Nelson v. City of Davis

Incident Summary & Facts

On April 16, 2004, about 1,000 people gathered at an apartment complex in Davis, California, for a Picnic Day party. After parking problems, underage drinking, a crowd rocking a car, and bottles thrown at a patrol car, the property owner asked police to remove non-residents. Some 30 to 40 officers from several agencies assembled in riot gear. U.C. Davis officers Barragan, Chang, and Garcia carried pepperball guns, which fire paintball-like rounds of OC (pepper) powder at 350 to 380 feet per second, combining “kinetic impact” with the effects of pepper spray. The officers had no way to amplify their voices; the crowd mostly neither heard nor obeyed the dispersal orders given by skirmish lines.

Student Timothy Nelson and 15 to 20 others had gathered in a “very narrow and confined” breezeway. Taking the evidence in Nelson’s favor, they were trying to leave but police blocked their way out. They asked officers what to do and repeatedly raised their hands. Officers admitted no one in the group threw bottles. On Sgt. Wilson’s order to “disperse them,” the officers fired pepperballs toward the group from an estimated 45 to 150 feet, without any audible warning. One pepperball struck Nelson in the eye. He collapsed and lay in pain for ten to fifteen minutes as officers walked past without helping. He suffered temporary blindness, a permanent loss of visual acuity, and multiple surgeries, and lost his athletic scholarship. He was never charged with a crime. Officer training (POST guidelines) said pepperballs could not be accurately aimed beyond 30 feet, that officers should avoid the head, and that occupied areas should not be targeted for area saturation.

The district court denied qualified immunity to the officers, the sergeant, and two police chiefs, who were sued for ratifying the force. The defendants brought an interlocutory appeal.

Core Legal Issue

Whether firing pepperball projectiles toward a group of non-threatening partygoers during crowd dispersal was a Fourth Amendment seizure and an unreasonable use of force, and whether the law was clearly established in April 2004 so as to deny qualified immunity.

The Holding

The Ninth Circuit held that Nelson was seized, that the force was unreasonable under the Fourth Amendment, and that a reasonable officer would have known it was unlawful “even when that force was applied in the larger context of crowd dispersal.” The denial of qualified immunity was affirmed.

The Court’s Analysis:

• Seizure: Officers intentionally fired toward a group that included Nelson. He was among “the undifferentiated objects” of that force and was stopped by it, so he was seized. Neither a claimed “area contamination” intent nor a subjective goal of dispersing the crowd changed that result (Brower, Brendlin).
• Nature of the intrusion: Pepperballs combine a physical blow with chemical effects. Both the risk of harm and the actual harm (permanent eye injury) were “significant,” and the officers’ training made that risk known to them.
• Graham factors: There was no crime, or at most misdemeanor trespass. There was no threat, which is “the most important factor,” because general disorder in the complex could not justify force against people seen not to be acting violently. There was no resistance either: orders came only after the shots, and failing to disperse would have been at most passive resistance.
• Alternatives and warnings: Officers could have followed their own training, for example by not firing beyond 30 feet or at occupied areas. Giving no audible warning or instructions on how to comply also weighed against the government.
• Clearly established: The pepperball was a new weapon, but “[a]n officer is not entitled to qualified immunity… every time a novel method is used to inflict injury” (Deorle). It combined two kinds of force (pepper spray, as in Headwaters and LaLonde, and impact projectiles, as in Deorle) that prior cases had already held unreasonable against non-threatening people.