An asthmatic woman who was bombed with pepper spray in her Auckland prison cell is going to the High Court to stop Corrections gassing inmates in future.
Karma Cripps, her partner Mihi Bassett and two other inmates were gassed inside their cells at Auckland Women's Prison, as revealed by RNZ in November.
Cripps' lawyer, human rights specialist Douglas Ewen, lodged papers in Wellington's High Court claiming that using a special product to hose pepper spray into cells makes the gas an unlawful weapon and also breaches laws which guard against torture and inhumane treatment.
RNZ can reveal the product used by Corrections is called Cell Buster, which is marketed with the tagline "Making Grown Men Cry Since 1975."
The American company which makes it, Sabre, pushes its product using pictures of men who have been sprayed in the face wincing in pain.
Sabre ranks its different pepper spray products using a thermometer graphic, which bursts into flame for their strongest spray, the Sabre Red Capsaicinoids - the one Corrections uses in New Zealand prisons.
The company's promotional video says Cell Buster produces a fog of pepper spray, "which contaminates the cell and inflames the inmate's respiratory tract". It says that "the coughing and irritation produced by cell buster generally results in a much more cooperative inmate".
Court papers obtained by RNZ show Cripps' case makes specific mention of the fact that Auckland Women's Prison used the Cell Buster pepper spray against her despite knowing she was asthmatic.
Cripps' defence lawyer Hannah Kim told RNZ last month that Corrections was risking lives by gassing women in their cells, especially when using the tactic on prisoners with asthma.
Amnesty International Aotearoa has called for the immediate end to the use of Cell Buster in prisons.
The Cell Buster has been used 27 times in New Zealand prisons since 2016. No serious injuries have been publicly reported although Kim's concerns appear to have been borne out in America.
In June, Jamel Floyd, a 35-year-old black inmate with asthma, died after being pepper sprayed in his cell at Brooklyn's Metropolitan Detention Centre in New York.
His death followed that of Darnell McMillian, a 38-year-old black man, who died after being sprayed with Cell Buster in Alabama Prison, although the cause of death is yet to be confirmed.
A 2003 US Department of Justice study into 63 deaths where inmates had been pepper sprayed found that the gas contributed to two of the deaths and that in both cases the prisoner had asthma.
In New Zealand, Corrections chief custodial officer Neil Beales has said prisons were justified in using Cell Buster against inmates considered a security risk, including those with asthma.
The legal bid to stop Corrections using Cell Buster will be heard by a High Court Judge in Wellington on 14 December.
In his statement of claim, lawyer Douglas Ewen, acting for Cripps, said Cell Buster was in a different league to ordinary pepper spray because rather than a targeted shot to the face it was hosed into cells in high volumes using a canister similar to a fire extinguisher.
"Pepper spray deployed using a Cell Buster causes an intense and excruciating burning sensation," the legal claim says.
Under section 85 of the Corrections Act 2004, the use of non-lethal weapons has to be "compatible with the humane treatment of prisoners" and the benefits of using it must outweigh the potential risks.
Ewen claims those grounds have not been met and using Cell Buster against Cripps and other inmates at Auckland Women's Prison was unlawful as it was not properly authorised under the Corrections Act.
The case also argues that using Cell Buster breaches the Bill of Rights Act 1990 by subjecting inmates to torture and degrading treatment.
"The use of a Cell Buster to deliver pepper spray to prisoners in the manner for which it is both designed and by which it is employed by the department causes severe pain and suffering to those prisoners."
Green Party Corrections spokesperson Golriz Ghahraman called on Corrections Minister Davis to stop his department using Cell Buster, which she described as a "harmful, quite scary, tool" used as part of a punitive prison culture.
"Then we're releasing people back into the community and saying 'this was our justice solution to crime'? Well, I think down the track, we're probably making our communities less safe."
Davis said although he was aware of the court action, he would not declare a moratorium on Cell Buster as it was an operational matter for his department and he would not intervene.
Alan Whitley, president of the Corrections Association - the union for Corrections Officers - said it would be a "sad day" for prison safety if the Cell Buster was banned.
"It would make prisons less safe, definitely for the staff that are having to go into those cells," he said. "If we're having to use physical methods to draw the prisoners out - control and restraint and shields - it's going to make it more unsafe for them as well."
Whitley said he had been sprayed with Cell Buster as part of a training exercise. "You get mucus and a snotty nose, your throat is tight and it becomes difficult to breathe. Your eyes water."
Asked to rate the impact, on a scale where zero was no problem and 10 was unbearable, he said it would be a seven or an eight.
"It's pretty unpleasant. But remember what we're trying to do is remove somebody from the cell who is in a violent situation, can be smashing their cell up, can be threatening to self harm, can have a weapon on them. We've got to do something about that."