Attorneys for the school officials, resource officers and city police officers named as defendants have asked the United States Court of Appeals for the Eleventh Circuit to hear two questions. First, if the case go forward as a class action; and second, if they have any official immunity.
If the court decides to hear the questions, no ruling is likely for at least a year, said Ebony Howard, an attorney with the Montgomery-based Southern Poverty Law Center.
She is lead attorney representing six youths who say officers on campus sprayed them with a chemical called Freeze+P for minor school-based infractions, including in one case, uncontrollable crying over being bullied.
The SPLC is pursuing class action because of the number of chemical spray incidents at city schools: at least 200 since 2006.
“We haven’t been able to find anywhere that used it in this way and as frequently. We have found that pepper spray has been used for normal adolescent misbehavior,” said Howard. “When it is used in other school systems even one time it’s big news.”
Indeed, a glance at recent news stories turns up several examples of chemical spray reports.
In Rochester, N.Y., a student fight downtown broken up by police using chemical spray has led to students being banned from bus routes that meander downtown. Now they must use routes that go straight to campus, the Rochester Democrat and Chronicle reports.
Topeka High School was put on lockdown after a security guard used chemical spray to break up a fight, the Topeka Capitol-Journal says.
But there is no nationwide count of such incidents in schools.
Matt Simpson, policy strategist at the ACLU in Texas, studies law enforcement in his state’s schools. He said families have contacted his organization about “very few” pepper spray in school incidents, but there’s no way to know how many actually happen.
“There’s virtually no uniformity on use-of-force policies for law enforcement in schools” in Texas he said, adding “there’s definitely not reporting.”
Some Texas school systems, especially larger ones, set up their own law enforcement agencies with a chief of police who reports to the school superintendent. Those agencies, said Simpson, are more likely to set a use-of-force policy tailored for young people and schools.
Other school systems contract with local city or county police, meaning an officer on street duty can be called to a school. Simpson said in those cases, use-of-force rules tend to be functionally the same on campus as on the street.
For the past few years, Texas ACLU has worked on legislation that would limit the use of chemical sprays or stun guns in schools, especially banning their use on the youngest children. Simpson said they will advocate for the same thing next year.
The NAACP launched an online petition this week, inviting people to lend their names to a campaign to end the use of pepper spray on students in Birmingham, Al. public schools.
“As long as we continue to treat students like criminals, they will grow up to become criminals,” said NAACP President and CEO Benjamin Todd Jealous, in a written statement.
The NAACP argues that Mace and pepper spray may be legitimate parts of an adult or crowd policing strategy, but are not acceptable for use on school children. Birmingham’s public school population is overwhelmingly African-American.
The petition comes as wrangling in U.S. District Court over the practice reaches nearly the two-year mark. In December, 2010, the Southern Poverty Law Center filed suit for damages on behalf of six defendants, and also asked for pepper sprays to be banned. They alleged that Birmingham police officers in the school used the chemical as a first resort and as punishment, among other charges.
“Mace is used so frequently and so indiscriminately in Birmingham’s public high schools that each Class Representative [defendant] — and all BCS students — faces a real and substantial risk of future and repeated injury,” the original complaint read.
Birmingham’s Board of Education and schools superintendent have been dismissed from the case, though six city police officers, the police chief and a high school assistant principal are still on the docket.
A spokeswoman for Birmingham City Schools declined comment.
Police carry the mace because it its part of their “daily equipment,” a police spokesman is quoted in Birmingham media.
The Birmingham police spokesman could not immediately be reached for any further comment.
In a written statement, Hezekiah Jackson IV, Metro Birmingham Branch NAACP president said, “we as a community must end this form of archaic police disciplinary response, implement alternative strategies and create an atmosphere in which all children of Birmingham can feel protected and comfortable.”
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