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What is with UC Davis cops and pepper spray? Last year, you probably read about the UC Davis cop who pepper-sprayed a row of seated Occupy protesters. The YouTube footage of the incident went viral, and the cop, Lt. John Pike, even became a meme.
But Lt. Pike wasn't the first Davis cop to go wild pepper-spraying non-threatening students. Wednesday, the Ninth Circuit Court of Appeals ruled that a former UC Davis football player, who suffered a permanent injury after police launched pepperball projectiles to disband a party, can sue the cops for using excessive force, the Metropolitan News-Enterprise reports.
Timothy Nelson, a former UC Davis student, was shot in the eye by a pepperball projectile fired from a UC Davis officer's weapon when UC Davis and City of Davis police attempted to clear an apartment complex of partying students in 2004. The officers didn't warn the revelers prior to shooting, nor did they explain how to appropriately leave the apartment complex in order to avoid police force.
As a result of his injury, Nelson suffered temporary blindness, and "a permanent loss of visual acuity," and endured "multiple surgeries to repair the ocular injury he sustained." Nelson, once a linebacker, was forced to withdraw from UC Davis due to the loss of his athletic scholarship, the San Francisco Chronicle reports.
After formal complaints regarding the officers' use of force failed to yield results, Nelson sued, alleging, among other things, that his Fourth Amendment rights had been violated.
The defendants moved for summary judgment based on qualified immunity. The district court denied the motion.
The Ninth Circuit Court of Appeals affirmed the district court, finding that the officers' actions amounted to an unconstitutional seizure. Furthermore, the appellate court held that the law at the time of the incident should have placed the cops on notice that shooting pepperballs under the circumstances was an act of excessive force, thus precluding qualified immunity.
The court noted that Nelson was not committing a crime when he was shot, and that if anyone nearby was committing an offense, it was merely trespass. The officers had no reason to perceive Nelson or his friends as threatening.
Judge Stephen Reinhardt wrote for the unanimous panel, "A reasonable officer would have known that firing projectiles, including pepperballs, in the direction of individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable." Furthermore, based on pre-2004 case law, the Ninth Circuit Court of Appeals concluded that the officers did not have reason to believe that their conduct was constitutionally reasonable.
Between Nelson's case and pending Occupy Davis litigation, UC Davis cops might want to think twice before pepper-spraying students.