Pepper spraying Woodfest was legal in police's eyes

After police sprayed a chemical agent into a crowd of roughly 1,000 people at a neighborhood block party on Saturday, students reported intense burning in their eyes and throats and even some vomiting.

Many Ohio State students who were at the party, dubbed Woodfest '11, said Columbus police's use of pepper spray was unnecessary. But based on published directives from the Columbus Police Department, it was not the use of pepper spray, but rather the way it was used that did not explicitly follow police procedure.

Columbus police directives on firearms, chemical agents and intermediate weapons regulate use of any chemical agent on a crowd.

"Sworn personnel may use their Division-issued chemical spray to disperse a non-violent congregation of violators that is not moving. Prior to deployment of the chemical spray, at least two notifications should be made to the participants in the crowd advising them that they are committing a violation of law and are to disperse, and that chemical spray will be used if they fail to comply with the order," reads the directive.

The directive adds that notification should be made so the crowd could reasonably hear it and that notification should be video recorded if possible.

Sgt. Richard Weiner, spokesman for the Columbus Police Department, said the Columbus police lieutenant on the scene issued a warning shortly after midnight on Saturday that pepper spray would be used on the crowd if it did not disperse. Weiner said a public address system on a police wagon was used to make the announcement as the vehicle drove down East Woodruff Avenue.

"If there were no cans or bottles, the wagon would have continued making announcements and then turned around and possibly Maced then," Weiner said. "As soon as the first can was thrown: done."

Jillian Terreri, a fourth-year in biology, was on a friend's front porch on East Woodruff Avenue Saturday night when police sprayed the crowd. She said she and her friends never heard a warning.

"We were just walking down to the street to see what was going on," Terreri said. "All of a sudden, my eyes started burning, and my throat was burning, and I didn't really know what happened."

Terreri said she and her friends ran into a house and then shut themselves in a bathroom to try to get away from the spray and stop the burning.

"Afterwards, I heard they said they announced it," Terreri said. "But if they did nobody could hear it."

As for the video recording of the warnings, Weiner said they don't exist.

"The equipment was not available at the time. That's why (the directive) says ‘should' be recorded," Weiner said.

Cory Yaceczko, a third-year in accounting, lives on East Woodruff Avenue and said he helped organize Woodfest, along with other students on the street. Yaceczko said he and his roommates couldn't sleep in their house after the party because there was vomit everywhere from people who were pepper sprayed.

Yaceczko said he was out on his balcony all night and didn't hear any warnings.

"The police knew the music was loud enough to where nobody was going to hear something if an officer yelled ‘You need to clear the streets,'" Yaceczko said.

The police had the means to be heard if they wanted to, Yaceczko said.

"The DJ next door, whose music could be heard through the whole block, had a microphone, and they were talking on that microphone," Yaceczko said. "If the police had just spoken into the microphone or a few of them got on a megaphone of their own … everyone would have gotten out of the streets."

Ric Simmons, professor of criminal law and criminal procedure at the Moritz College of Law, said generally police can be held liable if they don't follow their own procedures.

"They have the police procedures in place, and that is what they should be following," Simmons said. "If they don't follow those, they certainly could be sued."

But Simmons, who does not know all the facts of this particular case, said the truth is often hard to establish after an event like Woodfest.

"It's really hard to find out what the facts were if there were 1,000 people. If things happened very rapidly and people's memories might not be as good for a variety of reasons, legally, that might be a challenge," Simmons said. "Practically, it might be hard to demonstrate what did happen because I imagine it to be a very chaotic scene."

Two OSU students, Matthew Coleman, 19, majoring in biology, and Brian Witt, 21, majoring in civil engineering, and Michael Shivak, 21, were arrested early Sunday morning for assault on a police officer.

Coleman and Witt posted bond Monday morning, according to court documents. Judge Paul Herbert set the bail for the three suspects at $25,000 each. As of 9 p.m. Monday, Shivak had not posted bail.

The concern people have about police using chemical agents on crowds is understandable, Simmons said. But he also understands why police made that decision.

"Police face a lot of challenging scenarios on the ground," Simmons said. "If you have 1,000 people and they're getting crazy, there is only a limited number of ways to deal with that situation."

Ultimately, it is a police responsibility to ensure the safety of everyone involved, and that includes keeping streets clear for emergency vehicle traffic, Simmons said.

"I think it's easy to second-guess after the fact, and say ‘Well, the police could have done this instead' or ‘sprayed pepper spray too soon,'" Simmons said. "But when you're there in the moment you only have limited options and a lot of concerns."

Yaceczko said he wishes things had gone differently. He described the whole event as a block party among a few houses on East Woodruff Avenue that just got out of hand.