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Pepper spray

A Olympia Police officer pepper sprays a protester who tried to block the entrance to the Port of Olympia, Wash., Thursday, Nov. 15, 2007. Photo: AP Photo/Ted S. Warren

From Occupy to Wal-Mart, pepper spray has been omnipresent in national headlines in recent weeks. Two weeks ago, a video of campus officer Lt. John Pike casually pepper-spraying seated students at close range at a UC Davis student protest went viral online. In other cities, police have been accused of using pepper spray indiscriminately on protesters, including a pregnant woman and an 84-year-old. This past weekend, a southern California woman sprayed fellow shoppersduring a Black Friday rush at a Los Angeles Wal-Mart.

The seemingly sudden proliferation of pepper spray use prompted comedian Jon Stewart to comment on “The Daily Show” this week, “We’ve suddenly become a people who use pepper spray to alleviate minor inconveniences. Pepper spray has become America’s new car horn.”

What has been the relationship between law enforcement and pepper spray, and what restrictions govern its use? Here are five things to know.

1. It’s more than a “food product”

Fox News anchor Megyn Kelly riled up the blogosphere when she described pepper spray as a “food product, essentially” on “The O’Reilly Factor” last week. Pepper spray, also known as oleoresin capsicum, is considered a non-lethal agent derived from the same compound that provides the burn in habanero chili peppers. But modern-day OC spray, as it is also called, is far more potent than any naturally grown pepper. The Scoville Scale, a scale developed to measure the varying intensities of peppers, places police-grade pepper spray at around 5.3 million Scoville heat units – more than five times the intensity of the hottest natural pepper, the bhut jolokia.

When sprayed directly at the face, the effects of pepper spray can be severely incapacitating, invoking temporary blindness, breathing difficulties, a long-lasting burning sensation and severe coughing, with effects lasting anywhere from 15 to 45 minutes. Although pepper spray is deemed a non-lethal agent, studies suggest that high levels of exposure can have serious health effects. A 1999 report on the health effects of pepper spray by researchers at Duke University and the University of North Carolina states (pdf):

Depending on brand, an OC spray may contain water, alcohols, or organic solvents as liquid carriers; and nitrogen, carbon dioxide, or halogenated hydrocarbons (such as Freon, tetrachloroethylene, and methylene chloride) as propellants to discharge the canister contents.(3) Inhalation of high doses of some of these chemicals can produce adverse cardiac, respiratory, and neurologic effects, including arrhythmias and sudden death.

2. Pepper spray’s spotty past

Modern-day pepper spray was developed in 1960 at the University of Georgia, and was originally intended for use as an animal repellent. In the 1980s, the U.S. Postal Service issued pepper spray to mail carriers to ward off dogs during their routes.

The FBI developed pepper spray into a weapons-grade material in the 1980s, and ran studies that culminated in its approval for use by law enforcement to quell unruly behavior in the early 1990s. In the late 1990s, use of pepper spray by civilians also started to gain in popularity as a measure of personal defense, particularly for women.

The FBI’s studies of pepper spray that eventually led to its expanded use by law enforcement around the country came under scrutiny in the late 1990s, when the FBI agent who conducted research on the main study was charged with having a conflict of interest. Special Agent Thomas W. W. Ward, had accepted $57,000 from a pepper spray manufacturer through a company owned by Ward’s wife. In 1996, Ward plead guilty to charges of accepting an illegal gift, was fired from the FBI, and spent two months in a federal prison as a result.

After law enforcement agencies began utilizing pepper spray, several groups began to express concerns about the link between police use of the spray and dozens of in-custody deaths that occurred over a period of several years. The National Institute of Justice, a research arm of the Department of Justice, issued a report (pdf) in 2003 on the matter, and found that pepper spray was a leading cause of death in two of the 63 fatalities examined. Both cases of death involved people with asthma.

The suspected links to in-custody deaths and Ward’s conflict of interest have, for some, tainted the notion that pepper spray is an appropriate weapon for use on humans. Scientific studies on the spray’s effect on human health, however, are limited.

3. Regulations vary state by state

In general, pepper spray for civilian use can only be sold to adults over 18 years of age, excluding felons. Further regulations over the use of pepper spray are currently in place in a handful of states, which regulate the amount of pepper spray that can be sold in one container (1.2 ounces in Michigan; 2.5 ounces in California; 2 ounces in Wisconsin) and the percentage of oleoresin capsicum concentrate in each container (no more than 10 percent in Michigan and Wisconsin).

When pepper spray was approved for law enforcement use in California in the early 1990s, state agencies issued recommendations that pepper spray not be used as a measure of crowd control. That stipulation, however, was never codified.

4. Pepper spray and the “excessive use of force”

In 1997, law enforcement officers in Humboldt County, Calif., sprayed pepper spray directly into the faces of several anti-logging demonstrators who were staging a non-violent protest and had locked themselves to one another with metal devices. In a controversial video of the incident that surfaced, some officers held individual protesters down and applied pepper spray concentrate to their eyes using cotton swabs.

In the resulting civil case, Headwaters Forest Defense v. County of Humboldt, the Ninth Circuit Court of Appeals concluded that “the use of pepper spray on the protestors’ eyes and faces was plainly in excess of the force necessary under the circumstances, and no reasonable officer could have concluded otherwise.”

5. End law enforcement pepper spray use altogether?

Some human rights and civil liberties groups championed the cause of ending all police use of pepper spray in the mid-1990s, after law enforcement agencies adopted the weapon en masse. In a 1995 report titled “When Police Play Russian Roulette,” the Ella Baker Center for Human Rights argued (pdf) that the approval of pepper spray for law enforcement was authorized without sufficient testing on the potential health effects on humans, and that it is a potentially lethal weapon. The ACLU also vocally denounced police use of pepper spray in the 1990s; after the Humboldt County incident, it filed a request to the California Appeals Court to declare police use of pepper spray as dangerous and cruel.

Recent events have sparked a national on the proper use and misuse of the spray, although calls for a moratorium on pepper spray use by law enforcement have largely subsided. After the fallout at UC Davis, Kamran Loghman, one of the FBI employees who helped develop weapons-grade pepper spray in the 1980s, denounced the campus police’s use of the spray toward its students. Individual officers have faced disciplinary action for improper use of pepper spray – NYPD officer Anthony Bologna, who used pepper spray against two Occupy Wall Street protesters in September, was transferred from his post, and two UC Davis officers and the police chief are still on administrative leave. So far, however, it doesn’t seem that the case for ending all police use of pepper spray has held much sway.