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"Other states and even other countries were looking to California to conduct the first serious evaluation of pepper spray," says DiBartolomeis. "We certainly would have liked to move much farther along on our project. The same concerns we had back in March of 1993 and that were expressed in numerous memorandums to the attorney general still exist today."
The law enforcement community doesn't generally share those concerns. Pepper spray is seen as a way to reduce excessive-force lawsuits and prevent the physical confrontations that lead to injuries of officers and suspects.
"I don't want to say it's the magic snake oil or the wonder elixir," says Ed Nowicki, the former director of the American Society of Law Enforcement Trainers, "but it's close."
Lt. Ed Springer, one of three lead instructors on pepper spray at the San Francisco Police Academy, credits pepper spray with reducing injuries to SFPD officers, even though the number of assaults on officers are climbing. In 1994, approximately 450 SFPD officers were assaulted and 150 injured. Last year, when pepper spray was fully implemented in the department, 550 assaults resulted in only 41 injuries. The statistics hardly add up to irrefutable proof that pepper spray is protecting officers, but Springer's argument makes sense.
"When you eliminate a chemical agent like pepper spray, you limit your options," Springer explains. "Your other options, like your police baton, tend to cause more injuries for the cop and the suspect. Pepper spray helps you avoid wrestling with someone in the street, and that's something you really want to avoid."
Yet San Francisco cops have a surprisingly low success rate when they use the 8-ounce canister of Defense Technology pepper spray they carry on their patrol belts. From January 1995 to March 1996, the SFPD has used pepper spray 150 times. The department reports that it was effective in 101 incidents or 67 percent of the time. Most studies, including one from the state DOJ, report a success rate of around 85 percent. Lt. Springer attributes SFPD's low success rate to the poor aim of officers; they simply aren't hitting their targets. And that indicates that the training procedures for pepper spray may be inadequate.
"The success rate of the SFPD is one of the lowest I've ever seen," says Allan Parachini, public affairs director for the ACLU of Southern California and a pepper spray expert. "It's dangerous because it may lead officers to use too much pepper spray on a suspect to make sure they've hit their target. Or it could cause officers to lose confidence in pepper spray and rely on their nightsticks. Either way, a success rate that low is cause for concern."
Visalia attorney Chris Haberman represents the family of Jeffrey Scott, a truck driver who died after being pepper sprayed by Madera police during a psychotic episode in 1993. Haberman filed a product liability suit against Defense Technology on behalf of Scott's family shortly after the incident. Haberman seemed to have a pretty good case.
"Defense Technology never told law enforcement that if pepper spray doesn't work the first time you hit someone with it, then it's probably not going to work at all," Haberman says. "In this case, the police kept blasting away and blasting away with it until it had an effect; it killed Jeffrey Scott."
Defense Technology countered the wrongful-death suit with a motion for dismissal, arguing that it was certified by the state of California to distribute pepper spray and, therefore, immune from any civil liability. The court agreed; the ruling is now on appeal.
The California Legislature turned the state certification process for pepper spray into a medical and scientific sham by abolishing testing requirements. But as the Scott case illustrates, the "provisional certification" obtained by Defense Technology and ZARC has great meaning in the eyes of the court.
"The state never proved that pepper spray is safe," Haberman says. "But the court still views the meaningless provisional certification as valid. At least valid enough to use it as a basis to dismiss this lawsuit."
A similar lawsuit has been filed in the case of Aaron Williams, who died on June 4, 1995, after struggling to escape from a dozen officers near his Western Addition apartment. Williams, who was a suspect in a pet store robbery, was beaten by officers, pepper sprayed at least three times, and hogtied before being loaded into a police paddy wagon. Williams died a short time later at the Richmond Station, setting off protests against police brutality and a federal investigation. Eight officers are still facing disciplinary charges alleging violations of police regulations.
Williams' widow, Lynne, filed a $10 million suit alleging that police violated her husband's civil rights and acted "with evil, racially discriminatory intent." Aaron Williams' father and other family members had already filed a similar lawsuit, but Lynne Williams also took aim at Defense Technology, charging that the company knowingly sold a product that was potentially lethal.
"Defense Technology never told law enforcement agencies that pepper spray could be dangerous," says Oakland lawyer Clarence Livingston Jr., who, along with his partner, Robert Kroll, filed the suit on Lynne Williams' behalf. "When the police respond to a situation, they have no knowledge of a suspect's medical background. The police don't know if pepper spray could be deadly in that situation"