In California, kids in custody targeted by pepper spray

Pepper spray – classified and regulated as a form of tear gas – was used routinely on thousands of California children housed in state and county juvenile detention facilities, according to a recent report by the ACLU of Southern California.

A review of 10,465 documents obtained by the ACLU covering Jan. 1, 2015, through March 31, 2018, showed that county and state correctional officers used pepper spray on children at least 5,079 times – an average of 4.25 times per day.

Pepper spray can be aimed at a specific target, but because it is an aerosol its spread can be difficult to control.

The children included those “young as 12 and those in psychiatric crises,” the study reported, based on documents obtained through the California Public Records Act.

Existing California law allows the use of pepper spray on children.

Pepper spray – otherwise known as aerosolized oleoresin capsicum – contains capsaicin, the principal ingredient that makes chili peppers so hot.

But unlike a chili pepper, the capsaicin in pepper spray is concentrated. The concentrated capsaicin is made into an aerosol, enabling the user to use capsaicin as a weapon.

Pepper spray can be aimed at a specific target, but because it is an aerosol its spread can be difficult to control. Even a slight breeze or twitch of the wrist can result in those not targeted getting a face full of what California law categorizes as “tear gas.”

Hit by pepper spray, a person immediately feels pain and discomfort wherever the spray lands. When it hits the eyes – the so-called “hydraulic needle” effect – the result is an intense burning feeling, copious watering of the eyes and, sometimes, temporary blindness.

The state has not carried out “a single research study that evaluates the use of tear gas weapons against youth.”

Skin can blister and it is difficult to breathe. Lack of breath can cause panic attacks, which in turn can lead to stroke or heart attack.

In a 2016 study, the ACLU found that police use of pepper spray on adults led to death in one out of every 600 cases. There is no detailed data on how pepper spray affects children.

Though California authorizes the use of pepper spray on children in custody, the ACLU reports that the state has not carried out “a single research study that evaluates the use of tear gas weapons against youth, whose brains and bodies are still developing (thus more vulnerable to the short and long term impact of both trauma and chemical exposure).”

Correctional officers justify its use on individuals who are deemed a danger.

But the ACLU reports that “the Board of State and Community Corrections (BSCC), which is empowered to establish minimum standards for juvenile detention facilities, avoids using the state-law-defined term ‘tear gas weapon’” to describe pepper spray, thus allowing it “to be carried and employed as part of approved uses of force against youth in California.”

Some law enforcement officers justify its use on individuals who are deemed a danger.

This disparity in language allows the use of pepper spray against incarcerated minors, the ACLU notes.

Regardless of how the BSCC or other agencies classify pepper spray, it’s use on children in state and county detention clearly runs counter to the California Legislature’s requirement that children in the system “receive care, treatment, and guidance that is consistent with their best interest” and that “juvenile hall[s] … shall not be deemed to be, nor treated as, a penal institution … [but] shall be a safe and supportive homelike environment.”

Some law enforcement officers justify its use on individuals who are deemed a danger.

L.A. County probation officer Thomas Bell discussed the issue last year at a probation reform meeting, according to a Dec. 13, 2018 television report by NBC4 in Los Angeles.

“When we got 20 kids who are about my size fighting in the yard or somewhere, how do we break that up if we don’t have pepper spray?” he testified. “How do we break that up, keep them from killing each other?”

But because pepper spray cannot not be contained, the weapon may impact anyone in the vicinity of the spray, including innocent onlookers.

Only seven counties — Marin, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Solano – have banned the use of pepper spray on juveniles in custody.

The ACLU report tells the story of 14-year-old J.C.  During her second day in juvenile hall, a fight broke out in the bathroom. J.C. was not involved, but she and others were present. Eight correctional officers burst into the room, yelling and emptying pepper spray cannisters. The target were the two girls fighting, however the pepper spray spared no one.

J.C. recalls, “My reaction was that I couldn’t breathe. I was trying everything I could to get out of there … because I couldn’t breathe. Because I thought I was going to die. I tried to breathe in and breathed [the pepper spray] into my nose. It got in my eyes and mouth and my whole face. “I fell to my knees right away. I felt it when I fell to my knees. I felt it and inhaled – as if I were dying. I couldn’t see because my eyes were watery … and it was burning.”

Despite clear guidance that discourages the use of weapons such as pepper spray on incarcerated children, only seven counties — Marin, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Solano – have banned the use of pepper spray on juveniles in custody.

Los Angeles County – which operates the state’s largest juvenile justice system – has a ban in place that will not take effect until at least January 2020.

Yolo, San Benito, Sacramento, Riverside, Monterey, Lassen, Lake, Inyo, Imperial, Humboldt, Glenn, Fresno, and Alameda counties did not provide information on  their pepper spray use.

The ACLU’s report covers California’s Division of Juvenile Justice, as well as the 26 counties that authorize use of chemical weapons on children in custody.

The ACLU believes the number of uses to be low, as 13 counties that authorize the use of pepper spray on juveniles “refused to or did not provide data regarding the frequency of use during the same period.” Those counties often cited the confidentiality of the “juvenile case file,” although the ACLU issued requests for general data, not information on specific juvenile detainees.

The counties that authorize use of pepper spray on children but did not provide information are Yolo, San Benito, Sacramento, Riverside, Monterey, Lassen, Lake, Inyo, Imperial, Humboldt, Glenn, Fresno, and Alameda.

Two additional counties, Placer and Ventura, failed to provide information in a timely manner when requested.

Ten addition counties – Alpine, Amador, Calaveras, Colusa, Mariposa, Modoc, Mono, Plumas, Sutter, and Sierra – do not operate their own juvenile facilities, but ship their offenders to other counties, many of whom use pepper spray on children.

Although 35 states have enacted bans, attempts in the California Legislature to ban the use of pepper spray on juveniles in detention have been few.

The ACLU reports that “close to 90 percent” of the state’s juvenile offenders reside in the 48 counties that run juvenile facilities. The rest are locked up in state-run Division of Juvenile Justice facilities.

So far, all work to ban the use of pepper spray on incarcerated youth in California has occurred county by county.

Although 35 states have enacted bans, attempts in the California Legislature to ban the use of pepper spray on juveniles in detention have been few.

In February 2018, Assembly member Ed Chau (D-Arcadia) introduced AB 2010 which would have criminalized the possession of “any chemical agent” by “an officer or employee of a juvenile facility” at a juvenile facility. The bill would have allowed the use of pepper spray in juvenile facilities only to “suppress a riot,” with the decision made by an “administrator or designee,” not by a rank-and-file officer. All use would have to be documented.

The bill – opposed by California Correctional Peace Officers Association, California College and University Police Chiefs Association, Probation and Corrections Peace Officer Association, and a host of police unions and law enforcement groups – died in committee.

Chau has not resurrected the bill. However, Assemblymember Mike Gipson (D-Carson) introduced related legislation, AB 1321,  in March 2019.

Unlike Chau’s bill, AB 1321 does not deal directly with the use of pepper spray on children in the justice system. Following amendments, AB 1321 mandates self-reporting by juvenile facilities in the form of quarterly reports on the use of “chemical agents” against children. It also requires the Legislative Analyst’s Office to study the issue.

In 2008, under threat of litigation, L.A. County and the DoJ issued a Memorandum of Agreement that obligated the LACPD to restrict its use of pepper spray.

Having very little law enforcement opposition, the bill passed the Assembly and is now awaiting action in the state Senate to take action. Critics complain that other than the LAO report, AB 1321 asks nothing more than what California’s Title 15 regulations already require.

Up until now, the most significant step in banning the use of pepper spray against children housed in juvenile facilities has happened in Los Angeles County, home of the nation’s largest juvenile justice system.

In February 2019, the Los Angeles County Board of Supervisors voted to ban the routine use of pepper spray in L.A. County juvenile detention facilities by January 2020. Any exceptions to the ban will be subject to strict reporting.

L.A. County’s ban came sixteen years after a 2003 U.S. Department of Justice determination that the L.A. Country Probation Department’s (LACPD) use of “chemical agents” on children “likely violated the Constitution.” In 2008, under threat of litigation, L.A. County and the DoJ issued a Memorandum of Agreement that obligated the LACPD to restrict its use of pepper spray.

Between 2015 and 2017, the use of force involving pepper spray in juvenile halls increased between 192% and 338% overall.

In 2016, L.A. County’s auditor-controller found that LACPD was out of compliance with the memorandum. L.A. County demanded that LACPD provide information on pepper spray usage on juveniles.

Though LACPD balked, one key statistic was disclosed: “Between 2015 and 2017, the use of force involving pepper spray in juvenile halls increased between 192% and 338% overall.”

The L.A. Board of Supervisors ordered more investigations and held public hearings in which youth who had been pepper sprayed in LACPD custody testified. Public pressure led to the February 2019 approval of the pepper spray ban that takes effect next year.

The ACLU credits breaking the secrecy around use of pepper spray against children as key to this reform.