Dead Heat

Despite the deaths of Aaron Williams and Mark Garcia, the SFPD continues to use pepper spray on suspects who stand a good chance of dying in custody.

Ward was particularly enamored of a brand of canned heat called Cap-Stun, and, in hindsight, it's easy to see why. On Feb. 12 of this year, Ward abruptly resigned from the FBI and pleaded guilty to taking nearly $60,000 in payoffs since 1989 from Lucky Police Products, the company that then made Cap-Stun. Ward received the kickbacks through a company owned by his wife.

In an official statement issued after Ward resigned, the FBI stated that while its agents will continue to use pepper spray, the agency is "reviewing its policies and procedures relating to the procurement of OC products." The FBI is also reviewing the tests Ward oversaw to determine if further testing is needed.

California was one of the last states to board the pepper spray bandwagon thanks to a provision in the state penal code. It required Cal-EPA's Office of Environmental Health Hazard Assessment (OEHHA) to complete a report for the state DOJ to determine if pepper spray products "are harmful, toxic, or present any health hazards to human beings."

No scientific studies had been done on pepper spray. In fact, the only studies available were the highly anecdotal reports Ward produced at the FBI's Quantico training facility, where agents and trainees were sprayed and observed. The FBI reports were, of course, mute on the toxicological effects of pepper spray. Such research would have taken years to complete.

But in the wake of the Rodney King beating and the L.A. riots that followed, police departments across the state were eager to find an alternative to their truncheons, and they didn't want to wait for a passel of toxicologists to give the OK.

Attorney General Lungren found a detour around the penal code roadblock in October 1992, when he persuaded Cal-EPA to issue a special three-year "provisional certification" that would allow manufacturers to produce pepper spray and law enforcement agencies to use it.

"We kept telling the state Department of Justice that we didn't have enough data to evaluate the safety of pepper spray," says Michael DiBartolomeis, the chief of the Pesticide and Food Toxicology unit at OEHHA who worked on the assessment of pepper spray. "But DOJ was being pressured by law enforcement agencies to get approval because all the other states were already using it."

A deal was struck. Companies would be granted provisional certification provided they agree to work with OEHHA to complete the health-hazard assessment in the next three years. And law enforcement agencies would file reports with the state DOJ every time they used pepper spray. OEHHA didn't have the facilities or the personnel to actually conduct tests. Instead, the agency sat down with pepper spray manufacturers interested in selling their products in California to design studies that the manufacturers would pay to have completed at approved labs.

But most pepper spray makers weren't willing to participate in the expensive and time-consuming process. As a result, Wyoming-based Defense Technology Corp. and ZARC International, the Maryland-based company that now produces Cap-Stun, were the only companies certified to supply law enforcement agencies in California.

"Sure there was pressure to issue the provisional certifications," DiBartolomeis explains. "As a scientist, I like to have everything in place before I make a decision. But as a manager, I felt it was important to address other issues as well. Let's face it, if pepper spray wasn't made available in California and police continued to have to use a greater level of force, the public health probably wasn't going to be served either."

It soon became clear that the three-year timetable would be impossible to meet after OEHHA mapped out an ambitious testing process with manufacturers to examine a variety of toxicological issues. Making matters worse, Attorney General Lungren was already entertaining the notion of making pepper spray available to the civilian population. OEHHA officials acknowledged early on that the agency did not have the money or the resources to complete the evaluation. OEHHA Director Dr. Carol Henry admitted as much in a letter to Lungren dated Aug. 26, 1993.

"OEHHA does not have the resources to hire additional staff to work exclusively on health evaluations of tear gas," the letter states. "We recommend that your decisions about certification of tear gas weapons for civilian use (provisional or final) be based, as much as possible, on sound scientific evaluation. However, OEHHA cannot provide such an evaluation without adequate experimental data and resources to hire staff and to convene the necessary experts."

Dr. Henry also expressed concern about the role of pepper spray in a number of in-custody deaths in California and the rest of the country that had been brought to light in an ACLU report.

"We are concerned that in each incident, untoward reaction to [pepper spray] may be the contributing cause of death, or exacerbated underlying conditions such as pre-existing disease or drug use to cause cardiac or respiratory failure," Henry wrote to Lungren.

This alarming letter didn't stop Lungren from issuing a press release a few weeks later on Sept. 10, 1993, announcing his decision to certify pepper spray products for civilian use.

"After reviewing the first 2,000 incident reports from California peace officers, I have come to the conclusion that pepper spray should be available to the public for self-protection," Lungren is quoted in the press release. "And I believe that we know enough about the effects of this product -- especially when compared to other alternatives -- to make this decision now rather than two years from now.

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