- Associated Press - Thursday, October 1, 2015

BIRMINGHAM, Ala. (AP) - Birmingham police are expected to craft new guidelines by Nov. 15 governing the use of pepper spray in Birmingham City Schools after a federal lawsuit claimed school resource officers were violating students’ constitutional rights.

A 120-page document filed Wednesday by U.S. District Court Judge Abdul Kallon came after a class-action lawsuit the Southern Poverty Law Center filed in 2010 against six Birmingham school resource officers, Police Chief A.C. Roper, the city’s board of education and others.

The suit alleged the way officers used the chemical spray Freeze + P in Birmingham schools violated students’ Fourth and 14th Amendment rights. Some of the students who were sprayed were restrained or didn’t appear to threaten officers who used it against them, Kallon said.

“The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze + P,” Kallon wrote. “In a display of both poor taste and judgment, one defendant joked that Freeze + P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze + P is the standard response even for the non-threatening infraction that is universal to all teenagers - i.e. backtalking and challenging authority.”

According to Kallon’s order, Police Chief A.C. Roper said during the bench trial that the department’s use of force guidelines allow officers to use a level of force up to two degrees above the level of resistance they’re faced with, making use of the spray permissible to address verbal noncompliance. Police in Birmingham public schools used chemical spray 110 times between 2006 and 2014 and a student was found with a weapon in one incident, according to Kallon’s opinion.

Aerko International, the company that manufactures Freeze + P, describes the spray on its website as “the most intense, incapacitating agent available today.” The company says the spray is designed to penetrate skin to deliver active ingredients to nerve endings.

Despite the manufacturer’s recommendation that someone sprayed be decontaminated afterward, this did not happen with the affected students, Kallon wrote.

Several officers testified that department guidelines say the fire department should be called to determine whether a person needs medical attention and that the rules don’t explicitly say officers must decontaminate people who are sprayed. Kallon said failure to decontaminate students who complained of burning or itching skin, trouble breathing and more amounted to excessive force.

Kallon said six of the eight students in the suit are entitled to damages of $5,000 each for not being decontaminated after being sprayed. Two of the six students are also entitled to an additional $5,000 from two officers who used excessive force against them.

Birmingham Police spokesman Sean Edwards said department officials are unable to comment on the case.

Southern Poverty Law Center managing attorney Ebony Howard, who represented the students and their families, said she’s hopeful that the case is a step toward improving the role of police in public schools.

“Our experience in Birmingham City Schools has shown us that kids are getting maced and also arrested for things that really do amount to adolescent mischief - things that the justice system should not be involved with,” she said.

Judge Kallon wrote that he won’t restrict school resource officers from using Freeze + P in the interest of student and staff safety, since it may be necessary in some cases.

However, Kallon also ordered the department to decontaminate students after spraying them, supply sweat suits to allow students to change out of contaminated clothing, and distribute information to students on the effects of the spray.

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This story has been edited to modify the description of the judge’s filing to ‘document’ instead of ‘opinion,’ and to clarify that Kallon is saying each of the students is entitled to $5,000.

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