Judge says its okay for Navy to spray recruits with banned chemical
John Byrne
Published: Monday March 16, 2009

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The Navy can spray recruits in the eyes with pepper spray, even though it has been linked to death and is banned during warfare by international law, a federal judge ruled Friday.

The decision, revealed by the blog of Legal Times, is in response to a case brought by naval officers, who argued that the practice of "subjecting trainees to a direct shot of pepper spray was dangerous and deprived them of their constitutional rights to due process and equal protection. They said the Navy could rely on less intense training methods, such as smearing a small amount of the spray on the skin beneath the eyes, or forcing trainees to walk through a room that had previously been sprayed."

But Judge Richard Leon of the U.S. District Court for the District of Columbia said he wasn't in a position to overrule the Navy's decision to continue the practice.

“The use of direct-impact [pepper] spray indisputably risks injury, but the agency decided that this risk was offset by the benefits of training,” Leon wrote. “Plaintiffs allegation that the action was ‘clearly not the product of reasoned thought,’ is little more than a legal conclusion and provides insufficient support for its claim that the agency decision was arbitrary and capricious.”

Pepper spray is made from oleoresin capsicum, an oily extract of pepper plants. According to the American Civil Liberties Union, there have been 27 deaths among people sprayed in California alone since 1993, although the deaths were not directly linked to the chemical. In particular, it can be fatal for individuals with asthma.

Pepper spray is banned for use in war by Article I.5 of the Chemical Weapons Convention.

The "spray may contain water, alcohols, or organic solvents as liquid carriers; and nitrogen, carbon dioxide, or halogenated hydrocarbons (such as Freon, tetrachloroethylene, and methylene chloride) as propellants to discharge the canister contents," the North Carolina Medical journal wrote in a study. "Inhalation of high doses of some of these chemicals can produce adverse cardiac, respiratory, and neurologic effects, including arrhythmias and sudden death."

According to Legal Times, the judge threw out the navy officers' constitutional arguments as well, saying the practice of using pepper spray didn't "shock the conscience,” even though it's banned for use in warfare by the chemical weapons convention.

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