Is The Use of Pepper Spray Torture?

Yesterday digby discussed various cases of the use of pepper spray to argue that it is obviously torture.

Is it torture?

If it is torture but in some cases it could foreseeably prevent an altercation with greater likelihood of long term physical damage could it be justified nonetheless?  Is it only unjustified when applied to non-violent protesters, as we have seen in a troubling fashion of late, or does using a torturous level of pain to force compliance make it unjustifiable in any case whatsoever? Should pepper sprays, including mace, be made illegal as a weapon of torture?

What tactics would be morally and democratically permissible for dispersing protesters when their occupations go against private property laws or civil ordinances, etc.? Unless protesters’ rights to free assembly trump all other property rights and laws concerned with the orderly management of localities, presumably there must be some cases in which police should be allowed to force people to move from where they are. If the law can never lawfully force anything then how is it the law?

Amidst the much warranted outrage over various police tactics, I am interested in your thoughts on what constitutes torture and what, if any, tactics for forcing compliance with law could ever be moral or democratic?

Your Thoughts?

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About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • miles670

    A very good question and one that I hadn’t fully considered.

    Forced compliance through pain has to be considered torture to some degree I’d think because I’d presume that the purpose would be to spray people until they can’t take any more and have to move. The entire purpose of torture is to force someone to ‘give in’. I have to say that I think the police must be justified in moving protesters away from traffic for instance, or privately owned buildings. But with the tactics being used I don’t think I’ve seen anywhere yet that has been considered an acceptable place to protest by the police. It’s as though americans are being told that they have the right to protest, as long as they do it in their living rooms.

    Anywhere the public is peaceful protest should be allowed. I’m sure there is some crime amongst protesters as there is in all groups but I personally am yet to see violence that didn’t first have police present and in almost every case I’ve seen the violence/disorder/health and safety concerns have been a product of police involvement.

    The above is the scariest reaction I’ve seen from protesters, I’d consider this walk torture. Though deserved.

  • Graham Martin-Royle

    Wow, the student response in the link is just about the most powerful I’ve ever seen. Just sitting there, silent, watching. It doesn’t sound much written down like this but when you watch it, it’s damning. Chancellor Katehi has nothing left now and must resign, her position is untenable.

    • miles670

      Agreed, I even felt sympathy for her during that. But then I picture a protester coughing up blood after being pepper sprayed and the sympathy goes away.

    • Daniel Schealler

      That was electrifying.

  • Ramel

    Not so much torture as simple assault, different crime but still just plain wrong. “Non lethal” weapons should be treated like any other weapons.

    • Daniel Schealler

      Actually, that’s a damn good point.

      Puts the finger on why I find the use of the word ‘torture’ in this case a bit off, but still find the act of pepper spraying protesters completely damning in this case.

  • Ƶ§œš¹

    Because torture is not just an act of instilling pain, if there is a practical use of a particular painful procedure beyond punishing, pulling information, or pleasing sadistic impulses, then we can’t really make a blanket statement about the method itself without context.
    I think that the only justification for using pepper spray would be to prevent greater violence (either toward or from the user of pepper spray), but the issue of police violence towards non-violent protesters is one of abusing privileges. I can understand, in an effort to control a crowd that is potentially on the brink of violence, being a little trigger happy with the pepper spray. And, given the tools they have are designed to exert force without being lethal, I can even understand using pepper spray to disperse crowds, even if I might disagree with the decision to disperse said crowd. But, when it is applied as a form of intimidation (as it seems to be the case at UC Davis), I question whether we ought to trust the police with these tools.

    This is troubling. If we can’t trust the police with use of non-violent tools, we need to seriously rethink how we might change the recruiting and training of our public officers.

  • DuWayne

    Like Ramel, I have to say that pepper spray is a weapon of assault/defense. In the case of the UC Davis attack, it was clearly an unwarranted assault that went well into police brutality. It is not really different than wading in and beating people with batons. They’re lucky no one died, as spraying pepper spray down people’s throats can be fatal.

    But in some circumstances it is entirely acceptable and reasonable. It makes subduing violent individuals safer for both the police and the individuals being subdued – when it is used properly. Keeping in mind that pepper spray is one of the tools that replaces beating people with batons, fists or shooting them.

  • Sithrazer

    I have to agree with Ramel. ‘Assault’ is definitely the term I’d use for it. Now, if the protesters were already in custody and then being subjected to such treatment with pepper spray then I would call it torture.

    Using anything incorrectly can make it harmful or even fatal. When it is designed to be harmful to begin with (non-lethal/less-than-lethal) misuse greatly increases the chance of it becoming potentially lethal. When it is -intentionally- misused to cause greater harm than its intended/prescribed use that is assault at best, and attempted murder at worst.

  • Kevin

    How did these weapons (taser comes to mind as well) get the label non-lethal? They can be just as accurately labeled as potentially lethal (yes, people have died from pepper spray) and as such should be used accordingly. It doesn’t make sense to use potentially lethal force against peaceful non-violent people.

  • DuWayne

    Kevin -

    Perhaps a better term would be “rarely-lethal.” Though the way that the UC Davis cops were using it, pepper gas is far more dangerous than when used as intended. I honestly have to say that I think it would be good to rename them, because calling them “non-lethal” just makes it too damned easy for cops to choose to use such weapons. Maybe “not-generally-lethal” would be even better than my first suggestion, as it denotes the lingering risk of fatalities a little more clearly.

    But those who manufacture such weapons have an interest in their being labeled “non-lethal” and short of legislating a change in terminology (and who wants that “soft on crime” stigma amongst the legislature?) that is what they will continue to be called.

  • Kevin

    I agree, I think rarely lethal would be a good term. I just don’t like it when people try to cover the content of something by dubiously naming it. I don’t care what terminology is used in the police manuals. However, when it is mentioned in/by the press, they don’t need to adhere to the technical or manufacturer’s jargon, they can call it what it is. People should be aware of the consequences that the implementation of these “tools” have. I didn’t even know that they could cause death until I was prompted to look it up when I read that one of the protesters was vomiting blood after the incident.

  • DuWayne

    Kevin -

    The industry doesn’t like to talk about it – and in their favor, when used properly pepper spray is rarely fatal. It is a relatively small proportion of humans who are allergic enough for their airways to become so constricted. But when it is sprayed directly into the throat, it can become a whole different thing entirely. At that point it is exceedingly dangerous to anyone with any of a number of respiratory problems – including a simple cold.

    Honestly, I care a lot more about what is written into police manuals, as they are by a large margin the most likely individuals to employ the use of pepper spray. While I think a lot of…all too many cops really, are sadistic fucks, I sincerely doubt that so many of them are keen on actually killing people (I accept that I might be mistaken about that). If that is the case, the language used might make a difference.

    • Kevin

      From what I understand, people with asthma, consisting of about 10% of the population, are a high risk group for pepper spray effects. This should make us question the validity of using pepper spray for crowd situations. Also, what quantity needs to be ingested for risk of death? If an at risk person has a large quantity on their lips and then lick their lips or take a deep breath (which would be natural to do if you held your breath for the spraying), what are the consequences of that?

      I should clarify my point about the police manuals. I certainly care that they outline in specific detail which situations call for the use of pepper spray and which do not. However, I don’t care what they call the device being used. It may be pertinent for the officers to understand that the policy is so strict because of the potential consequences of the spray, but I don’t care as long as they follow the rules (and lawsuits would give incentive to do so). If they want to classify their weapons as Category 1, Category 2, etc. thereby semantically disassociating them from their consequences; I would have no problem with that as long as they understand their appropriate use. However, the public does not have to deal with the consequences of understanding the manual so upon hearing non-lethal, I think it leads to misunderstanding, which should be corrected by the media.

      As I write this, I’m glad to see that at least one outlet is calling attention to this:

  • Daniel Schealler

    “What tactics would be morally and democratically permissible for dispersing protesters when their occupations go against private property laws or civil ordinances, etc.?”

    In a cool climate, the consistent application of low-pressure water would be a good method for encouraging crowd dispersal.

    Also, loud and discordant noise bombardment might be an acceptable alternative. Of course, it would have to be modulated below the levels that would cause physical damage.

    Assaulting the sense of smell with a synthetic foul odor might also be effective if it could also be proven to be safe. I was going to say ‘smoke’, but smoke can actually be damaging if inhaled in high quantities, and obscuring vision is probably bad as it could be used to deploy violence while not being observed. No, smoke is out… But smell? I think smell could definitely work.

    None of these would be 100% effective in all cases, of course. But it’s certainly got to be a better place to start than god-damn pepper spray.

    Actually, you could combine all of the above. Create a sort of rain device, the water of which has been laced with chemicals that are proven to be safe for human consumption in high doses but that also smell and taste foul. Persistently wash the crowd with the foul-smelling water. Follow up with loud and discordant noise canons that have been set to an amplitude that is 10% short of what could be reasonably considered harmful to the human ear.

    Do that, then keep it up. Would probably prove very effective. Still qualifies as assault – but a hell of a lot better than pepper spray.

    Hmm… I’m wondering if disorienting flashing lights might also be effective, but there’s always the risk there of triggering epilepsy or causing eye damage from looking into bright lights. Might be a no-go.

    Of course, all of this is assuming that a peaceful protest is in a position where it is justifiable to enforce dispersal.

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