Was pepper spray really necessary?

The recent clash between protesters and campus police at the University of California, Davis, has raised several questions, including whether officials needed to clear out the campers to begin with.

Perhaps the most resounding, though, is whether refusing officers' commands to leave – while seated and posing no obvious physical threat – warranted being drenched in pepper spray.

And while local law enforcement officials are reluctant to weigh in on the debate, their departmental policies and interviews with experts in the use of force suggest the answer is no.

"There are a lot of policies in police departments across the country that would not justify (what the UC Davis officers did)," said Samuel Walker, professor emeritus at the University of Nebraska at Omaha. "We've made a lot of progress (in use of force) in recent years, and this is just backward and wrong."

Use of force, anything from pepper spray to a fatal shooting, has long been a flash point in relations between police and the communities they serve. Though society empowers and expects its officers to use force, the public's tolerance for such force varies.

And although most modern agencies have written policies on the use of force, they often are vague and rarely dictate which type of force should be used in which situation. That is, in part, for fear that an officer could be practically or legally boxed in.

"Given that no policy can realistically predict every possible situation an officer might encounter in the field, it is recognized that each officer must be entrusted with well-reasoned discretion in determining the appropriate use of force in each incident," reads the UC Davis Police Department policy, echoing disclaimers often found in such policies.

"While it is the ultimate objective of every law enforcement encounter to minimize injury to everyone involved, nothing in this policy requires an officer to actually sustain physical injury before applying reasonable force."

A sampling of policies in other Northern California agencies and state law itself says that officers are justified to use "reasonable" force to defend themselves, to defend others, to prevent escape of a suspect and to overcome resistance.

Most policies on the use of pepper spray – often in the form of oleoresin capsicum or "O.C." – explicitly or implicitly note that the resistance should be physical, if not violent.

For example, the Sacramento County Sheriff's Department's policy states that pepper spray "be used only in those emergency situations where the statutes allow an officer to use necessary and reasonable force; for example, where the officer is physically attacked or encountering violent resistance."

The San Francisco Police Department's policy states that liquid chemical agents are "a defensive weapon intended for use when attempting to subdue an unarmed attacker or to overcome resistance likely to result in injury to either the suspect or the officer."

The California Highway Patrol's policy indicates pepper spray can be used in situations such as when "a passive resister becomes aggressive."

Walker, who has written books on police accountability and civil liberties, called the use of pepper spray at UC Davis a "grotesque" example of abuse. "These control devices are appropriate when you have active resistance," Walker said. "You do not use them when people are just sitting there."

In addition to their handguns, most agencies require officers to carry at least one "less-than-lethal" device, so-called because they are not designed to be deadly but can be under certain circumstances. Pepper spray, batons and Tasers fall into this category.

Other options for force include the use of dogs or physical maneuvers such as the carotid restraint, which causes a suspect to pass out.

Trisha King-Stargel, a Seattle University lecturer and former cop, said officers once had to choose between using their hands or their guns. Evolving technology and practices have given officers a variety of options, she said.

When it comes to civil unrest, King-Stargel said, clashes do not have to be violent. She recalled an incident when she and other officers had to carry passive resisters out of a government building in Honolulu. She asked one pregnant protester to walk out on her own so she and her baby wouldn't be harmed. The woman obliged.

Gerald Caplan, a professor at the McGeorge School of Law, served as the general counsel to the Metropolitan Police Department in Washington, D.C., during the height of Vietnam War protests.

He remembers police giving protesters a few hours to make their point and then giving them a choice: Leave or get arrested – and be cooperative when you are.

"I think there are some situations where you can accommodate," King-Stargel said. "It's a matter of respecting our American rights to protest."

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