TABLE OF CONTENTS
2

Acknowledgements

3

Methodology

4

Executive Summary

6

Introduction: Mistreated in a Fragmented Juvenile
Justice System

13

Impact: Using Tear Gas Weapons Against Youth
is Harmful and Counterproductive

17

Findings: Public Records Show Widespread Abuse of
Youth Using Tear Gas Weapons in California’s Juvenile
Justice System

40

Law & Practices: Rules in Other U.S. States, National
Best Practices and Fundamental Rights Standards
Support a Ban on Tear Gas Weapons in California’s
Juvenile Detention Facilities

44

Recommendations: Ban Tear Gas Weapons in
California’s Juvenile Justice System

47

Endnotes

56

Appendix

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

1

2

Acknowledgments
This report was authored by Ian M. Kysel, a staff attorney at the American Civil Liberties
Union Foundation of Southern California. Substantial assistance, including document
review and analysis as well as contributions to the drafting of this report, was provided,
pro bono publico, by attorneys at the law firm Morgan, Lewis & Bockius, LLP. Research and
other assistance with the management of the public records act requests was provided by
Michelle Ochoa Castañeda. Further research and assistance was provided by Stephen Suk in
the course of an internship with the ACLU Foundation of Southern California and Alexandra
Achamallah in the course of a fellowship with the ACLU Foundation of Southern California.
In addition, the author would like to thank Marcus Benigno, Lizzie Buchen, Sue Burrell,
Lucy Carter, David Colker, Virginia Corrigan, Julia Devanthéry, Jessica Feierman, Jess
Farris, Eve Garrow, Sarah Hinger, Corene Kendrick, James Lavally, Kim McGill, Dominique
Nong, Jenna Pittaway, Bardis Vakili and Steven Watt for their review, suggestions and
comments on drafts of this report. The ACLU Foundations of California would like to thank
the youth and experts who shared their perspective in the course of our research for this
report.

Published May 22, 2019

Photography: Richard Ross

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

3

Methodology
The findings for this report are based on more than a year of research and interviews of
youth and experts regarding the use of chemical agents in the California juvenile justice
system carried out by staff at the ACLU Foundation of Southern California. This includes
statewide public records act requests submitted separately to California’s state prison
agency’s Division of Juvenile Justice and each of California’s 58 counties in the spring
of 20181. A copy of the template request is at Appendix A. A complete archive of the key
documents – use of force and other policies, data and incident reports and training materials
– produced by jurisdictions across the state’s juvenile justice system is available online at:
aclusocal.org/toxictreatment.
Following production, a team led by attorneys at the law firm Morgan, Lewis & Bockius,
LLP undertook a review of 15,857 pages of 10,465 documents produced in response to these
public records requests. Researchers tallied all data on the use of force as well as on the
procurement and stockpiling of chemical agents and then conducted content analysis for
particular themes, such as the types of use of force, justification cited, and also evaluated
policies for trends. During the analysis, three categories emerged: jurisdictions which
prohibited the use of tear gas weapons (seven counties); jurisdictions which did not operate
juvenile detention facilities (10 counties); and jurisdictions which permitted the use of
force involving tear gas weapons (39 counties and the state prison agency’s Division of
Juvenile Justice). Further analysis conducted by researchers analyzed policies and training
documents to evaluate multiple issues, including: the standards under which use of force
involving tear gas weapons were used, if any; the requirements for exclusion of particularly
vulnerable populations, if any; the requirements for decontamination, if any.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Executive Summary

4

Executive Summary
Pepper spray, formally known as aerosolized
oleoresin capsicum or “OC spray,” is so toxic and
dangerous that it is classified and regulated under
state law as a form of tear gas. It can cause not
only intense pain, but also blistering of the skin,
respiratory arrest, and even an increased risk of
strokes and heart attacks; its psychological and
emotional impacts are uncertain.
And yet, it is alarmingly overused in California’s
juvenile detention facilities, including against youth as young as 12 and those in
psychiatric crises.
This ACLU Foundations of California report, the result of reviewing 10,465 documents,
is the first to detail the use of these toxic chemical agents in state and county juvenile
detention facilities. It finds that state and county officials used it more than 5,000 times
between January 2015 and March 2018 against children and youth in juvenile facilities in
26 counties and in state facilities overseen by the Division of Juvenile Justice.
The number of incidents for that time period for the state would likely be much higher, but
13 additional counties that allow pepper spray to be used in juvenile detention facilities
failed to provide data on how often it was utilized.
Banning the use of the spray in juvenile facilities is not a new idea — 35 states and seven of
California’s counties have already done it.
The Los Angeles County Probation Department — which oversees one of the largest
juvenile justice agencies in the world — is likely to join them soon. The Los Angeles County
Board of Supervisors has directed it to eliminate the spray in its juvenile facilities by the
end of the year.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Executive Summary

5

It’s time for the rest of California to follow suit.
The report recommends:
›

A legislative, complete ban on the use of all chemical agents — including but
not limited to tear gas weapons such as OC spray — against youths in the
juvenile justice system in California.

›

If a statewide ban is not implemented immediately, counties and state
agencies that continue to allow this form of use-of-force in juvenile facilities
should be required to make information involving the chemical agents publicly
available on their websites.

The ACLU of California furthermore calls for robust transparency on all uses of force in
juvenile detention facilities.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

INTRODUCTION

Mistreated
in a Fragmented
Juvenile Justice
System

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

6

Introduction: Mistreated in a Fragmented Juvenile Justice System

7

J.C.’S STORY

Short and reed-thin, J.C. was just 14 when
she was arrested, her first experience in the
juvenile justice system. Her first experience
with tear gas weapons would quickly follow.
In an interview, she described her ordeal.
“It was on a Friday, around 5 p.m. Cops came to my house,” J.C. said.2 She was
eventually taken to the intake unit at her county’s juvenile hall, where she waited for
hours before being placed in a unit. She described herself as feeling depressed and
thinking, “I don’t belong here.”
The next morning, exactly at 6, probation officers opened doors to the shower. J.C. was
allowed only a few minutes to wash. She was combing her hair at the sinks with three
other girls when a fight broke out in the bathroom. A girl had used a racial slur. J.C.
ducked down. “The next thing you know, there were girls running out of the showers …
and fighting each other.”
Staff members were screaming out codes. J.C. watched as eight staff, all dressed in
black, arrived at the doors. One carried a shield. “The person with the shield came in first
and had the pepper spray in his hand,” J.C. said. The tear gas container was “black and
red and the top looked like a grenade you hold down with your fingers. When they pepper
sprayed it, that’s when they said something: ‘Get on the floor.’”
J.C was sprayed. “My reaction was that I couldn’t breathe. I was trying everything I
could to get out of there … because I couldn’t breathe. Because I thought I was going to
die. I tried to breathe in and breathed [the pepper spray] into my nose. It got in my eyes
and mouth and my whole face.
“I fell to my knees right away. I felt it when I fell to my knees. I felt it and inhaled – as
if I were dying. I couldn’t see because my eyes were watery … and it was burning.” When
J.C. rubbed her eyes, it made the pain worse.

CONTINUE NEXT

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Introduction: Mistreated in a Fragmented Juvenile Justice System

8

Eventually, all the girls were lying on the floor, shouting about the pain in their eyes.
At least 10 minutes passed, J.C. said. “We were still laying on the floor,” she said. “One
staff member started to hand out pillow sheets soaked in water.” The staffer “let us up
one by one.” The girls were handcuffed and, one by one, taken to their rooms.
“I was in my room for 15 to 20 minutes, until they cleared the restroom and got the nurse
in there,” J.C. said. The nurse “just gave me a little baggie with cream for the burn.” As the
nurse was making her rounds to the others affected, J.C. was allowed to shower for a few
minutes. She was given new clothes. Her old clothes had been contaminated with pepper
spray.
Lasting effects were almost immediate. Said J.C.:“I could feel bumps on my face....I had a
rash.” Then, “It was like you [are] putting tint on windows and there are little air bubbles –
it was like that when I would push down on my face.”
Breakfast finally arrived that morning, but J.C. did not have any. “I wasn’t able to eat
because my throat was burning. … Whenever I would breathe in, it would burn, and it was
like that for a whole two days, maybe three.”
The physical impact on 14-year-old J.C. lingered. “I had to sleep sitting up because I couldn’t
breathe right, I couldn’t breathe through my nose…my skin was peeling…I had my skin
coming off. Pus would come out like I had burned my skin. I would peel it, because it was soft
– like a blister on your feet. I would pinch it with my fingers and it would pop.”
Finally, said J.C., she was sent to the hospital, where a doctor gave Probation Department
staff medication to administer to her throat and skin. After a few days, she was able to sleep
normally.
“How come they can’t help us in any other way than harming us?” J.C. concluded. “I would
highly recommend not to use pepper spray. I would recommend that they train staff to deal
with it in a better way rather than to harm kids and make them feel pain not just for hours
but for days.”

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Introduction: Mistreated in a Fragmented Juvenile Justice System

9

Like J.C., close to 90 percent of youth3 detained in California’s juvenile justice system
are held by the 58 counties4, rather than in the state-run Division of Juvenile Justice5.
County “juvenile halls” and “juvenile camps” detain youth under the authority of
the juvenile court, before and after they are adjudicated delinquent6. This is the first
report to analyze the use of force involving chemical agents, and, in particular, tear gas
weapons used against youth in California, with a focus on youth treatment in county
Probation Department detention facilities.

THIS REPORT HAS FOUR MAIN SECTIONS:
›

Impact: Using Tear Gas Weapons Against Youth is Harmful and
Counterproductive

›

Findings: Public Records Show Widespread Abuse of Youth Using Tear
Gas Weapons in California’s Juvenile Justice System

›

Law & Practices: Rules in Other U.S. States, National Best Practices and
Fundamental Rights Standards Support a Ban on Tear Gas Weapons in
California’s Juvenile Detention Facilities

›

Recommendations: Ban Tear Gas Weapons in California’s Juvenile
Justice System

WHAT IS OC SPRAY?

Oleoresin capsicum (OC) spray or “pepper spray” is a type of “chemical restraint” a
chemical agent that contains capsaicinoids extracted from the resin of hot peppers.
According to a report published by the National Institute of Justice, OC spray,
“incapacitates subjects by inducing an almost immediate burning sensation of the skin
and burning, tearing, and swelling of the eyes. When it is inhaled, the respiratory
tract is inflamed, resulting in a swelling of the mucous membranes … and temporarily
restricting breathing to short, shallow breaths.” In short, it is a chemical agent that
is used by law enforcement agencies in the place of a physical restraint weapon and
immediately compromises a person’s ability to see or breathe.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Introduction: Mistreated in a Fragmented Juvenile Justice System

10

California law regulates who can possess or carry weapons and strictly regulates such
chemical agents, which the law classifies as tear gas or tear gas weapons. The penal
code defines tear gas as “any liquid, gaseous or solid substance intended to produce
temporary physical discomfort or permanent injury through being vaporized or
otherwise dispersed in air” and as a “tear gas weapon” any device “intended for the
projection or release of tear gas” or capable of being “discharged or exploded” to “cause
or permit the release of tear gas.” Devices used to spray youth with oleoresin capsicum
are thus clearly tear gas weapons as a matter of state law.
The statute which otherwise limits who can possess or carry tear gas creates an
exception for peace officers, such as the probation officers who staff juvenile detention
facilities, if they have completed “a course of instruction approved by the Commission of
Peace Officer Standards and Training in the use of tear gas.”
The Board of State and Community Corrections (BSCC), which is empowered to establish
minimum standards for juvenile detention facilities, avoids using the state-law-defined
term “tear gas weapon” to describe aerosolized oleoresin capsicum spray permitted to
be carried and employed as part of approved uses of force against youth in California,
instead opting for the arguably more anodyne and clinical “chemical agent.” (The
relevant minimum standards neither define “chemical agent” nor include definitions of
“OC spray,” “pepper spray” or “tear gas.”)
Certainly, juvenile detention facilities and those closest to the administration of
California’s juvenile justice system commonly use “chemical agent,” “pepper spray” or
“OC spray” to refer to aerosolized oleoresin capsicum. However, multiple use of force
policies produced in response to ACLU Foundation of Southern California public records
act requests explicitly cite the penal code provisions discussed above as the basis for the
authority to use chemical agents as a weapon in juvenile detention facilities.
Consistent with state law definitions and such policies, then, this report uses the term
“tear gas weapon” to describe the chemical agents used in California’s juvenile justice
system, in order to emphasize that what is at issue here is the state-sanctioned use of
chemical weapons against youth.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Introduction: Mistreated in a Fragmented Juvenile Justice System

11

Despite the fact that such weapons are widely
used in California’s juvenile justice system,
we have not identified a single research study that evaluates the use of tear gas weapons
against youth, whose brains and bodies are still developing (thus more vulnerable to the
short and long term impact of both trauma and chemical exposure), and determines that the
use of such chemical agents are safe or pose no risk, although ample research demonstrating
significant health risks when used against adults and various studies identify particular
harms for youth.

The California Legislature specifically requires that youth in the juvenile justice system
“receive care, treatment, and guidance that is consistent with their best interest” and
that the “rehabilitative objectives” mandated by the law must “not include retribution.”
State law also requires that “juvenile hall[s] … shall not be deemed to be, nor treated
as, a penal institution ... [but] shall be a safe and supportive homelike environment.”
This report seeks to evaluate the use of tear gas weapons against youth in California’s
juvenile justice system to answer a basic
question: Is the state fulfilling this mandate
when it is caring for youth in detention?
As our report outlines, the answer is NO. The
use of tear gas weapons against youth is not
merely reflective of a failure to provide care and
rehabilitation in a homelike environment but is
instead evidence of abusive treatment likely to
cause short and long-term physical, emotional
and psychological trauma and harm.
A review of 15,857 pages of 10,465 documents
produced in response to a statewide public
records request shows that youth in California’s
juvenile justice system are subjected to hundreds
of uses of force involving tear gas weapons each
year. Between January 2015 and March 2018,
youth in California’s juvenile justice system

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Introduction: Mistreated in a Fragmented Juvenile Justice System

12

were subjected to tear gas weapons more than 5,000 times. Thirteen counties did not
make such data available, raising questions about the true extent of the use of tear gas
weapons against youth. Further, a review of data, incident reports and the use of force
policies for nearly every county in California and the state prison agency’s Division of
Juvenile Justice shows that tear gas weapons are used in response to youth engaged in
non-violent behavior, such as property damage, and against youth who are seeking to
harm themselves or attempt suicide.
These findings call for a complete reevaluation of the types of force permissibly used
against youth in the juvenile justice system and an immediate ban on the use of all
chemical agents in detention facilities. It also shows the need for increased and robust
transparency about how youth are treated by state and county officials charged with
their care and custody. Such transparency may permit the robust oversight necessary to
transform the abusive culture of control of which excessive use of force is a symptom.
Ultimately, these findings underscore the position recently taken by more than 50
current and former youth correctional administrators nationwide: “The time has come
to close down youth prisons, once and for all.”15

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

IMPACT

Using Tear Gas
Weapons Against
Youth is Harmful and
Counterproductive

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

13

Impact: Using Tear Gas Weapons Against Youth is Harmful and Counterproductive

14

Youth subjected to tear gas weapons report
that it is excruciatingly painful.
“It was hard to breathe because the spray, it was like ... it messes you up ... once you
breathe it, you like, you start coughing. You can’t breathe.”16 Youth who have been
subjected to tear gas weapons consistently describe it as traumatic: “You feel like
your body is on fire,” said one youth.17
Youth have described witnessing others who have had serious allergic reactions,
like those described by J.C., including breaking out with “welts all over their face”
after being subjected to tear gas weapons.18 As one young person described, being
subjected to OC spray
“was a horrible, frightening and very traumatic experience.
Growing up I had asthma and every time I was sprayed I would
have panic attacks, could not breath[e] and on several occasions I
felt like I was going to die! . . . Every time I was pepper sprayed it
was a very traumatic experience, it is very difficult to breath[e]
and catch your breath and mucus freely spilled out of my nose.”19
Another young person described, in interviews for the Los Angeles County AuditorController, being subjected to a tear gas weapon while pregnant and feeling terrified
about the potential consequences for pre-natal health, saying “That was terrible.
It was a terrible day.”20
We have not identified a single research study that determines the use of tear gas
weapons on youth is safe or without grave risks to health and well-being.21 A recent
systematic review of medical literature (a meta-analysis of 41 studies) documenting
the health impact of various chemical irritants, including OC spray, as crowd control
weapons found that the majority of people injured by the use of such agents are young
adults and suggested that the research indicates that “children are more vulnerable
to severe injuries from chemical toxicity” related to the use of chemical irritants like
OC spray.22

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Impact: Using Tear Gas Weapons Against Youth is Harmful and Counterproductive

15

Chemical agents like OC spray have been linked to a number of short- and long-term
physical effects on adults, including:
›

Intense pain, swelling and blistering of the skin.

›

Wheezing, an inability to breathe or speak and respiratory arrest.

›

Acute hypertension, which may lead to an increased risk of stroke or
heart attack.

›

The deterioration of nerve tissue and permanent corneal damage.

›

A heightened risk of asphyxiation when used in conjunction with physical
and mechanical restraint, or when used on individuals with respiratory
conditions such as asthma.23

A substantial proportion of youth entering the juvenile justice system have
experienced trauma and abuse.24 The use of chemical agents like tear gas weapons
in the juvenile justice system can thus have serious effects on the psychosocial wellbeing of youth. Youth subjected to tear gas weapons in California have described the
psychological and emotional trauma that accompany the physical harms:
“As someone who has been pepper spray[ed] myself, I know how
traumatic it could be – physically and emotionally and psychologically.
I like to compare solitary confinement as being as dehumanizing as
pepper spray ... pepper spray is dehumanizing ... because of the fact
that it is a tool that, you know, tells kids every time you are pepper
spraying these 15- and 16-year-old kids. When you pepper spray them
that ‘you belong in here’ and you prepare them for prison that is what
you are doing when you are pepper spraying these kids – they have
already endured trauma and you are just making it worse.”25
Finally, use of tear gas weapons degrades the relationship between youth and
staff – the social fabric of a detention setting that is crucial to healthy growth and
rehabilitation in juvenile facilities. As the United States Department of Justice’s
Office of Juvenile Justice and Delinquency Prevention has opined, “youth distrust
of facility staff and conflict with them can undermine program efforts to alter

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Impact: Using Tear Gas Weapons Against Youth is Harmful and Counterproductive

16

delinquent career paths and elevate discipline,
control, and safety issues.”26 Relatedly, a
survey conducted by the Council of Juvenile
Correctional Administrators (CJCA) found that
where tear gas weapons such as OC spray are
used, staff and youth fear for their safety more
than they do at other facilities.27 For these
reasons, and, as discussed further in the “Law &
Practices” section, best practices for operating
juvenile detention facilities do not permit staff
to possess or to use tear gas weapons like OC
spray.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

FINDINGS

Public Records Show
Widespread Abuse
of Youth Using Tear
Gas Weapons in
California’s Juvenile
Justice System

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

17

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

18

This report finds that tear gas weapons are used across California’s juvenile justice
system—hundreds of times each year—against youth.

Our findings show that 39 counties and the
state prison agency’s Division of Juvenile
Justice permit the use of chemical agents
including tear gas weapons against youth in
detention.
The deficient policies we received included those that permit the use of tear gas weapons
against youth for non-violent conduct; allow their use against youth with medical and
mental health conditions that substantially increase the risk of significant or permanent
harm; or which do not require immediate decontamination to remove chemical agents
from youth’s skin or their airways.

ECHOING FINDINGS FROM
OTHER RECENT RESEARCH

The use of force findings of this study echo those of other recent studies. Earlier in
2019, the Center on Juvenile and Criminal Justice published a lengthy analysis of
conditions of confinement in the state prison agency’s Division of Juvenile Justice.
This study found rampant increases in violence in facilities, even as populations are in
decline, and reported recent analysis by the agency’s Office of Inspector General finding
that the division was out of compliance with its use of force policies in 45 percent of
reported incidents in 2017.28
In 2018, Disability Rights California and Disability Rights Advocates found
disproportionate use of OC spray against youth with disabilities detained in the
Kern County juvenile justice system. This included findings that OC spray
“disproportionately impacts youth with mental illness and risk of self-injury” and

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

19

that “youth with [attention-deficit/hyperactivity disorder] and bi-polar disorder appear
to have been pepper sprayed for behavior related to their disabilities, over which they
have little control.”29
Finally, in 2016, two years after concerns were raised in a complaint filed with the
United States Department of Justice about conditions in San Diego’s juvenile justice
system, including the use of chemical agents,30 by a coalition of groups led by Youth
Law Center, Disability Rights California published an investigation confirming the
continued excessive use of OC spray in county detention facilities.31
This report does not focus on evaluating positive progress in these jurisdictions, if any,
since these previous reports were published but its findings confirm that the concerns
raised in these reports are systemic in California’s juvenile justice system.

These findings raise questions and cast doubt
on the state’s ability to care for youth
or provide for their healthy growth and development in facilities that permit the use of tear
gas weapons. The seven counties that do not use chemical agents against youth in detention
– Marin, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz and Solano – and soon
the eighth – Los Angeles, which banned the use of pepper spray effective January 1, 2020
– should serve as potential models (alongside the 35 states that already ban OC spray in
their juvenile justice systems). These findings are analyzed in detail in this section. The key
documents related to chemical agent use in California’s juvenile justice system, including
policies, data and training materials, are available online at: www.aclusocal.org/en/
toxictreatment-cpra.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

20

A. TEAR GAS WEAPONS ARE USED HUNDREDS OF
TIMES PER YEAR AGAINST YOUTH IN CALIFORNIA’S
JUVENILE JUSTICE SYSTEM
Data produced by 26 counties and the state prison agency’s Division of Juvenile Justice
show that there were 5,079 uses of tear gas weapons31 against youth in California juvenile
detention facilities in a period from January 1, 2015 to March 31, 2018. An additional 13
counties have policies allowing chemical agents use, including tear gas weapons such as
OC spray, against youth but refused to or did not provide data regarding the frequency of
use during the same period. Because these 15 counties reported permitting the use of tear
gas weapons and because three of them provided records showing the purchase of tear gas
weapons, it is very likely that the number of instances of the use of tear gas weapons against
youth in California in that same period was greater.
The tables below shows the jurisdictions (California counties and the state prison agency’s
Division of Juvenile Justice) that provided one or more of the following:
›

(a) documentation on policies showing that tear gas weapons are approved for
use in their detention facilities,

›

(b) records showing purchases or stockpiling of tear gas weapons or

›

(c) records of incidents of use of tear gas weapons against youth (which in all
cases was OC spray).

Notably, use of force incidents involving tear gas weapons often affect multiple youth,
so the data reported in this section by no means represent the total number individuals
affected. Importantly, this table does not include the seven counties that do not use OC
spray in their juvenile detention facilities nor the 10 counties that do not operate a juvenile
detention facility (but which contract with other counties to detain youth). The following
counties contract with other jurisdictions to detain youth subject to the jurisdiction of their
county’s juvenile justice system: Alpine County33, Amador County34, Calaveras County35,
Calusa County36, Mariposa County37, Modoc County38, Mono County39, Plumas County40,
Sutter County41 and Sierra County.42 Additionally, this table does not include the three
counties which have either failed to produce records on the use of chemical agents (Placer
County) or were unwilling to waive copying costs associated with producing these records,
and this dispute has not yet been resolved (Santa Clara County and Ventura County). While
publicly-available documents indicate that Santa Clara County’s Probation Department

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

21

banned OC spray in 2015, we have been unable to confirm this by a review of its production
of documents, nor have we determine whether the other two counties which have not yet
produced documents permit the use of tear gas weapons against youth. Because only seven
counties in California (and soon to be a eighth) report not using tear gas weapons against
youth, most youth detained in California’s juvenile justice system are at risk of the use of
tear gas weapons.

WHERE ARE YOUTH AT RISK OF THE USE OF TEAR GAS WEAPONS?
County or State Agency

Policy Permits Use Of
Chemical Agents

Did Not Provide Data On
Use Of Chemical Agents

Reported Purchasing
Or Stockpiling Chemical
Agents

ALAMEDA
BUTTE
CALIFORNIA DEPARTMENT
OF CORRECTIONS AND REHABILITATION
CONTRA COSTA
DEL NORTE
EL DORADO
FRESNO
GLENN
HUMBOLDT
IMPERIAL
INYO
KERN
KINGS
LAKE
LASSEN
LOS ANGELES
MADERA
MENDOCINO
MERCED
Table 1.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

22

WHERE ARE YOUTH AT RISK OF THE USE OF TEAR GAS WEAPONS?
County or State Agency

Policy Permits Use Of
Chemical Agents

Did Not Provide Data On
Use Of Chemical Agents

Reported Purchasing
Or Stockpiling Chemical
Agents

MONTEREY
NEVADA
ORANGE
RIVERSIDE
SACRAMENTO
SAN BENITO
SAN BERNARDINO
SAN DIEGO
SAN JOAQUIN
SAN LUIS OBISPO
SANTA BARBARA
SHASTA
SISKIYOU
SONOMA
STANISLAUS
TEHAMA
TRINITY
TULARE
TUOLUMNE
YOLO
YUBA
Table 1. (Continued)

California counties omitted from this table provided records indicating that they do not
operate juvenile detention facilities (10 counties) or currently prohibit the use of chemical
agents (7 counties).

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

23

HOW MANY TIMES WERE TEAR GAS WEAPONS USED AGAINST YOUTH
BETWEEN 2015-2018?
USE OF CHEMICAL AGENTS
County / State Agency

JAN 2015 –
MAR 2018

(Q1 ONLY)

2018

2017

2016

2015

0

0

0

0

0

CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION

414

33

111

139

131

CONTRA COSTA

121

9

52

60

DEL NORTE

19

1

8

9

1

3

BUTTE

EL DORADO

1

KERN

166

6

38

68

KINGS

123

3

39

81

1372

172

747

453

294

37

6

12

9

10

1

7

LOS ANGELES
MADERA
MENDOCINO

54

MERCED

361

23

86

131

121

NEVADA

3

0

0

3

0

ORANGE

117

55

48

24

SAN BERNARDINO

633

46

154

225

208

SAN DIEGO

674

41

233

147

253

SAN JOAQUIN

283

3

82

103

95

SAN LUIS OBISPO

56

5

8

14

29

SANTA BARBARA

133

15

45

48

25

SHASTA

39

2

4

7

26

2

1

SISKIYOU

3

Table 2.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

24

HOW MANY TIMES WERE TEAR GAS WEAPONS USED AGAINST YOUTH
BETWEEN 2015-2018?
USE OF CHEMICAL AGENTS
County / State Agency

JAN 2015 –
MAR 2018

(Q1 ONLY)

2018

2017

2016

2015

SONOMA

38

2

10

12

14

STANISLAUS

84

6

20

27

31

TEHAMA

11

1

6

2

2

TRINITY

1

0

0

0

1

TULARE

324

10

88

108

118

0

0

0

0

0

49

2

5

16

26

TUOLUMNE
YUBA
Table 2. (continued)

California counties omitted from this table provided records indicating that they do not
operate juvenile detention facilities (10 counties), currently prohibit the use of chemical
agents (seven counties) or indicating that they permit the use of chemical agents but then
did not or refused to provide data about the prevalence of such use (13 counties).

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

25

WHERE ARE YOUTH AT RISK OF THE USE OF TEAR GAS WEAPONS?

COUNTIES WHERE YOUTH ARE AT
RISK OF USE OF TEAR GAS WEAPONS
COUNTIES THAT HAVE BANNED
TEAR GAS WEAPONS
COUNTIES THAT DON’T OPERATE
THEIR OWN JUVENILE DETENTION
LOS ANGELES COUNTY HAS
APPROVED A BAN ON PEPPER SPRAY
EFFECTIVE JANUARY 1, 2020.”

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

26

A review of records provided by six California counties and other publicly-available
documents reveals that seven counties currently prohibit the use of OC spray in facilities
that detain youth:

WHERE ARE YOUTH SAFE FROM THE USE OF TEAR GAS WEAPONS?
County

LOS ANGELES

MARIN

Response

NOT YET BANNED

Implementation of ban mandated by County
Board of Supervisors by January 2, 2020.

“Marin County Juvenile Hall does not condone the use of
chemical agents.”

NAPA

“Napa County does not use nor allow any chemical agents in
our facility. We have no policies related to chemical agents.”

SAN FRANCISCO

“This practice does not exist in San Francisco.”

SAN MATEO

“The Department does not use chemical restraints in its
facilities.”

SANTA CLARA

Santa Clara has not yet provided documents in response
to our request, however the proceedings of the County’s
Juvenile Justice Commission suggest that the County’s
Probation Department discontinued a pilot and banned the
use of OC spray in 2015.

SANTA CRUZ

“The following methods are Not Permitted: Chemical Agents:
Chemical Agents are not allowed in Santa Cruz Juvenile
Hall, unless deemed necessary and used by Law Enforcement
Agency called in for support.”

SOLANO

“As the County does not use chemical agents at its juvenile
facilities, the County has no other responsive documents to
your other requests.”

Table 3.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

27

TEAR GAS WEAPONS
AND RACE
Black and brown youth are overrepresented in the juvenile justice system.43 The data about
chemical agent use in juvenile detention facilities provided by 26 California counties and the
state prison agency’s Division of Juvenile Justice do not all include granular information,
such as demographic data. Even with demographic data, it is hard to compare data about
uses of force against the baseline demographics of the population because – with anonymized
data without unique identifiers for each victim – it is impossible to identify whether data
from a particular time period might include the same individual or individuals subjected to
force in multiple incidents, skewing the results. However, for those jurisdictions that did
provide demographic data about use of force, the data show youth of color overwhelmingly
represented in use of force incidents involving tear gas weapons:
›

In Merced County, between January 2015 and March 2018, 343 of 361
incidents of use of force involving tear gas weapons were against youth not
classified by the county as white.

›

In Orange County, which provided ethnicity data for only 46 use of force
incidents involving tear gas weapons, 43 of 46 incidents were against youth
not classified by the county as white or Caucasian.

While these data do not definitively show that use of force involving tear gas weapons is
as racially disproportionate as the juvenile justice system generally, they raise serious
questions and emphasize the importance of more transparency about the use of force.

Data about the greatest absolute number of use of force incidents involving tear gas weapons
against youth in California’s juvenile justice system, presented in Table 1, may not be
indicative of the prevalence of the use of tear gas weapons, given the relative size of different
detention systems as well as the variation in length of stay in different counties and
different facilities. Table 3 below thus shows (only for the 26 counties that provided data)
the ratio of the number of incidents of use of force involving OC spray to the average daily
population of those counties’ detention facilities, based on data maintained by the Board of

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

28

State and Community Corrections, for 2015, 2016 and 2017. These “rankings” show that in
each of those years, of the 26 counties which provided data, Merced County, San Bernardino
County, Tulare County, San Joaquin County and Santa Barbara County were among the “top
10” greatest users of tear gas weapons while in at least two of those years, Kings County, Del
Norte County, Los Angeles County, San Diego County, San Luis Obispo County and Shasta
County made the list.

WHICH COUNTIES DO WE KNOW TO USE TEAR GAS WEAPONS THE MOST?
THE 10 COUNTIES WITH THE HIGHEST RATES OF USE OF PEPPER SPRAY
(OF THOSE WHICH PRODUCED DATA) IN

2017

2016

2015

MERCED COUNTY

MERCED COUNTY

MERCED COUNTY

KINGS COUNTY

KINGS COUNTY

SHASTA COUNTY

SAN BERNARDINO COUNTY

SAN BERNARDINO COUNTY

SAN LUIS OBISPO COUNTY

TULARE COUNTY

SAN JOAQUIN COUNTY

SAN JOAQUIN COUNTY

DEL NORTE COUNTY

TULARE COUNTY

SAN BERNARDINO COUNTY

SAN JOAQUIN COUNTY

SAN LUIS OBISPO COUNTY

TULARE COUNTY

LOS ANGELES COUNTY

DEL NORTE COUNTY

SAN DIEGO COUNTY

SAN DIEGO COUNTY

SANTA BARBARA COUNTY

YUBA COUNTY

SANTA BARBARA COUNTY

SHASTA COUNTY

STANISLAUS COUNTY

TEHAMA COUNTY

LOS ANGELES COUNTY

SANTA BARBARA COUNTY

Table 3.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

29

B. CALIFORNIA FAILS TO ENSURE THE TRANSPARENCY
REQUIRED TO FACILITATE OVERSIGHT OF THE
JUVENILE JUSTICE SYSTEM AND PROTECTION OF
YOUTH FROM HARM
As shown in Table 1, 13 counties refused to or did not provide any data on the use of force
involving chemical agents in their county juvenile justice detention facilities, often invoking
state law protecting the confidentiality of juvenile “case file” information as a defense
against the transparency mandated by the California Constitution and the state’s public
records act. The relevant state law confidentiality protections are found in the Welfare &
Institutions Code. The code provides that a “juvenile case file” shall be confidential and only
inspected by/disclosed to a number of specified individuals or persons as ordered by the
juvenile court.44 “Juvenile case file” means “a petition filed in any juvenile court proceeding,
reports of the probation officers, and all other documents filed in that case or made available
to the probation officer in making his or her report, or to the judge, referee, or other hearing
officer, and thereafter retained by the probation officer, judge, referee, or other hearing
officer.”45 California courts have consistently construed these protections robustly – to
appropriately protect the confidentiality of juvenile delinquency records – in response to
requests under the public records act or otherwise.46
For information that falls outside of the case file, however, disclosure is the rule and secrecy
the exception. The California Supreme Court has repeatedly made clear that the California
Constitution (as amended in 2004 by Proposition 59) and the state’s public records act
establish that (a) access to information
concerning the conduct of the people’s
business is a fundamental and necessary
right, (b) this right extends to every
public record unless the legislature has
expressly provided to the contrary, (c)
any limitation on the right to access
must be narrowly construed and (d) the
fact that part of a responsive document
falls within an applicable exception
to this obligation of disclosure does
not justify withholding the entire
document.47

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

30

Given these two legal regimes, use of force incident reports involving chemical agents
such as tear gas weapons as well as aggregate data about the use of force are disclosable.48
Efforts to keep all such data about how youth are treated in California’s juvenile justice
system secret by arguing that any and all data produced in the course of the operation of the
juvenile justice system are somehow part of the juvenile case file is improper.
Perhaps the best evidence that these efforts to veil the use of tear gas weapons are
inconsistent with state law obligations is that 26 California counties and the state prison
agency’s Division of Juvenile Justice produced voluminous amounts of data in response to
the ACLU Foundation of Southern California’s public records requests. Most significantly,
a few counties – Contra Costa County, Madera County, Mendocino County, Merced County,
Orange County, San Diego County, San Luis Obispo County, Santa Barbara County, Sonoma
County, Siskiyou County, Tulare County and Yuba County – provided redacted incident
reports showing important details about the use of force. (The key documents – policies,
data and training materials – related to the use of chemical agents in California’s juvenile
justice system are available online at: www.aclusocal.org/en/toxictreatment-cpra. Counties
that have taken the untenable position that such records are justifiably secret should reverse
course and be transparent about how they are (mis)treating youth.

L.A.’S BAN OF OC SPRAY—
YEARS IN THE MAKING
In February 2019, the Los Angeles County Board of Supervisors passed a motion that will
effectuate a ban on the use of OC spray (but not all chemical agents) against youth held in
detention by the county’s Probation Department.49 This ban was put into place after many
years of evidence of abuse.
More than 15 years ago, in 2003, the United States Department of Justice determined that
the use of chemical agents like OC spray by the Los Angeles County Probation Department
likely violated the Constitution.50 The Department of Justice then threatened to bring
a lawsuit against the county to compel an end to legal violations.51 Multiple provisions
of a subsequent Memorandum of Agreement reached in 2008 (under threat of litigation)
obligated the department to establish new policies to restrict its use of OC spray.52
The Department of Justice found the Los Angeles County Probation Department to be in
substantial compliance with such obligations in 2012. But just four years later, in 2016,

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

31

the county’s auditor-controller found that the Probation Department was again failing to
achieve substantial compliance with provisions related to the use of OC spray.53 In fact, at
one facility, OC spray was used in a manner inconsistent with policy in 22% of cases reviewed
by the auditor-controller.54
Recent data made public by the Probation Department indicate that use of force involving
chemical agents was alarmingly frequent and increased substantially in recent years. In
March 2018, the Probation Department reported to the Los Angeles County Probation
Commission that the department had attempted a review of all incident reports on the use
of OC spray from 2015 to 2017 in all camps and halls.55 The department provided only a
partial report of this analysis, which revealed that:
›

Between 2015 and 2017, the use of force involving OC spray in juvenile halls
increased between 192% and 338% overall (no comparable data on the use of
force involving OC spray in juvenile camps were presented).

›

In 2017, of more than 1,600 “crisis interventions,” 518 (32%) included a use
of force involving OC spray (no comparable data were provided for 2015 or
2016).

›

In 2017, of the 518 reported use of force incidents involving OC spray, 12%
(at least 62) were in response to something determined to be “nonphysical”
(i.e., not involving behavior deemed to be violent) (no comparable data were
provided for 2015 or 2016).56

›

In 2017, of the 518 reported use of force incidents involving OC spray, 2% (at
least 10) were in response to youth acts of self-harm (no comparable data were
provided for 2015 or 2016).57

Later, in 2018, the Probation Department produced more data to the National Broadcasting
Corporation (NBC) 4 News. In late December, NBC 4 News reported that the department
had subjected youth to uses of force involving OC spray 747 times in halls and camps in 2017
(at least 200 more times than it had reported to the Probation Commission).58 NBC 4 News
reported that the rate of use of force involving OC spray had increased since 2015 at eight
of the nine facilities for which it had data (with a net rate increase ranging between four
and 110 incidents per 100 youth) and that use of force involving OC spray increased by an
average of 154% across all nine facilities, with an average increase of 248% in the halls and
58% in the camps.59

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

32

Following these revelations, the Board of Supervisors passed a motion directing the county’s
Office of Inspector General, which was created to monitor the Sheriff’s Department, to
investigate use of force (including use of force involving OC spray) and report back within
45 days.60 The inspector general’s report, which reviewed a sample of use of force incidents
involving OC spray identified by the L.A. County Probation Department, identified myriad
problems and recommended that the county evaluate whether the use of OC spray in
Probation Department facilities “aligns with the Department’s philosophical shift toward
rehabilitation and trauma informed care and its ongoing implementation of the LA Model.”61
Under pressure from community members and in response to moving testimony by youth
who had been sprayed with OC spray in county detention facilities, the Board of Supervisors
approved a ban that the county will implement by the end of 2019.
The changes in Los Angeles County demonstrate the vital importance of making public
information about the use of force involving tear gas weapons like OC spray against youth.
In the absence of robust public disclosure of data about the use of chemical agents, effective
oversight of the juvenile justice system is impossible – and harmful practices can flourish
and persist. An accounting of how chemical agents have been used in Los Angeles County,
along with their plan to implement a ban of OC spray, will permit the development of safe
and effective alternatives.

The data in this section – and particularly the fact that only 26 counties made some amount
of data available –

make clear that there is an urgent need for far
greater transparency and data reporting
about the use of force involving chemical agents, including tear gas weapons, in California’s
juvenile justice system. When it comes to harmful practices against youth in detention,
sunlight is a powerful disinfectant.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

33

C. USE OF FORCE POLICIES IN CALIFORNIA’S
JUVENILE JUSTICE SYSTEM ARE INADEQUATE TO
PROTECT YOUTH FROM TEAR GAS WEAPONS
A review of use of force policies produced by California jurisdictions that detain youth
shows that these policies provide inadequate guidance when it comes to tear gas weapons.
A number of county policies fail to clearly limit the use of force involving tear gas weapons
in response to non-violent conduct or property damage. Multiple policies also explicitly
permit the use of tear gas weapons as a way to prevent youth from engaging in self-harm or
attempting suicide.
State regulations providing important minimum protections to youth detained in the
juvenile justice system, promulgated by the Board of State and Community Corrections,
have for years required that use of force policies emphasize the “need to avoid the use of
force whenever possible and using only that force necessary to ensure the safety of youth,
staff and others.”62 Regulations effective January 1, 2019 (i.e., before the date of production
of use of force policies analyzed in this report) now require that “chemical agents only be
used when there is an imminent threat to the youth’s safety or the safety of others and only
when de-escalation efforts have been unsuccessful or are not reasonably possible.”63 A review
of the use of force policies in effect in 2018, before that requirement took effect, suggests
that jurisdictions across the state have historically failed to limit use of force involving tear
gas weapons in the manner now required by regulations.64
In particular, the use of force policies produced by 12 counties65 as well as the state prison
agency’s Division of Juvenile Justice were ambiguous and did not clearly limit staff ability
to use force to situations in which they are responding to an imminent threat. For example,
Merced County’s use of force policy specifies that OC spray “may be used when there is active
resistance by the youth and a threat of harm to the youth or others.”66 San Bernardino
County’s use of force policy classifies OC spray as “a moderate level application of force”
permitted when a minor “takes over threatening action physically towards staff.”67 The state
prison agency’s Division of Juvenile Justice permits force when “behavior presents a danger
to the safety of any person” as well as if a child or youth “is causing substantial damage to
public property.”68
Data and incident reports produced by multiple counties demonstrate that, even when a
use of force policy prohibits the use of tear gas weapons against youth for behavior that is
not viewed as posing an imminent risk of harm, such weapons are still used. One OC spray

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

34

log from Contra Costa County, for example, justifies the use of a tear gas weapon simply:
“refused to follow staff direction, became defiant, refused to go to room.”69 Another such log
describes a “near fight” as the justification for one use and “non-compliance” for another.70
Similarly, state regulations in effect January 1, 2019 now require that facilities train staff
on “known medical and behavioral health conditions that would contraindicate certain types
of force.”71 A review of the use of force policies in effect in 2018, before that requirement
took effect, suggests that jurisdictions across the state have failed to effectively limit use of
force involving tear gas weapons in the way the regulations now require.72
The use of force policies produced by eight counties73 failed to provide clear guidance to
staff on when particularly vulnerable populations should not be subjected to chemical
agents. For example, the use of force policy at Kern County’s juvenile hall simply states
that the department’s “guideline” is that “staff should be aware of youth identified as
having respiratory problems/diagnosis” and “should be aware of distress signs after O.C.
application and during decontamination.”74 Contra Costa County’s juvenile hall policy
advises that its training will include “knowledge of ... known medical and behavioral health
conditions that would contraindicate certain types of force” but the policy itself includes
no specific directive to staff to consider such knowledge.75 But neither county appears to
require that staff modify their action based on such awareness or knowledge.
Testimony by a defense attorney in Los Angeles County is illustrative of institutional
failures to identify and protect youth whose medical conditions or other vulnerabilities place
them at greater risk of harm from the use of tear gas weapons:

“P. is 14 years old. He is in special ed and he has mental health issues
and significant emotional needs. He also has juvenile diabetes and
a condition called hypothalamic hamartoma, a benign brain tumor
that may cause seizures and impact P’s ability to think clearly. P
was also on anti-psychotic medication while he was in the hall as
well as medication for seizures. In other words, he had many of the
red flags that make the use of pepper spray not only contraindicated
but very dangerous. He was sprayed in custody, not once, not twice,
but four times.”76
Many use of force policies specifically permit (and thus arguably encourage) the use of tear
gas weapons as an intervention against youth engaged in self-harm or attempting suicide.77
Data and incident reports suggest that OC spray is regularly used against particularly
vulnerable youth – especially those engaged in self-harm. In San Luis Obispo County, for

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

35

example, restraining youth from self-harm was cited as one of the justifications, or the only
justification, for 14 of 29 use of force incidents involving tear gas weapons in 2015 as well as
in 10 of 14 use of force incidents involving such weapons in 2016.78
One incident report from the Mendocino County Juvenile Hall illustrates how readily the use
of tear gas weapons can be deemed necessary in an incident of threatened self-harm:

JCO [name redacted] had radioed for me to come over to unit. When
I entered he told me that [name redacted] had once again put his
sweatshirt around his neck and was pressing down with his hands.
There were 4 boys on the unit. I opened [name redacted] door and
retrieved the sweatshirt from around his neck and then closed his
door. He yelled out that he was using his pants next. Staff heard this
and secured the 4 youths with their trays in rooms. We opened [name
redacted] door and asked for his pants which her refused. We closed
his door and JCO [name redacted] went to get the shield. I asked
[name redacted] again for his pants and he refused. I then informed
youth that if he didn’t hand over pants that I would be spraying
him after the count of three. Youth refused to. I released spray
and then we went in an retrieved his pants using the shield. Youth
was then brought out over to the shower room for decontamination
for roughly 45 minutes. I spoke with youth and gave him back new
clothing and his [bedding]. He agreed to let us run our program and
not threaten suicide with any clothing items.79
2016 incident report logs from Contra Costa County also reflect multiple incidents in which
self-injurious behaviors were the justifications for several uses of force: “suicide attempt”
and “suicidal gesture” and “hitting self, combative” and “self harming.”80 Contra Costa
County’s 2017 incident report logs similarly included several similar descriptions: “self
harm … banging head against wall verbal commands failed” and “self harm ... banging head
against wall verbal commands failed” and “self harm ... began hitting herself in the head.
Had to be placed in the wrap for 36 minutes.”81
Experts raised significant concerns about the use of tear gas weapons to address behavioral
health challenges or psychiatric emergencies of youth. One expert, Dr. Andrea Weisman, a
juvenile and correctional mental health consultant who formerly directed health services for
the Washington, D.C., Department of Youth Rehabilitative Services, explained that “the
assumption is that incidents of self-injury involve some mental-health issue that is not being

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

36

addressed.”82 Weisman said that in a facility with “adequate mental health programming”
intervention with chemical agents would never be required. The weapons would be
“absolutely banned,” Weisman said, because there would be “adequately trained clinicians
in sufficient number available to see kids individually and in groups.” The clinicians would
work on units with officers to help them “deescalate.” Procedures would be in place, she
said, so that “kids whose needs exceed the care that can be provided … can receive such care
elsewhere.”83
It strains credulity that a chemical weapon was the only alternative required to stop so
many youth from ending their lives or harming themselves. It is entirely inappropriate to
use chemical agents in response to a young person’s statements about self-harm or selfharming behavior. Such statements and actions should lead to supportive and therapeutic
interventions, not the use of chemical agents which only cause further harm and trauma.

TEAR GAS WEAPONS AND
SOLITARY CONFINEMENT
The use of tear gas weapons such as OC spray against youth in juvenile detention and the
use of solitary confinement or prolonged room confinement are two symptoms of a failure
to adequately care for and promote rehabilitation and healthy development of those in the
juvenile justice system. In a sense, they are both techniques to forcefully gain a certain type
of control. Perhaps unsurprisingly, but no less disturbingly, in juvenile detention settings
they also often go together – sometimes in an escalating spiral: staff intervene to stop
conduct with OC spray, then punish that same conduct with a period of solitary confinement,
then punish further acting out in solitary (banging on a cell door, covering a window) with
OC spray, leading to more solitary confinement. For this reason, some detention staff across
California have complained that a recent change in state law banning solitary confinement
has taken away an important weapon in the fight for control, forcing additional reliance on
another.84
One of the many incident reports produced in response to an ACLU Foundation of Southern
California public records act request shows one example of such a struggle for control from an
officer’s notes:

On Tuesday, August 25th, 2015, at approximately 7:20 pm, I had
just completed writing a report on Pod 2B about their poor behavior
when ward [name redacted] began to cover his window with toilet...

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

37

...paper and clothing. I went to his room and advised [name redacted]
[room number] to take the items out of his window but he would
not comply. I then had [officer name] come to Pod 2B to assist with
[name redacted]. When [officer name] arrived, we turned on all the
lights and went to [room number] and opened the door. I told [name
redacted] once more to remove the items from his window but again
he did not comply. I told [name redacted] to move to the back of his
room and I began removing the items from the window. As I was
doing this, [name redacted] walked towards me without warning so
I administered a 1-2 [second] burst of my oleoresin capsicum spray
towards his facial area but he turned and picked up his blanket and
covered his face while moving to the back of his room. I ordered
[name redacted] to the ground but again he did not comply so I pulled
the blanket off of him and again sprayed him with a 1-2 second
burst of oleoresin capsicum spray. This time [name redacted] went
to the ground and quit resisting. [name redacted] was instructed to
stay in the prone position while I removed all items from his room
before securing his door. When [officer name] arrived on the unit, we
attempted to decontaminate ward [name redacted] but he refused to
get into the shower. [Name redacted] was asked several more times if
he was ready to be decontaminated but again he refused.85
In response to reviewing this report, the supervisor noted “ward [name redacted] will
receive a 3 day lockdown for his behavior. . .”86 While it is theoretically possible that the
staff member writing the above report omitted that they felt threatened by the youth’s
movement, it is unlikely given the high degree of detail. It is similarly possible that the
youth was eventually decontaminated, though the incident report suggests that officers left
the youth in his room overnight, with chemical agents covering his face.
Records suggest that California counties may still be struggling to comply with the state
law ban on solitary confinement: A recent incident in the same county suggests that Madera
County continues to use pepper spray and prolonged room confinement in tandem (although
the latter practice is illegal under state law):

On Tuesday February 13, 2018 at approximately 3:15pm or
thereafter Officer [name redacted] notifies this supervising officer
via phone that [name redacted] was acting up in unit 3 and reports
that he was being non-compliant. I instructed Officer [name...

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

38

...redacted] to remedy the problem or call a code 2 if necessary and
that I would make my way there. Upon arrival [name redacted] was
standing up in the dayroom with a pencil in his hand refusing to put
it down. His behavior was an immediate threat because he refused
to drop the pencil and make his way into his room. He reluctantly
moved and continued to be defiant. As I made initial contact to
assure he was walking to his room he resisted and became more
hostile and belligerent. I felt he was looking for confrontation as
I tried deescalating the situation by giving him directives to calm
down and sit down. [Name redacted] refused to take off his shoes
which led to having to physically restrain him. In the process he
kicked Cp [name redacted] and tried to grab a hold of the another
officers hands while trying to control his extremities. Once under
control and secured in cuffs he continued to be resistive. [Name
redacted] was given instructions not to move while facing down in
a prone position after he was secured in cuffs. However, without
hesitation he stood up as I made my way out the door. [Officer name]
was instructed to administer OC without further warning if he made
a sudden move but to no effect. Moreover he made several attempts
to break his sprinkler and cause more property damage by tagging
on the walls and forcefully kicking the door. I also gave him plenty
of opportunity to comply but at the end I had to administer a second
burst of OC to stop him from further harm or damages. With the
second delivery of OC it took several minutes to take effect and
regain compliance.87
A supervisor reviewing this incident noted, “due to youth [name redacted] threats and
aggressive threats towards staff he will be place on room confinement until such time he is
no longer a safety and security threat.”88 The incident report does not indicate how long the
youth remained in room confinement but the narrative does suggest that room confinement
was “used for the purposes of punishment, coercion, convenience, or retaliation by staff,”
which would violate state law prohibiting solitary confinement.89
These incident reports underscore the types of struggles for power – and the retributive,
punitive impulse – reflected in reliance on solitary confinement and pepper spray in juvenile
facilities and the reasons for which best practices for detaining and caring for youth
required both to be banned.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Findings: Public Records Show Widespread Abuse of Youth Using Tear Gas Weapons
in California’s Juvenile Justice System

39

Finally, the state also requires facilities which authorize the use of tear gas weapons in state
juvenile detention facilities to set out “methods and timelines for decontamination” – in
order to remove harmful chemicals from youth’s skin, lungs and clothes.90

A review of the policies in effect in 2018
suggest that many counties fail to require
immediate decontamination.
The use of force policies produced by 10 counties91 as well as the state prison agency’s
Division of Juvenile Justice all failed to clearly require immediate decontamination.92 For
example, Del Norte County’s policy specifies that “once the youth has agreed to cooperate
with officers and is properly controlled, the decontamination process will begin.”93 Tehama
County’s policy states that, “staff shall not begin the decontamination process until the
contaminated youth, based on their behavior and actions, no longer presents a threat and
is compliant with staff.” Yet, among the relevant behaviors proposed to staff is when “the
youth’s focus is on decontamination and not retaliation or aggression towards others, and
the youth is asking to be decontaminated.”94
A number of the incidents described above, including J.C.’s story in the introduction
of this report, show instances of lengthy delays in offering youth the opportunity to
decontaminate – and the physical consequences of such delay. Furthermore, a number of the
incident reports excerpted above seem to involve instances in which the youth were never
decontaminated (such as because they were thought to be refusing the procedure ). Such
delays or failures to decontaminate are apparently at the heart of two separate criminal
prosecutions in Los Angeles County, in which prosecutors “allege the defendants, who work
as detention services officers [in the Los Angeles County Probation Department], either were
unreasonable when using pepper spray or prevented the victims from being decontaminated
after they were sprayed.”95
In sum, a review of existing use of force policies alongside data and incident reports
demonstrates that existing policies fail to protect youth from harm, bolstering the need for
a clear and absolute ban on all chemical agents in the juvenile justice system, including tear
gas weapons.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

LAW & PRACTICES

Rules in Other
U.S. States, National
Best Practices and
Fundamental Rights
Standards Support
a Ban on Tear Gas
Weapons in Juvenile
Detention Facilities

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

40

Law & Practices: Rules in Other U.S. States, National Best Practices and Fundamental
Rights Standards Support a Ban on Tear Gas Weapons in Juvenile Detention Facilities

41

The widespread use of tear gas weapons in
California’s juvenile justice system runs
counter to the rules for juvenile detention
in the large majority of U.S. states and best
practices for caring for youth in detention
as well as fundamental human rights,
constitutional and state law standards.
Research by California’s legislative counsel presented in 2018 to the State Assembly
Committee on Public Safety found that at least 35 U.S. states do not permit the use of OC
spray in juvenile detention facilities; of those that do, only California, Illinois, Indiana,
Minnesota, South Carolina and Texas allow facility staff to carry canisters of such tear gas
weapons on their persons.96 Juvenile detention systems across the U.S. that still employ OC
spray have repeatedly faced complaints or lawsuits for mistreating youth by subjecting them
to excessive force through use of the substance.97
There are no universally agreed-upon standards for the administration of juvenile justice
facilities. Experts note that “the prevailing professional view and practice is to employ
positive behavioral management to reduce institutional violence and improve youth behavior
without requiring the use of solitary confinement, pepper spray and mechanical restraints.
Such approaches entail a combination of practices, programs and policies that jointly create
an orderly and rehabilitative youth correctional environment while minimizing the use of
solitary confinement, restraints and other negative reinforcement techniques.”98 The most
comprehensive best practices for the detention of youth require the complete prohibition of
the use of chemical agents against youth in the juvenile justice system.99 These standards
were developed by the Annie E. Casey Foundation based on the decades of work of its
Juvenile Detention Alternatives Initiative. This initiative has supported state and local
detention facilities in the identification and elimination of dangerous and inadequate
conditions in juvenile facilities (and the reduction of legal liability) since 1992.100 These
standards help show just how out of step detention facilities within California’s juvenile
justice system are in regard to best practices for managing detention facilities. Juvenile

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Law & Practices: Rules in Other U.S. States, National Best Practices and Fundamental
Rights Standards Support a Ban on Tear Gas Weapons in Juvenile Detention Facilities

42

facilities that have reduced or eliminated reliance on harsh measures have reported
substantial improvements in outcomes as well as facility climate.101
In addition to these best practices and the practice of the vast majority of U.S. states,
fundamental rights standards protecting those detained in the juvenile justice system
also support a ban on the use of force involving chemical agents against youth.
Although international human rights law holds that children should only be detained as
an absolute last resort, children, like all people deprived of their liberty, have a range of
fundamental rights protected under treaties that are binding on the United States and
its states and local officials.102 Among those is the right to be protected from torture and
cruel, inhuman or degrading treatment or punishment. United Nations experts have
determined that the use of any restraint or force against children is only permissible
“when the child poses an imminent threat of injury to himself or herself or others, only
for a limited time and only when all other means of control have been exhausted.” The
experts recommended – as part of the legal duty to prevent torture – that countries
should, among other things, follow U.N. standards for the protection of juveniles.103
These standards require that “the carrying and use of weapons by personnel should be
prohibited in any facility where juveniles are detained.”104
These concerns echo the California Legislature’s requirement that juveniles (who
are at no time accused or convicted of any criminal offense) “receive care, treatment,
and guidance that is consistent with their best interest” and that the “rehabilitative
objectives” mandated by the law must “not include retribution.”105 As noted above, state
law also requires that “juvenile hall[s] … shall not be deemed to be, nor treated as, a penal
institution ... [but] shall be a safe and supportive homelike environment.”106
The U.S. Constitution likewise
provides protections to youth in
detention. Because youth in the
juvenile justice system are not
accused of crimes, they cannot
be subjected to any punishment,
let alone the “cruel and unusual
punishments” prohibited by
the Eighth Amendment.107 The
Constitution’s due process clause
thus protects those in the juvenile

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Law & Practices: Rules in Other U.S. States, National Best Practices and Fundamental
Rights Standards Support a Ban on Tear Gas Weapons in Juvenile Detention Facilities

43

justice system and provides that when the government detains youth, it has heightened
obligations to support detained juveniles’ healthy growth, development and rehabilitation
– including protecting them from mistreatment in custody. These heightened obligations
to support detained juveniles’ healthy growth, development and rehabilitation are breached
when agents of the state subject youth detained in the juvenile justice system to conditions
or treatment that constitute a “substantial departure from accepted professional judgment,
practice, and standards.”108
The widespread use of tear gas weapons against youth in California’s juvenile justice system
fails to meet the state and county’s heightened obligations to support detained juveniles’
healthy growth, development and rehabilitation. Because the use of force involving chemical
agents is so out of step with fundamental rights, best practices and the rules in place in the
vast majority of U.S. states, such chemical agents should be banned.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

RECOMMENDATIONS

Ban Tear
Gas Weapons
in California’s
Juvenile Justice
System

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

44

Recommendations: Ban Tear Gas Weapons in California’s Juvenile Justice System

45

The widespread use of tear gas weapons – and in particular OC spray or “pepper spray”
– against youth in state and county detention facilities in California’s juvenile justice
system shows the need for an overhaul of the system. As 50 current and former leaders
of youth justice agencies nationwide, including some in California, have declared: “The
time has come to close down youth prisons, once and for all.” While shifting youth from
large youth prisons, camps, and halls may not be immediate, state and county leaders
must continue making progress in this direction. In the interim, harmful chemical agents,
including but not limited to tear gas weapons, must be banned in all California juvenile
detention facilities. Furthermore, jurisdictions that detain youth in California’s juvenile
justice system must be transparent and make data about all uses of force against youth
– particularly, until such time as bans are effective, those involving tear gas weapons –
regularly and publicly available.

The ACLU Foundations of California make the
following recommendations:
TO THE CALIFORNIA LEGISLATURE:
›

Mandate transparency about the use of force against youth in California’s
juvenile justice system, including detailed information about use of force
involving chemical agents, including but not limited to tear gas weapons.

›

Enact a legislative ban on the use of all chemical agents, including but not
limited to tear gas weapons such as OC spray or pepper spray, against youth in
the juvenile justice system.

TO THE CALIFORNIA DEPARTMENT OF CORRECTIONS
AND REHABILITATION DIVISION OF JUVENILE JUSTICE:
›

Make detailed information about use of force against youth involving
chemical agents, including but not limited to tear gas weapons, regularly and
publicly available on the division’s website.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Recommendations: Ban Tear Gas Weapons in California’s Juvenile Justice System

›

46

Implement a ban on the use of all chemical agents, including but not limited to
tear gas weapons such as OC spray or pepper spray, against youth in Division
of Juvenile Justice facilities.

TO COUNT Y BOARDS OF SUPERVISORS:
›

Mandate transparency about the use of force against youth in California’s
juvenile justice system, including detailed information about use of force
involving chemical agents, including but not limited to tear gas weapons.

›

Enact a ban on the use of all chemical agents, including but not limited to tear
gas weapons such as OC spray or pepper spray, against youth in the juvenile
justice system.

TO COUNT Y PROBATION DEPARTMENTS:
›

Make detailed information about use of force against youth involving
chemical agents, including but not limited to tear gas weapons, regularly and
publicly available on the probation department’s website.

›

Implement a ban on the use of all chemical agents, including but not limited
to tear gas weapons such as OC spray or pepper spray, against youth in county
juvenile camps and halls.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

47

Endnotes
1

A slightly more comprehensive request, seeking substantially the same records related to the use of chemical
agents, was sent to the Orange County Probation Department in 2017.

2

Interview with J.C. (April 11, 2019) (notes on file with the ACLU Foundation of Southern California).

3

This report uses “youth” rather than children or children and youth, because not everyone detained in the
juvenile justice system is under 18. The youngest incidents involving use of tear gas weapons we identified were
against 12- and 13-year-olds. See summary use of force data produced by Merced County (including Reports
#201500425, 201500539, 2015 01178, 201501363, 201600196, 201800105) and Orange County (Juvenile Hall
Restraint Reports (August 27, 2015).

4

As noted above, 10 counties do not operate juvenile detention facilities but contract with others to detain youth
subject to the jurisdiction of their county juvenile justice system.

5

A comparison of the average daily population data compiled by the Board of State and Community Corrections’
Juvenile Detention Survey http://app.bscc.ca.gov/joq/jds/query.asp?action=v (calculating that the annual
average daily population of county detention facilities at 5435 in 2015, 4721 in 2016 and 4392 in 2017)
and data compiled by the California Department of Juvenile Justice (DJJ) Division of Juvenile Justice and
Data Analytics https://www.cdcr.ca.gov/juvenile_justice/research_and_statistics/index.html (calculating
the annual average daily population of DJJ at 699 in 2015, 704 in 2016 and 652 in 2017) shows that county
facilities held 88 percent of detained children and youth in California’s juvenile justice system in 2015, 87
percent in 2016 and 87 percent in 2017.

6

In the juvenile justice system, adjudication is the determination of whether a young person is found responsible
for a certain offense.

7

U.S. Department of Justice, National Institute of Justice. Oleoresin Capsicum: Pepper Spray as a Force
Alternative (NCJ 181655) (1994).

8

CAL. PEN. CODE §§ 22810 ET SEQ.

9

CAL. PEN. CODE §§ 17250, 17270.

10

CAL. PEN. CODE § 22820. See also, e.g., CAL. PEN. CODE § 830.5 (defining peace officers to include probation
officers for purposes of noting their power to be authorized to carry firearms); California Commission on Peace
Officer Standards and Training, Specialized Training Requirements https://post.ca.gov/specialized-trainingrequirements (last accessed April 30, 2019) (describing that the relevant Peace Officer Standards and Training
Course per Penal Code 22820 is entitled “Chemical Agents for Peace Officers”)

11

Board of State and Community Corrections, Juvenile Title 15 Minimum Standards § 1357 (January 1, 2019)

12

See, e.g., Sacramento County Probation Department Policy and Procedure – Youth Detention Facility Use of
Force Title XC Section 1357 (Revised July 19, 2011) (referencing legacy penal code section numbers regulating
tear gas weapons); Lassen County Juvenile Detention Facility Policy Manual Policy Statement 5-12 (Revised

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

48

May 7, 2013) (same); Stanislaus County Probation Department Juvenile Institutions Policies and Procedures,
Use of Force Section 7.12 (Revised December 2015) (same); Santa Barbara Probation Department Los Prietos
Manual Chapter 5108 (Revised November 6, 2017) (same); Alameda County Probation Department Juvenile
Hall Manual Section 1357.2 (Revised February 20, 2004) (same); Contra Costa Probation Department
Juvenile Hall Policy and Procedure Bulletin No. 518 (Revised April 2018) (same); Siskiyou County Probation
Department P&P 1357: Use of Force (Revised April 8, 2016) (same); Fresno County Probation Department
Administrative Manual Policy No. 6.510 Pepper Spray Authorization and Use of (Adopted March 28, 2008)
(same).
13

CAL. WELF. INST. CODE §§ 202(b), (e), 203. The statute permits that such “guidance” may include “punishment”
as well as detention as long as measures taken are consistent with the best interest of the child and the
rehabilitative objectives of the law. § 202(b), (e).

14

CAL. WELF. INST. CODE § 851.

15

See Youth Correctional Leaders for Justice, Statement on Ending Youth Prisons, https://yclj.org/statement
(signatory count as shown on April 7, 2019).

16

Report of the Los Angeles County Department of Auditor-Controller to the Los Angeles County Board of
Supervisors dated November 15, 2016, pages 109-110.

17

Id. at page 109.

18

Id. at page 110.

19

The California Endowment, Online Survey Results Regarding Chemical Agents in Juvenile Facilities (2017)
(complete results on file with CDF-CA).

20

Report of the Los Angeles County Department of Auditor-Controller to the Los Angeles County Board of
Supervisors dated November 15, 2016, page 112.

21

For example the key studies cited by the National Institute of Justice in a recent review of the use of pepper
spray by law enforcement do not appear to involve any distinct consideration of the risks for youth. See U.S.
Department of Justice, National Institute of Justice, The Effectiveness and Safety of Pepper Spray (April
2003) (summarizing research findings, including research evaluating deaths involving the use of pepper spray).

22

Physicians for Human Rights & The International Network of Civil Liberties Organizations, Lethal in
Disguise: The Health Consequences of Crowd-Control Weapons 44 (March 2016)

23

For the most detailed accounting of the research on the affects of chemical agents on humans, with
particular focus on the risks for youth see Texas Criminal Justice Coalition, Pepper Spray in the Texas
Youth Commission: Research Review and Policy Recommendations 2-5 (November 2007). See also Center
on Children’s Law and Policy, Fact Sheet: Chemical Agents in Juvenile Facilities (2012) citing C. Gregory
Smith & Woodhall Stopford, Health Hazards of Pepper Spray, 60 North Carolina Med. J. 268 (1999). See also
Council of Juvenile Corrections Administrators, Issue Brief: Pepper Spray in Juvenile Facilities (2011); Texas
Criminal Justice Coalition Juvenile Justice Initiative, Pepper Spray in the Texas Youth Commission (2007)

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

49

(reviewing research).
24

See, e.g., Karen M. Abram et al., PTSD, Trauma, and Comorbid Psychiatric Disorders in Detained Youth,
United Stated Department of Justice, Office of Juvenile Justice and Delinquency Prevention Juvenile Justice
Bulletin at 1-4, June 2013 (Reporting that a longitudinal study of youth detained at the Cook County Juvenile
Temporary Detention Facility in Chicago Illinois found that 92.5% of youth had experienced a traumatic event
and that 11.2% had experienced post-traumatic stress disorder in the year prior to being interviewed.)

25

Los Angeles Board of Supervisors, Public Comment of Kent Mendoza, February 5, 2019 (at minute 3:28)
https://lacounty.granicus.com/MediaPlayer.php?view_id=&clip_id=6000&meta_id=328527.

26

Andrea J. Sedlak & Karla S. McPherson, Office of Juvenile Justice and Delinquency Prevention, Conditions of
Confinement: Findings from the Survey of Youth in Residential Placement 10 (May 2010) https://www.ncjrs.
gov/ pdffiles1/ojjdp/227729.pdf.

27

Council of Juvenile Corrections Administrators, Issue Brief: Pepper Spray in Juvenile Facilities (2011),
page 3.

28

Center on Juvenile and Criminal Justice, Unmet Promises: Continued Violence & Neglect in California’s
Division of Juvenile Justice 39 (2019) http://www.cjcj.org/uploads/cjcj/documents/unmet_promises_
continued_violence_and_neglect_in_california_division_of_juvenile_justice.pdf.

29

Disability Rights California & Disability Rights Advocates, Investigation Report: Kern County Juvenile
Correctional Facilities 14-16 (January 2018) https://www.disabilityrightsca.org/system/files/file-attachment
s/2018Feb6KCJCReportFinal_Accessible.pdf/.

30

Youth Law Center et al., Complaint Against County of San Diego Department of Probation Regarding the
Excessive Use of Pepper Spray and Other Civil Rights Violations in San Diego Juvenile Detention Facilities
(July 25, 2014) https://ylc.org/wp-content/uploads/2018/11/DOJ-Complaint.pdf.

31

Disability Rights California, Report on Inspection of the San Diego Juvenile Detention Facilities (February 23,
2016) https://www.disabilityrightsca.org/system/files/file-attachments/703001.pdf.

32

In all cases, such uses of force involved OC spray.

33

Contracts to detain children and youth in Del Norte County, which provided data showing use of tear gas
weapons against children and youth.

34

Contracts with multiple counties to detain children and youth.

35

Contracts with multiple counties to detain children and youth.

36

Contracts to detain children and youth in Yuba County, which provided data showing use of tear gas weapons
against children and youth.

37

Contracts to detain children and youth in Madera County, Kern County, Tuolumne County; Madera County and
Kern County provided data showing use of tear gas weapons against children and youth while Tuolumne County
reported permitting its use.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

50

38

Contracts with unspecified counties to detain children and youth.

39

Contracts with unspecified counties to detain children and youth.

40

Contracts with unspecified counties to detain children and youth.

41

Contracts with unspecified counties to detain children and youth.

42

Contracts with unspecified counties to detain children and youth.

43

See United States Department of Justice National Disproportionate Minority Contact Databook Relative
Rates Tables (2016) https://www.ojjdp.gov/ojstatbb/dmcdb/asp/display.asp?year=2016&offense=1&display_
in=1&displaytype=rri (showing overall minority referral and detention rates for youth of color at close to 1.5
times the relative rate of referral and detention of white youth).

44

WELF. INST. CODE. § 827.

45

WELF. INST. CODE. § 827.

46

See, e.g., T.N.G. v Super. Ct., 4 Cal. 3d 767, 780-781 (1971) (holding that arrest or detention records of
juveniles who are temporarily detained and subsequently released without further proceedings are protected
from disclosure under WIC § 827 and noting that this includes “information that [the police department]
obtains from the youths’ detention” and referring the juvenile court’s ability to refuse to disclose “information
about the juvenile detentions” (though using “detentions” to mean arrests)).

47

See, e.g., ACLU of Southern California v. Super. Ct. of LA Cty, 3 Cal. 5th 1032, 1038-39 (2017); LA Bd. of
Supervisors et. al. v. Super. Ct. & ACLU of Southern California, 2 Cal. 5th 282, 291 (2016).

48

Such disclosure would subject to appropriate but narrow limitations to protect privacy such as redactions to
protect the identity of individual youth.

49

Los Angeles County Board of Supervisors Motion 19-0940 “Phasing Out the Use of Oleoresin Capsicum (OC)
Spray in County Juvenile Facilities” (February 19, 2019) (directing the Probation Department to develop “a
plan for the phased elimination of the use of OC spray in all Los Angeles county camps and Halls before the end
of calendar year 2019”).

50

United States Department of Justice, Letter from Ralph F. Boyd, Jr. to Yvonne B. Burke dated April 9, 2003.

51

DOJ has expressed similar constitutional concerns about the use of chemical agents such as OC spray in other
investigations of state and local juvenile detention facilities. See United States Department of Justice, Letter
from Thomas E. Perez to Phil Bryant dated March 20, 2012; Letter from Thomas E. Perez to Mitch Daniels
dated January 29, 2010.

52

Memorandum of Agreement between the United States and Los Angeles County (2008), ¶ 11.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

53

54

51

Report of the Los Angeles County Department of Auditor-Controller to the Los Angeles County Board of
Supervisors dated December 6, 2016, page 2.
Id.

55

Los Angeles County Probation Commission Minutes of Regular Meeting, March 22, 2018, pages 2-6.

56

The use of force involving OC spray in response to nonviolent behavior is one of the practices identified
repeatedly by DOJ as likely unconstitutional in investigations of state and local juvenile detention facilities.

57

The use of pepper spray on youth engaged in actual or threatened self-harm was one of the very practices
identified by DOJ as likely unconstitutional more than fifteen years ago.

58

Jason Kandel and Lolita Lopez, Other Juvenile Lockups are Shunning Pepper Spray, But its Use is on the Rise
in LA, NBC4 News, December 13, 2018. Raw data reported in the story can be found here and here.

59

Id.

60

Los Angeles County Board of Supervisors Motion 18-7870 “Ensuring Safety and Humane Treatment in the
County’s Juvenile Justice Facilities” (December 18, 2018).

61

Los Angeles County Office of the Inspector General, Report Back on Ensuring Safety and Humane Treatment
in the County’s Juvenile Justice Facilities at Page 19 (February 4, 2019).

62

See Board of State and Community Corrections Title 15 Minimum Standards for Juvenile Facilities § 1357
(Effective April 1, 2014) http://www.bscc.ca.gov/downloads/Juvenile_Title_15_Strike_Out_Underline_
REVISIONS_effective_2014-4-1.pdf.

63

See Board of State and Community Corrections Title 15 Minimum Standards for Juvenile Facilities §
1357 (Effective January 1, 2019) http://www.bscc.ca.gov/downloads/Juvenile%20Title%2015%20-%20
Effective%202019-1-1.pdf.

64

While the report’s authors acknowledge that these counties may have revised their use of force policies since
January 1, 2019, analysis of the deficiencies of previous use of force policies is useful in understanding how
use of force policies generally fail to protect children and youth from the regular use of tear gas weapons.

65

Contra Costa County, Fresno County, Glenn County, Kern County, Mendocino County, Merced County, San
Benito County, San Bernardino County, San Diego County, Shasta County, Tehama County and Yuba County

66

See Merced County Probation Department, Merced County Juvenile Justice Complex Policy Manual Policy
H-112 (Revised June 14, 2017). Note that the Merced policy also states that OC spray “may also be used as
protection against threatening/attacking animals.” Id.

67

See San Bernardino County, Probation Department Procedure O.C. Spray (Oleoresin Capsicum), Inter-Bureau
Procedure 06-11-134 (Effective March 11, 2011).

68

See California Department of Corrections and Rehabilitation Division of Juvenile Justice, Crisis Prevention
and Management Section 2080 (Approval Date January 22, 2013).

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

52

69

Contra Costa County O.C. Spray Log August 2015 (August 4, 2015).

70

Contra Costa County 2016 OC (February 22, 2016 and March 23, 2016).

71

See Board of State and Community Corrections Title 15 Minimum Standards for Juvenile Facilities §
1357 (Effective January 1, 2019) http://www.bscc.ca.gov/downloads/Juvenile%20Title%2015%20-%20
Effective%202019-1-1.pdf.

72

While the report’s authors acknowledge that these counties may have revised their use of force policies since
January 1, 2019, analysis of the deficiencies of previous use of force policies is useful in understanding how
use of force policies generally fail to protect children and youth from the regular use of tear gas weapons.

73

Alameda County, Contra Costa County, Fresno County, Kern Couny, Madera County, Sacramento County, San
Bernardino and Sonoma County

74

See Kern County Probation Department, James G. Bowles Juvenile Hall Administrative Manual § 1635.1
(Revised 2-14-2015).

75

See Contra Costa County, Probation Department Juvenile Hall Bulletin No. 518 (Revised April 2018).

76

Los Angeles Board of Supervisors, Testimony of Maureen Pacheco, February 19, 2019 (at minute 2:22) https://
lacounty.granicus.com/MediaPlayer.php?view_id=&clip_id=6038&meta_id=332011.

77

The report’s authors identified Merced County as the only county with a policy that limits intervention in
response to self-harm or a suicide attempt: “OC spray will not be applied to protect a youth from self inflicted
injury or suicide unless the youth fails to respond to lesser use of force and/or becomes aggressive toward
staff or other detainees.” See Merced County Probation Department, Merced County Juvenile Justice Complex
Policy Manual Policy H-112 (Revised June 14, 2017).

78

See San Luis Obispo County, Probation Department “Use of Pepper Spray”) (2015, 2016).

79

Mendocino County Juvenile Hall Incident Report – C Unit Page 264 (March 3, 2016).

80

Contra Costa County 2016 OC (July 22, 2016, September 14, 2016, September 28, 2016, December 14, 2016).

81

Contra Costa County 2016 OC (January 26, 2017, February 1, 2017, March 28, 2017).

82

Interview with Dr. Andrea Weisman (April 8, 2019) (notes on file with the ACLU Foundation of Southern
California).

83

Id.

84

See, e.g., Los Angeles County Office of the Inspector General, Report Back on Ensuring Safety and Humane
Treatment in the County’s Juvenile Justice Facilities at Page 10 (February 4, 2019) (“Several [officers] cited
a sense of crisis after following the elimination of special housing units in County facilities, stating that the
inability to place youth in a solitary confinement setting made dealing with problem behaviors difficult”).
The harms of solitary confinement of children are well-documented. See generally Human Rights Watch &

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

53

American Civil Liberties Union, Growing Up Locked Down (2013).
85

Madera County Probation Department, Incident Report – Institutions, Report #Juvenile Detention Facility15384-RPT-21168 (August 25, 2015).

86

Madera County Probation Department, Incident Report – Institutions, Report #Juvenile Detention Facility15384-RPT-21168 Review (August 25, 2015).

87

Madera County Probation Department, Incident Report – Institutions, Report #Juvenile Detention Facility18176-RPT-27391 (August 25, 2015).

88

Madera County Probation Department, Incident Report – Institutions, Report #Juvenile Detention Facility18176-RPT-27391 Review (February 14, 2018).

89

WELF. INST. CODE § 208.3.

90

See Board of State and Community Corrections Title 15 Minimum Standards for Juvenile Facilities §
1357 (Effective January 1, 2019) http://www.bscc.ca.gov/downloads/Juvenile%20Title%2015%20-%20
Effective%202019-1-1.pdf.

91

Alameda County, Contra Costa County, Del Norte County, Monterey County, Nevada County, Orange County,
Shasta County, Tehama County, Tuolumne County and Yolo County

92

While the report’s authors acknowledge that these counties may have revised their use of force policies since
January 1, 2019, analysis of the deficiencies of previous use of force policies is useful in understanding how
use of force policies generally fail to protect children and youth from the regular use of tear gas weapons.

93

See Del Norte County, 1357 – Use of Chemical Agents (undated).

94

See Tehama County Juvenile Detention Facility Policy and Procedure Manual Policy No. 602 (Revised
February 2, 2017).

95

Los Angeles County District Attorney’s Office, April 5, 2019: Probation Officers Charged with Unlawfully
Using Pepper Spray on Teen Girls at Juvenile Hall (April 5, 2019) http://da.co.la.ca.us/media/news/
probation-officers-charged-unlawfully-using-pepper-spray-teen-girls-juvenile-hall.

96

Report by Legislative Counsel David Billingsley presented to the Assembly Committee on Public Safety for
hearing held April 17, 2018, page 4. See also Council of Juvenile Corrections Administrators, Issue Brief:
Pepper Spray in Juvenile Facilities (2011) (reviewing data from the national Performance Based Standards
initiative showing use of OC spray an outlier among the many participating juvenile justice systems).

97

See generally Richard Mendel, Maltreatment of Youth in U.S. Juvenile Corrections Facilities: An Update
(2015).

98

See J.J. v. Litscher, Case No. 17-CV-047-JDP Dkt. 19 Declaration of Vincent N. Schiraldi, M.S.W. ¶ 3 (W.D.
Wis. June 23, 2017).

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

99

54

The Annie E. Casey Foundation’s Juvenile Detention Facility Assessment is among the most comprehensive
recently issued standards for the administration of juvenile justice detention facilities. Annie E. Casey
Foundation, Juvenile Detention Facility Assessment: 2014 Update (2014), page 174. Their inspection
instrument requires that facilities ban the use of chemical agents including OC spray in order to be in
compliance. For a review of older standards prohibiting or strictly limiting chemical agents see Council of
Juvenile Corrections Administrators, Issue Brief: Pepper Spray in Juvenile Facilities (2011).

100

Annie E. Casey Foundation, Juvenile Detention Facility Assessment: 2014 Update (2014), pages 1-2.

101

See, Virginia Department of Juvenile Justice, Transformation Plan 2018 Update (2018) http://www.djj.
virginia.gov/pdf/admin/Transformation%20Update%202018%20FINAL.pdf (reporting on effects of
reduced detention population and reduced reliance on isolation and restraint and reporting “greater safety
with significant declines in the rates of acts of aggression and violence, use of force by staff, disciplinary
reports with sanctions of isolation and worker’s compensation claims”). But cf. Council of Juvenile
Corrections Administrators, Issue Brief: Pepper Spray in Juvenile Facilities (2011) (noting that Virginia
already prohibited the use of OC spray in juvenile detention facilities at the time of the reforms).

102

See International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 U.N.T.S. 171; 138 CONG.
REC. 8068, 8071 (1992); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 113 S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85 [hereinafter Torture
Convention]; 136 CONG. REC. 36192 (1990). While, because it is non-self-executing, the International Covenant
on Civil and Political Rights, a ratified treaty, does not provide a rule of decision for U.S. courts, it does
constitute an international law obligation of the United States. The Constitution and laws of the United
States that apply to the instant case should, therefore, be interpreted in a manner consistent with this treaty,
in order to avoid putting the United States in breach of those obligations.

103

See Report of the United Nations Special Rapporteur on Torture on Children Deprived of Liberty ¶ 84 (March
5, 2015) (citing the United Nations Rules for the Protection of Juvenile Deprived of their Liberty).

104

United Nations Rules for the Protection of Juvenile Deprived of their Liberty ¶ 65 (December 1990).

105

CAL. WELF. INST. CODE §§ 202(B), (E), 203. The statute permits that such “guidance” may include “punishment”
as well as detention as long as measures taken are consistent with the best interest of the child and the
rehabilitative objectives of the law. § 202(b), (e).

106

CAL. WELF. INST. CODE § 851.

It is well-settled that detention by the state triggers the protection of the due process clause and the
“corresponding duty to assume some responsibility for [the individual’s] safety and general well-being.”
DeShaney v. Winnebago Cty. Dep’t. Soc. Serv., 109 U.S. 189, 199-200 (1989). Cf. Brown v. Plata, 563 U.S.
493, 510 (2011) (“To incarcerate, society takes from prisoners the means to provide for their own needs.”).
The U.S. Supreme Court has likewise held that the circumstances of any deprivation of liberty dictate the
applicable protections. Youngberg v. Romeo, 457 U.S. 307, 319 n. 25 (1982) (scope of substantive due process

107

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Endnotes

55

depends on “identifiable liberty interests and the circumstances of the case”). The U.S. Supreme Court has
held that adults convicted of a criminal offense are protected by the Eighth Amendment while pre-trial
detainees accused of criminal offenses are entitled to greater, substantive due process, protections. Castro,
833 F.3d at 1070–71 (overruling earlier precedent in light of Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)
and holding that a higher standard applies to claims by adult pretrial detainees.) But cf. Ingraham v. Wright,
430 U.S. 651, 669 n. 37 (1977) (reserving whether individuals in “mental or juvenile institutions” might also
be able to claim the protections of the Eighth Amendment in certain circumstances).
Cf. Youngberg v. Romeo, 457 U.S. 307, 323 (1982); Gary H., 831 F.2d at 1433 (holding that “to the extent
that the [district] court ordered due process hearings . . . and minimum sanitary, health, educational and
medical resources for the inmates, the decree was clearly within the power of a federal court to assure
minimum constitutional standards taught by Youngberg”). See also Rohde v. Rowland, 898 F.2d 156 (9th Cir.
1990) (finding a failure to show “that [the state’s] decisions depart so substantially from accepted professional
judgment or practice as to warrant a finding of a [C]onstitutional violation.”) (unpublished decision); Nelson v.
Heyne, 491 F.2d 352, 360 (7th Cir. 1974). Rather than take a position on whether any individual use of force
reported by the state prison agency’s Division of Juvenile Justice or its counties’ probation departments was
constitutionally appropriate, however, this report considers the legality of the use of tear gas weapons broadly,
as a condition of confinement. The U.S. Supreme Court has yet to consider a case evaluating whether a specific
use of OC spray against a youth held in a state juvenile justice detention facility is an unconstitutionally
excessive use of force. Courts generally evaluate whether an individual use of force against adults by agents
of the state is excessive, and thus violates Constitutional protections of due process, under a test evaluating
“objective reasonableness.” See, e.g., Graham v. Connor, 490 U.S. 386 (1989). In our view, given the
international and national consensus against the use of force involving weapons, including chemical weapons,
against children and youth in the juvenile justice system, the use of tear gas weapons against children and
youth should never be seen to be objectively reasonable, under any circumstances. Notably, employing varying
legal rationales, the U.S. Department of Justice has repeatedly admonished state and local juvenile justice
systems for unconstitutional overuse of OC spray. United States Department of Justice, Letter from Ralph F.
Boyd, Jr. to Yvonne B. Burke dated April 9, 2003; United States Department of Justice, Letter from Thomas
E. Perez to Phil Bryant dated March 20, 2012; Letter from Thomas E. Perez to Mitch Daniels dated January
29, 2010. See also, J.J. v. Litscher, Case No. 17-CV-047-JDP P.I. Mot. Hearing Tr. 5:6-15 (W.D. Wis. June
23, 2017) (Granting preliminary injunction and stating, “I find that the plaintiff has amply shown that the
youths at Lincoln Hills re suffering acute, immediate, and lasting harm from the excessive use of solitary
confinement. I also make a similar finding with respect to the use of OC or pepper spray ... the evidence here
shows a pattern of excessive use of pepper spray.”) Additional legal authorities are discussed in Center on
Children’s Law and Policy, Fact Sheet: Chemical Agents in Juvenile Facilities (2012).

108

109

See Youth Correctional Leaders for Justice, Statement on Ending Youth Prisons, https://yclj.org/statement
(signatory count as shown on April 7, 2019).

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

56

Appendix A
May 9, 2018
[CONTACT INFO]

RE: Public Records Act Request

To Whom It May Concern:
I am writing on behalf of the American Civil Liberties Union of Southern
California (“ACLU SoCal”) to request from the [NAME] County Probation Department
(“ABBREVIATION”) a copy of the records1 detailed below. We make this request pursuant
to the California Public Records Act, California Government Code section 6250 et seq.,
and article 1 section 3(b) of the California Constitution. To the extent that you are aware
of records that may be directly related or relevant to this request, but which we do not
specifically describe, we request that you provide those records as well. We request all
records from January of 2015 through and including March 31, 2018.
For purposes of this request,
›

All references hereinafter to the “average” shall include producing records of
the mean, median, mode, and range of the data requested, whenever available.

›

All references hereinafter to “each facility operated by the
[ABBREVIATION]” shall include distinct and separate data from each facility
operated by the [NAME] County Probation Department.

›

All references hereinafter to “youth” shall include any and all wards, minors,
juvenile or others, including any and all such youth under the maximum age
of juvenile court jurisdiction, deprived of their liberty in any facility operated
by the [NAME] County Probation Department.

›

All references hereinafter to “chemical agent” shall include any and all

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

57

chemical-based agents designed to debilitate or incapacitate a person, or to
cause a temporary burning sensation and inflammation of mucous membranes
and eyes leading to involuntary closure, including, but not limited to, tear
gas, mace, oleoresin capsicum, or pepper spray.
1. Policies and Procedures
a. Copies of any and all of the following policies and procedures used/in effect
between January 1, 2015 and March 31, 2018 (inclusive) in each facility operated by
[ABBREVIATION]:
i.

Any and all rules of conduct and disciplinary and/or behavior management policies
and procedures for youth, including those governing sanctions as well as those
governing incentives and/or privileges.

ii.

Any and all behavior management or other policies and procedures governing use
of force by staff, including what kind of force can be used and the continuum of
appropriate force permitted in specific circumstances.

iii. Any and all behavior management or other policies and procedures governing use
of cell/room extraction, including any requirements to video or audiotape cell/
room extraction.
iv. Any and all behavior management or other policies and procedures governing use
of de-escalation techniques by staff.
v.

Any and all behavior management or other policies and procedures governing
use of chemical agents (including the type, size/volume and approved method
of deployment for those chemical agents) and methods of application as well as
chemical agent cleanup/decontamination after use.

vi.

Any and all policies and procedures regarding storage and maintenance
requirements for any chemical agents permitted to be stored, used, or carried in
the facility.

vii. Any and all policies and procedures regarding identifying or authorizing staff
who are permitted to carry and/or use chemical agents in the facility.
viii. Any and all policies and procedures addressing medical and behavioral health
conditions that would contraindicate or limit use of chemical agents.
ix. Any and all policies and procedures regarding identifying and evaluating youth
who have been exposed to chemical agents, including any signs and symptoms
requiring medical or behavioral health evaluation referral.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

58

x.

Any and all policies and procedures regarding notification of parents or legal
guardians regarding youth exposure to chemical agents.

xi.

Any and all policies and procedures on documentation and reporting
requirements following any use of chemical agents.

xii. Any and all policies and procedures on requirements to debrief or discuss use of
force incidents, including use of chemical agents, with youth after the incident.
xiii. Any and all policies and procedures on supervisory or other review of use of force
incidents by staff, including use of chemical agents.
xiv. Any and all policies and procedures regarding the information provided to youth
to explain rules, rights, policies and procedures related to use of force, including
but not limited to use of chemical agents (including copies of such information, as
provided to youth, in each language in which it is available).
xv. Any and all policies and procedures governing discipline of staff for violations
of policies, procedures and rules governing the use of force, including use of
chemical agents.

2. Training Materials
a. Copies of any and all of the following training materials used/in effect between January
1, 2015 and March 31, 2018 (inclusive) in each facility operated by [ABBREVIATION]:
i.

Any and all training materials on the use of chemical agents, including but not
limited to permissible use and standard(s) for use, methods of application and
cleanup/decontamination.

ii.

Any and all training materials on cell/room extractions.

iii. Any and all training materials on the provision of medical or behavioral health
services or referral before or after youth are exposed to chemical agents.
iv. Any and all training materials on identifying signs or symptoms of medical or
behavioral health conditions that would contraindicate the use of certain types of
force, including chemical agents.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

v.

59

Any and all training materials on the use and exhaustion of less restrictive
options than use of chemical agents and before the use of chemical agents.

vi. Any and all training materials on complying with authorization, reporting and
documentation requirements in connection with the use of chemical agents.
vii. Any and all training materials on conducting a review of use of force, including
on the use of chemical agents.
viii. Any and all training materials on debriefing or discussing use of force incidents
with use, including use of chemical agents, after the incident.
ix. Any and all training materials used to ensure compliance of staff authorized
to carry or use chemical agents with PENAL CODE § 22820 (requiring completion
of training in the use of tear gas for any peace officer before they can purchase,
possess, transport, or use tear gas or a tear gas weapon).

3. Data
a. Any and all data on the use of chemical agents between January 1, 2015 and March
31, 2018 (inclusive) in each facility operated by [ABBREVIATION], including:
i.

Records showing any and all aggregate data regarding average rate of use of
chemical agents per month, quarter and year.

ii.

Records showing any and all individual data regarding specific instances of use
of chemical agents, including, for each instance, the incident date, time, volume
or amount of chemical agent deployed, location within the facility, description of
the incident (including the situation alleged to precipitate the use; for example
but not limited to fight, cell/room extraction, refusal to follow a verbal order,
assault, riot, etc.), and demographic information about the juvenile and staff
involved, including but not limited to age, race, national origin, gender identify
and gender expression. We request that individual identifying information
(name) be replaced with unique identifiers so that we may observe whether the
same individuals were involved in multiple incidents.

iii. Copies of any and all videotapes or other audio and/or visual records of use of
force or cell/room extractions involving the use of chemical agents. We request
that individual identifying information (recordings of name, face) be replaced
with unique identifiers so that we may observe whether the same individuals

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

60

were involved in multiple incidents.
iv. Copies of any notification of parents or guardians after chemical agent use
made. We request that individual identifying information (name, addresses)
be replaced with unique identifiers so that we may observe whether the same
individuals were involved in multiple incidents.
v.

Copies of any and all complaints/grievance made regarding use of chemical
agents, including records showing any response and any action taken. We
request that individual identifying information (name) be replaced with unique
identifiers so that we may observe whether the same individuals were involved in
multiple incidents.

vi.

Copies of any and all incident reports or other reports related to use of chemical
agents, including log book entries, entries in any electronic case management
system(s), and entries in any other institutional case, data, or record
management system(s). We request that individual identifying information
(name) be replaced with unique identifiers so that we may
observe whether the same individuals were involved in multiple incidents.

vii. Copies of any and all internal reviews related to use of chemical agents
conducted.
viii. Records showing any staff disciplined in connection with use of chemical
agents, including allegations, findings, and any disciplinary actions taken. We
request that individual identifying information (name) be replaced with unique
identifiers so that we may observe whether the same individuals were involved in
multiple incidents.
ix. Records of injury to staff or youth related to use of chemical agents. We
request that individual identifying information (name) be replaced with unique
identifiers so that we may observe whether the same individuals were involved in
multiple incidents.
x.

Records showing number and volume of all containers or units of chemical
agents currently maintained or stored for use.

xi. Records showing number and volume of all containers or units of chemical
agents purchased per month, quarter and year (and the total cost for such
purchases).
xii. Records showing number and volume of all containers or units of chemical

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

61

agents destroyed or discarded per month, quarter and year.
xiii. Copies of any and all studies, inspection or accreditation reports, audits, or
analyses relating to the Facilities conducted internally or by outside agencies or
organizations that mention chemical agents.
xiv. Strategic plans, committee reports, briefings, data, memoranda, final agendas,
meeting minutes, or other documents or materials relating to the use of pepper
spray.
xv. Draft and final memoranda, documents, or guidance materials or directives,
including but not limited to those addressing changes to policies, procedures,
and training materials disclosed in response to this request, prepared by the
[ABBREVIATION] related to use of chemical agents.
xvi. Copies of any approvals or denials of any proposed changes to policies,
procedures, trainings or guidelines, including but not limited to those
addressing changes to policies, procedures, and training materials disclosed
in response to this request, prepared by [ABBREVIATION] related to use of
chemical agents.
This public records request applies to all documents in your agency’s possession, including
emails, video, audiotapes, and other electronic records.2 It also includes documents that
were created by a member of another government agency or a member of the public.3
Please respond to this request within ten (10) days, either by providing all the requested
records or by providing a written response setting forth the legal authority for withholding
or redacting any document and stating when the documents will be made available.4
Please note that the California Public Records Act allows a member of the public to request
records by describing their content, rather than asking for specific documents by name; an
agency that receives such a request must “search for records based on criteria set forth in the
search request.”5 Please provide entire documents, even if only parts of them are responsive
to this request. If specific portions of any documents are exempt from disclosure, please
provide the non-exempt portions.6 If any records are claimed to be exempt from disclosure,
please provide a written response that describes with specificity each record that is being
withheld and the claimed reason for exemption.
Please note that we are not requesting any individual youth’s juvenile court case file7 or
juvenile court records8 nor are we requesting personal identifying information of any

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

62

individual youth or [ABBREVIATION] staff (and have and would request(ed) that any
individual identifying information (name) be replaced with unique identifiers so that we may
observe whether the same individuals were involved in multiple incidents).
If you maintain or can provide records in electronic format, please provide them in electronic
format to avoid copying costs.9 The ACLU SoCal has limited funds to reimburse your agency
for the direct costs of copying these records (if your agency elects to charge for copying) or
postage and we request that you waive any fees or costs for production of the documents,
as the ACLU SoCal is requesting these documents in order to further the public interest.
North County Parents v. Department of Education, 23 Cal. App. 4th 144 (1994). If you
anticipate that any direct costs will nonetheless exceed $200, or that the time needed to copy
the records will delay their release, please contact me so that I can arrange to inspect the
document or decide which documents I wish to have copied. Otherwise, please copy and send
them as soon as possible. Finally, please provide any and all responsive documents as soon as
possible and on a rolling basis.
If I can provide any clarification that will help identify responsive documents or focus this
request,10 please contact me at 714.450.3962 x 107 or by email at ikysel@ACLUSoCal.org.
Thank you for your time and attention to this matter.

Sincerely,

________________________
Ian Kysel
Staff Attorney

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

Appendix

63

Appendix Endnotes
1

The term “records” as used in this request is defined as “any writing containing information relating to the
conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of
physical form or characteristics.” GOV. CODE § 6252(e). “Writing” is defined as “any handwriting, typewriting,
printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every
other means of recording upon any tangible thing any form of communication or representation, including
letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless
of the manner in which the record has been stored.” GOV. CODE § 6252(g).
GOV. CODE § 6252(e).

2

3

See California State University v. Superior Court, 90 Cal.App.4th 810, 824-25 (1999).

4

GOV. CODE §§ 6253(c), 6255.

5

California First Amendment Coalition v. Superior Court, 67 Cal.App.4th 159, 165-66 (1998).

6

GOV. CODE § 6253 (a).

7

As used in CAL. WELF. & INST. CODE § 827

8

Id.

9

GOV. CODE § 6253.9.

10

GOV. CODE § 6253.1.

TOXIC TREATMENT: THE ABUSE OF TEAR GAS WEAPONS IN CALIFORNIA JUVENILE DETENTION

TOXIC TREATMENT:

The Abuse of
Chemical Spray in
California Juvenile
Detention

WWW.ACLUSOCAL.ORG/TOXICTREATMENT