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Pepper-Spray Brutality May Leave Cops Liable

(CN) - A woman can advance claims that she suffered a traumatic brain injury and eye damage after a police officer pepper-sprayed her at close range, a federal judge ruled.

The officer in question, Enoch Clark with the Beaumont, Calif., police, is awaiting trial on charges that he "blinded" Monique Hernandez on Feb. 21, 2012, the Banning-Beaumont Patch reported last month.

Hernandez said in a January complaint that she was cooperating with Officer Clark as he subjected her to field sobriety tests and a breathalyzer on the night in question.

Clark nevertheless allegedly handcuffed Hernandez and shoved her against his car while telling her to "stop resisting." Hernandez said she "never attempted to kick, head-butt, grab, or pull away from Clark, and she never attempted to flee."

The woman's nearby family members, who are also plaintiffs in the case, voiced their concern about the officer's "heavy-handed tactics," but they did not interfere or do anything that could have been seen as threatening, the complaint states.

"Without any legitimate justification, Clark shot his JPX pepper spray gun at Monique's head and eye area from less than ten inches away," the complaint states.

Her family members heard a loud "pop," saw a "red flash," and heard Hernandez cry out in pain. Another officer on the scene, Francisco Velasquez Jr., allegedly prevented them from going to help Hernandez, pulling out a baton to intimidate them and silence their protests.

The JPX gun shoots out pepper spray liquid at 405 mph and causes serious injury if shot from less than 5 feet away, especially when shot at a person's eyes, the complaint states.

"Monique was bleeding from the nose and mouth, she was moaning out in pain, her eyes were swelling shut, and she was having difficulty breathing," the complaint states. "Instead of decontaminating her eyes, Monique was placed in the back seat of a patrol car in handcuffs. Monique was left in the patrol car unattended while she was bleeding and in obvious distress."

Despite knowing the importance of decontaminating eyes shot with pepper spray, the officers failed to provide Hernandez with any sort of medical assistance for at least 10 minutes after she was shot, according to the complaint.

Hernandez said the officers were instead "concocting a story to cover up their wrongdoing as they waited for a sergeant to arrive at the scene."

"When the sergeant arrived, Monique was still in the patrol car, and Clark and Velasquez proceeded to relay the fabricated story to the sergeant while Monique remained helpless in the back seat of a patrol car," she continued.

Though Hernandez used to work full-time as a Wal-Mart supervisor, and was named employee of the year in 2011, she now requires full-time care and ongoing medical and psychological treatment, according to the complaint.

In addition to Clark, the complaint names as defendants Beaumont, Velasquez and Chief Frank Coe.

Two years to the day after the incident, U.S. District Judge Dean Pregerson found that Hernandez has adequately alleged that the officers failed to act appropriately when her bleeding and moaning made it apparent that she needed immediate emergency medical attention.

"If medical care had been summoned, it is reasonable to assume that the officers would have waited for medical care to arrive rather than taking Monique to the hospital themselves," Pregerson wrote.

Velasquez may also be liable to Hernandez's family under the Bane Act if they can prove that he took his baton out in an intimidating fashion to silence their protests.

Although the city claims it is more plausible that Velasquez took out his baton to maintain control over the situation, Pregerson pointed out that "defendants are not free to add their own facts in order to attempt to discredit plaintiffs' pleadings."

Hernandez must nevertheless amend her claims for municipal and supervisory liability for failure to train on proper use of the pepper spray device, the court found.

"Though the city clearly had 'notice of the gravity of the injuries that can result from improper use of the JPX,' the city's training program was not obviously deficient for failing to provide hands-on training on the JPX," Pregerson wrote. "It is not obvious that police officers would have to have hands-on experience firing a JPX in order to know how to properly use the device."

Additionally, Hernandez did not allege that the training program for the pepper spray did not include any information regarding the constitutional implications of its use or the proper methods of deploying it.

Attorneys for both sides did not return requests for comment.

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