A federal trial is set to begin Tuesday in a lawsuit challenging police use of pepper spray to control unruly students in Birmingham schools.
Ebony Howard, one of the Southern Poverty Law Center attorneys who filed the lawsuit in 2010, said they want an order that stops the use of chemical spray in Birmingham high schools or at least requires the training and appropriate supervision of police officers stationed in the schools - called School Resource Officers (SROs).
"We think it is outrageous," Howard said. "It (use of pepper spray) is traumatizing to children and it is an outrageous use of force .... That has no place in the school system."
The center has estimated that about 200 students were sprayed in incidents during a five-year period beginning in 2006.
Michael Choy, an attorney for the police, stated in a prepared release that the city and officers intend to vigorously defend themselves against the lawsuit.
Six of the students "were engaged in disorderly conduct, which ranged from fighting and coming close to starting a riot in a high school cafeteria to repeatedly hitting an assistant principal after being warned to stop by one of the defendant police officers," according to the statement.
"Defendants will prove at trial that if the plaintiff students were tending to their reading, writing and arithmetic and behaving in an orderly fashion, they would not have been maced," according to the statement that also came with a warning. "The City and Chief have the option of withdrawing all Birmingham police officers from all Birmingham public high schools since the City has no legal obligation to have police officers within the high schools."
Attorneys for the police have argued that the officers are trained and that no other court in the nation has declared the use of the non-lethal chemical unconstitutional.
The lawsuit filed in 2010 claims officers are quick to use pepper spray to control what amounts to adolescence misconduct despite the chemical device's harmful effects, especially for individuals with asthma or similar conditions. The Southern Poverty Law Center, which brought the lawsuit on behalf of the students, also argues the presence of untrained police in Birmingham City Schools creates an inappropriate environment that too often results in excessive use of force against students.
Several students claim that during their arrests SROs sprayed them with Freeze + P, a product made up of OC (pepper spray) and CS (tear gas). Two students were both subjected to the Freeze + P as bystanders when others were sprayed, according to the lawsuit. The alleged incidents happened at four Birmingham high schools -- Woodlawn, Huffman, Carver and Jackson-Olin.
The students who were being arrested were not formally charged with crimes, according to the lawsuit.
The lawsuit is to be heard by U.S. District Court Judge Abdul Kallon at the Hugo Black U.S. Courthouse in downtown Birmingham beginning at 10 a.m. Tuesday. The judge has set aside 18 days through Feb. 27 for the non-jury trial. The trial could include about three dozen witnesses, including experts on the effects of using pepper spray.
Southern Poverty Law Center attorneys Maria Morris, and Brooke Menschel also represent the students. Attorneys for Roper and the officers are Frederic L. Fullerton II, Nicole E. King, Michael K.K. Choy, and Elizabeth Shirley.
The eight high school students - identified by the initials J.W., G.S., T.L.P., B.D., K.B., T.A.P., P.S. and B.J. - are suing Birmingham Police Chief AC Roper in his individual and official capacity and six police officers, who were acting as SROs, for excessive use of force in incidents at the schools.
The judge previously dismissed the Birmingham Board of Education, former superintendent Craig Witherspoon and Carver High School Assistant Principal Anthony Moss from the suit.
The case also has been certified as a class of all current and future high school students of Birmingham City Schools and seeks an injunction that would curtail the use of pepper spray in schools. Six of the students also seek monetary damages.
"There's no amount of money these kids could get that would compensate them for the harm that they have endured," Howard said.
Each officer denies they used excessive force and Chief Roper denies that the Birmingham Police Department's macing policies are unconstitutional, or were improperly applied to the students.
Any touching of the students was in self-defense or for the purpose of making an arrest for probable cause, attorneys for the police have argued.
Also, the officers contend that any injury the students sustained was due to a fight with another person or their resisting arrest.
One of the plaintiffs is expected to testify by videoconference from prison in New York, according to Choy's statement. This student is serving time for possession of a firearm and second degree robbery.
The police also say police have been properly trained on the use of pepper spray.
"The Birmingham Police Department is and has been accredited by the Commission on Accreditation for Law Enforcement Agencies," according to Choy's statement. "The department trains its officers in the Police Academy in a 21-week program. The Academy trains its officers on the use of force, which includes the use of mace, batons, hands, tasers and firearms."
Each officer also must be certified on firearms twice a year, and that training also includes reviews of other uses of force such as mace, according to Choy's statement. "Daily roll call also includes continuous training on uses of force. Each officer is trained to use a reasonable level of force based on the circumstances they see, hear and perceive. Police officers often are asked to perform their duties under circumstances that are often tense, uncertain and sometimes rapidly evolving."
"No court in the United States has held that it is a deprivation of a person's Constitutional rights because that person was subjected to a police officer's use of mace," according to Choy's statement.
Updated at 6:15 p.m. Jan. 19, 2015 with comments from police attorney