Pepper ball excessive force lawsuit against Eugene can move forward, judge rules

A federal judge cited concerns about a Eugene Police Department policy in declining to toss out claims made against the city in an excessive force lawsuit filed by a man hit by pepper balls while being arrested.

U.S. District Judge Karin Immergut referred to the department’s “Pain Compliance” policy in a ruling Thursday, Sept. 24.

Immergut’s ruling said “a reasonable jury could find that the Pain Compliance policy could permit the unconstitutional use of pepper ball force against passively resistant individuals.”

She wrote that “the interpretation and application of this policy is in genuine dispute.”

The ruling made no conclusion about the facts of the case, but it does allow the lawsuit to move forward against the city.

In 2022, Eugene police, while executing an arrest warrant, shot Christopher Hawkins in his back with nonlethal projectiles known as pepper balls that release chemical irritants upon impact.

Hawkins exited a residence and was on his knees moving backward in a gravel driveway toward officers, according to court documents. He stopped and had his hands up, according to his lawsuit, when he was hit by pepper balls. Immergut’s ruling states he was hit by four rounds of pepper balls. Officers then walked over some 10 feet to place Hawkins in handcuffs, according to court documents.

Immergut’s ruling denied a motion seeking summary judgment in favor of the city.

The judge wrote that “the question at the core of the case here is: did the City’s policies or training allow for officers to deploy PepperBalls on a passively resistant or fully compliant individual, and if so, were those policies or training the moving force of the alleged constitutional violation?”

At issue, at least in part, is the interpretation of policy.

Immergut noted that the city, in seeking to win summary judgment, argued it has policies prohibiting the use of excessive force by police.

The city also cited a policy specifically governing the use of pepper balls. Immergut wrote that the police policy “specifically prohibited their use ‘to strike persons engaged only in passive resistance …’”

But Immergut still found that “there are genuine disputes of fact as to how officers interpreted the Pain Compliance policy, and whether it reasonably could be interpreted to permit the use of pepper balls against” Hawkins.

The department’s policy at the time of Hawkins’ arrest, according to court documents, stated in part: “Pain compliance techniques may be very effective in controlling a passive, static or actively resisting individual. Officers may only apply those pain compliance techniques for which the officer has received department-approved training and only when the officer reasonably believes that the use of such a technique appears necessary to further a legitimate law enforcement purpose.”

The policy has since been updated but uses similar language in referring to “passive” resistance.

Prior to Immergut’s ruling, U.S. Magistrate Judge Jolie Russo, in a nonbinding recommendation, called the Pain Compliance policy in place in 2022 “fatally flawed,” stating in part that the policy lacked a definition of passive resistance.

Russo also found that the Eugene department’s use-of-force policy was similarly “fatally flawed,” as her findings found that case law showed that failure to fully or immediately comply with police orders did not justify the use of nontrivial force. Russo noted that pepper balls are designed to cause intense pain.

Immergut did not agree wholly with Russo, however, stating “this Court finds that only the Pain Compliance Policy (policy 808.3.1) may be facially deficient.”

The judge also noted in a footnote to the ruling that there remain “numerous factual questions that must be decided at trial,” including whether Hawkins was fully compliant with officers.

The lawsuit was filed against the city and also unnamed Eugene police officers.