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Report of the Pepper Spray Committee
Civilian Complaint Review Board
Hon. Charles M. Greinsky Hon. Sheri Holland
Hon. Jules Martin
October 2000Report of the Pepper Spray Committee of the
Civilian Complaint Review Board
Table of Contents
The NYPD and Pepper Spray 3
Patrol Guide 212-95
NYPD Training on the Use of Pepper Spray
Effectiveness and Health Hazards of Pepper Spray 7
Analysis of Pepper Spray Cases 10
Disposition of Pepper Spray Allegations
Characteristics of Complainants
Characteristics of Subject Officers
Analysis of Substantiated and Exonerated Cases
Conclusions and Recommendations 16
Patrol Guide 212-95
Baltimore County OC Data Collection Sheet
On Line Booking System Arrest Worksheet (PD 244-159)
Medical Treatment of Prisoner (PD 244-150)
Aided Report Worksheet (PD 304-152b)
The Board wishes to acknowledge Gene Lopez, CCRB’s Executive Director, Raymond Patterson, CCRB’s Director
of Communications and ADR, the late James Gaynor, former Director of Research and Statistics, Wing Ng and
Rachana Pathak, research assistants, for their valuable contributions to this report.3
In May 1997, the New York Civilian Complaint Review Board (CCRB) published a
review of the New York Police Department’s (NYPD) policy on pepper spray use. Since that
time, community leaders, elected officials, and the public have raised new concerns over the
safety and effectiveness of pepper spray use by the NYPD. These concerns were precipitated
most recently by the shooting death of Gidone (Gary) Busch in August 1999.
Busch, an alleged
emotionally disturbed person from Borough Park, Brooklyn, was shot by officers in a
confrontation after the use of pepper spray failed to incapacitate him. In response to the renewed
concerns of the public over the use of pepper spray and its possible ineffectiveness against
emotionally disturbed persons, the CCRB reconvened the Pepper Spray Committee in October
1999 and charged its members to review the original report and revise it if necessary. This report
of the Committee discusses the NYPD’s current policy on pepper spray, reviews the scientific
literature on the effectiveness and health hazards of this substance, analyzes CCRB complaints in
which officers were alleged to have used pepper spray, and formulates recommendations to the
NYPD regarding its current policy on the use of pepper spray.
The NYPD and Pepper Spray
The NYPD began to use pepper spray, formally known as oleoresin capsicum (OC)
spray, in a limited capacity in February 1991, when its use was restricted to the Emergency
Services Unit. Use of pepper spray, which replaced mace, was expanded to the entire
department in October 1994.
The spray is designed for use as less-than-lethal force, adequate
The CCRB would like to acknowledge the Honorable Fernando Ferrer, the Bronx Borough President, for bringing
to the agency’s attention the issue of the effectiveness of pepper spray use on emotionally disturbed persons. Mr.
Ferrer’s office also submitted to the CCRB printouts of pepper spray-related Internet sites that they received from
Doris Busch Boskey, the mother of Gidone Busch. The CCRB considered the information in those printouts in the
preparation of this report.
In this report, “pepper spray” and “OC spray” are used interchangeably.
According to Officer John Lopes of the Police Academy, one reason the NYPD switched from mace to pepper
spray was that the former was believed to be ineffective against animals, intoxicated individuals, and emotionally
disturbed persons. Pepper spray, on the other hand, is believed by the NYPD to be effective against these same
for incapacitating dangerous or violently resisting suspects. Intended results of the use of pepper
spray are inflammation and swelling of the mucous membranes of the eye, nose, and throat and
involuntary closure of the eyes. Known side effects include coughing, gagging, and
hyperventilation. The National Institute of Justice ranks the use of pepper spray “just above
hands-on pain compliance and immediately below the use of impact weapons” on the use-offorce continuum.
The active ingredient in pepper spray is capsaicin, a substance derived from the cayenne
pepper plant. When the stream spray was first introduced, the NYPD purchased a brand of
canisters made by Defense Technology of America (DTA), which contained 0.63 ounces of a
solution made of 10% oleoresin capsicum. In January 1997, the NYPD switched to a brand
made by Mace Security International (MSI) of Bennington, Vermont. This brand also features a
10% solution of oleoresin capsicum, carried in a solution principally composed of water,
antifreeze, and denatured alcohol. The canisters of the new product are larger than the DTA
canisters, holding roughly three times the amount of solution (1.76 ounces), and have an
effective range of 3 to 15 feet.
Patrol Guide 212-95
The NYPD’s Patrol Guide Procedure Number 212-95 governs the circumstances in
which pepper spray can be used and the proper procedure for using the spray.
The purpose of
Patrol Guide 212-95 is “to inform uniformed members of the service of circumstances under
which pepper spray may be intentionally discharged and to record instances where pepper spray
has been discharged, intentionally or accidentally.”
Patrol Guide 212-95 lists five situations in which an officer may use pepper spray.
Pepper spray may be used when a police officer “reasonably believes” that it is necessary to: 1)
protect himself, or another from unlawful use of force (e.g., assault); 2) effect an arrest, or
Jami Onnen. “Oleoresin Capsicum.” Science and Technology. International Association of Chiefs of Police. June
1993, p. 3. In New York State, pepper spray has been legally available to the civilian population since November 1,
See Appendix for copy of Patrol Guide 212-95.
Patrol Guide, p. 976.5
establish physical control of a subject resisting arrest; 3) establish physical control of a subject
attempting to flee from arrest or custody; 4) establish physical control of an emotionally
disturbed person (EDP); and 5) control a dangerous animal by deterring an attack, to prevent
injury to persons or animals present. The Patrol Guide states that officers should aim and
discharge pepper spray into a subject’s eyes, nose, and/or mouth in two short one-second bursts
at a minimum of three feet for maximum effectiveness.
The Patrol Guide prohibits the use of pepper spray against subjects who passively resist
(e.g., going limp, offering no active physical resistance). It further cautions that if possible,
pepper spray should not be used against persons who appear to be in frail health, young children,
women believed to be pregnant, or persons with known respiratory conditions.
In situations where pepper spray is used, the Patrol Guide stipulates several guidelines to
ensure the safety of the subject. Officers are required to request the response of the Emergency
Medical Services (EMS) once the situation is under control. If tactically feasible, according to
the Patrol Guide, the subject should be removed from the contaminated area and exposed to fresh
air while awaiting the arrival of EMS or transportation to a hospital or station house. The Patrol
Guide warns that the subject should be positioned on his/her side or in a sitting position to
promote free breathing and that he/she should “never be maintained or transported in a face
Additionally, officers should not sit, stand, or kneel on a subject’s chest or
back. If water is readily available, officers should flush the contaminated skin area of a subject
with profuse amounts of water. Lastly, officers are reminded that subjects should be transported
to the emergency room of the nearest hospital if he or she is “demonstrating difficulty breathing,
or exhibiting signs of severe stress, hyperventilation, etc.”
Upon the subject’s arrival at the station house, desk officers are responsible for ensuring
that prisoners who have been pepper-sprayed are properly monitored. A Command Log entry is
to be made stating whether the prisoner has had his/her skin flushed with water, been examined
by EMS, or been transported to the hospital. Officers are then required to prepare an Online
The Police Department’s protocol for interacting with emotionally disturbed persons is defined in Patrol Guide
216-05. However, PG 216-05, as currently published, does not contain any reference to the use of pepper spray on
emotionally disturbed persons.
Id., p. 977. Emphasis in Patrol Guide.
Id, p. 978.6
Booking System Arrest Worksheet (PD 244-159) and Medical Treatment of Prisoner (PD 244-
150) in arrest situations. In non-arrest situations, an Aided Report Worksheet (PD 304-152b)
must be prepared and the box “OC Spray Used” checked. If applicable, the time, doctor’s name,
and diagnosis is also noted in the worksheet.
NYPD Training on the Use of Pepper Spray
As stated in the 1997 “Report of the Pepper Spray Committee,” the NYPD implements a
three-pronged training program to instruct officers on proper usage of pepper spray. During
recruit training at the Police Academy, OC procedure is taught as part of firearms training, and
all recruits are required to attend a thirty minute class. Officers in uniformed patrol participate in
a training session one day every twenty-four months that includes thirty minutes on the proper
use and follow-up procedures for OC. Finally, every six months, during firearms training, thirty
minutes are devoted to OC.
During these training sessions, officers are not only instructed on the circumstances under
which use of OC is justified, as per the Patrol Guide, but also on proper procedural usage for the
spray. Officers are told to use verbal techniques to de-escalate the confrontation, if possible,
before resorting to pepper spray. They are taught not to fire the spray from within three feet of
subjects, not to use the spray on a windy day, and not to use OC in group settings or for crowd
control; they are trained to fire a maximum of two one-second bursts of the spray. Although the
Patrol Guide recommends the use of pepper spray against emotionally disturbed persons, officers
are warned during training that the spray might not work on such persons or on people under the
influence of drugs or alcohol, and to be prepared to change tactics should the spray not work.
They are cautioned that ineffectiveness is not a reason to escalate force used; rather the
independent circumstances continue to dictate appropriate force, regardless of the effectiveness
of pepper spray. Officers are trained to look out for an allergic reaction (which takes place about
one time in one hundred) to transport subjects who have been sprayed either on their sides or
sitting up, and to flush the subject’s eyes with cool water as soon as possible. Officers learn that
the effects of pepper spray should dissipate in about forty-five minutes.
On Friday, January 28, 2000, Commissioners Sheri Holland and Jules Martin, along with Executive Director
Gene Lopez and CCRB staff, attended a presentation and demonstration on the use of pepper spray at the Police
Academy by Officer John Lopes. After the lecture, CCRB Board members and staff were given the opportunity to
fire inert canisters of pepper spray in a firing range.7
Effectiveness and Health Hazards of Pepper Spray
Recent studies have offered two different views of the advantages and disadvantages of
using pepper spray as a law enforcement tool. While some reports supply documented evidence
of the effectiveness of pepper spray in subduing subjects and aiding arrest, other reports have
warned about the potential health hazards of pepper spray. Although the methodologies varied
amongst the reports discussed below, a review of the most important literature on pepper spray is
nonetheless helpful in the CCRB’s assessment of pepper spray use in the NYPD.
Pepper Spray Evaluation Project (1995), a 60-page study on pepper spray use by officers
in the Baltimore County Police Department, was based on research conducted by the
International Association of Chiefs of Police (IACP) for the National Institute of Justice and the
US Department of Justice. This project examined 194 incidents in which police officers used
pepper spray in confrontations with humans or animals.
The report shows that of the 174
human subjects sprayed by officers between July 1993 and March 1994, 156, or 90%, were
incapacitated enough to be effectively arrested. Eighteen, or 10%, of the subjects were classified
by officers as not fully incapacitated and of these the pepper spray had no effect on seven
In January 2000, the NYPD conducted a survey to determine the effectiveness of pepper
spray use by its officers in arrest situations and aided report cases
between April 1 and
December 31, 1999. Although the manufacturer of the spray used by the NYPD claims an
effectiveness rate of 98%,
the Department’s survey found that of the 89 responses from officers
The Baltimore County Police Department, at the time the study was conducted, used a product containing 5%
concentration of oleoresin capsicum delivered through a fogger system. The NYPD uses a stream spray product
containing 10% concentration of oleoresin capsicum.
12 According to the Patrol Guide Procedure Number 216-01, an aided case is “any occurrence coming to the
attention of a uniformed member of the service which requires that a person, OTHER THAN A PRISONER, receive
medical aid or assistance because such a person is: a. sick or injured (except vehicle accident), b. dead (except
vehicle accident), c. lost person, d. mentally ill, e. an abandoned, destitute, abused or neglected child, f. runaway
child, g. adult requiring care due to arrest, hospitalization, death of parent/guardian/person responsible for case.”
Information provided by Officer John Lopes, Police Academy, January 28, 2000.8
who discharged pepper spray in arrest situations, 76, or 85%, indicated that the spray was
Of the 37 responses from officers who used pepper spray in aided cases, 30, or 81%,
indicated that the spray was effective. During the time period covered, there were 575 arrest
incidents and 503 aided incidents involving the discharge of pepper spray. The overall results of
the survey indicated that in 106 of the 126 arrest and aided incidents for which the Department
has data, or 84% of the time, pepper spray use was effective. Thus, despite the discrepancies in
effectiveness rates, the NYPD’s data and the IACP’s study of the Baltimore County Police
Department suggest that pepper spray is effective as a law enforcement tool in the great majority
While the IACP’s report argued that “implementation of a well developed OC spray
program can have a variety of operational benefits for law enforcement agencies,”
scientific studies have called into question the safety of pepper spray. A 1994 study examined in
detail twenty-two reported deaths in custody which occurred after police sprayed someone with
The authors of this study concluded that “in none of the twenty-two cases was
OC considered to be cause of, or contributor to, the deaths.” They found that “in eighteen of the
twenty-two cases, positional asphyxia was the cause of death, with drugs and/or disease also
being contributing factors,” and that of the others, “three involved a drug (cocaine)-related death,
and one involved a drug (cocaine)/disease-related death.”
Though the study was small and can
by no means be considered exhaustive, it appears that in the reported deaths, conditions other
than OC exposure resulted in fatalities. However, at least one group, the ACLU of Northern
The results of the Department survey was provided by Joseph A. Flynn, Director of the NYPD’s Disciplinary
Assessment Unit, on June 30, 2000. The survey was conducted by the Department’s Firearms and Tactics Section.
The surveys were sent on a random basis to members of the Department documenting the use of the spray on either
arrest or aided reports. Mr. Flynn reported that the survey did not collect information such as the number of
emotionally disturbed persons in the pepper spray incidents.
Pepper Spray Evaluation Project, p. 59.
John Granfield, Jami Onnen, Charles S. Petty. “Pepper Spray and In-Custody Deaths.” Science and Technology.
International Association of Chiefs of Police. March 1994.
Id., p. 2. The authors caution that a number of similarities exist in the positional asphyxia deaths, notably
intoxicated subjects who are severely overweight (usually with “big bellies”) who are placed face down and often
bound by one of a number of questionable methods, including hog-tying (the binding of handcuffed hands to
secured feet), which is prohibited by Patrol Guide Procedure No. 104-01, pp. 11-12.9
California, has cautioned that these conditions “may become particularly acute when a suspect
has been doused with a weapon designed to attack the respiratory system.”
A 1995 report by the US Army summarizing the scientific literature provides valuable
information regarding the toxicity of capsaicin, the active ingredient in OC spray.
concludes that there are a variety of dangers in capsaicin, including cardiovascular and
pulmonary toxicity, and that there “is a risk in using this product on a large and varied
population.” However, the bulk of the scientific studies supporting toxicity were conducted by
introducing large doses of capsaicin into the internal organs of laboratory animals. These large
doses do not accurately simulate the 10% concentration found in the canisters used by the
Scientific and objective data on the effects of pepper spray on emotionally disturbed
persons are sparse. A few studies, however, have indicated caution in using this device against
such persons. Edwards, Granfield, and Onnen (1997), in a review and summary of the IACP
study on the Baltimore County Police Department, noted that the seven individuals on whom
pepper spray had no effect “exhibited drugged behavior or seemed to have emotional
They added that the “data indicate that individuals who are heavily intoxicated,
drugged, or mentally unstable may be resistant or immune to OC’s effects or that OC may
actually exacerbate the difficulty associated with controlling such persons.”
In a footnote, the
authors conceded that “more research is required to obtain definitive answers to the question of
how intoxication, drug use, and/or mental illness affect a person’s reaction to OC spray.”
Dr. Woodhall Stopford, a researcher from Duke University Medical Center, echoes the
view that pepper spray might not work against emotionally disturbed persons. In a recent survey
of the scientific literature on pepper spray and its active ingredient, capsaicin, Dr. Stopford and
John M. Crew, Director of the Police Practices Project for the American Civil Liberties Union of Northern
California, in a letter to the San Francisco Police Commission on May 2, 1996, p. 4.
19 H. Salem, E. J. Olajos, L. M. Miller and S. A. Thomson. Capsaicin Toxicology Overview. US Army Englewood
Research Development Engineering Center. 1995.
Steven M. Edwards, John Granfield, Jamie Onnen. “Evaluation of Pepper Spray.” Research in Brief. National
Institute of Justice. March 1997, p. 6.
Id., p. 6.
Edwards, Granfield, and Onnen, p. 8.10
his colleague Dr. Gregory Smith noted that it is important to “remember that subjects who are
highly aggressive, agitated, intoxicated, or suffering from mental illness may have altered
perception of and response to pain, and consequently may not be affected by—or may even
become enraged after—being sprayed.”
Thus, some researchers question the effectiveness of
using pepper spray against emotionally disturbed persons and suggest that it may, in fact,
exacerbate the situation.
Analysis of CCRB Pepper Spray Cases
Disposition of Pepper Spray Allegations
From January 1996 through June 1999, the CCRB received 263 complaints in which at
least one of the allegations was inappropriate use of pepper spray by a police officer. As of
August 2000, 261 of these 263 cases have been closed and 2 were still pending investigation. Of
the 261 closed cases, 120 were administratively closed or truncated for a variety of reasons,
and 141 were fully investigated.
Disposition of Fully Investigated Pepper Spray Allegation Compared to Fully Investigated
Allegations in All Closed CCRB Cases, January 1996 to June 1999 (as of August 2000)
Pepper Spray Allegations Total Closed Cases
Disposition Number Percent Number Percent
Substantiated 22 15.6% 1,147 13.2%
Unfounded 12 8.5% 1,343 15.4%
Employee Exonerated 66 46.8% 871 10.0%
Unsubstantiated 28 19.9% 4,239 48.7%
Employee Unidentified 8 5.7% 810 9.3%
Referred to IAB 0 0.0% 1 0.0%25
Miscellaneous 5 3.5% 287 3.3%
Total Full Investigations 141 100.0% 8,698 100.0%
23 C. Gregory Smith and Woodhall Stopford. “Health Hazards of Pepper Spray.” North Carolina Medical Journal.
Vol. 60, No. 5, Sept./Oct. 1999.
For example, some complainants withdrew their complaints. Others were either uncooperative or unavailable.
Percentages are rounded off to the nearest decimal place.11
In 22, or 15.6%, of the 141 full investigations, the CCRB found sufficient evidence to
believe that the alleged act of inappropriate pepper spray use occurred. (See Table 1.)
cases, or 8.5%, the pepper spray allegations were unfounded. In 66 cases, or 46.8%, the officers
were exonerated for the alleged act of inappropriate pepper spray use. In 28 cases, or 19.9%, the
CCRB found insufficient evidence to prove or disprove the pepper spray allegation, which lead
to the finding of unsubstantiated. In 8 cases, or 5.7%, the CCRB was unable to identify the
police officer engaged in the alleged act of pepper spray use. Finally, 5 cases, or 3.5%, were
classified as miscellaneous.
Some disparities emerge when the disposition of pepper spray allegations are compared
to the total number of CCRB full investigations closed during the same time period. For
example, the substantiation rate—the percentage of full investigations in which the CCRB found
sufficient evidence to believe that the alleged act(s) of police misconduct occurred—was slightly
higher when looking at total pepper spray allegations than when looking at the total population
of cases: 15.6% versus 13.2%. The number of cases in which the CCRB exonerated police
officers is significantly higher for total pepper spray allegations than for the total population of
CCRB cases: 46.8% versus 10.0%. Until further research is conducted, the CCRB is unable to
explain these and other disparities in the dispositions of pepper spray allegations and total CCRB
The Police Department has taken various actions on the officers in the 22 cases in which
the pepper spray allegation was substantiated by the CCRB. Twenty-three officers were
involved in these 22 cases, and to date, cases for 6 of these officers are still open at the NYPD.
Of the 7 officers who received discipline, one received instructions on proper police procedures
from his/her commanding officer, two received command discipline (which ranges from oral
warning to forfeiture of up to 10 vacation days), one was suspended for 15 days, one was
The “Total Closed Cases” column in Table 1 details the case disposition (as of August 1999) while the “Pepper
Spray Allegation” column shows the disposition of the pepper spray allegation (as of August 2000) in the 141 full
investigations. CCRB cases usually contain more than one allegation. The disposition of a CCRB case is
determined by the highest disposition code of any one allegation in that case.
“Miscellaneous” usually refers to cases in which the subject officer is deceased or no longer works for the
suspended for 10 days, one lost 20 vacation days and was placed on one year’s probation, and,
finally, one lost twenty-five vacation days and was placed on one year’s probation. The
remaining 10 officers did not receive disciplinary action for the following reasons: 4 cases were
deemed by the Department to lack prima facie evidence; 2 officers were found not guilty after
their cases went to trial in the City’s Office of Administrative Trials and Hearings; the charges
against 3 officers were dismissed by the Deputy Commissioner of Trials; and the Department
was unable to prosecute one case for reasons unknown to the CCRB.
Characteristics of Complainants
The racial distribution of the pepper spray complaints shows that a disproportionate
number of complainants were African-American.
Of the 195 cases in which the race of the
complainant was available, 70.3%, or 137, were African-American; 15.4%, or 30, were Latino;
11.8%, or 23, were white; and 2.6%, or 5, were classified as Other.
When that racial distribution is compared to the racial distribution of complainants in all
CCRB cases received and the population of New York City, African-American complainants in
pepper spray cases are overrepresented and white complainants are underrepresented. While
African-Americans accounted for 70.3% of the pepper spray complaints, they comprised 51.9%
of all CCRB cases received during the same time period and only 25.2% of New York City’s
. White complainants, on the other hand, constituted 11.8% of pepper spray
complaints but 21.5% of all CCRB cases received and 43.2% of New York City’s population.
The Committee looked into whether the abnormal number of complainants who were African-Americans was
actually due to a unique incident that took place at the Universal Calvary Church in Queens in 1995. Over 200
complaints arising out of that incident were filed with the CCRB in 1996, but were eventually consolidated into ten
complaints. (See CCRB’s Semiannual Report January-December 1996, pp. 28-30.) A comparison of the cases
reviewed for this report and the Calvary Church cases showed that only four of the latter cases were included in this
study. Of those four cases, only two had data about the race of the complainant, who was African-American in each
case. With only two of 137 African-American complainants coming from the Calvary Church cases, it is clear that
the particular incident did not substantially affect the results of this study.
Percentages are calculated by dividing the number of complainants in each racial category by the total number of
complainants whose race was available. In the 263 pepper spray cases, the race of 68 complainants was not
available. The unavailability of racial information is due to a number of factors. Some complainants declined to
offer such information while others were involved in truncated investigations in which the complainant did not offer
Data is based on the CCRB’s Semiannual Report January-June 1999 and January-December 1999. Population
figures are based on 1990 Census as reported in Demographic Profiles.13
At this time, the CCRB is unable to explain why a disproportionate number of pepper spray
complainants were African-American. However, the CCRB hopes to begin a dialogue with the
Police Department, the civil rights community, and other interested parties on this issue.
The gender distribution of the complainants in the pepper spray cases seems more even
than that in the total population of CCRB cases. Of the 244 pepper spray cases in which gender
information was available, males accounted for 52.0%, or 127, of all complainants, and females
accounted for 48.0%, or 117.
For the total population of CCRB cases, however, the percentage
of male complainants is 58.8% while for female complainants the percentage is 41.2%. Finally,
according to the 1990 Census, 47.3% of the New York City population is male and 52.7%
Characteristics of Subject Officers
The racial distribution of subject officers in pepper spray cases does not differ markedly
from that in the total population of CCRB cases received during the same time period. Of the
285 identified subject officers, 68.4%, or 195, were white; 15.4%, or 44, were AfricanAmerican; 13.3%, or 38, were Latino; and 2.8%, or 8, were classified as Others. During the
same time period, the racial distribution of subject officers in the total population of CCRB cases
received was 65.8% white, 14.2% African-American, 18.4% Latino, and 1.5% Others.
Furthermore, when compared with the racial distribution of all officers in the NYPD, the racial
characteristics of subject officers in pepper spray cases do not differ significantly. Over the
five-year period from 1995 to 1999, white officers constituted approximately 67.8% of the
NYPD, African-American officers 13.6%, Latino officers 17.1%, and Other officers 1.5%.
A comparison of the gender distribution of subject officers in pepper spray cases and total
CCRB cases also does not reveal significant differences. Of the 285 identified subject officers,
92.3%, or 263, were male and 7.7%, or 22, were female. During the same time period, the
gender distribution of subject officers in the total population of CCRB cases was 90.9% male and
9.1% female. When compared to the NYPD, male officers in pepper spray cases were slightly
overrepresented while female officers were slightly underrepresented. Over the five-year period
The gender information was unavailable in 19 cases.
Data is based on the CCRB’s Semiannual Report January-June 1999 and January-December 1999.14
from 1995 to 1999, male officers constituted approximately 85% of the NYPD and female
Analysis of Substantiated and Exonerated Cases
A comparison of the factors in substantiated and exonerated cases is useful for
understanding the reality of pepper spray use by officers. In these two types of cases, the CCRB
determined that the alleged act did occur and that the act was either misconduct (in substantiated
cases) or proper police action (in exonerated cases). Fifty cases, 22 substantiated and 28
exonerated, were examined in detail for similarities and differences such as location where
pepper spray was used, rationale offered by the officer, characteristics of the sprayed civilian,
and medical attention provided.
In the majority of both substantiated and exonerated cases, officers fired pepper spray in
an open area such as a street rather than an enclosed area such as an apartment or a car. In the 22
substantiated cases, pepper spray was fired in an open area in 16 cases and in an enclosed area in
6 cases. In the 28 exonerated cases, pepper spray was used in an open area in 15 cases and in an
enclosed area in 13 cases.
The rationales offered by officers for discharging pepper spray differed between
substantiated and exonerated cases. In exonerated cases, a majority of officers stated that
resisting arrest or threat of attack as the justification for using pepper spray. In 16 of the 28
exonerated cases, officers cited resisting arrest as the rationale for employing pepper spray. In
10 of these cases, officers cited the civilian’s threatening behavior or physical aggression as the
rationale for using pepper spray. In one case, the officer cited obstruction of justice.
(Information for one exonerated case was unavailable.)
In substantiated cases, however, officers offered a greater variety of reasons for using
pepper spray. Of the 22 substantiated cases, officers in three cases cited a civilian’s refusal to
heed the officer’s command as grounds for pepper-spraying them. In three cases, officers used
pepper spray on a large crowd or a group of people. In another three cases, officers claimed that
the civilians were engaged in disorderly conduct. In seven cases, officers offered the civilian’s
33 CCRB Semiannual Status Report, January-December 1999.
At the time the analysis for this section was completed in January 2000, there were only 28 exonerated cases.15
threatening behavior or physical aggression as the rationale for using pepper spray. In another
case, the officer pepper-sprayed a civilian for cursing. In four other cases, officers cited resisting
arrest as the rationale for using pepper spray. In the final case, the officer had no apparent reason
for using pepper spray since the civilian was already subdued.
The Patrol Guide advises officers to avoid using pepper spray against persons who appear
to be in frail health, young children, women believed to be pregnant, or persons with known
respiratory conditions. In the substantiated and exonerated cases, the overwhelming majority of
alleged victims were not elderly, young children, pregnant women, or persons who appear to be
in frail health. However, in the substantiated cases, one nine-year old was sprayed, and in the
exonerated cases, four cases involved intoxicated individuals while one case involved a civilian
with a history of mental illness.
Furthermore, in the great majority of cases, no serious injuries occurred as a result of
pepper spray use. In the 22 substantiated cases, medical attention (either the civilian was taken
to hospital or EMS was called) was provided in nine cases. In these nine cases, civilians
sustained minor injuries, but many of them were not caused by pepper spray. Only one civilian
reported “chemical burn to eye.” In the 28 exonerated cases, medical attention was provided in
12 cases. Like the substantiated cases, no serious injuries were sustained by civilians in the
course of their encounters with officers.16
Conclusions and Recommendations
The CCRB, after consideration of relevant research reports and review of the agency’s
pepper spray cases, has concluded that the NYPD should continue to use pepper spray as a lessthan-lethal physical force alternative, and makes the following recommendations:
· Follow-up: When the NYPD switched to pepper spray from other chemical sprays in
October 1994, the “mace report,” previously prepared by an officer when a chemical spray
was used, was eliminated. Instead, officers have been required only to check off a box on the
on-line booking system arrest worksheet, fill out a medical treatment of prisoner form (if the
subject is arrested) or an aided report form (if the subject is not arrested).
IACP study of the Baltimore County Police Department shows that minimal paperwork
prepared after each use of the pepper spray can help protect officers as well as civilians by
contributing to determinations of how often and under what circumstances the spray may not
function, and documenting the possibility of inappropriate use. Therefore, the CCRB
recommends that a simple form modeled on the Baltimore County Oleoresin Capsicum Data
Collection Sheet (see Appendix) be prepared whenever pepper spray is used. The forms
ought to be collected and filed in a central repository for information, so that researchers can
access them in order to review effectiveness and safety concerns. At a minimum, the CCRB
recommends that the NYPD modify its on-line booking system arrest worksheet and aided
report form to include checkboxes on the effectiveness of the pepper spray use and the status
of the civilian prior to being sprayed. For example, on the effectiveness of the pepper spray,
checkboxes for “effective,” “moderately effective,” and “ineffective” could be included in
· Emotionally Disturbed Persons: There is insufficient objective, scientific evidence to
conclude that pepper spray can or cannot be used effectively against emotionally disturbed
persons. Therefore, until further scientific research has been conducted, the CCRB
recommends that the NYPD restrict the use of pepper spray against emotionally disturbed
persons where possible. The NYPD should highlight to its officers during training that17
pepper spray might not work against emotionally disturbed persons and might in some cases
exacerbate the difficulties in controlling such persons. Furthermore, the Patrol Guide and
officer training should be modified to underscore the possibility of the ineffectiveness of
using pepper spray against emotionally disturbed persons.
· Training: CCRB Commissioners and staff had the opportunity to fire canisters of inert
pepper spray at the Police Academy and experienced first-hand the difficulty of aiming the
spray accurately. Since officers are instructed to use their less-dominant hand for firing the
canisters, it is crucial that officers are trained on a regular basis to practice their aiming. The
CCRB recommends that the NYPD stress the proper procedures for pepper spray use during
training sessions and allow ample time for officers to practice the use of pepper spray.
The review of CCRB pepper spray cases and the growing body of information on pepper
spray appear to show that, if used within careful guidelines and if subjects are carefully
monitored and given prompt medical treatment, the spray can be a useful alternative to
traditional non-lethal force. Adoption of the above recommendations regarding the use of pepper
spray will assure the public of its safe and effective use by the NYPD.
See Appendix for copies of these forms.