Judge to police: No, you can’t just pepper-spray kids in school like that

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Saying he was “profoundly disturbed” by their “cavalier attitude” in court, a federal judge in Alabama ruled last week that Birmingham police used excessive force and violated schoolkids’ constitutional rights by regularly using a powerful pepper spray on the children in their schools without justification.

“[T]he adults tasked with ensuring the safety of Birmingham’s school children have resorted to using chemical spray to deal with this normal—and, at times, challenging—adolescent behavior,” U.S. District Court Judge Abdul K. Kallon wrote in a blistering 220-page decision that fined the cops and demanded reforms.

At issue was the Birmingham school resource officers’ (SROs) use of Freeze+P, described as “the most intense incapacitating agent available today” by its maker, to discipline eight children arrested but eventually cleared of “minor disciplinary infractions.” In addition to being too quick to spray the students, the officers “failed to decontaminate the students, and instead left them to suffer the effects of the chemicals until they dissipated over time,” the court found.

In one case, the officers pepper-sprayed a 15-year-old sophomore who was crying hysterically after being tormented by a fellow classmate in the hall. She was already handcuffed and not resisting arrest. And she was five months pregnant.

The decision comes at a time when many school districts are questioning the role of police in schools as enforcers of disciplinary policy and adopting reforms to decrease the number of school arrests, as highlighted in Fusion’s documentary, Prison Kids.

The decision resulted from a 2010 lawsuit filed by the Southern Poverty Law Center (SPLC) on behalf of the students who’d been sprayed with Freeze+P, which is a potent mix of pepper spray and tear gas. None of the students who were sprayed were actually charged with crimes after being arrested.

At trial, lawyers for Birmingham Police Chief A.C. Roper argued that officers were responsible for maintaining a safe school environment, allowing them to use greater force against students than the general public.

Judge Kallon didn’t buy it, expressing horror at the cops’ own testimony in their January trial:

[I]n a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s 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. 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.”

“In short,” Abdul concluded, the students had “submitted evidence establishing a history of misconduct, and based on the defendants’ attitudes at trial, that misconduct is unlikely to cease without the court’s intervention.”

According to SPLC, from 2006 to 2011, police in Birmingham public schools used pepper spray 110 times, resulting in about 300 students getting sprayed.

One student plaintiff describe feeling as if someone had cut them and poured hot sauce in the wounds. The pregnant high school student vomited after being sprayed while she waited for the paramedics to arrive.

Plaintiffs also describe being left to continue suffering from the effects of Freeze+P for hours, while school police officers failed to follow decontamination procedures, like helping students wash their eyes and offering a change of clothes.

Judge Kallon ordered the Birmingham police department to immediately begin following all decontamination procedures when the agent is used. The judge also ordered the SPLC and the police department to develop a training plan for school police officers by November 15.

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

An attorney for the Birmingham police, Michael Choy, told the Birmingham News his clients disagreed with the court’s findings, and left the door open for a possible appeal. “We are still in the process of reviewing the court’s decision and all legal options are on the table,” he said.

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