By: Dawn Boyce and Emily Blake
Officer, who used pepper spray only once with a burst at the arrestee’s forehead, while attempting to take control of a driver during a traffic stop did not violate Fourth Amendment. Omeish v. Kincaid, 2023 U.S. App. LEXIS 30403 (4th Cir. 2023).
The Fourth Circuit affirmed the District Court’s grant of summary judgment to the officer, finding that there was no clearly established legal precedent set by the Supreme Court, the Fourth Circuit, or the general consensus of persuasive authority governing the question presented to inform a reasonable officer that such use was unlawful under the facts of the case.
The arrestee repeatedly failed to comply with the officer’s commands during a lawful traffic stop and resisted his attempts to arrest her on the side of a busy road, a location dangerous to the officer. Because the court found there was no violation of a clearly established right, it did not address whether the use of paper spray under the circumstances was excessive.