1996-05-20 04:00:00 PDT SAN FRANCISCO -- The main study cited by law enforcement agencies to support using pepper spray is apparently tainted by a conflict of interest on the part of an FBI agent who conducted the research.

The pepper spray study was conducted in the late 1980s by FBI Special Agent Thomas W.W. Ward at the FBI academy in Virginia outside Washington, D.C. But Ward did not disclose at the time that he had accepted $57,000 from a pepper spray manufacturer that was laundered through a Florida company owned by his wife, Sheri.

On Friday, Ward was sentenced to two months in federal prison after he had earlier pleaded guilty to federal charges of accepting an illegal gift.

Prosecutors said his short sentence reflected his cooperation with the FBI investigation. The FBI fired Ward for not disclosing a financial conflict of interest.

Based on Ward's research and testing, the FBI decided to buy the chemical product Cap-Stun, whose active ingredient, oleoresin capsicum, is derived from cayenne pepper. The spray is intended to temporarily incapacitate aggressive people by burning their skin and eyes and inflaming their respiratory passages, making breathing painful and difficult.

Critics of pepper spray say the FBI research has been discredited and are calling for further studies. But Bay Area law enforcement agencies, including San Francisco, have no plans to quit using it.

The San Francisco Police Department faces two lawsuits alleging that pepper spray may have led to the death of two suspects - Mark Garcia and Aaron Williams - against whom police used the spray repeatedly during struggles.

"The king has no clothes. I think law enforcement agencies were duped by a chemical company who wanted to sell their product," said Frederick Remer, an attorney who represents the family of Garcia, who died April 7 after he was sprayed during an arrest by San Francisco police. "They approved it as fast as they could. I think they have a real problem in San Francisco and across the nation."

Under fire from the public and civil rights advocates, San Francisco's Police Commission recently re-examined pepper spray, voting to go on using it. Last month, San Francisco's district attorney forbade his investigators to carry the spray, even though they have never used it.

Pepper spray added to arsenals

Remer said local law enforcement officials across the country were quick to add pepper spray to their arsenal after Ward stood behind it.

"He was very instrumental in getting this approved around the nation," Remer said. "Once the feds approved this, local law enforcement followed like a bunch of puppies."

Ward trained FBI agents and other law enforcers in the use of oleoresin capsicum products, including Cap-Stun. Ward, then a leader in the FBI's Firearms Training Unit, lectured extensively on pepper spray use.

Prosecutors said that from December 1989 through 1990, Ward received about $5,000 a month for a total of $57,500, from Luckey Police Products, a Fort Lauderdale, Fla.-based company that produced and sold the spray.

In California, films used by the state Department of Justice to teach local law enforcement agencies about pepper spray quoted Ward and contained footage from an FBI exercise he had overseen.

In 1992, state Attorney General Dan Lungren promised mandatory safety studies when he authorized provisional use of the spray in California. The ACLU maintains the required research has not been done.

"It's our position that the FBI work has tainted everything that followed it. It laid a foundation of sand under a house of cards," said Allen Parachini, the American Civil Liberties Union's expert on pepper spray.

"Most police agencies don't recognize how dicey this situation is. San Francisco obviously has a serious training deficit on pepper spray. There are some policy and training issues . . . for which the chickens are now coming to roost."

Other studies say spray is safe

But San Francisco police point to other studies that support the spray as a safe and effective police tool, including research by the International Association of Chiefs of Police.

The association studied 22 in-custody deaths involving pepper spray during 1990-93 and determined that none of the deaths was due to pepper spray but were instead caused by positional asphyxia, according to Deputy Chief Rich Holder of the SFPD. Positional asphyxia is, in effect, suffocation caused when the position of the body hinders breathing.

"We're not just relying on (Ward's) tests," Holder said. "We've looked at that issue but also at other sources of testing.

"We have seen thousands of contacts (where pepper was used) and no conclusive deaths. Just in California, there were 23,000 uses of pepper spray with no documented deaths. That's why we came into this decision."

The state Environmental Protection Agency had warned the state Department of Justice for at least two years about its safety concerns about the spray. However, plans to conduct extensive tests on it were never funded.

In January, a new state law took effect that deregulated use of pepper spray. Law enforcement agencies are no longer required to research its effects.

From the lab to the courthouse

Instead, questions over pepper spray's effects appear to be moving from the lab to the courthouse. In addition to San Francisco, lawsuits regarding its use by police have been filed in several California counties, including Los Angeles.

"More people are going to die," said Remer, who plans to file a wrongful death suit soon on behalf of Garcia's family. "More police are going to get sued and there is going to be a lot more money coming out of police coffers."

San Francisco police do not use Cap-Stun but instead use a similar product named First Defense, a milder form of pepper spray produced by Defense Technology Corporation of Wyoming.

Defense Technology has been sued by Lynne Williams, widow of Aaron Williams, a burglary suspect who died in police custody at age 35 in June, after a conflict with officers in which he was sprayed.

The ACLU says 37 people have died in California after being hit with pepper spray since January 1993. Most recently a Ventura County man died on May 8 after he was sprayed.

"Pepper spray is being used at the rate of once an hour and people are dying at the hands of law enforcement at the rate of once a month," said ACLU attorney John Crew, who monitors San Francisco police.

"We're not calling for a complete ban on its use," his colleague Parachini adds. "But there are clearly serious problems that we see coming out. This can create a lot of liability for police agencies. We would like to see a lot more research on this product and a lot more research on alternative methods" for police to safely subdue troublesome suspects.

Police Commissioner Clothilde Hewlett concedes that many people are scared of the spray but she supports its continued use.

"We have to keep looking at less deadly forms of force than the firearm," she said. "But you have to look at the alternatives. When you take away pepper spray you are removing a less lethal form of force. That leaves police with batons and firearms. It isn't perfect, but they need the spray as an option." <