Non-violent protesters do not surrender their Fourth Amendment Rights to be free from excessive force by police. Specifically, non-violent protesters may sue police and the municipality of county that employs them under this Federal law, 42 United States Code Section 1983 if they have been pepper sprayed while peacefully protesting, whether or not the protesters were arrested.

Here's the language of the law in question:

§ 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

This includes police officers. Specifically, the use of pepper spay by law enforcement against non-violent protestors has been found to be a violation of of the 4th amendment rights of the protesters in the case of Lundberg v. Humboldt, which is the controlling precedent in the 9th Circuit, which has jurisdiction over any cases brought against the police for their actions in Seattle and Oakland.

In its 2001 opinion regarding the Lundberg case, the 9th Circuit held that non-violent protestors who did not present a threat to the safety of the public or to law enforcement officials, even though they had committed the misdemeanor offense of trespass, could sue the governmental authorities and law enforcement officials who had pepper sprayed them, reversing the trial court's decision to dismiss the case on the basis that the authorities had "limited immunity" to violate the civil rights of individuals engaged in non-violent civil disobedience.

The incidents that led to this decision occurred in 1997 and involved protests by environmental activists in which they occupied a logging company engaged in cutting down redwood trees in Northern California. Several of the activists had use metal locking devices known as "black bears" to link themselves to one another thus making the local sheriffs employ a tool known as a "grinder" to cut them apart in order to arrest the activists. Apparently, the Sheriff' Department s felt this was a lot of bother so they asked the county's risk manager and district attorney to determine if they could use pepper spray instead to force the activists to release themselves. The County;s risk manager and the district attorney were only too happy to oblige:

In 1997, the Humboldt County Sheriff's Department organized a special response team comprised of Special Services Deputies to deal with the environmental protests. The officers selected for the team were those with special training and experience in the use of a Makita grinder to remove lock down devices safely. By the fall of 1997, one of the officers had used a Makita grinder to remove hundreds of lock-down devices from the arms of environmental protesters. He had done so safely, without causing injuries to either himself or the protesters. Nevertheless, because a Makita grinder generates sparks when used, the defendants claim to have had a growing concern about the danger involved in using it. So, in the summer of 1997, the Humboldt County Sheriff's Department explored alternatives for effecting the arrest of environmental protesters in lock-down devices -including the use of oleoresin capsicum aerosol ("OC" or "pepper spray"). Defendants Lewis and Philp consulted a certified trainer in the use of pepper spray, the county's risk manager, and its district attorney. And they read much of the available literature on the subject. By summer's end, defendants concluded that the use of a lock-down device by any protester -even an otherwise nonviolent protester who posed no danger to the public, himself, or the arresting officers -constituted "active resistance" to arrest, warranting police use of pepper spray as a "pain compliance technique."

Sound familiar? It does to me, and I'm sure it does to those OWS protesters in New York, Oakland, Seattle and elsewhere who were pepper sprayed indiscriminately as means to employ legalized torture (my words) to coerce protestors to abandon their occupation sites or simply to punish people at the scene of these protests, such as Rev. Lang in Seattle who have been gratuitously pepper sprayed by police simply for exercising their rights to peacefully assemble and free speech. It mattered not at all that the individuals in question posed no threat to the police in almost all cases. The authorities deemed massive amounts of pepper spray should be employed as a "pain compliance technique" (sounds so similar to "enhanced interrogation techniques, doesn't it?) to subdue and "punish the OWS scum who dared to use non-violent civil disobedience or, in many cases, simply to exercise of their 1st amendment right to peacefully assemble and use their right of free speech to annoy their "betters."

Unfortunately for the police, the use of pepper spray against non-violent protestors who pose no threat to police or to the public, has been deemed grounds for legal action against the police under Section 1983 for a violation of your 4th amendment rights. From the 9th Circuit's opinion:

Pacific Coast Lumber employees called the Humboldt County Sheriff's Department, which dispatched its special response team. Upon arrival, the officers observed that the seven protesters had placed the "black bears" under their arms and legs, making it particularly difficult to use a grinder to remove them. The officer in charge decided that using pepper spray was the most appropriate and safest way to arrest the trespassing protesters. He and the other officers testified that they made this decision solely because of the difficulty in using a grinder in these circumstances. It was "immaterial" to them that the protesters were peacefully engaged in an act of civil disobedience, as opposed to being violent. And the protesters outside the building were not a factor in their decision to use the pepper spray on those inside the building. Indeed, it is undisputed that the protesters both on the roof and outside the building were nonviolent, did not interfere with ingress or egress to and from the Pacific Lumber building, posed no safety risks to the public or to the officers, and willingly dispersed when their rally and mock trial were ended or when the police directed them to do so. The Sheriff's videotape of the incident reveals that the officers never attempted to negotiate with the protesters. Once they made the decision to use the pepper spray, the officers simply warned the protesters repeatedly that if they refused to release themselves from the "black bears" the officers would apply pepper spray to their faces. The protesters tucked their heads into their chests and refused to release. The officers then forced four protesters' heads back and applied pepper spray with a Q-tip to the corners of their closed eyes. The protesters screamed in pain. The three other protesters, including one who announced that she had asthma, then voluntarily released. The officers put plastic handcuffs on these three protesters and placed them on the couch right next to those still protesting. They remained there for more than an hour, cheering on the others who continued protesting and excoriating the officers for using pepper spray on them. At this point, the officers did not offer to flush out the protesters' eyes with water. [...] Seven minutes after the initial application, one of the officers can be heard on the videotape saying that water will be given if the protesters release themselves from the "black bears." At that point, one of the protesters released, followed shortly thereafter by another, leaving the two remaining protesters attached only to each other. Then, one of the remaining protesters asked why the officers could not physically carry them out of the Congressman's office and use a grinder to cut them out once they were outside the building. An officer responded by saying that the jail "would not accept you like this" and that it "is too dangerous to transport you like this." One officer then stood within a foot of one of the remaining protesters and sprayed the pepper spray directly into her face. Within three minutes, the remaining two protesters released.

Sound unreasonable to you? Sound like the cops could have used less "force' (i.e., cut the locks linking the protestors to one another) rather than torture peaceful activists with pepper spray and refuse them treatment? Well, the trial court found it quite reasonable. Too bad for the authorities in Humboldt County the 9th Circuit Court of Appeals took a more rational approach to the question of the use of pepper spray against non-violent offenders:

Here, the videotape evidence reveals that the application of the pepper spray with a Q-tip and then by short full blasts created "immediate and searing pain" that could not be moderated by the officers at their discretion or terminated by them the moment the protesters complied with their demands. According to the defendants, the only way to relieve the pain caused by pepper spray is to flush it out thoroughly with water. Police training tapes recommend using a "free-flowing hose to wash the victim's face" or "the use of a big bucket of water in which the victim can actually stick [his or her] face down into to get relief." But here, the officers offered only to spray water in short bursts onto the protesters' faces from hand-held plastic bottles, which the evidence suggests may have actually exacerbated the pain by causing the OC to run into the protesters' noses and mouths rather than flushing it out. Moreover, whether water was offered at all for this purpose during each protest is disputed. Yet the district court's ruling fails to mention this evidence, let alone view it in a light most favorable to the plaintiffs as the nonmoving parties. Forrester [Prior decision by the 9th Circuit] did not hold "that pain compliance techniques are constitutionally permissible as a matter of law. ... Nor did it establish a rule of qualified immunity for the use of pain compliance techniques to arrest passively resisting misdemeanants. Forrester simply held that whether the use of [pepper spray] as a pain compliance technique constituted excessive force was a question of fact that was properly submitted to the jury for its decision. Similarly, we hold here that whether the use of pepper spray in this case constituted excessive force is a question of fact that should have been submitted to a jury for its decision.

The 9th Circuit ordered a new trial, which was completed in August 2005, when federal District Judge Susan Illston issued her opinion finding in favor of the activists and against the defendants (the deputy sheriffs, the sheriff's department and the county):

A third jury trial was held in April 2005. At this trial, police practices experts for each party testified. The jury returned a verdict in favor of plaintiffs, finding that defendants' application of pepper spray to plaintiffs constituted excessive force. Nominal damages were awarded to plaintiffs in the amount of $1 each. On May 3, 2005, the Court entered judgment in favor of plaintiffs. [...] The Court finds that, viewing the evidence in the light most favorable to plaintiffs, the officers' actions violated the Fourth Amendment, meeting the first step in the Saucier inquiry. For the second step, the defendants argue that the Ninth Circuit's holding in Headwaters II should not bind this Court because the Court of Appeals did not have before it the testimony of David DuBay regarding the pepper spray product, the expert testimony of Don Cameron, or the jury finding of no injury to plaintiffs. Defs.' Renewed Mot. at 12:8-12. Despite this evidence, other facts adduced at trial remained the same, and this Court's and the Court of Appeals' prior rulings on qualified immunity are not altered by the introduction of expert testimony by both parties. As the Ninth Circuit found, based on the officers' repeated use of OC, the refusal to provide water until the protestors released themselves,*fn3 the nonviolent nature of the protests, and the availability of other alternatives, these officers are not entitled to qualified immunity under Saucier. Thus, the motion for JMOL or a new trial on this ground is DENIED. [...] For the foregoing reasons and for good cause shown, the Court hereby DENIES defendants' motions for JMOL and a new trial and finds that plaintiffs are entitled to a reasonable attorneys' fee in an amount to be determined.

Ultimately the defendants settled the Lundberg case rather than pursue further appeals.

We won a unanimous federal jury verdict that officers used excessive force against us in violation of our Fourth Amendment rights. Although we were awarded only nominal damages, the judge ruled that we were entitled to have defendants pay our attorney fees because our case established important precedents and served the public interest. Defendants threatened to appeal again. Ultimately, a post trial settlement ended the litigation, heading off years of appeals, and with defendants paying our legal team a substantial sum (but far less than they're worth) for their many years of effort! The settlement agreement has been signed by the parties and ratified by the court, and the settlement money has been paid. The litigation is finished after over eight years and three trials!

It should be noted that in any cases brought under Section 1983 other causes of action, including state claims for assault and battery, pain and suffering, punitive damages, the costs of health care expenses incurred by the individuals pepper sprayed, etc. could be brought as well. Certainly the actions of police against the the Seattle OWS protesters led by Rev. Lang, who were pepper sprayed without warning and for no reason I can discern other than to cause pain to those against whom this "pain compliance technique" was used, is far more egregious than the case of the environmental activists who were actively breaking the law. The Seattle protestors were peacefully marching when police provoked a minor confrontation with one protester and used pepper spray against all the others without warning or out of necessity to protect themselves or the public at large.

In Seattle, Washington yesterday, the protestors of #OccupySeattle marched from their camp at Seattle Central Community College to Westlake Park. [...] As the march continued onward the Seattle Police Department officers became fed up and doused the crowd with pepper spray. [A] pregnant woman [was] in the hospital today because the Seattle Police Department used force to deal with them. Six people were also arrested in the march, including two 17- year-olds.

I strongly suggest to anyone who was pepper sprayed, beaten with batons or otherwise assaulted by the police in Oakland and Seattle that you consult with a lawyer, either with the ACLU, National Layers' Guild or a private attorney specializing in lawsuits based on civil rights violations and police abuse and use of excessive force. It seems clear to me that the 9th Circuit precedent would allow lawsuits against the authorities who used pepper spray and other "pain compliance techniques" used against OWS protesters and bystanders to proceed without any argument by the authorities of qualified immunity from litigation based on their brutal acts of unnecessary violence.

If you live in another jurisdiction and have also been brutalized by the police for OWS related activities I recommend you also consult an attorney. Though I haven't researched all of the relevant case law, I suspect that many of you may have a legitimate basis for legal claims for civil rights violations, excessive force and police brutality, whether based on state law or federal law.

