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"Mark was sprayed four times instead of the one time stipulated by both Police Department guidelines and the specifications of the pepper spray manufacturers," Ron Garcia said during an April 26 press conference, in which he demanded that the officers who arrested Mark be put on administrative leave pending a full investigation. "We're also calling for the banning of pepper spray in San Francisco until a health and safety study is conducted, and we want to see Police Academy training scenarios implemented that deal with these kinds of situations so officers know [how] to properly handle themselves."
The ACLU has called on Mayor Willie Brown to ban the use of pepper spray until further studies are completed. This would follow the example of the San Francisco District Attorney's Office, whose 132 investigators packed pepper spray until DA Terence Hallinan banned its use following Garcia's death.
"We're concerned about a number of deaths connected with its use across the country," says chief investigator Daniel J. Addario. "We wanted to curtail its use until there is some hard evidence that it's a safe product. The jury is still out on pepper spray."
The SFPD disagrees. On May 8, the department presented the findings of an in-custody death task force to the Police Commission. After almost a year of work on the issue, the task force recommended no changes in the procedure officers follow when confronting suspects like Mark Garcia and Aaron Williams, suspects who often die in police custody. Officers will continue to use pepper spray when they feel it is necessary.
"There is no way an officer can determine who is susceptible to in-custody death and who isn't," says Deputy Chief Richard Holder, who headed the task force. "Pepper spray will continue to be used."
Police argue that pepper spray offers a much safer alternative to their truncheon or service revolvers in confrontations with violent suspects who resist arrest. Obviously, the number of successful uses without injury to the police or their suspects far outnumbers fatalities.
But the fact remains that no extensive toxicology tests have ever been performed on pepper spray. Tests mandated by the California Penal Code were in the preliminary stages when legislation repealing all testing requirements for pepper spray went into effect. The legislation -- which also removed all testing and certification requirements for pepper spray use by the general public -- was introduced by Assemblywoman Jackie Speier (D-Burlingame) and sponsored by the office of Attorney General Dan Lungren, despite opposition from the California Environmental Protection Agency. Pepper spray manufacturers, who hired a lobbyist to monitor the legislation, were ecstatic.
The only "tests" conducted in the United States rely almost exclusively on police reports -- not scientific research -- to gauge the safety of pepper spray. In other words, no one really knows just how dangerous pepper spray may be.
"We know that pepper spray is being used by law enforcement agencies about once an hour somewhere in the state," San Francisco ACLU Staff Counsel John Crew says. "We also know that once every month someone dies after one of these incidents. We know that there are strikingly similar circumstances when these deaths take place. Why anyone would object to examining those cases more closely is beyond us. If it's possible to take steps to minimize the risk, then there's an obligation to do so."
The active ingredient of pepper spray is oleoresin capsicum or OC, an oily plant resin derived from the dried extracts of spices such as chili or cayenne pepper. The resin is mixed with water or oil and some form of alcohol carrier. It's injected into a canister and -- with the help of an inert gas such as nitrogen -- dispensed in short bursts in the form of a stream or a fog.
Capsaicinoids are the primary component of OC. In the body, capsaicinoids trigger the release of Substance P, an indigenous compound that governs pain recognition and sensitivity to heat, according to a report issued by Cal-EPA. High capsicum levels cause the body to release a surplus of Substance P, resulting in immediate and disabling effects in most people: Eyes involuntarily swell and close instantly; the mucous membranes become inflamed; coughing, choking, and shortness of breath accompany the excruciating pain. Those who have been tear gassed and pepper sprayed say there is no question which one is more painful -- pepper spray wins the contest hands down.
FBI Special Agent Thomas Ward was pepper spray's P.T. Barnum. As the chief chemical weapons expert at the hallowed FBI Academy in Quantico, Va., Ward touted pepper spray as the new wonder weapon that worked far better than Mace as far back as the mid-'80s. First, he authored several FBI reports vouching for pepper spray's effectiveness, and with almost evangelistic zeal he began urging federal, state, and local law enforcement agencies to stock up on it. Most followed Ward's advice, and police officers, sheriffs, and even dogcatchers across the country began using pepper spray.
"When the FBI starts telling law enforcement that pepper spray is completely safe and that it works on nearly everyone, it shouldn't be any big shock that they started buying it," says the ACLU's Crew. "Its popularity grew like a tidal wave across the country."