2012-02-23 "Civil rights lawsuit over pepper-spraying filed against UCD chancellor, staff, campus police" from "The Sacramento Bee" newspaper
[http://www.sacbee.com/2012/02/23/4284433/civil-rights-lawsuit-over-pepper.html]
The inevitable civil rights lawsuit over campus police pepper-spraying student demonstrators squarely in the face while they sat in a line on the UC Davis quad was filed Wednesday in Sacramento federal court.
Targeting Chancellor Linda P.B. Katehi, a number of her top staff and campus police, 19 students or former students claim excessive force was used to break up a peaceful assembly on Nov. 18 "because of the demonstration's message and who was delivering it."
A group had set up tents on the quad the day before and were engaged in a discussion and study of "university privatization, tuition hikes, and their relation to other issues … and to consider what they could do to change conditions which had brought people together in support of the Occupy Wall Street movement," the complaint states.
Plaintiff David Buscho, a 22-year-old mechanical engineering major from San Rafael, was among those sprayed. He said Wednesday he was protesting tuition hikes and cuts in state funding for higher education.
His skin burned, he was blinded and became disoriented, and he vomited after inhaling the noxious orange irritant. "It was the most painful experience of my life," he said. "I felt like I was suffocating."
Video of the pepper-spray incident went viral on the Internet and became the subject of spirited national debate. Twelve plaintiffs claim they were doused; one of them joins seven others in maintaining they were illegally arrested.
The suit alleges that the U.S. Constitution was violated by the suppression of protected speech and assembly, by excessive force, and by the seizure and destruction of personal possessions, including tents, without due process.
The students seek unspecified monetary damages and an injunction barring future use of brutal tactics like the ones alleged.
Buscho is not suing for money, he insisted. Instead he hopes legal action will provide accountability and changes in how police respond to such demonstrations.
"I think people deserve to know what went wrong that day," he said. "I think it will be a constructive process."
The suit, filed by Sacramento attorney Mark Merin and attorneys with the American Civil Liberties Union Foundation of Northern California, was randomly assigned to U.S. District Judge John A. Mendez.
"Attorneys for the university and the plaintiffs have been talking," said UC Davis spokesman Barry Schiller. "We hope those conversations continue. In the meantime, we've not seen the lawsuit and therefore aren't in a position to comment on details."
According to the suit, campus police showed up in midafternoon in riot gear and ordered the students to disperse. When some remained seated, it says, Lt. John Pike calmly walked up and down the line spraying each one in the face, while scores of other officers looked on. An officer identified only as Doe 1 sprayed the demonstrators from behind, the suit says.
Ten people were arrested, jailed, and charged with failure to disperse, but Yolo County prosecutors declined to pursue the charges.
"The decision to declare the assemblage … unlawful was made by" Katehi, Provost and Executive Vice Chancellor Ralph Hexter, Vice Chancellor for Student Affairs Fred Wood, Vice Chancellor of Administration and Resource Management John Meyer, and Chief of the UCD Police Department Annette Spicuzza, the suit alleges.
In the aftermath, Katehi said she never would have approved the use of riot gear and that Spicuzza was part of an emergency conference call before the incident at which she was told "it has to be peaceful, that anything else would not be acceptable."
Katehi said Spicuzza told her it was Pike who decided to use pepper spray. Spicuzza was placed on administrative leave along with two officers.
"When the cost of speech is a shot of blinding, burning pepper spray in the face, speech is not free," ACLU attorney Michael Risher said Wednesday.
Fatima Sbeih, 22, a plaintiff and a senior from Oakland studying international relations, said she was pepper-sprayed during protests in the Mideast. "I never expected what happened there to happen here," she said.


2012-02-13 "What's in Pepper Spray? In California, the toxin TCE" by Michael Collins[http://www.laweekly.com/content/printVersion/1614087]
W hen seated Occupy UC Davis protesters turned their backs on Lt. John Pike and his UC Davis police squad clad in riot gear on Nov. 18, he had had enough.
Pike aimed a large can of First Defense aerosolized Oleoresin Capsicum at two-dozen occupiers, including student David Buscho and his girlfriend.
"The police officer came up to us and said, 'If you guys don't move, we're going to shoot you,' so we turned around," Buscho said to a crowd of several hundred occupiers three days later in the same quad where he was sprayed.
"Then it happened," Buscho continued as the angry crowd listened transfixed. "At that point I entered a world of pain. It felt like hot glass was entering my eyes. I couldn't see anything. I wanted to open my eyes, but every time I did the pain got worse."
But in one way, Buscho got off easy. Police in California generally do not use pepper spray that contains as its main ingredients the mainstays of several popular pepper sprays sold in Los Angeles and California retail outlets — the dry cleaning solvent and toxin tetrachloroethylene, or PCE, and its distillate, the once-common degreaser and toxin trichloroethylene, or TCE.
California's Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, requires that the governor publish an annual list of chemicals known to the state to cause reproductive toxicity or cancer. Both PCE and TCE made the list in April 1988 as chemicals that cause cancer.
Yet no law is on the books in California to prevent PCE's or TCE's use in products meant to be sprayed directly into somebody's face.
"California has banned other uses of TCE in consumer products, including spray paints and other aerosols," says Sarah Janssen of the Natural Resources Defense Council in San Francisco. "It's not a stretch of the imagination to think that significant exposures are occurring in the vicinity of pepper spray fumes."
TCE-based pepper spray is being sold in California through the Internet by Fox Labs International and Personal Safety Corporation, according to the companies' websites. And two of Personal Safety Corporation's Pepper Defense products with PCE but without Proposition 65 warnings were being sold at True Value and Do It Best stores that L.A. Weekly visited earlier this month in Los Angeles, Santa Monica, Eagle Rock, Florence-Graham, Hollywood, Venice and North Hollywood.
Seven Fox Labs International pepper spray products are sold locally through Galls, a large police and public safety equipment and apparel company, with local stores in Los Angeles, Long Beach, Orange and Riverside. On the stores' websites, No Proposition 65 warnings are indicated on these items.
"PCE and TCE are known carcinogens on California's Proposition 65 list, which means products containing them should by law carry the Proposition 65 warning label," says Ana Mascareñas, policy coordinator for Physicians for Social Responsibility–Los Angeles, a public health and environmental group.
"It is almost inconceivable that these pepper sprays are being sold in California without labels warning consumers of the cancer risks," she adds.
Ed Ferguson, president of Michigan-based Fox Labs International, boasts: "First Defense has been described as ketchup to my Tabasco. You won't find anyone hit with ... Fox that wouldn't rather be hit with a Taser."
Fox Lab's pepper spray is, by weight, 98 percent "volatiles" — meaning a liquid that is easily vaporized. And that volatile is TCE.
Ferguson takes umbrage at California regulators calling TCE a carcinogen.
"California's the only people that say it," Ferguson says. "Why is that? California don't have their shit together and yet they're saying a lot of stuff for a lot of people that puts them into bankruptcy."
At Personal Safety Corporation, the producer of pepper spray containing PCE, president and founder Dick Olson tells the Weekly, "California probably has some of the most stringent interpretations of what's carcinogenic and at what levels."
Olson says Pepper Enforcement is made with TCE but that the "amount of that chemical is so minute as to not cause harm to humans. It's a very minute amount."
But publicly available Material Safety Data Sheets reveal a different story.
Material Safety Data Sheets contain data regarding the official known properties of a specific substance. The figures on the sheets regarding Personal Safety Corporation pepper sprays sold at True Value stores in California show that two of them come in formulas with PCE (volatiles) levels at 95 percent by weight.
Do It Best was quick to defend its California handling of Personal Safety Corporation products.
Do It Best communications director Randy Rusk says in an email, "Do it Best Corp. takes safety and compliance issues seriously, and we are looking into the labeling situation to affirm the products we carry and that our vendors are in compliance with state law."
"True Value is a cooperative," says True Value spokeswoman Marsha Burton. "That means our members created us. We can't tell a member what they can and can't sell. A lot of members could have bought [the Personal Safety Corporation pepper spray] from Do It Best."
Burton subsequently supplied the Weekly with Material Safety Data Sheets showing that True Value does sell Personal Safety Corporation pepper sprays with 95 percent PCE.
Mascareñas fumes upon hearing the retailers' remarks.
"It's a public-health outrage if this kind of pepper spray contains 95 percent PCE or 98 percent TCE by [weight]," Mascareñas says. "Consumers have a right to know what toxic chemicals are in pepper spray and decide if they want to take the everyday risk of being exposed to another known carcinogen."
But trichloroethylene is up to 5,000 times cheaper than the safe 1,1,1,2-Tetrafluoroethane, or HFA, which is used as the base inert ingredient in TCE-free pepper sprays. HFA costs about $500 a pound, while the same amount of TCE can be had for a dime.
Lenny Siegel of the Mountain View–based Center for Public Environmental Oversight, who last year was named by the U.S. Environmental Protection Agency as its Superfund "Citizen of the Year," says, "Leakage from spray cans may pose a continuing hazard to those who carry them."
While you can get it on many retail store shelves, several police agencies the Weekly contacted do not use pepper spray containing PCE or TCE.
The Santa Monica and Simi Valley police departments said they carry Sabre Red brand 10 percent capsaicin pepper spray. The Los Angeles County Sheriff's Department also uses Sabre Red, while the Los Angeles Police Department's website indicates that it uses First Defense.
But who will protect consumers who are urged to buy pepper spray available on store shelves for personal safety but may be getting something more dangerous than they ever imagined?
The National Institute for Occupational Safety and Health says PCE is a potential human carcinogen and causes "depression of the central nervous system; damage to the liver and kidneys; impaired memory; confusion; dizziness; headache; drowsiness; and eye, nose and throat irritation."
The Michael J. Fox Foundation for Parkinson's Research reported in a February 2010 study that PCE increases the risk of Parkinson's by a multiple of nine. The U.S. Environmental Protection Agency on Sept. 30, 2011, found TCE causes liver and kidney cancer, lymphoma and other illnesses.
"There is a perception that a cancer-causing substance doesn't belong in such a product, even if its intent is to irritate and/or disable," Siegel says of TCE in pepper spray.