This article appeared at The Nation on November 23, 2011.
The widespread police use of pepper spray, dramatically portrayed at University of California Davis this week, has continued for over a decade without the health risk assessment required by state law, according to the acting director of the California agency charged with evaluating such health hazards.
“We never completed a risk assessment,” said George Alexeef, acting director of the California EPA’s Office of Health Hazard Assessment, in an email today.
A memo forwarded from Alexeef’s office included the following summary:
“OEHHA has not conducted a health risk assessment of pepper spray (also known as Oleoresin Capsicum, or OC spray). A bill that would have required the office to conduct such an evaluation and provide safe use guidelines to law enforcement (SB 1489, Hayden) was vetoed in 2000 by Gov. Davis. The veto message stated that the legislation “may have merit” but should “compete with other priorities during the annual budget process.”
Prior to 1995, the California Department of Justice (DOJ) was responsible for regulating tear gas sprays under California Penal Code Sections 12450-12458 and OEHHA was required to provide a health evaluation of the tear gas sprays to DOJ. OEHHA initiated a program for evaluation of the sprays, but inadequate information was available to complete a health risk evaluation of OC. The program ended in 1995, when AB 830 (Speier, Chapter 437, Statutes of 1995) deregulated the composition and use of tear gas sprays in California. OEHHA is not aware of any completed health risk evaluation on pepper spray in California.”
What the memos fail to make clear is that pepper spray was mainstreamed in California at the direction of Attorney General Dan Lundgren on the condition that health studies be completed. When the deadlines passed, pepper spray was essentially de-regulated.
The pepper spraying of eleven UC Davis students is a startling visual revelation a pattern repeated over two decades, the widespread use of the potent chemical compound to subdue political protesters, prison inmates and numerous inner city youth, in spite of numerous warnings by health officials of potentially life-threatening effects. The Davis episode shows that pepper spray has become a weapon of choice even for University of California police.
Perhaps the globally televised spectacle of UC Davis students being sprayed while sitting in a peaceful protest will open a window to the similar treatment of thousands of others rarely mentioned or reported in mainstream media.
In 1992, the California Attorney General’s office supported law enforcement and manufacturer lobbyists in obtaining a three-year trial of Oleoresin Capsicum, or pepper-spray, provided that health studies would confirm a lack of significant impacts. Shortly after, the AG authorized the sale of pepper spray for personal protection, also before health studies were completed.
When I left the Legislature in 2001, the studies still had not been completed. The AG at the time was Dan Lundgren, now a Republican member of the California congressional delegation. The chief advocate for the personal purchase of pepper spray was then-Assemblyperson Jackie Speier, who also went to congress, and who fought for the right of women to be armed with pepper spray.
November 22 calls to state officials were not confirmed at the time of this posting.
In a 1995 report, the ACLU called the pepper spray “a chemical cattle prod,” which could be employed in "street justice." According to the southern California ACLU study, 26 deaths occurred among people pepper sprayed by police during the period 1993-1995. In the mid-nineties, state officials were reporting 5,000 sprayings annually, a leap from nearly zero to 15,688 incidents since 1992.
As early as 1993, a US army study concluded that pepper spray's active ingredient was capable of causing mutagenic and carninogenic effects, cardiovascular and vision damage, and human fatalities.
According to the ACLU report, internal state documents showed, “ Cal-EPA’s scientists expressed acute concerns about the safety and efficacy of OC as early as 1991 and that these concerns continued to be communicated at least as recently as March, 1995.”
The ACLU report added, “there is also evidence that the nearly complete lack of scientific data addressing questions about safety and effectiveness of OC products is an issue about which Cal-EPA toxicologists warned the California Department of Justice at least as early as August, 1993, in an apparently confidential communication to Attorney General Dan Lundgren.”
The Defense Technology Corporation, manufacturer of the OC spray, had internal worries of its own:
“Def-Tech’s unpublished proposal included a warning to law enforcement officers that any use of OC on a subject be limited to a single burst of not more than one second. It also detailed potential problems that closely tracked earlier reservations in other quarters about the safety of OC spray products.”
The Defense Technology paper observed:
“...little or nothing is known about the health risk or toxicity of pepper spray, OC and other ingredients... Concerns on the safety and health risks associated with its use have arisen. OC sprays cause upper respiratory inflammation and may have detrimental effects on people with preexisting respiratory problems. Furthermore, it is known that capsaicin directly affects nerves that transmit pain. Excessive stimulation to those neurons causes them to stop functioning properly. With continued stimulation, nerve death can result. Lastly, repeated administration of capsaicin [the active ingredient in oleoresin capsicum] has also resulted in liver necrosis...”
During the run-up to the 2000 Democratic Convention in Los Angeles, I uncovered a secret state funding request for stockpiling pepper spray, semi-automatic gas launchers and other weapons for use on demonstrators, as well as funds for an LAPD paper-shredder. Once exposed, the proposal was derailed, openly debated, and approved. There was no serious discussion of the health impacts (At those 2000 demonstrations, my son Troy was shot at close range with a projectile after a Rage Against the Machine concert, though not with pepper spray). Numerous protesters were gassed or similarly attacked that week.
Below is the legislation I offered in 2000, which was defeated by the law enforcement lobby in Sacramento. The draft illustrates how the most moderate proposals for gauging health effects were unacceptable, and remains so today.
BILL NUMBER: SB 1489
INTRODUCED BY Senator Hayden, FEBRUARY 11, 2000
An act to add Sections 12460 and 12461 to the Penal Code, relating to pepper spray.
LEGISLATIVE COUNSEL'S DIGEST
SB 1489, Hayden. Pepper spray.
Existing law governs the use of tear gas and tear gas weapons, as specified. However, existing law contains no provisions specifically addressing pepper spray and its health effects.
This bill would set forth findings and declarations of the Legislature as to health effects of pepper spray, as specified.
This bill would also direct the Department of Justice, in consultation with the Office of Environmental Health Hazards Assessments, to review and report to the Legislature as to the effects of pepper spray, as specified. It would also direct them to work with law enforcement to develop best practices guidelines for its use.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12460 is added to the Penal Code, to read:
12460. The Legislature finds and declares as follows:
According to state health experts, there is a lack of studies of health effects, including prolonged health effects, of the impact of spraying oleoresin capsicum pepper spray on individuals, especially individuals with preexisting health conditions.
A 1993 United States Army study of oleoresin capsicum pepper spray stated that "there is very little safety data" for an oleoresin capsicum product, and that the active ingredient capsicum "is capable of producing mutagenic and carcinogenic effects ... cardiovascular and pulmonary toxicity, neurotoxicity, as well as human fatalities."
A 1995 manufacturer's research proposal stated that "little or nothing is known about the health risk or toxicity of pepper spray," and that nerve death can result from repeated use.
There is no state regulation of the ingredients, which can be used in tear gas in California, nor any official health-based guidelines for its use.
SEC. 2. Section 12461 is added to the Penal Code, to read:
12461. The Department of Justice, in consultation with the Office of Environmental Health Hazards Assessments (OEHHA), shall review and report to the Legislature on the short- and long-term health effects of pepper spray and, in consultation with law enforcement agencies, shall adopt best practices guidelines for the safe use of pepper spray by law enforcement and correctional officers.
OEHHA shall report the state of its existing data and its present risk assessment, if any, of the short- and long-term health effects of pepper spray to the Department of Justice and the Legislature. OEHHA shall advise the Department of Justice and the Legislature of any current data gaps concerning short- and long-term health effects of pepper spray.