Second Circuit
Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010) (“Without passing on whether the use of pepper spray as described by Freshwater was reasonable — we are, of course, compelled at this stage to credit Tracy’s version of the events — we conclude that a reasonable juror could find that the use of pepper spray deployed mere inches away from the face of a defendant already in handcuffs and offering no further active resistance constituted an unreasonable use of force.”).
Sixth Circuit
Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (“An officer has used excessive force when he pepper sprays a suspect who has not been told she is under arrest and is not resisting arrest.”).
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (stating that “it is clearly established that the Officers’ use of pepper spray against Champion after he was handcuffed and hobbled was excessive”).
Eighth Circuit
Dreith v. City of St. Louis, No. 21-3514, at *5 (8th Cir. Dec. 15, 2022) (“In any event, the argument does not undermine the district court’s conclusion that Dreith’s right to be free from a retaliatory use of force was clearly established at the time of the incident.”).
Henderson v. Munn, 439 F.3d 497, 503-04 (8th Cir. 2006) (“We need look no further than both parties’ sharply conflicting accounts of the circumstances surrounding Henderson’s arrest to find a material factual dispute. Henderson alleges he was not resisting arrest when Officer Munn hit Henderson’s leg with a heavy object and then sprayed Henderson’s face with pepper spray. . . . While the jury may credit Officer Munn’s testimony and disbelieve Henderson’s testimony at trial, ‘it is not our function to remove the credibility assessment from the jury.’”).
Ninth Circuit
Logan v. City of Pullman, 392 F. Supp. 2d 1246, 1265-68 (E.D. Wash. 2005) (holding that it was clearly established that the indiscriminate use of pepper spray without warning against individuals in close proximity to a fight was unreasonable).
Headwaters Forest Def. v. Cnty. of Humboldt (“Headwaters II”), 276 F.3d 1125, 1130 (9th Cir. 2002) (stating that protesters who remained seated and used “black bear” devices to lock themselves to one another despite officers’ orders to disperse did not actively resist, and holding that the use of pepper spray, and a failure to alleviate its effects, was an unreasonable application of force against individuals who were suspected of only minor criminal activity, offered only passive resistance, and posed little to no threat of harm to others).
Headwaters Forest Def. v. Cnty. of Humboldt (“Headwaters I”), 240 F.3d 1185, 1199 (9th Cir. 2000), vacated and remanded on other grounds, 534 U.S. 801, 122 S.Ct. 24, 151 L.Ed.2d 1 (2001) (rejecting the contention that the use of pepper spray is a “minimal” intrusion, due to the immediacy and “uncontrollable nature” of the pain involved).
LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000) (stating that “in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force”).
Eleventh Circuit
Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002) (stating that “no objectively reasonable police officer could believe that, after Vinyard was under arrest, handcuffed behind her back, secured in the back seat of a patrol car with a protective screen between the officer and the arrestee, an officer could stop the car, grab such arrestee by her hair and arm, bruise her and apply pepper spray to try to stop the intoxicated arrestee from screaming and returning the officer’s exchange of obscenities and insults during a short four-mile jail ride”).