Circuit court points to placement of pepper spray low on the "force continuum" in finding police use of force reasonable.

On August 11, 2006, at approximately 1:30 a.m., Pennsylvania State Police (PSP) Corporal Brian Barnhart and PSP Trooper Nathaniel Lieberum observed Revak driving erratically and speeding in his truck. The officers engaged the overhead lights and siren on their cruiser. Although Revak slowed down, he did not stop. The officers followed Revak's vehicle until he arrived home. Lieberum and Barnhart approached and ordered Revak to exit. Revak began to scream obscenities at the officers and grew increasingly belligerent. The officers detected a strong odor of alcohol emanating from Revak, and they moved him to the side of his truck. The officers then instructed Revak to place his hands on the vehicle so they could search him. As Lieberum attempted to pat him down, Revak forcibly leaned backwards, knocking into the officer. The officers moved Revak back to the truck, but he again attempted to push back into Lieberum. At this point, the officers placed Revak under arrest. After placing Revak under arrest, the officers attempted to handcuff him. Revak—who is 6'4" tall and weighed approximately 290 pounds—refused to move his arms. He continued to resist their efforts and made verbal threats against them. The officers became concerned for their safety, and Corporal Barnhart decided to pepper spray Revak. Barnhart told Lieberum to lower his head and shot a half-second burst of pepper spray onto the right side of Revak's face. Revak turned his head, and Barnhart employed another half-second burst on the left side of his face. After using the pepper spray, the officers were able to sufficiently maneuver Revak's arms to handcuff him. Revak again began to shove his shoulders into Corporal Barnhart. Barnhart employed a third half-second blast of pepper spray against Revak, and the officers placed him in the backseat of their cruiser. Undeterred by his criminal convictions, Revak sued Lieberum and Barnhart under 42 U.S.C. § 1983, claiming, inter alia, that the officers violated his Fourth Amendment rights by using excessive force during his arrest, although Revak correctly argues that his criminal conviction for resisting arrest does not automatically preclude his claim for excessive force. As the District Court noted, the use of pepper spray is among the lowest levels of force authorized on the Pennsylvania State Police Force Options Continuum. Accordingly, the court held that the officers' use of pepper spray constituted a reasonable response to Revak's actions.

Case Law Alert - 1st Qtr 2011