HPD cadets & pepper spray

A Huntsville Police Department training officer sprays a cadet in the face with pepper spray. (FILE PHOTO The Huntsville Times/Dave Dieter)

The U.S. 11th Circuit Court of Appeals on Wednesday will hear the Birmingham Police Department's appeal of a federal judge's order that includes requiring new training and decontamination procedures for School Resource Officers' use of pepper spray at city high schools.

Police also are appealing U.S. District Court Judge Abdul Kallon's ruling that the officer's use of the spray on students for non-violent minor incidents was excessive force, unconstitutional, and that five students are entitled to $40,000.

Kallon, however, did not forbid officers from carrying pepper spray in schools for use in addressing violent situations.

The 11th Circuit will hear the appeal at a session at the Frank M. Johnson, Jr. United States Courthouse in Montgomery.

Attorney E. Travis Ramey will present arguments for Birmingham police. Brooke Menschel, an attorney with the Southern Poverty Law Center that filed the lawsuit on behalf of students, will argue on the other side.

Ebony Howard, associate legal director at the SPLC, said that part of their argument will be that the issue isn't ripe for appeal yet because Kallon did not issue an injunction against the police nor a final order.

While Kallon's ruling is specific to Birmingham, it is "one-of-a-kind" ruling that other school systems and police departments may be watching. "It signals that using these harsh practices in school settings, on school children, is inappropriate and also unconstitutional," she said.

An attorney for the city declined comment on Wednesday's hearing.

But in its written appeal earlier this year, attorneys for Birmingham police argued that Kallon overstepped his authority with the ruling.

"The district court entered an injunction that invades the power of the City of Birmingham's elected government to control the BPD through Chief Roper," attorneys for the police department argued in its brief to the 11th Circuit. "The district court seeks to control: (1) SRO duties; (2) SROs' use of Spray; (3) SRO training; (4) and SROs' decontamination of students that have been sprayed."

"The decontamination protocol the district court has ordered is detailed, even ordering Chief Roper to procure clothing, fans, and trash bags," Birmingham lawyers state in their brief. "Further, the court has ordered Chief Roper to engage in speech regarding the effects of spray and appropriate decontamination methods."

"Such a heavy-handed intrusion into the internal government of the City of Birmingham is unwarranted," Birmingham police lawyers argue in the brief. "The district court reached the wrong conclusions about what the Constitution requires. It compounded that error by injecting itself into internal municipal affairs."

"At most, an injunction prohibiting Chief Roper and SROs from violating the Constitution would have been sufficient. By doing what it did, the district court abused its discretion," Birmingham states in its brief.

The SPLC in its response to Birmingham's arguments stated that the named plaintiff students, who represent all current and future students, allege that police SROs, acting pursuant to Chief Roper's policy and practice on chemical spray, violated their Fourth Amendment rights to be free from excessive force by spraying them with chemical spray and failing to decontaminate.

The SPLC argues that Kallon did not issue an injunction and that the judge properly concluded that the SROs are not shielded by qualified immunity on the excessive force claims and that Chief Roper is liable for the constitutional violations.

SROs have been stationed in Birmingham high schools since 1996, the SPLC brief states. Currently, there are sixteen SROs stationed at seven Birmingham high schools, the SPLC states.

"Though SROs have been stationed in BCS for approximately twenty-one years,

there is no agreement between BPD (Birmingham Police) and BCS (Birmingham City Schools) governing SRO roles and responsibilities," the SPLC argues. "Moreover, during that twenty-one-year period, BPD has provided SROs with only two trainings on school-based policing. The result is that SROs often resort to 'using chemical spray to deal with this normal--and, at times, challenging--adolescent behavior.'"

From 2011 to Spring 2013, there were at least 110 incidents involving chemical spray deployment by SROs against students, the SPLC states.

In those incidents, SROs intentionally exposed approximately 200 students to chemical spray. The SPLC argues that police policy on decontamination of students after spraying incidents was inadequate.