Police officers may be held liable for injuring someone with a pepper ball intended to disperse a crowd, a federal appeals court decided Wednesday.
The unanimous ruling by a three-judge panel of the 9th Circuit U.S. Court of Appeals was a setback for police agencies defending themselves against lawsuits arising out of the Occupy movement. Students from UC Davis have sued police for
dousing them with pepper spray, and UC Berkeley students have sued campus police for using batons during a protest. Oakland also has been sued by Occupy protesters.
Wednesday's ruling stemmed from an April 2004 incident in which UC Davis and city police tried to disperse a crowd at a party by shooting pepper balls, which break on impact and spray a powder akin to mace or pepper spray.
About 1,000 people were at a Davis apartment complex to celebrate UC Davis' annual Picnic Day. The police wanted to break up the party because the street was congested, partygoers had parked illegally and some minors were drinking alcohol, the court said. Police in riot gear entered the complex, and an officer fired a pepper ball into an area where UC Davis student Timothy Nelson was standing with friends.
The pepper ball hit the sop re in the eye and caused permanent damage, eventually leading Nelson to lose a football scholarship and drop out of the university, the court said.
Writing for the court, Judge Stephen Reinhardt said police used excessive force. "A reasonable officer would have known that firing projectiles, including pepper balls, 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," he wrote.