Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, March 24, 1995 TAG: 9503240108
SECTION: VIRGINIA PAGE: B-3 EDITION: NEW RIVER VALLEY
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE: LENGTH: Medium
During a struggle with Cox, a deputy used the chemical spray - which burns the eyes and makes breathing difficult - to subdue Cox.
The 33-year-old sued the deputy and the sheriff, charging excessive use of force. Cox acted as his own attorney and argued his case in U.S. District Court in Roanoke on Thursday. He said the deputy used the spray to ``punish'' him, not just subdue him.
Attorney Paul Kuhnel, representing Sheriff Ralph Dobbins and Deputy Melvin Morris III, argued that the spray was used appropriately in Cox's case, and in fact prevented further injury to Cox and the four or five deputies trying to overpower him.
The jury apparently agreed, finding in favor of the law-enforcement officers.
Pepper spray has grown in popularity among police departments since the FBI started using it eight years ago, Norfolk police officer James Stewart testified. He was called as an expert witness for the defense.
The spray, made from the oil that gives cayenne pepper its sting, also has become a popular self-defense weapon. A spray in the face can incapacitate someone for 15 to 30 minutes.
Deputies testified that when Cox was sprayed, it immediately ``took the fight out of him.''
``I'm sure you feel you've been wronged,'' Judge James C. Turk told Cox after the trial. ``But I think the jury felt [the deputies] did you a favor'' by not using more serious weapons.
Cox was handcuffed after he was sprayed. His head went through a Plexiglas window during the incident, but accounts differed as to how that happened.
The Pulaski man was well-known to police and is now serving a five-year prison sentence for violating probation.
Cox testified and questioned witnesses, and Turk praised his handling of the case. But the judge also said after the jury left the room that if it came back with a verdict in Cox's favor, he planned to set it aside. Cox had not shown enough evidence to support his claim, Turk said.
Cox argued that Pulaski deputies, who didn't go through training in using pepper spray until eight months after the incident, ``used a weapon they were not familiar with.''
The sheriff - who handed the spray to Morris during the struggle - and other deputies were testing different brands of spray. The department eventually decided to use a different kind from the one used on Cox.
Dobbins said after the trial that the spray is needed maybe once every three months and that there have been no other problems with its use. Stewart testified that the Norfolk Police Department uses the spray between five and 10 times a day.
Stewart testified that pepper spray should be used when a suspect cannot be controlled by handcuffs or ``soft restraint'' - trying to hold him. Spraying can take the place of using a baton, which can cause more injury.
Nationwide, at least 30 suspects have died after being sprayed, but a study of 22 of those deaths by the International Association of Chiefs of Police found that pepper spray wasn't a factor in any of them. Most deaths occurred from ``positional asphyxia,'' meaning that police restrained the suspects in a way that restricted their breathing, The Associated Press reported last year.
by CNB