Calm v. Taylor

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE WAUNYE CALM, BRANDON GATEWOOD, ISAIAH HARBER, JYAIRE HENRY, DEWITT JOHNSON, ZAKEE LLOYD, DENNIS WILLIAMS, and DEVON YOUNG, Plaintiffs, v. C.A. No. 2026-0576-JTL TERRA TAYLOR, in her official capacity as Commissioner of the Delaware Department of Correction, Defendant. OPINION DENYING PRELIMINARY INJUNCTION Date Submitted: June 18, 2026 Date Decided: August 11, 2026 Jason H. Beehler, Jared Silberglied, Andrew Bernstein, ACLU OF DELAWARE, Wilmington, Delaware; Attorneys for Plaintiffs Waunye Calm, Brandon Gatewood, Isaiah Harber, Jyaire Henry, Dewitt Johnson, Zakee Lloyd, Dennis Williams, and Devon Young. Joseph S. Naylor, Nicholas E. Skiles, Allison Texter, Robert S. Goldman, Bryan P. Smith, SWARTZ CAMPBELL LLC, Wilmington, Delaware; Jennifer Kate Aaronson, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Defendant Terra Taylor, in her official capacity as Commissioner of the Delaware Department of Correction. LASTER, V.C.  Oleoresin capsicum (“OC”) is a chemical agent derived from the heat- generating compounds in chili peppers. Exposure to OC causes intense pain. Short- term effects include difficulty breathing, uncontrollable coughing, temporary blindness, and a burning sensation in the eyes and throat and on the skin. Those attributes make OC an effective non-kinetic weapon. The Delaware Department of Correction (the “Department”) uses law-enforcement-grade OC weapons to maintain security in Delaware’s prisons. The plaintiffs are prisoners in the Department’s care. They contend that correction officers frequently use OC weapons on prisoners without permitting decontamination, even after a prisoner has become compliant and any disturbance has been brought under control. The plaintiffs do not challenge any initial use of force. They challenge only the absence of decontamination once a prisoner has become compliant and the area secured. As shorthand, this decision refers to that scenario as “Secure Decontamination.” The plaintiffs contend that rather than facilitating Secure Decontamination, correction officers force prisoners to go for hours and often days without decontamination. They particularly object to being strip searched without first decontaminating their hands. During a strip search, prisoners must sweep their mouths with their fingers and handle their genitals. Undergoing a strip search without first decontaminating their hands invariably transfers OC to sensitive areas. As shorthand, this decision refers to that form of Secure Decontamination as “Pre- Strip-Search Decontamination.”  The prisoners contend that failing to facilitate Secure Decontamination constitutes a “cruel punishment” that violates Article I, Section 11 of the Delaware Constitution (the “Cruel Punishment Clause”). They have sued the Commissioner of the Department in her official capacity on behalf of a putative class of all incarcerated persons in Delaware, defined to include both convicted prisoners and pretrial detainees.1 After this litigation began, the Commissioner adopted a new policy on decontamination (the “Decontamination Policy”). She argues that the Decontamination Policy renders this litigation moot, but that is not so. After a trial, the court could declare that failing to facilitate Secure Decontamination violates the Cruel Punishment Clause. The court also could declare that failing to permit Pre- Strip-Search Decontamination violates the Cruel Punishment Clause. The court could issue mandatory injunctive relief addressing either issue. The Decontamination Policy does not resolve those questions, so the case is not moot. The plaintiffs currently seek a preliminary injunction barring the Department from using OC until the Department’s implementation of an effective decontamination policy or a final adjudication on the merits. That motion is denied. The plaintiffs have established a reasonable probability of success on the merits of their claim. It is reasonably likely that a failure to facilitate Secure 1 In pursuing this litigation, the plaintiffs have not distinguished between the two groups, and they generally use the term “prisoners” to refer to the category of people at issue. This decision follows suit. 2 Decontamination violates the Cruel Punishment Clause. Contrary to the Commissioner’s position, the Cruel Punishment Clause has meaning that goes beyond the Eighth Amendment. This decision adopts a test that asks whether a condition of confinement creates an objectively significant risk of serious harm. If it does, then the Commissioner can justify the condition as reasonably necessary for incapacitation, deterrence, or rehabilitation. In making those assessments, a court must show deference to the Commissioner’s judgment while performing its independent constitutional function. This test does not require that a prison official act with cruel intent, and it therefore does not require a showing of subjective knowledge and deliberate indifference. If the plaintiffs were seeking damages for a violation of the Cruel Punishment Clause—a claim that Delaware law does not yet recognize—then some requirement of scienter or, at a minimum, gross negligence might well make sense. The plaintiffs here seek declaratory and injunctive relief. It is reasonably likely that not facilitating Secure Decontamination—and particularly Pre-Strip-Search Decontamination—fails the Delaware test. It is reasonably likely that not facilitating those forms of decontamination creates an objectively significant risk of serious harm. That failure cannot be justified as reasonably necessary for incapacitation, deterrence, or rehabilitation. To reiterate, the plaintiffs here do not challenge the initial use of force, which is easily justifiable as reasonably necessary for incapacitation (stopping non-compliant conduct), deterrence (preventing non-compliant conduct in the future), and rehabilitation 3 (teaching the prisoner not to engage in non-compliant conduct and helping maintain a secure facility where rehabilitation can occur). Once a prisoner is compliant and the area secured, failing to facilitate Secure Decontamination serves none of those purposes. The prisoner simply experiences arbitrarily harsh suffering for an arbitrary length of time. At best, the additional pain might be thought to serve deterrence, but it is not reasonably necessary to achieve deterrence, and the arbitrariness of the additional punishment renders it disproportionate and cruel. The plaintiffs have also shown a risk of irreparable harm. The long-term effects of extended exposure to OC are serious. Prolonged exposure to OC can result in eye injuries, lung problems, and skin injuries. Eye injuries include glaucoma, corneal scarring, corneal epithelial defects (the loss of the eye’s outer cell layer), irregular astigmatism (a condition where the cornea becomes uneven), cataracts, and decreased tear production. Lung problems can include reduced respiratory capacity, scarring, and respiratory failure, and the effects can be more severe for individuals with health conditions like asthma. Skin injuries can include lacerations, chemical burns, blisters, and persistent dermatitis. Other jurisdictions have experienced deaths due to OC exposure without decontamination. The plaintiffs have nevertheless failed to show that the balance of hardships favors a preliminary injunction. They ask the court to enjoin the Department from using OC, but OC is essential for maintaining order in Delaware’s prisons. If correction officers could not use OC, they would have to resort to the weapons of the past, like police batons, nightsticks, and truncheons. Or they would have to use 4 tasers, which are less reliable than OC and carry their own health risks. The Commissioner testified credibly that Delaware’s prisons would become more dangerous, not less, without OC. Barring the use of OC would threaten greater harm than the injunction would prevent. At trial, the plaintiffs will have the burden of proving that a lack of Secure Decontamination violates the Cruel Punishment Clause and that the Decontamination Policy is constitutionally inadequate. The plaintiffs have pointed to gaps in the Decontamination Policy, including its failure to address (1) indirect OC contamination, (2) Pre-Strip-Search Decontamination, and (3) the need for correction officers to facilitate Secure Decontamination. Comparing the Decontamination Policy with the federal policy on decontamination reveals additional gaps. Determining whether these issues warrant a declaratory judgment or targeted mandatory injunctive relief will require a trial and expert testimony. The preliminary injunction is denied. Because of the importance of the issue presented, the parties must bring the case to trial within 120 days. I. FACTUAL BACKGROUND The facts are drawn from the evidence presented during the hearing on the plaintiffs’ application for a preliminary injunction. During that hearing, the Commissioner and four other witnesses testified live. The parties introduced 5 depositions, affidavits, documents, photographs, and videos into evidence. 2 At this stage of the case, the court does not make post-trial findings of fact. The factual account rather represents what the court predicts the evidence at trial is reasonably likely to show, based on the record developed to date. A. What Is OC? OC is a chemical agent derived from capsaicinoids, which are the heat- generating compounds in chili peppers. The potency of a product containing OC can be measured using Scoville Heat Units. The higher the number, the more intense the heat. Ordinary bell peppers have a Scoville heat rating of zero SHU. Jalapeño peppers range from 3,500 to 8,000 SHU. A cayenne pepper falls between 30,000 and 50,000 SHU. A habanero chili pepper falls between 200,000 and 350,000 SHU. A variety of OC weapons exist on the market. Law-enforcement-grade products start at potencies of 1 million SHU. Bear spray typically ranges from 2 million to 4 million SHU. OC exposure can result from direct physical contact, indirect or secondary contact, or area contamination. The effects of OC exposure depend on the potency of the product and the extent of contact. Serious symptoms typically subside over the 2 Citations in the form “[Name] Tr.” refer to witness testimony from the hearing transcript. Citations in the form “[Name] Dep.” refer to witness testimony from a deposition transcript. The parties used already-docketed exhibits during the preliminary injunction hearing. Because the parties had already identified and relied on those exhibits, the court did not require the parties to mark and introduce them separately. 6 course of hours. OC is biodegradable and decomposes naturally. Depending on conditions, it becomes undetectable within about ten days.3 B. The Department And Its Use Of OC The Department is the largest law enforcement agency in Delaware and the second largest agency in general. It operates a unified correctional system that includes Level 5 prison facilities, Level 4 treatment facilities, work release facilities, community-based probation, parole, and pretrial supervision. The Department has around 2,600 employees. At any one time, the Department incarcerates 5,000 to 6,000 individuals in Level 5 prison facilities and 350 to 375 in Level 4 treatment facilities. Approximately 11,000 are under supervision through probation, parole, pretrial supervision, and other programs. The Department uses OC weapons when maintaining security in Delaware’s prisons. The Department deploys the Level 3 Sabre Red (“Sabre Red”) line of products. On the Scoville scale, Sabre Red has a heat rating of 2 million SHU, the starting potency for bear spray.4 Another metric for measuring OC potency is major 3 See Dkt. 1 Ex. A at DOC_SCI_0041440 (Department training presentation stating that “[n]atural biodegrading of OC takes 10 days”). The fact that OC takes ten days to biodegrade naturally does not mean that the OC remains concentrated enough to generate symptoms until that point. 4 See Taylor Tr. 201–02. 7 capsaicinoid content (“MCC”), which measures the concentration of heat-producing compounds. Sabre Red has 1.33% MCC, the highest MCC rating that Sabre offers for use on humans. The Department has explained that Sabre Red “is the highest MCC rating available through Sabre without using the Bear Attack Spray line which is not safe for human use. A can of the Bear Spray exploded on a person, and it literally peeled the skin of [sic] the subject.”5 Each correction officer receives the Sabre Red MK-2 Trigger Top handheld canister, which contains Sabre Red in aerosol form. The Department stocks other OC weapons containing Sabre Red, including aerosol grenades, sprayable aerosol gel, a high-capacity “Cell Buster” fogger spray, pepper-ball guns, and a 40-millimeter OC “muzzle blast” fired from a launcher.6 Sabre Red causes intense pain and a burning sensation in the eyes and throat and on the skin. Other short-term physical effects may include immediate respiratory inflammation, difficulty breathing, uncontrollable coughing, and temporary blindness.7 The Department identifies short-term psychological effects including a “feeling of suffocation,” a “sense of helplessness,” an overwhelming sense of fear and panic, and an “inward focus on pain.”8 A human exposed to OC may be temporarily 5 Dkt. 1 Ex. A at DOC_SCI_0041433. 6 See Taylor Tr. 131–33, 169–71. 7 See id. at 176–77. 8 Dkt. 1 Ex. A at DOC_SCI_0041437 (capitalization altered). 8 unable to hear what an officer is saying.9 When sprayed at a close distance, OC can penetrate eye and skin tissue through a process called hydraulic needling, causing lacerations and heightened pain.10 C. Decontamination Decontamination is the process of removing OC after exposure. Decontamination allows the effects of OC to dissipate as quickly as possible. OC weapons come with instructions for decontaminating exposed individuals. Sabre Red’s manufacturer provides an instructional video for decontaminating an inadvertently sprayed correction officer.11 It calls for flushing the subject’s eyes with fresh water for thirty seconds, using a decontaminating agent on the individual’s face for thirty seconds, and repeating that procedure four more times. It then calls for rinsing each eye for five minutes. The video also suggests applying a soothing solution. It warns that “if you want . . . these painful effects to go away as fast as possible, you have to follow these instructions.”12 9 Id. 10 See id. at DOC_SCI_0041441–43. 11 See Dkt. 4 at 15 (citing SABRE DECON – Guidelines for Proper Use, https://www.police1.com/police-products/less-lethal/videos/sabre-decon-guidelines- for-proper-use-9tQc7ZWQawznRwbX/ (Jan. 9, 2024)). 12 SABRE DECON – Guidelines for Proper Use, https://www.police1.com/police- products/less-lethal/videos/sabre-decon-guidelines-for-proper-use- 9tQc7ZWQawznRwbX/ (Jan. 9, 2024); see Dkt. 58 Ex. 7 at 3 (warning label on Sabre Red pepper ball product stating: “If breathing is difficult, administer oxygen. Flush eyes and other contaminated areas IMMEDIATELY with large amounts of cool 9  An advisory label on one of the law-enforcement-grade Sabre Red products also addresses decontamination. It states: After restraining subject, move to fresh air away from contaminated area and verbally reassure subject. IMMEDIATELY request medical attention if subject has preexisting medical conditions or other medical issues. If appropriate, remove contaminated clothing. IF ON SKIN: Wash with plenty of soap and water. DO NOT rub or use creams, lotions, oils or salves. IF IN EYES: Rinse cautiously with water for several minutes. DO NOT RUB EYES! Only qualified medical personnel should remove contacts. Continue to rinse. Periodically monitor subject until recovered. IF SYMPTOMS PERSIST: Get medical advice/attention.13 As discussed below, Department training materials call for similar decontamination measures. Civilian-grade versions of Sabre Red likewise call for decontamination. The Safety Data Sheet for “SABRE Red USA Civilian” instructs that a victim’s eyes must be flushed “with cool water for at least 15 minutes, or until relieved.”14 A victim’s skin must be “flush[ed] with cool water for at least 15 minutes” and “wash[ed] with mild soap and water.”15 water, expose to fresh air. Contact lenses should be removed by subject or qualified medical personnel and must be discarded. DO NOT rub contaminated areas or apply creams, salves, oils, lotions, or burn cream, which can trap irritant on the skin.”); id. at 4–5 (same but without stating who should remove contact lenses); id. Ex. 9 at 2 (warning label on Sabre Red fogger product addressing “FIRST AID” and advising exposure to “FRESH AIR,” flushing “EXPOSED SKIN AREAS WITH CLEAN WATER,” use of “5 – 10% SODIUM BICARBONATE,” and flushing eyes). 13 Dkt. 58 Ex. 8. 14 Dkt. 57 Ex. 2. 15 Id. 10  Failing to decontaminate after exposure to OC is dangerous and can be lethal. Prolonged exposure can result in eye injuries, lung problems, and skin injuries. Possible eye injuries include glaucoma, corneal scarring, corneal epithelial defects, irregular astigmatism, cataracts, and decreased tear production. Lung problems may include scarring, decreased lung capacity, and respiratory failure, with individuals suffering from health conditions like asthma facing greater risk of more severe effects. Skin injuries can include chemical burns, severe erythema (a skin reaction characterized by significant blistering), and persistent dermatitis. Deaths due to OC exposure without decontamination have been reported in other jurisdictions. Thankfully, Delaware has not yet faced a lethal OC incident. D. The Department’s Use-Of-Force Policy The Department maintains a use-of-force policy that states: The use-of-force policy encompasses OC weapons but does not address 11 decontamination.16 The use-of-force policy authorizes using reasonable force to obtain compliance with orders from staff and to “(1) control disruptive or violent offenders, (2) enforce or restore order, (3) defend oneself against unwanted physical contact or harm, (4) protect other persons from imminent death, serious bodily harm, or physical harm, (5) protect state property, (6) prevent escapes or capture escaped/ing inmates, (7) administer non-emergent and emergent involuntary medications prescribed by a qualified health professional and (8) apply clinical or therapeutic restraints authorized by a qualified health professional.”17 The Department tracks uses of force in its facilities, where there are around 650 to 750 use-of-force incidents every year.18 OC weapons are the only weapons that Delaware correction officers carry.19 As a result, the vast majority of the Department’s use-of-force incidents involve OC.20 On average, correction officers deploy OC in Delaware’s prisons around twice per day.21 The plaintiffs do not challenge any decision to use OC. They challenge failures by correction officers to facilitate Secure Decontamination after OC use. The 16 Taylor Tr. 108–09. 17 Dkt. 1 Ex. L at 1. 18 Taylor Tr. 111. 19 Id. at 97 (“Correction officers only have OC spray and handcuffs.”). 20 Id. at 111, 203–04. 21 Id. at 203–04 (agreeing that the Department “on average deploys OC more than 600 times per year”). 12 prisoners concede that the security of a facility and the safety of its occupants take precedence. They maintain that correction officers fail to permit Secure Decontamination, including Pre-Strip-Search Decontamination. E. The Department’s Training Guidelines Before this litigation, the Department did not have a written decontamination policy. Correction officers used their own judgment. The evidence suggests that Secure Decontamination did not take place.22 Before this litigation, the Department trained correction officers on the use of OC weapons and proper decontamination. Correction officer candidates attending the Department’s academy must complete a twelve-week training course that includes a day-and-a-half unit on OC.23 Correction officers must score seventy percent or higher on a written test covering the training. 22 See, e.g., Dkt. 58 Ex. 10 at 10 (internal Department report noting nurse’s report that when a prisoner is sent to the medical facility, “[t]here is no actual decontamination other than removing an inmates [sic] clothing and changing him into an orange inmate uniform”); Taylor Dep. 13–14 (Commissioner testifying that she was unaware of any obligation on the part of the Department’s medical provider to offer decontamination); Dkt. 8 Ex. P at 175 (Commissioner’s September 10, 2024 deposition in Davis v. Neal, No. 1:21-cv-1773 (D. Del.)) (“Q. Do you believe correctional officers have an obligation to decontaminate the people they OC-spray? A. I do not believe that.”). 23 See Taylor Tr. 113 (“[W]e have over a week on hands-on defensive tactics. I want to say at least a day of actual OC training, another week of firearms training. But we also have weeks on de-escalation tactics, on conflict resolution, on trauma- informed supervision, mental health first aid, first aid. All of that involves use of force.”); id. at 114 (“Combined with use of force – OC specifically is probably like a day and a half.”). 13  The OC training unit at the academy includes a presentation titled “OC Aerosols.”24 It instructs correction officers to spray OC from a distance of at least three feet, use one-to-two-second bursts, and pause and evaluate before spraying more. The training presentation states that after using OC, the officer should “[s]tart decontamination process and have [the exposed person] seen by medical.”25 The presentation instructs officers to “completely” decontaminate exposed individuals.26 One of the slides in the presentation underscores the decontamination requirement with bolded, all-caps text and a red skull and crossbones. 24 Dkt. 1 Ex. A at DOC_SCI_0041428. The Department is currently updating the training materials to reflect its new policy. See Dkt. 45 Ex. C ¶ 11. 25 Dkt. 1 Ex. A at DOC_SCI_0041446. 26 Id. at DOC_SCI_0041455. 14 The instructor’s notes for the slide contain the following additional information: The notes direct the instructor to ensure trainees understand the decontamination guidelines. They also remind the instructor to administer a written test on the material. During academy training, cadets are sprayed in the face with OC. Under the current training regimen, cadets complete a series of tasks after being sprayed that includes taking someone into custody, applying handcuffs, and working as a team. After twenty to thirty minutes, cadets can decontaminate by flushing with water or wiping off the OC. The training is designed to show cadets what the effects are, demonstrate that they can work through them, and give them confidence. 27 The Commissioner went through academy training and was sprayed with OC. The academy had not yet introduced the post-spraying tasks. She described being 27 See Taylor Tr. 95–96, 99–102. 15 sprayed as “very uncomfortable” but did not recall feeling pain.28 She believed that the maximum effects of OC last only fifteen to twenty minutes.29 She argued that OC is “not designed to cause harm,” but “to help the Department of Correction and other law enforcement agencies maintain safe communities, safe facilities, safe employees, and help resolve either combative situations or situations, especially in a prison setting, where an individual or a group of individuals are not following those orders.”30 She resisted referring to OC weapons as a type of chemical weapon.31 She did not believe that correction officers have any obligation to decontaminate a 28 Id. at 95 (“I don’t recall being in pain. I do recall being uncomfortable.”). 29 Id. at 97. 30 Id. at 94–95. That is true, but OC achieves those outcomes by causing short- term harm in the form of pain and other intense symptoms. That is what makes OC an effective non-kinetic weapon. Moreover, OC can cause long-term harm. As discussed previously, when administered at close range (less than three feet), it can physically penetrate eye and skin tissue through a process called hydraulic needling, causing corneal injury, embedded chemical residue, and other meaningful harms. Extended OC exposure, particularly at concentrated levels, can lead to eye, lung, and skin injuries. 31 Id. at 94, 169. The law-enforcement sprays, grenades, and shells that the Department deploys are plainly weapons. The fact that they use OC does not defeat that characterization. Water is not itself a weapon, but when police or military forces deploy water cannons or high-pressure hoses to disperse protesters, they are using water as a weapon. The Commissioner stressed that OC “is an organic chemical,” “a biodegradable chemical,” and a “food grade chemical.” Id. She noted that “[y]ou could literally spray it on a sandwich and eat the sandwich. That’s how safe it is.” Id. One could similarly observe that water is essential to life, yet people still drown. 16 prisoner exposed to OC.32 The academy’s training program is well-intentioned and no doubt valuable in terms of giving recruits exposure to OC. On the whole, however, it seems likely to inure correction officers to the effects of OC and lead them to dismiss or discount the importance of decontamination. Having been sprayed in training, a correction officer could believe that OC is not so bad, not really painful, and that a prisoner should just suck it up and wait it out.33 The experience that correction officers have in training differs dramatically from that of prisoners suffering without decontamination. The recruits know the exposure exercise is coming and can prepare for it mentally. They know other recruits have gone through it and that success is a prerequisite to graduation. They experience the OC test outside, under the supervision of multiple instructors, and with other 32 Dkt. 8 Ex. P at 175 (Commissioner’s September 10, 2024 deposition in Davis v. Neal, No. 1:21-cv-1773 (D. Del.)) (“Q. Do you believe correctional officers have an obligation to decontaminate the people they OC-spray? A. I do not believe that.”); accord Dkt. 48 Ex. E (affidavit of correction officer averring that his exposure during training caused only “eye irritation and tingling or burning of the skin” and that the symptoms “took approximately 10 to 20 minutes to subside”); id. Ex. H (same); id. Ex. I (same); id. Ex. O (same); id. Ex. Q (same); id. Ex. S (same); id. Ex. V (same); id. Ex. AA (same); id. Ex. CC (same); id. Ex. X (same but averring symptoms dissipated in 15 to 30 minutes); id. Ex. W (same but averring symptoms dissipated in 45 minutes); id. Ex. Z (same but averring symptoms dissipated in 20 to 45 minutes); id. Ex. T (same but not addressing time for symptoms to dissipate). 33 See Taylor Tr. 100–01 (disagreeing with prisoners’ testimony about extent of pain; reiterating that she found OC “uncomfortable” but not painful, and that her “face felt warm, kind of like maybe if you were in the sun for like a little bit too long”). 17 members of their academy class.34 The instructor administers a blast of OC under controlled conditions.35 Recruits need not fear that they will be left unmonitored or ignored if they have a serious health issue. After completing the exercise, recruits receive prompt access to water and can decontaminate. The overall experience is not only educational but also a valuable confidence builder and team-bonding exercise.36 Contrast that with the prisoner experience. The OC blast is unexpected. As shown by the accounts in this case, correction officers deploy OC under stressful and uncertain conditions, resulting in high-volume exposures at close range, often in enclosed spaces. The prisoners have no control over the experience and are immediately cuffed. As again evidenced by the accounts in this case, prisoners are taken away and confined unattended, still cuffed, without meaningful access to 34 See id. at 102–03 (testifying to the presence of two or three instructors and ten to twelve recruits). The Commissioner explained that she was part of a comparatively small class. Today, there are approximately 30 to 50 recruits in each class. Id. at 112. 35 See id. at 98–99 (“So myself and my fellow classmates were instructed to line up, and one by one we step up and we get about maybe 2 to 3-second spray in the face.”). 36 See id. at 96 (describing the purpose of training as “to kind of show the individuals that are coming through the academy what the effects are and how they can work through that”; noting that “[a] lot of it is psychological”); id. at 99 (explaining that the purpose of the training is “to feel the effects of the substance and to learn how to [work] through it, to know how it impacts . . . the way you can think”). To the Commissioner’s knowledge, no recruit has ever been unable to complete the academy training because of the OC requirement. Id. at 135–36. Her counsel elicited that testimony to suggest that OC exposure is not that bad, but it serves more persuasively to demonstrate the profound difference between the nature of OC exposure in academy training and the real-world experiences of prisoners. 18 water, for extended and uncertain periods of time. Those with asthma were not provided with access to their inhalers. They have no information about when they will be uncuffed, allowed to decontaminate, or taken to a medical facility. They have no confidence as to whether correction officers or anyone in the medical facility will help them. Correction officers did not facilitate decontamination for any of the prisoners in this case, whether by providing them with materials for self- decontamination or offering guidance. When the named plaintiffs in this lawsuit went to the medical facility, they received no assistance. Sometimes they eventually could access limited amounts of water, but they were not able to shower for at least a day, sometimes longer.37 The OC experience of prisoners and correction officers could not be more different. The prisoner experience is one of intense pain, isolation, threat, and prolonged fear and anxiety. The correction officer experience involves overcoming a challenge, shared comradery, overall safety, and increased confidence. After joining the Department, correction officers must attend annual refresher training on various subjects, including OC use. There is no evidence indicating that the refresher training alters the impressions about OC from the academy experience. 37 Debate exists over whether water mitigates or enhances OC symptoms. The answer seems dependent on volume. Law-enforcement-grade OC is oil-based, so it is not water soluble and is difficult to wash off. Limited amounts of water do not flush off the oil but rather reactivate it. See id. at 102–03 (“I think we think that [water] helps because it may feel cool, but I think it actually prolongs the effects.”). Large volumes of water, such as a shower, flush the oil off the skin. 19 To the contrary, in their nigh identical affidavits, correction officers asserted that decontamination after OC use is unnecessary.38 F. OC Incidents Without Decontamination The eight plaintiffs are currently incarcerated in Delaware. All experienced prolonged pain and suffering because of a lack of Secure Decontamination. Several spread the OC to sensitive areas of their bodies after being denied Pre-Strip-Search Decontamination.39 Several have experienced long-term health effects due to extended OC exposure. Those effects include prolonged pain, impaired vision, and difficulty breathing. For two plaintiffs, after prolonged exposure, sweat and humidity reactivated the chemical agent, causing further pain. Three plaintiffs and one non-plaintiff prisoner testified credibly during the preliminary injunction hearing about their experiences, including a lack of Secure Decontamination. The four prisoners also testified credibly about experiencing extreme and persistent pain because of a lack of Secure Decontamination. Video evidence of the prisoners’ real-time physical reactions corroborated their testimony. Their accounts confirmed their sworn pleading-stage allegations, which this court 38 See supra note 32. 39 The strip search procedure includes having prisoners demonstrate that there is nothing in their mouths, which sometimes requires running their hands through their mouths. The procedure also includes handling their genitals and buttocks to ensure that they do not have contraband. Taylor Tr. 190 (agreeing with steps involved in the strip search procedure). 20 previously discussed.40 The Commissioner’s counsel did not examine any of the prisoners or call any live witnesses to contest their accounts.41 G. This Litigation On May 7, 2026, the plaintiffs filed this putative class action on behalf of all incarcerated persons in Delaware, defined to include both prisoners and pretrial detainees. They sued Terra Taylor in her official capacity as the Commissioner. Taylor directs all Delaware prison operations, including supervising the use-of-force policy, correction officers’ compliance training programs, and any measures to discipline correction officers. The complaint’s lone count asserts that the Department’s use of OC on prisoners without decontamination constitutes “cruel punishment” that violates Article I, Section 11 of the Delaware Constitution. In its entirety, that section states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and in the construction of jails a proper regard shall be had to 40 See Calm v. Taylor (Threshold Opinion), — A.3d —, —, 2026 WL 2082677, at *5–6 (Del. Ch. July 17, 2026). 41 The Commissioner did submit a bevy of lawyer-drafted affidavits from correction officers, and the plaintiffs submitted five lawyer-drafted affidavits from third-party prisoners. This court affords less weight to those “non-adversarial proffers.” See In re Del Monte Foods Co. S’holders Litig., 25 A.3d 813, 819 (Del. Ch. 2011); accord In re W. Nat. Corp. S’holders Litig., 2000 WL 710192, at *19 (Del. Ch. May 22, 2000) (describing witness affidavits and explaining that the Court of Chancery will “ordinarily attach little if any weight to such inherently self-serving and non-adversarial proffers”). 21 the health of prisoners.”42 The plaintiffs invoke the portion of the clause prohibiting “cruel punishments.” The plaintiffs seek only declaratory and injunctive relief, not money damages. They request a declaration that using OC without proper decontamination after a prisoner has become compliant and the area secured violates the Cruel Punishment Clause. They ask for preliminary and permanent injunctions that would enjoin the Department from using OC on prisoners until the Department implements an adequate decontamination policy. The case proceeded on an expedited basis toward a hearing on the plaintiffs’ application for a preliminary injunction. H. The Decontamination Policy A few weeks after the plaintiffs filed suit, the Department issued the Decontamination Policy, formally designated DOC Policy No. 8.30B.43 The Decontamination Policy establishes an OC decontamination policy for correction officers to follow. The plaintiffs maintain that the Decontamination Policy is inadequate. The Decontamination Policy defines decontamination as “the process of safely removing, neutralizing, or flushing OC from an individual’s skin, eyes, and 42 Del. Const. art. I, § 11. 43 Dkt. 45 Ex. A. 22 environment.”44 Based on that definition, the Decontamination Policy does not require anyone to do or facilitate any decontaminating. The document establishes the Department’s overarching policy that “staff will provide appropriate response to any individual in the custody of Level V and IV who has been subject to the direct application of OC, when safe and practical.”45 That policy statement does not mention decontamination. It raises the question of what constitutes an “appropriate response.” The Decontamination Policy states that “[u]pon direct application of OC, when safe and practical DOC staff will” first “[p]rovide clear direction to the individual and encourage them to remain calm and cooperative.”46 Requiring staff to provide clear direction is helpful, but it is not decontamination as defined. The Decontamination Policy next states that a correction officer must “[r]emove the individual from the contaminated area.”47 Requiring removal is also helpful, but it too is not decontamination as defined. Removing a non-compliant prisoner from the area where the incident occurred also seems to be a routine measure after using force, so this step has minimal significance, if any. The Decontamination Policy next states that a correction officer must “[e]scort 44 Id. at 1. 45 Id. 46 Id. 47 Id. 23 the individual for evaluation by medical staff, additional decontamination deemed medically reasonable, and clearance for return to housing.”48 Once more, taking an individual for medical evaluation is helpful, but it is not decontamination as defined. In fact, the Decontamination Policy does not mandate that medical staff engage in decontamination. The evidence suggests that currently, medical staff does not engage in decontamination,49 and the Commissioner admitted during deposition that the Decontamination Policy did not change any of the medical p