Nelson v. City of Davis

Pepperball projectiles, which combine pepper spray and concussive force, "merely combine two types of force that we have already recognized as unreasonable when aimed at individuals who pose no threat and have committed, at most, minor offenses."

University of California at Davis and City of Davis police started to clear a party in the apartment complex while plaintiff Timothy Nelson was attempting to leave. Nelson was hit in the eye by a pepperball projectile, he fell to the ground, no officers assisted him, he suffered permanent injury, and verbal warnings were heard by witnesses only after projectiles had been fired. Nelson filed suit in district court alleging his Fourth Amendment right to be free from unreasonable seizure was violated. The district court held that an unreasonable seizure, a constitutional violation, had occurred, thus the officers were not entitled to qualified immunity. The Ninth Circuit noted that under Graham v. Connor’s balancing test, a seizure that is unreasonable is considered a constitutional violation. The Ninth Circuit found under Graham that Nelson lacked serious criminal behavior, there was no indication that Nelson was a threat, Nelson was not actively resisting, and using the pepperball projectiles was not necessary. Therefore there was no justification for the use of force from the police officers even with their interest to disperse the party and stop disorderly conduct. A reasonable officer should have been on notice that using pepperballs, which combine both pepper spray and concussive force, was unreasonable because under past precedent both types of force have been recognized as unreasonable under these circumstances. The Ninth Circuit held that the officers were on notice that shooting the pepperballs was an act of excessive force under the circumstances, so their actions violated Nelson’s Fourth Amendment rights, and precluded them from qualified immunity. AFFIRMED.