When Can Austin Police Officers Use Pepper Spray?

Jun 9, 2015

A screenshot of a video showing an Austin Police officer spraying pepper spray at a bystander went viral over the weekend.
Credit YouTube

The YouTube video that surfaced last weekend of an Austin Police officer pepper-spraying a suspect on Sixth Street has many questioning use of force by APD. In 2014, the department documented 147 incidents of the use of pepper spray, but when can they use it, how is it justified and how exactly does the review process work?

Let's take a look at APD's guidelines.

The use of pepper spray — known as oleoresin capsicum spray, or OC spray — is what's called a "pain compliance technique," used by officers to control someone actively resisting, according to APD policy.

Guidelines for the use of pepper spray dictate officers only use it when "reasonably necessary," when a suspect is violent, presents potential harm to officers or others, is fleeing arrest or when it’s dangerous for an officer to approach the suspect at close range. 

Pepper spray use is prohibited in instances of "torture," "horseplay," use without permission from a supervisor or if the suspect is restrained, unless they're aggressively resisting. A police officer can't use pepper spray if a suspect is only resisting verbally or passively. Police must give a verbal warning before spraying a suspect and give them proper time to comply. Additionally, the officer must allow for an opportunity to clean anyone that's pepper-sprayed and allow them to seek a medical examination, if necessary. 

Officers using pepper spray must be able to articulate and justify its use, outlining the number of bursts of pepper spray, the duration of each burst, their distance from the suspect and where they sprayed a suspect. The use is considered a "Level 3" incident, the lowest designation of use of force, and requires officers to file a response resistance incidence report, which is reviewed by a supervisor and each level of a chain of command up to a commander.

If a supervisor deems an incident deserves more scrutiny, he or she can upgrade an incident to Level 2 after the fact, at which point the case is investigated by the department's Force Review Board.

In relation to this case, APD guidelines allow bystanders to film officers "in the public discharge of their duties" on sidewalks, streets and protests. However, if a citizen crosses a police line, barricade or anywhere they don't have legal consent to be, they're not allowed to record. 

If a citizen is recording an arrest or any individual who's being questioned or detained by police, APD guidelines say an officer can't tell that citizen to stop recording, demand their ID, require them to state why they're recording, detain that person, block or obstruct cameras or any recording device or threaten, intimidate or otherwise discourage an individual from recording officers.

Even if officers determine photography presents a risk to themselves or others, or impedes police business, they can't demand a person stop recording. They have to direct a person to a position in which they won't interfere. Additionally, a person can openly criticize police while recording and record them at the same time. If their criticism devolves into threats, incites illegal behavior or jeopardizes safety in anyway, the photography is considered interfering.

Below, you can watch the video of the incident on Sixth Street over the weekend. Be advised: It does contain explicit language.

Audrey McGlinchy contributed reporting to this story.