Ninе environmental activists and an environmental group brought this action, under 42 U.S.C. § 1983, against the County of Humboldt, the Humboldt County Sheriffs Department, Eureka City and its police department, and several individual officers, alleging that the officers’ use of pepper spray on the activists’ eyes and faces during three peaceful protests constituted an excessive use of force in violation of their Fourth Amendment rights. We previously issued an opinion, which is reported at
The Supreme Court granted certiorari, vacated our judgment, and remanded this case to us for further consideration in light of Saucier v. Katz,
1. Background
The facts of this case can be fоund in our prior opinion, at
During three nonviolent protests against the logging of ancient redwood trees in the Headwaters Forest, plaintiffs-appellants (“protestors”) linked themselves together with self-releasing lock-down devices known as “black bears.” A “black
Beginning in the fall of 1997, defendants began using olesoresin capsicum aerosol (“OC” or “pepper spray”) to cause the protestors to release themselves from the “black bears.” The use of pepper spray under these circumstances was еntirely unprecedented: in California, its use was “limited to controlling hostile or violent subjects” and it had never been used in Humboldt County, the State of California, or anywhere in the country against nonviolent protestors.
At issue in this case are three protests that occurred in the fall of 1997, in which defendants used pepper spray оn the protestors, and then refused to give them water to wash out their eyes, in order to force the protestors to release themselves from the “black bears.”
During the first protest, held indoors at the headquarters of the Pacific Lumber Company, seven protestors were linked together with “black bears.” Officers from the Humboldt County Sheriffs Department warned that pepper spray would be used if the protestors did not release. After the protestors refused to release, the officers forced four of the protestors’ heads back and applied pepper spray with a Q-tip to the corners of their closed eyes. The thrеe protestors who had not received the pepper spray voluntarily released. The officers then reapplied the pepper spray with Q-tips to the eyelids of the four protestors who remained in the “black bears.” The four protestors still did not release. Twenty minutes after the pepper spray was first applied and six minutes after its second application, the officers sprayed water into the eyes of the four protestors to dilute the pepper spray, continuing to do so periodically for more than an hour. Thereafter, the officers carried the four protestors out of the building on stretchers. It took two officers just six minutes to carry the protestors out of the building. Once outside the building, one pair of protestors voluntarily released. An officer used an electric grinder to extricate the other pair from the “black bears.” It took ten minutes to remove the device by grinder. No pain or injury was inflicted on the protestors by the grinder.
During the second protest, outdoors on Pacific Lumber Company property, two pairs of protestors, also linked together with “black bears,” were warned that pepper spray would be used if they did not release. Two of the protestors released themselves from the “black bears” and two rеfused. An officer then applied the pepper spray with a Q-tip to the corners of the closed eyes of the protestors who remained in the “black bears.” Despite the protestors’ pleas for water to flush the pepper spray out of their eyes, one of the officers can be heard on videotape saying that they will only be given water if they release and that the pain will only get worse in thirty seconds when he sprays pepper spray in their faces. A minute later, the officer sprayed pepper spray directly into both of the protestors’ faces in short full bursts from inches away. Five minutes later, the protеstors again refused to release. Thereafter, officers sprayed water from hand-held spray bottles into the
In the third protest, four protestors linked themselves together in a Congrеssman’s office using “black bears.” After officers warned the protestors that pepper spray would be used if they did not voluntarily release, the officers pulled back each of the protestors’ heads and applied pepper spray to their eyes with a Q-tip. One protestor, who was a minor, testified at triаl that one of the officers pried open her eyes and applied pepper spray directly on them. Seven minutes after the initial application of pepper spray, one of the officers told the protestors that water would be provided if the protestors released themselves from thе “black bears.” Two of the protestors released and two remained attached to each other. One officer then stood within a foot of one of the two attached protestors and sprayed pepper spray directly at her face. Within three minutes, the remaining two protestors released. The officers then offered water from spray bottles to wash the pepper spray off the protestors’ faces.
The district court granted summary judgment on qualified immunity grounds in favor of all individual defendants except for Lewis and Philip. At the close of plaintiffs’ case-in-chief, the district court ruled that Lewis and Philip were also entitled to qualified immunity and dismissed the case against them. The jury deadlocked on the remaining claims against Humboldt County, the City of Eureka, and their respective police departments. The district court declared a mistrial and set a new trial date. Eight weeks later, the district court reversed itself and granted Humboldt County, the City of Eureka, and their rеspective police departments judgment as a matter of law.
II. Analysis
Under the qualified immunity doctrine, “government officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
In Saucier, the Supreme Court instructs that these inquiries are distinct. In order to decide whether state officers are entitled to qualified immunity, Saucier instructs that we must first determine whether, “[tjaken in the light most favorable to the party asserting the injury ... the facts alleged show the officer’s conduct violated a constitutional right.” Saucier,
We concluded in our prior opinion that, viewing the evidence in the light most favorable to the protestors, a rational juror сould conclude that the use of pepper spray against the protestors constituted excessive force and that Lewis and Philip were liable for the protestors’ unconstitu
Having answered Saucier’s first question in the affirmative, we turn to Saucier’s second inquiry, and conclude that it would be clear to a reasonable officer that using pepper spray against the protestors was excessive under the circumstances. The Fourth Amendment permits law enforcement officers to use only such force to effect an arrest as is “objeсtively reasonable” under the circumstances. Graham v. Connor,
Defendants asserted at trial thаt the protestors’ use of “black bears” constituted “ ‘active’ resistance to arrest,’ ” meriting the use of force. The Eureka Police Department defines “active resistance” as occurring when the “subject is attempting to interfere with the officer’s actions by inflicting pain or physical injury to the officer without the use of a weapon or object.”
Defendants’ repeated use of pepper spray was also clearly unreasonable. As we recently concluded, the use of pepper spray “may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviatе its harmful effects constitutes excessive force.” LaLonde v. County of Riverside,
Finally, it would have been clear to any reasonable officеr that defendants’ refusal to wash out the protestors’ eyes with water constituted excessive force under the circumstances. As we noted in LaLonde— when determining that the law had been
We are not prevented from denying defendants qualified immunity merely because nо prior case prohibits the use of the precise force at issue in this case. In the first instance, the circumstances of La-Londe, although not identical to those in this case, are “not distinguishable in a fair way from the facts presented in the case at hand” such that their results should be different. Saucier,
Moreover, in requiring that the law put a government officer “on notice that his conduct would be clearly unlawful” before he could be held liable for violating the Constitution, the Supreme Court emphasized that it was not insisting that “courts must have agreed upon the precise formulation of the standard.” Id. As we recently noted, a law can be violated “notwithstanding the absence of direct precedent ... [otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that partiсular manifestation of unconstitutional conduct.” Deorle v. Rutherford,
Viewing the facts in the light most favorable to the protestors, we conclude that Philip and Lewis are not entitled to qualified immunity because the use of pepper spray on the protestors’ eyes and faces was plainly in excess of the force necessary undеr the circumstances, and no reasonable officer could have concluded otherwise.
CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of summary judgment for Lewis and Philip and remand this case for further proceedings consistent with this opinion and with our prior decision to reverse the district court’s entry of judgmеnt as a matter of law on behalf of Humboldt County, the City of Eureka, and their respective police departments.
Notes
. The Supreme Court's remand does not require us to reconsider our decision to reverse the district court’s entry of judgment in favor of Humboldt County, the City of Eureka, and their respective police departments.