Falling through the cracks

Police Chief Stamper says pepper spray is safe. Then why is Michael Ealy dead?

Last week, Seattle Police Chief Norm Stamper insisted that Michael Ealy's death had nothing to do with pepper spray.

Ealy died early in the morning on December 28 after an altercation with police on Dexter Avenue. Ealy family attorney Lembhard Howell says Michael's body showed "evidence of beating." Police claim Ealy died of acute cocaine intoxication (the drug was detected in his blood during autopsy) exacerbated by the struggle that ensued after Ealy attacked two ambulance workers. Neither side is interested in new scientific evidence that points toward another culprit: the use of pepper spray on people who are high on coke.

"Pepper spray was definitely used," Chief Stamper explained by e-mail, "[but it] had no effect, was stopped, and, at least according to [the medical examiner], was not a part of the cause of death."

"I don't know that," replies King County Medical Examiner Donald Reay, who allows that pepper spray may have contributed to Ealy's sudden death. "I don't think we have enough information. There are so many factors at play here, I don't think you can draw a neat cause and effect one way or another," he explains. "Certainly, it was a sudden death—cardiac arrest precipitated by the restraint procedures that were employed."

Ealy family attorney Howell points to chest and neck compressions on Ealy's body as evidence of foul play. Dr. Reay will not confirm or rule out that possibility either.

While Dr. Reay calls for further examination of pepper-spray-related death, San Francisco researcher Dr. John E. Mendelson has taken the initiative with a new study that may help exonerate the individual officers involved in Ealy's death. "One simple explanation you get for a lot of in-custody deaths is that the police were brutal, and that they're just liars who protect each other on the witness stand," Dr. Mendelson says. Instead, he worries about more endemic flaws in police training policy and safety procedures involving pepper spray.

In the first-ever academic study to test pepper spray lethality, Dr. Mendelson and four other researchers from the University of California at San Francisco concluded in their yet-to-be-published report, "that exposure to pepper spray in cocaine-intoxicated individuals may potentiate cocaine lethality."

Mendelson is not alone in his concerns. In 1996, the FBI realized its original unequivocal endorsement of pepper spray as "100 percent safe and effective" was tainted, when the chief FBI researcher in charge of the study pleaded guilty to receiving more than $50,000 in kickbacks from a pepper spray manufacturing company owned by his wife.

Pepper spray is not regulated by the federal government or anyone else, explains David DuBay, director of research for Defense Technology, the manufacturer of pepper spray carried by Seattle police. "There are no regulations," he says. "It basically falls through the cracks."

After a series of in-custody deaths involving pepper spray, FBI instructor Monty Jett now advises, "If a subject displays drug- or alcohol-induced behavior, officers should be cautious in using [pepper] spray, and should consider other tactics for making the arrest."

Yet SPD pepper spray policy and training manuals make no mention of the FBI caution or any possible lethal consequences of spraying cocaine-intoxicated subjects. Seattle Police Lt. Joe Kessler, who wrote the SPD training manual for pepper spray field use, dismisses the concerns outright, saying he taught all active officers "the myth of pepper-spray-related death."

Chief Stamper further defended SPD actions by noting that "pepper spray has been used thousands of times to end violent assaults, [and] bring to a safe conclusion incidents that could result in far worse outcomes." He also cited a Supreme Court ruling: Graham v. Conner, which held "the 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Stamper argues that those officers involved in the Ealy altercation acted with reasonable force given that "officers faced with combative persons cannot always know whether those individuals are intoxicated or under the influence of a controlled substance, or simply being assaultive."

While it's not clear at all that SPD officers involved in restraining Ealy were aware of the FBI cautions about pepper spray—in light of Lt. Kessler's misgivings about the studies—it is clear that the individual officers believed he was in fact intoxicated. According to an SPD report, officers observed that Ealy "was behaving in a bizarre fashion, signifying that he may be under the influence of narcotics or otherwise disturbed."

Under these circumstances FBI instructor Jett advises that officers consider other restraint tactics. Stamper replies that officers are trained "to use caution and appropriate safety measures each and every time [pepper] spray is deployed."

"We should tell people about the medical concerns," says Tina Podlodowski, City Council chair of the public safety committee. "The pepper spray question for me is, what's the alternative?" Podlodowski says she will bring the issue up with Chief Stamper this week during their regular monthly meeting.

More fireworks in the Ealy case will begin later this month, when an inquest into the death starts up before King County Judge Darcy Goodman. The inquest is a fact-finding procedure and precursor to any criminal investigation by King County prosecutors.

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