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SPLC wins lawsuit challenging use of pepper spray in Alabama school district

Judge rules that Birmingham police violated the constitutional rights of students by using excessive force for minor discipline problems, such as “backtalking” and “challenging authority.”

A federal judge in Alabama has found that the Birmingham Police Department violated the constitutional rights of students in public schools by using pepper spray to deal with minor discipline problems and by failing to ensure that children were decontaminated afterward.

U.S. District Court Judge Abdul Kallon found that police resorted to chemical spray to deal with “normal – and, at times, challenging – adolescent behavior,” a use of excessive force that is unconstitutional. The Sept. 30 decision did not ban the use of chemical spray in circumstances such as fights or other violent behavior.

“This is great a victory for students and their families in Birmingham, and it sends a strong message to school officials across the country that it’s time to stop treating schoolchildren like they’re criminals,” said Ebony Howard, the SPLC’s lead attorney in the case. “The judge recognized that this is a disturbing case and that the current system is flawed.”

The SPLC’s 2010 class action suit described how many students were restrained or posed no threat when they were sprayed with an aerosol weapon called Freeze + P, a mix of pepper spray and tear gas.

“It’s good to know that children can finally go to school and feel safe – and feel like the people that are there to protect them are really going to protect them,” said one of the plaintiffs, identified in the suit as “B.D.”

Kallon wrote that he was “profoundly disturbed” by the testimony during the three-week trial that began last January and that the defendants in the case – police stationed in Birmingham schools – “displayed a cavalier attitude” toward the use of pepper spray.

“[T]he trial revealed that the defendant S.R.O.s [school resource officers] believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers – i.e. backtalking and challenging authority,” Kallon wrote. “Frankly, the defendant S.R.O.s’ own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert’s testimony that Freeze +P inflicts ‘severe pain.’”

The judge also wrote that it was “confounding” that even though police had a clear legal obligation, they failed to decontaminate children after using pepper spray, but “instead left them to suffer the effects of the chemical until they dissipated over time.”

From 2006 to 2011, police in Birmingham public schools – whose students are predominantly African American – used chemical spray in 110 incidents in which about 300 students were sprayed. More than 1,200 others were exposed to the spray during those incidents.

A 2012 court order in the case noted that none of the students named as plaintiffs committed a crime serious enough to warrant such force. In fact, no criminal charges were lodged against any of the students, who had “only committed minor school infractions,” the court wrote.

In the final ruling, Kallon wrote that schoolchildren had no less protection from excessive force than adults.

“[T]he defendants seem to take the eyebrow-raising position that school children are less deserving of protection from harm at the hands of overzealous law enforcement officers than adults when the harm occurs at school,” Kallon wrote. He added: “[T]he court declines to adopt the position that children in public schools have a reduced expectation of being free from the infliction of excessive force by law enforcement officers.”

As part of the judgment in this case, the court has ordered the SPLC and the police department to develop a training plan for officers to ensure pepper spray is not used for basic school discipline. The plan must be submitted to the court on Nov. 15.

During the trial earlier this year, several former students testified about being sprayed over minor infractions. When “K.B.” was a 10th-grader in a Birmingham high school, she was walking to class in tears after a boy made inappropriate sexual comments. After being told to “calm down” by a police officer, K.B. – who was five months pregnant at the time – was sprayed in the face and handcuffed.

“It felt like somebody cut my face up and poured hot sauce in,” she testified.

The judge highlighted the incident in his ruling.

“[W]hile all of the facts in this case are disturbing, the court is especially taken aback that a police officer charged with protecting the community’s children considered it appropriate and necessary to spray a girl with Freeze +P simply because she was crying about her mistreatment at the hands of one of her male peers,” he wrote.

K.B. had previously enjoyed school but began skipping class after the traumatic incident. She also testified that as a mother, she didn’t want her son to attend Birmingham schools.

“It could be any small thing and [the police officers] will abuse their power,” she said.

Another plaintiff, “G.S.,” was chasing after a student who called her friend a name when an officer grabbed her from behind. The pepper spray canister was only about five to six inches from her face when the chemical was sprayed.