Pepper Spray Drift Injury Can Be Actionable

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals held that where guards' pepper spraying of combatant prisoners in one cell did not violate their Eighth Amendment rights against cruel and unusual punishment, the drift of the spray to neighboring cells, with no attention to calls of distress, could support an Eighth Amendment violation of deliberate indifference to medical care for the neighbors.


Frank Clement, Arturo Chavez and Larry Caballero, prisoners at California's maximum security Pelican Bay State Prison, sued prison officials under 42 U.S.C. § 1983 in response to guards' use of pepper spray in their cell block against others without providing protection for them. The two claims were (1) for using excessive force against the combatants by spraying a second time after the fight had allegedly subsided, and (2) for being deliberately indifferent to the medical needs of neighboring prisoners hurt by drifting spray.


The principal legal defense raised was qualified immunity. This requires a two-step inquiry (see Saucier v. Katz, 533 US 194 (2001) [PLN, June, 2002]. If the facts show no constitutional violation, the inquiry ends. Then, if the constitutional right was clearly established, the court must determine if the law put the defendants on notice of what would be clearly unlawful conduct.


Applying the test to the first claim, the court looked for evidence of a malicious or sadistic purpose solely intended to cause harm. Here, the guards claimed the second spraying was needed because the first didn't cause the fighting to cease. Although some of the facts were disputed, quelling the fight was a proper purpose for using the spray and no malicious or sadistic intent could be proved. Accordingly, qualified immunity shielded the guards from liability for excessive force.


The second claim related to the allegations that plaintiffs suffered for four hours after the drift from the spray hit them, causing allergic, asthmatic and breathing problems, for which no medical aid was offered (not even a shower). The qualified immunity question of a conscious choice to deliberately deny needed medical care "may lead to liability," the court held. Liability could attach from a failure to adequately train staff, and could include supervisory liability. The general law regarding medical treatment of prisoners was clearly established in the Ninth Circuit in 1992, thus satisfying that Saucier inquiry. That law is that guards may not intentionally deny or delay access to medical care.


Although the court opined that plaintiffs had a tough burden to win their case, summary judgment against them was wrong. A trier of fact must be permitted to resolve the facts in the case at trial. Accordingly, the court reversed the district court's grant of summary judgment for defendants and ordered the matter to proceed on the deliberate indifference to serious medical needs claim as to the drifting spray victims. See: Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002).