People v. Michael Heiserman (decided December 13, 2022) (SSM)

Facts relevant to the case: The defendant repeatedly failed to comply with a lawful
order to remove his shoes while being processed for an arrest and was warned he
would be pepper sprayed if he continued to refuse. Five seconds after being pepper
sprayed, he charged at the sergeant and punched him in the head. The Appellate
Division reversed his conviction for assault in the second degree, finding that
defendant was entitled to a justification charge because there was a reasonable view
of the evidence that the use of pepper spray constituted excessive force in this
scenario. A dissenter granted leave to the People.

Issue: Did the use of pepper spray constitute excessive force entitling the defendant
to a justification charge?

Held: No. There was no reasonable view of the evidence that the sergeant’s use of
pepper spray was excessive of otherwise unlawful. No reasonable factfinder could
have reasonably believed that defendant reasonably believed that the use of force was
necessary to defend himself from the use of unlawful physical force.

CAL Ob s e rv e s : This is another example of case that deserved far more thought and
attention than the Court provided in this memorandum SSM decision. It is also an
example of how the Court’s seemingly narrow case-specific holdings can actually
have far reaching and scary implications, whether intended or not.
In holding that the use of pepper spray was not excessive force here, where the
defendant failed to comply with an order to remove footwear (not to drop a gun or
weapon), the Court appears to be holding that pepper spray is not excessive force as a
matter of law. Does this mean the police can use pepper spray whenever an individual
fails to comply with any lawful order? Fails to respond when law enforcement
exercises a level one inquiry? Fails to stop when directed to do so? Practitioners must
push against this.

And where is there anything in this opinion suggesting that - regardless of the
lawfulness of the use of pepper spray – de-escalation, not the use of force, should
have been practiced. Disappointing that not even the liberal wing sought fit to
comment on that.