Defendants asserted at trial that the protestors' use of
"black bears" constituted " `active' resistance to arrest," meriting the use of force. The Eureka Police Department defines
"active resistence" 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." 240 F.3d at 1202-3. Characterizing the protestors'
activities as "active resistance" is contrary to the facts of the
case, viewing them, as we must, in the light most favorable
to the protestors: the protestors were sitting peacefully, were
easily moved by the police, and did not threaten or harm the
officers. In sum, it would be clear to a reasonable officer that
it was excessive to use pepper spray against the nonviolent
protestors under these circumstances.
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 alleviate its harmful effects constitutes excessive force." LaLonde v. County of Riverside, 204
551F.3d 947, 961 (9th Cir. 2000) (emphasis supplied). Because
the officers had control over the protestors it would have been
clear to any reasonable officer that it was unnecessary to use
pepper spray to bring them under control, and even
less necessary to repeatedly use pepper spray against the
protestors when they refused to release from the"black
bears." It also would have been clear to any reasonable officer
that the manner in which the officers used the pepper spray
was unreasonable. Lewis and Philip "authorized full spray
blasts of [pepper spray], not just Q-tip applications," despite
the fact that the manufacturer's label on the canisters of pepper spray defendants used " `expressly discouraged' spraying
[pepper spray] from distances of less than three feet." 240
F.3d at 1195, 1208
