Judge SHUTS DOWN Cop Who Pepper Sprayed Handcuffed Woman

“Stand up. Stand up.”

“Here what you are arguing to the court is that the officer, upon some assessment, can take some preemptive strike because he believes that something is going to happen that hasn’t yet happened. But I’d like to see this even—”

March 18th, 2024, Washtenaw County Jail Sally Port. Sergeant Christopher Day, a supervisor with the Washtenaw County Sheriff’s Office, stood outside a patrol vehicle holding arrested Rachel Damon Highson. She was handcuffed behind her back, secured inside a caged compartment. She was hostile, insulting, and refused to cooperate with routine intake screening questions. Without issuing an order for her to exit the vehicle or warning her of impending chemical force, Sergeant Day unholstered his department-issued ASR pepper spray and discharged it directly into her face at point-blank range inside the enclosed car. What followed was not an internal administrative reprimand. It resulted in criminal prosecution charging Sergeant Day with felonious assault and misconduct in office.

“Do you—do you have immediate medical needs?”

“I have been—”

“Rachel, I’m trying to help you out. So, here’s what I’m going to tell you.”

“Just go forward and be sworn.”

“Thank you, sir. What do you do?”

“I’m a major of Washtenaw County Sheriff’s Office.”

“And how long have you been in that position?”

“In that position since 2021.”

“Okay. And before that, what was your experience in law enforcement?”

“Started off at the Sheriff’s Office in 2001. Corrections officer, was a field training officer, was a sergeant in road patrol, marine transport, road security, got lieutenant, went through the policing corrections academies, went through the MSA, special investigations, district court agent’s office, and then—”

“Thank you. I’m going to ask some questions about an incident in the jail, Washtenaw County Jail, March 18th of 2024, okay? Now, before I get to that, do you know the defendant in this case, Christopher Day?”

“Yes.”

“And how—”

“Your Honor, I’ll stipulate identification that he’s a law enforcement officer in the employ of Washtenaw County Sheriff’s Department.”

“All right, very good. We’ll stipulate. We’ll move along. Thank you, Mr. Gruger. When did you become aware of the incident in question here?”

“There was an email notification that was made. At the time he was a sergeant and he was working midnights, and I remember waking up checking my emails the next day and I saw an email notifying that there was a use of force in the jail. Reviewed it. Things stuck out to me.”

“Tell me about that.”

“What immediately stuck out was that email indicated that Sergeant Day sprayed something in the back seat of a police vehicle, while she was in restraints.”

“Okay. That stuck out to you, what did you do?”

“Notified one of the lieutenants and told her that she needed to evaluate the situation and keep me informed.”

“Okay. And so why did that stick out to you?”

“So ASR spray is used when somebody is a threat, and that she was in restraints in the back of the police vehicle, bars over the window. I had concerns as to whether or not that person was a threat at the time of the incident.”

“Could you tell—what is ASR?”

“Personal safety restraint, commonly known as mace.”

“Okay. And is that something that is issued to officers in the jail?”

“It is, sir.”

“Okay. And are there trainings regarding that?”

“Yes, sir.”

“That are required?”

“Yes, sir.”

“And are there policies regarding that?”

“Yes.”

“And what is done, if anything, to make sure that the officers know about the policies?”

“Anytime there’s a policy revision or something to the policy that is newly published, it’s out in a program called PowerDMS. The employees are required to review the policy and electronically sign it. And yearly personal safety restraint, there’s a training course that is pushed through PowerDMS where the students have to participate in the training, watch a video, and then take a test to pass the test.”

“And it’s specific to ASR?”

“Yes, sir.”

“Okay. The People’s proposed 4, 5, 6, and 7, which I’ve shown to Mr. Boucher. You mentioned that things stuck out to you because it was a use of ASR against someone who was handcuffed in the back of a police car, is that right?”

“Yes.”

“And what was your understanding from the policies of the proper use of ASR within the jail?”

“ASR isn’t classified anywhere in the force continuum. It can be used anytime a person that’s applying force feels a lower force—”

Under Michigan criminal procedure MCL section 766.13, a preliminary examination serves as a judicial gatekeeper to determine if probable cause exists to bind a defendant over to circuit court. To bind Sergeant Day over on misconduct in office, a common law felony preserved under MCL section 750.505, the prosecution must satisfy the standard set in People v. Waterstone, 296 Mich App 121, proving he acted under color of office with corrupt intent as defined in People v. Milton, 257 Mich App 467. Corrupt intent requires a willful, perverse, or improper misuse of official authority. To sustain felonious assault under MCL section 750.82, the state must show that chemical spray applied at point-blank range in a confined space meets the threshold of a dangerous weapon under People v. Giddings, 169 Mich App 631.

“That’s right.”

“And People’s Exhibit Number One, which has been admitted by stipulation, is going to be the body cam of the defendant. And if you will give me a moment to connect.”

“You just cracked one.”

“Hey, Rachel. Rachel.”

“Hey, my name’s Sergeant Day. I’m supervisor on shift right now along with Sergeant Mary, okay? Hey, so I want to get you in, but I want to work with you. I don’t want any—I do want to work with you.”

“So, I didn’t care whether you’re here or not.”

“All right. So, here’s the thing. I want to get you in the door. And we are having this conversation right now. Now, when I go out there—are you suicidal? Are you suicidal? I’m asking you a question. Are you suicidal? I got to ask you something. Are you suicidal?”

“Yes.”

“Yes, I’m going to get you to stop. Are you suicidal, yes or no? Do you have any immediate medical needs?”

“I have been—”

“Rachel, I’m trying to help you. So, here’s what I’m going to tell you. I’m trying to get you taken care of, but I’m trying to work with you.”

“Rachel, I’ve already told you yes. Yes, this is the answer I’m going to tell them. I’m not going to—”

“And I’m going to stop the play there. We’re at 23:36 and 34 seconds on the timestamp of People’s Exhibit 1, this Sergeant Day’s video. That was one of the videos that you obtained?”

“Yes, it was.”

“Okay. And reviewed?”

“Yes.”

“And what did you do after reviewing that video? Oh, I didn’t mean to start playing again. I’m sorry. Commander talked about things sticking out to him. What sticks out to you in that video?”

“Objection, Your Honor. It’s irrelevant at this point in time. He did the investigation. His opinion of what the investigation shows is irrelevant.”

“Overall?”

“Overall.”

“What sticks out to you?”

“Well, a number of things. And I qualified by saying one of the things I did in my career was a Taser and force instructor, as well as a PPCT instructor. And so when I looked at the action and the interaction involved in this, the interaction between Sergeant Day and Ms. Wilson, I saw that it was somewhat problematic in terms of the actions taken by Sergeant Day.”

“Okay. What do you mean problematic?”

“The use of ASR is for someone that’s non-compliant. Okay? And my view of non-compliance is that you’ve given them a directive, told them something specifically to do, afforded them a reasonable period of time to comply with that, okay? And you also give them a warning that if they don’t comply with that, that there will be consequences, and subsequent to that, the ASR will be deployed. What I saw here was none of that took place. There was no warning given. There was no directive given in terms of the group or direct Sergeant Day or anyone else. She was confined in the backseat of a patrol car and cuffed behind her back in a particular patrol car that has cages all the way around. What I mean by all the way around, both the side windows, between the passenger compartment and the rear window are all caged in. And when we talk about imminent threat, okay, she was not posing at that time any—she had not exhibited any aggressive, threatening behaviors that would necessitate the use of ASR. Nor was warning given to her through the void with two other police officers in the front seat of the car. That’s what’s problematic to me.”

“But you heard her yelling at the officer and insulting him, right? You said that she wasn’t doing anything—”

“So, when we talk about ASR, what we’re talking about is you want to gain compliance. Okay? Well, you have to have a directive to gain compliance. Okay? Asking questions is not the same as giving a directive as ‘I want you to do this, I want you to do that. We are getting ready to open the door, I want you to step out of the vehicle.’ Okay? None of that was given.”

“Okay. Tell me a bit about ASR itself. You talked about when it is appropriate to use, but what is the effect of it?”

“Well, it’s basically a combination of like CS gas, that agent, the chemical agent that creates an irritant. Okay? So, it momentarily incapacitates a person that will afford you the opportunity to take control of the person, and you hope that they will comply based on the fact that this spray is being applied to them.”

“Okay. The pain, right? It causes pain.”

“Absolutely pain, right.”

“Okay. What are the other considerations around ASR and the use of ASR that you—that you’re a trainer and what are the other—well, considerations?”

“In this case, it was deployed inside the confines of an occupied police car. And I say occupied above and beyond the subject, it was occupied by two fellow police officers in the front of this police car. And again, what I found problematic is that there was no warning given so that they were equally being sprayed as well in the confines of the car.”

“Cross-examination. Sergeant Escalante Miller, you’re aware of the policies and procedures—”

Under the foundational Fourth Amendment standard established by the US Supreme Court in Graham v. Connor, 490 US 386 (1989), force used by law enforcement must be objectively reasonable in light of the facts and circumstances surrounding the officer, specifically evaluating the severity of the crime, whether the suspect poses an immediate threat, and whether they are actively resisting. Does verbal non-compliance from a handcuffed detainee inside a caged car constitute an immediate threat under Michigan Department of Corrections policy and local sheriff’s standards aligned with Graham? Force tools like ASR chemical spray require active physical resistance or imminent physical harm. Physical confinement—caged window, locked door, rear wrist restraints—negates immediate physical hazard under Kingsley v. Hendrickson, 576 US 389 (2015). Applying force against a restrained detainee when no immediate physical threat exists violates constitutional standards.

“Show that.”

“And then if you take the facts of the case as presented, he used one burst of pepper spray that’s issued to the officers to gain compliance and to ensure safety of officers and individuals. He did that to get her out of the car.”

“What was he gaining compliance to?”

“To get her out of the car. And that was it. He wanted to get her out of the car in a manner in which she didn’t fight with the officers and the officers weren’t hurt, and it was successful.”

“If I look at it, how would I know she wasn’t willing to comply with that?”

“You wouldn’t. But if the officers take her out and they’re injured, then you’re second-guessing saying, ‘Why didn’t you use the pepper spray to get her out because that’s why you have it, to distract her?'”

“No, no, no. But I would just have to guess.”

“Yes, because that’s why we’re second-guessing now.”

“No, I don’t think we’re second-guessing. I mean, the issue becomes that he didn’t ask her to get out of the vehicle.”

“He doesn’t have to.”

“All right. He doesn’t say, ‘We’re going to take you out of the vehicle.'”

“But, Judge—”

“You keep saying he doesn’t have to. Counsel, just cuz you say it doesn’t make it true. What you’re arguing to the court is that the officer, upon some assessment, can take some preemptive strike because he believes that something is going to happen that hasn’t yet happened.”

“I’d like to see this—”

“Even the thought that gets me—”

“Our policies and procedures provide for that. They can use the level of force that they believe is necessary. It’s left to the employee’s discretion. And it’s enumerated in there: there’s active resistance, passive resistance. There’s, you know, if an individual is combative physically or if they’re just refusing to comply. Now, in this case, you’re saying that he should have said, ‘Hey, we’re going to open the door and take you out.’ Well, she was at the jail. Okay. Well, I mean, you’re not saying that specifically, but you’re saying, ‘Why didn’t he open the door and see what she would do?’ And if she opens the door and kicks him in the knee and blows it out, we’re saying, ‘Well, you don’t know that would happen.’ It happens in the jail all the time, Judge. All the time. You know, it—”

“Okay, but the thing is that would mean that anybody who is in the back of the vehicle, an officer would be correct or at least—”

Now, the pressure flips and the defense pushes back hard. They slow it down, forcing the court to consider something uncomfortable: what if this was a decision made in the moment? Not perfect, but not criminal. They build it step by step. Officers don’t get hindsight. They get seconds, risk, uncertainty. And then the judge steps in, cutting through it. Because this isn’t about what might have happened; it’s about what actually did. If that logic stands, then any restrained person becomes a potential justification for force. And that’s where the tension peaks. Because now the line is exposed—where discretion ends and accountability begins.

“Could properly—anybody coming in, whether they’re screaming, yelling, doing anything, they’re in the back in all kinds of restraints. I can spray them or do something to them under the notion that something might happen when I open the door.”

“I think that that may be correct. However, in this situation, he’s charged with specific crimes. You know, there are other crimes that they can be charged with theoretically that wouldn’t be assault with a dangerous weapon, i.e., a weapon that could cause serious physical injury or death. That would be a simple assault and battery. And an individual can be charged with assault and battery without being charged with misconduct in office because while it may rise to the level of an A&B, it doesn’t rise to the level of depravity, perversion, or corrupt intent. There’s levels to this. The reason we’re here—”

This testimony highlights a critical legal boundary between operational directives and intake interrogation as established in Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002). Using pepper spray on calm or restrained individuals who are non-violent without providing clear directives and warnings constitutes excessive force as a matter of law. Special Investigator Miller noted that Sergeant Day asked screening questions—”Are you suicidal? Yes or no?”—rather than issuing an order to step out of the car. Under People v. Carlin, 239 Mich. App. 49 (1999), using public office authority to inflict pain as punishment for verbal disrespect satisfies the tainted motive element of common law misconduct.

“Counsel, I want to make sure I take a look at everything that you presented to me and I will give you another date to come back.”

“Okay, so what I’ll do is I’ll set this preliminary examination for April 3rd. It’s my PCC day and I have no idea right now what it looks like. I’ll just put it at 3:00 p.m. if that works for everyone. All right. Defendant’s bond will be continued. Did Counsel—did you get a copy of the order?”

“I did not.”

“Okay. Yes, I signed it. So yes, I’ll give the parties—there’s a copy for each of the parties. And you know, I haven’t rendered a decision on this, but I want to compliment both counsel for short-cutting the issues, getting right to the point. And actually people should probably watch, and both of you have younger attorneys watch the two of you and how you operate with respect to each other in a case. And I mean that from the bottom—”

“Thank you.”

“Judge, just one question. Does the court want to retain the—”

“Yes, I need the exhibits. Yes, I need the exhibits.”

“Judge, you want to just verify what’s got one and two on here, the full video?”

“All right, so if I get that, you’re going to get those.”

“May I approach?”

“Yes.”

“First one’s set on there.”

“And that—one and two of them. Got it.”

“Yeah, they’re on there, and everything that we do has to be encrypted with the password that’s already on there.”

“All right, okay. I understand.”

“Okay. I think I put my date in. Yes, I did. Okay. And then, Mr. Wallace, I’m going to take a brief recess and come back.”

Judge Simpson’s bench intervention dismantled the defense’s core argument that officers can deploy preemptive force based on anticipated future resistance. The US Supreme Court in Tennessee v. Garner, 471 US 1 (1985) and Michigan courts in People v. Norris, 236 Mich. App. 311, hold that force must be evaluated based on the immediate active threat present at the precise second force is applied. Speculation that a handcuffed detainee might fight when a door is opened does not create a present physical threat. Allowing preemptive force against restrained individuals would remove objective Fourth Amendment boundaries, turning subjective officer apprehension into a justification for force.

This preliminary examination highlights essential boundaries in modern police accountability litigation. While Graham v. Connor protects officers making split-second decisions during active danger, it does not permit preemptive force against restrained detainees inside caged vehicles. Under People v. Waterstone and Michigan common law, using chemical weapons to punish verbal disrespect satisfies the threshold for corrupt misconduct in office. Authority granted by the state must remain bounded by constitutional standards and established procedure.