BPD Issues Statement On Looming Pepper-Spray Trial

If you read this after 10 a.m. on Tuesday, January 20, the day after Martin Luther King Day, witnesses may already be on the stand in a federal courtroom in yet another Birmingham trial with civil rights implications. Barring a last-minute settlement, the Southern Poverty Law Center’s suit against the Birmingham Police Department over officers using mace on city students will go forward, and lawyers representing the city and police are promising a vigorous defense.

Filed in December 2010, the class-action complaint alleges police violated students’ Fourth and Fourteenth Amendment rights by “brutalizing [eight unnamed plaintiffs] with chemical weapons and other excessive force.” Six of those plaintiffs are also seeking monetary damages. The complaint notes collateral damage that spray weapons can do to innocent bystanders, particularly those with asthma.

But according to a prepared statement issued Monday evening by attorney Michael Choy, “Six of the plaintiffs were engaged in disorderly conduct, which ranged from fighting and coming close to starting a riot in a high school cafeteria to repeatedly hitting an assistant principal after being warned to stop by one of the defendant police officers.”

The statement continues: “Defendants will prove at trial that if the plaintiff students were tending to their reading, writing and arithmetic and behaving in an orderly fashion, they would not have been maced. The City and Chief have the option of withdrawing all Birmingham police officers from all Birmingham public high schools since the City has no legal obligation to have police officers within the high schools.”

School system staff speaking on condition of anonymity have said that in some cases, use of pepper spray has been warranted, but in other instances, teachers have over-relied on police to maintain discipline and punish noncriminal youthful misbehavior.

SPLC lawyers say police pepper-sprayed about 200 students between 2006 and 2011, and that in the same period, Jefferson County Schools reported just one pepper spray incident. Students, including a pregnant 17-year-old, have reportedly been sprayed while already restrained. It’s hard to compare rates against other districts, partly because there’s no national clearinghouse for that data, partly because pepper-spraying students remains an unusual practice.

The SPLC wants police either to stop using pepper spray or to get training more appropriate to school environments, rather than the standard police training they receive. The case’s class-action status, granted by Judge Abdul Kallon in August 2012, means any ruling in this bench trial will apply to all present and future Birmingham City Schools students. School resource officers, or SROs, have been posted in the schools since 1996. Many observers agree the discipline climate of Birmingham high schools in general has improved since the suit was filed.

The trial is scheduled to run two full weeks, then recess for one week, and then resume for
one more full week.

The defendants are A.C. Roper, Chief of the Birmingham Police Department; Officers J. Nevitt, A. Clark, and R. Tarrant, who served as SROs during the 2009-2010 school year; and Officers D. Henderson, S. Smith, and M. Benson, who served as SROs during the 2010-2011 school year.

Here is the full statement issued by Michael Choy:

“The City of Birmingham, the Birmingham Police Department, Chief A.C. Roper, and six police officers intend to vigorously defend the class-action trial scheduled to begin in federal court in Birmingham on Tuesday, January 20, 2015. The class-action lawsuit was filed by the Southern Poverty Law Center on behalf of eight former high school students who purport to represent all present and future Birmingham high school students.

“The defendant police officers were assigned to Birmingham public high schools as School Resource Officers. Each officer is a sworn police officer and is a member of the Youth Services Division of the Birmingham Police Department. Their responsibilities include, among other duties, enforcing the criminal code of the State of Alabama and the municipal code of the City of Birmingham. The School Resource Officers do not enforce school policy or the
Birmingham public schools’ code of conduct. Six of the plaintiffs were engaged in disorderly conduct, which ranged from fighting and coming close to starting a riot in a high school cafeteria to repeatedly hitting an assistant principal after being warned to stop by one of the defendant police officers. Two students, who have sued, were bystanders and have alleged they were harmed by the indirect exposure to mace. Each officer is accused of the use of excessive force
because they maced the students who were engaged in unlawful conduct. The students allege that their Fourth Amendment rights were violated. One of the plaintiffs is expected to testify by videoconference from prison in New York. This student is serving time for possession of a firearm and second degree robbery. Each officer denies they used excessive force. Chief Roper denies that the Birmingham Police Department’s macing policies are unconstitutional, or were
improperly applied to the students.

“The Birmingham Police Department is and has been accredited by the Commission on Accreditation for Law Enforcement Agencies. The department trains its officers in the Police Academy in a 21-week program. The Academy trains its officers on the use of force, which includes the use of mace, batons, hands, tasers and firearms. In addition, each officer must be certified on firearms twice a year, and that training also includes reviews of other uses of force
such as mace. Daily roll call also includes continuous training on uses of force. Each officer is trained to use a reasonable level of force based on the circumstances they see, hear and perceive. Police officers often are asked to perform their duties under circumstances that are often tense, uncertain and sometimes rapidly evolving. No court in the United States has held that it is a deprivation of a person’s Constitutional rights because that person was subjected to a police officer’s use of mace.

“Defendants will prove at trial that if the plaintiff students were tending to their reading, writing and arithmetic and behaving in an orderly fashion, they would not have been maced. The City and Chief have the option of withdrawing all Birmingham police officers from all Birmingham public high schools since the City has no legal obligation to have police officers within the high schools.”