officers’ actions is that a seizure of Nelson occurred.”

Further, the court concluded that Nelson’s allegations sufficed to show that the officers’ actions were unreasonable under the Fourth Amendment. The court explained that, in the final analysis, the only governmental interest involved in the application of force to Nelson and his friends was the officers’ desire to clear the complex of partygoers.

“There is no evidence that the officers reasonably believed that Nelson or his friends posed a risk to the officers or any other persons; the officers had no interest in arresting them; and the group engaged in passive resistance, at most, by failing to immediately disperse if and when such an order was given,” the court said. “The officers’ general interest in clearing the complex does not provide a legitimate governmental interest sufficient to justify the use of the force at issue.”

The officers argued that the use of pepper balls was reasonable given the undisputed evidence that some party goers were hurling bottles at them.

The problem for the court with this contention was that there was also undisputed that Nelson was not among the group of troublemakers.

“The application of force to Nelson’s group therefore could not have been justified by the government’s interest in stopping any and all disorderly behavior,” the court said. “Nor, even if we were to consider all the partygoers as a single entity, was the desire to clear the area sufficient justification for employing the force used by the government – the firing of pepperball projectiles with the potential kinetic impact of the projectile and the actual impact of the pepper spray, resulting in this instance in serious and permanent injury to one or more individuals.”

(Nelson v. City of Davis)