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"Prior to making them available, these products will have undergone an extensive battery of tests within my department," Lungren promised.
In March 1994, pepper spray was made available to the public despite the fact that no scientific tests had been completed on it, as Lungren had promised. A progress report issued the same month by OEHHA reveals just how little was known about the product that police and civilians alike were now free to spray virtually at will in the faces of suspects and would-be attackers.
"Following our review, we concluded that the use of OC-based tear gas products offers a reasonable alternative to a greater level of force (e.g. police baton) or to other available tear gas weapons," reads the report delivered by OEHHA officials to the annual meeting of the Society of Toxicology. "However, we have several concerns. In general, the existing database is not adequate to perform an analysis of the health hazards of OC-containing tear gas weapons."
More specifically, the report points out that no research had been conducted to find out if pepper spray causes "irreversible damage to the eye or nervous system" or "adverse effects on the developing embryo" or even "genetic damage."
The OEHHA officials also complain that there is not enough data to determine just how much pepper spray is actually needed to subdue an unruly suspect. There was no information available at the time on the effect pepper spray might have on individuals under the influence of drugs -- the very people likely to be sprayed by police.
Finally, the report reveals that anyone with pre-existing pulmonary or cardiovascular disease is likely to be "more sensitive" to pepper spray, but, once again, there were no studies to confirm or deny these suspicions.
Despite these serious concerns, OEHHA never conducted any scientific study of pepper spray thanks to a 1995 bill introduced by Assemblywoman Speier and sponsored by the Attorney General's Office. AB 830 was touted as a way to make it easier for civilians to buy pepper spray by eliminating mandatory training sessions and certification requirements. But buried in the legislation was a provision that repealed the penal code statute requiring that OEHHA perform a health-hazard assessment of pepper spray. The bill easily passed the California Legislature last year and went into effect on Jan. 1. The "provisional certification" Lungren had brokered for pepper spray manufacturers selling to law enforcement agencies was suddenly permanent. And several other manufacturers eagerly entered the civilian market to take advantage of the new law. Moreover, law enforcement agencies were no longer required to send in reports on pepper spray use to the state Department of Justice.
Dan Lungren and Jackie Speier defend the legislation, arguing that the law enforcement reports filed since October 1992 offer irrefutable proof of pepper spray's safety. As of March, pepper spray had been used 23,095 times by 518 law enforcement agencies since its introduction in 1992, according to figures supplied by the Attorney General's Office. It was effective 86 percent of the time in subduing subjects. There were only five suspects and one officer injured by pepper spray. There were no reported deaths.
"There has been enough field evidence in California and other states to prove that pepper spray is safe," says Steve Telliano, Lungren's press secretary. "We have had 25,000 safe uses in California. What better study is there than that? Besides, no one is stopping Cal-EPA or any other group from doing more tests if they can find the money to do it."
Richard Steffen, chief of staff for Assemblywoman Speier, adds: "Although there are a minimum number of studies that have been done on pepper spray, there certainly aren't any studies indicating it's harmful."
Pepper spray studies based on incident reports are easy to find and are often cited by law enforcement as proof that OC sprays are safe. In 1993, the International Association of Chiefs of Police (IACP) launched a study of 22 in-custody deaths involving pepper spray from 1990-1993. The study found that pepper spray was not the cause of death in any of the cases. In 18 of the cases, death was attributed to positional asphyxia, a condition which occurs when the body's position interferes with respiration. The remaining deaths were drug-related, the study found. The National Institute of Justice (NIJ) issued a similar report based on the same study.
IACP's John Granfield, who sat on a three-member panel that reviewed the deaths and contributed to the NIJ report, praised pepper spray after IACP's report was released in March 1994.
"In some cases, if you didn't have the OC, you'd have to go to a higher level of force, even to include deadly force," Granfield told Law Enforcement News. "I suspect that thanks to OC there are a number of situations in which individuals would have been shot, but instead were sprayed. Ten or 15 minutes later, they're all better."
Yet Granfield admits that the IACP and NIJ studies were not scientific research.
"Most of the information on OC has come from officers who used it during training and on subjects," Granfield wrote in the NIJ report. "This information has basically been anecdotal."
A soon-to-be-released study by IACP looks at the use of pepper spray by the Baltimore County Police Department in 1993. Although much wider in scope than the earlier studies, it still relies on anecdotal evidence provided by police reports. No one, to date, has looked at the toxicological effects of pepper spray in the manner that California law once mandated and the Cal-EPA was prepared to oversee.