“The police officer can only use it when he thinks that he needs to prevent an attack or when he’s trying to effect an arrest and they’re actively resisting,” explained former federal prosecutor and legal analyst Bill Portanova.
Portanova pointed out the protestors seen in videos on the internet that were shot last Friday did not appear to be resisting, but were ignoring orders to leave.
“Using pepper spray to punish people because they won’t follow your orders – that’s unconstitutional,” Portanova said.
Former Sacramento County Sheriff John McGinness said he believes the officers may well have been within legal bounds if they gave clear warnings before they sprayed the students who were trying to keep police from removing tents from the UC Davis quad as part of an Occupy UC Davis protest.
“It’s not going to be a clear thumbs up or thumbs down, I don’t believe, but it’s going to come down to the mindset. The intention of the officers,” McGinness said.
Portanova agreed the line can be a fine one and he cited the example of the 1997 application of pepper spray to the eyes of protestors in the Headwaters case in Mendocino County in 1997.
“That case was fought for 10 years and multiple judges decided it differently at the district court level and up to the appellate level,” Portanova said.
In that case, an appeals court did finally side with protestors whose legal costs were paid for, with each one awarded one dollar.
Students who were pepper-sprayed said they believe their fundamental constutional rights were violated.
“If that’s what they think is the right way to respond to students sitting on the ground, then there’s something wrong with their understanding of civil disobedience,” said protestor Sophia Kamran.
What do you think? Let me know———–Paul Schrader