• Qualified Immunity Analysis
  • July 20, 2012 | Author: G. Ross Trindle
  • Law Firm: Best Best & Krieger LLP - Los Angeles Office
  • Overview: The Ninth Circuit Court of Appeals recently denied qualified immunity to University of California, Davis police officers who shot student Timothy Nelson in the eye while using pepperball rounds to clear a crowded party. The court found that the officers’ use of force violated the Fourth Amendment prohibition against unreasonable seizures, a constitutional right that was “clearly established” at the time of Nelson’s shooting. First, the court explained that, using a tactic called “area contamination,” the officers aimed the pepperball projectiles at students, showing the intentional application of force required to prove a “seizure.” The court reasoned that, since the officers intended to use the area contamination tactic, they intended to fire pepperball rounds toward the students, and thus intention to harm or injure was present.

    The University and City of Davis police officers argued that use of pepperball rounds was not clearly established, as the technology was novel and no prior cases discussed such use. The court disagreed, citing two previous Ninth Circuit holdings in which the painful effects of pepper spray or the concussive force of a non-lethal projectile were sufficient alone to constitute an unreasonable use of force when applied to non-threatening targets like Nelson. Because pepperballs combined the kinetic impact of a projectile and the sensory discomfort of pepper spray, the court reasoned that using this type of force under these circumstances violated a “clearly established” constitutional right, and denied qualified immunity from suit.

    Training Points: Most importantly, this case establishes the state of the law with respect to the use of pepperball rounds in the Ninth Circuit, which severely undercuts the use of qualified immunity. Additionally, this case illustrates that the use of the area contamination tactic with pepperball rounds can be interpreted by courts as an intentional application of force against an unintended target if a round strikes a person. That can then lead to a finding of a constitutional violation. Further, the case highlights the importance of providing and adhering to specific policies, procedures and training in the proper use of pepperball rounds. Agencies should consider a thorough review of Peace Officer Standards and Training (POST) guidelines as they specify the proper use of pepperball rounds. The court in Nelson focused on avoidance of vulnerable body areas, avoidance of “indiscriminate” shooting, especially where non-threatening and compliant individuals are present. The court also observed that shooting from a distance is not advisable given accuracy concerns of pepperballs from beyond 30 feet. This case greatly impacts the use of pepperball rounds as a non-lethal force option with respect to potential excessive force lawsuits when applied to non-threatening targets.

    Summary Analysis: In Nelson v. City of Davis, Timothy Nelson suffered permanent injury after a police officer accidentally shot a pepperball projectile into his eye. Police had made several unsuccessful attempts to disperse approximately 1,000 people partying at a campus apartment complex. The City of Davis and U.C. Davis police departments finally assembled 30 to 40 officers in riot gear and armed with pepperball guns in a “narrow and confined” breezeway in front of the apartment. The breezeway contained a group of 15 to 20 students, including Nelson, who were trying to leave the party peacefully. The armed police officers allegedly blocked their exit and provided no instructions or warning before launching pepperball projectiles in their direction. One pepperball hit Nelson’s eye, causing a severe ocular injury that forced him to withdraw from U.C. Davis and lose his athletic scholarship.

    Nelson filed suit in district court alleging violation of his Fourth Amendment rights. The district court found that officers used excessive force and violated Nelson’s constitutional rights, and that they were not shielded from liability under qualified immunity. The Ninth Circuit agreed, finding that Nelson’s right to be free of unreasonable seizure was “clearly established” by two prior holdings involving the unreasonable use of pepper spray and concussive non-lethal projectiles on non-threatening individuals. Combining the two holdings, the Ninth Circuit determined that, under these circumstances, the use of pepperballs, which married both types of unreasonable force, amounted to a constitutional violation, precluding the grant of qualified immunity.