California's Pepper Spray Trial Begins
8/14/98
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Title: California's Pepper Spray Trial Begins
Source: The San Francisco Examiner
Status: Copyrighted, contact source to reprint
Date: 8/14/98
Byline: Seth Rosenfield
Defense lawyer says deputies were 'courteous' as they applied chemical
Humboldt County sheriff's deputies were "courteous" and "compassionate"
when they daubed pepper spray on the eyes of several already immobile
environmental protesters, their lawyer told a jury.
The demonstrators' attorney, in turn, described the police action as
the needless infliction of pain on defenseless people, a "new and
unorthodox use of pepper spray that has not been sanctioned by law
enforcement anywhere else."
The comments came as trial opened Monday on whether the pepper spray
applications -- which made national news last year when videotapes
of the incidents aired on network television -- violated the protesters'
civil rights.
U.S. District Judge Vaughn Walker of San Francisco is presiding over
the case brought by nine demonstrators against the Humboldt County
Sheriff's Department, Sheriff Dennis Lewis, Chief Deputy Gary Philp
and the Eureka Police Department.
There is no dispute that the protesters illegally trespassed and
refused to disperse, or that the deputies had the right to arrest
them. Rather, the suit stems from three separate pepper spray episodes
during fall 1997 protests against logging of ancient redwoods along
California's North Coast.
Macon Cowles, the plaintiffs' lead lawyer, began by telling the jury
of two men and six women that his clients were nonviolent participants
in what have become perennial "symbolic protests" against harvesting
of rare trees that "date to the time of Christ."
Most were first-time protesters, engaging in "lock downs" that used
metal devices to affix themselves to their demonstration site, he
said. In the past, sheriff's deputies had used high-speed grinders to
cut through the pieces of pipe, but during these incidents they used
escalating applications of pepper spray, he said.
Pepper spray on Q-tips
On Sept. 25, 1997, four protesters used 25-pound pieces of pipe in a
lock-down at Pacific Lumber's front office in Scotia, Cowles said.
When they refused to unlock themselves, deputies used Q-tips to dab
the noxious substance in the corners of their eyes. This prompted two
protesters to unlock themselves, but deputies still had to use a grinder
to cut loose the other two, he said.
On Oct. 3, 1997, two demonstrators locked themselves between a bulldozer's
tracks on the lumber firm's property. This time the deputies daubed their
eyes with the painful chemical and gave each a "full face shot" from less
than 3 feet away, he said. Even then, the spray failed to prompt the men
to unlock themselves and deputies had to cut the pipe, he said.
On Oct. 16, 1997, a band of protesters deposited a tree stump and sawdust
in the Eureka office of U.S. Rep. Frank Riggs, R-Windsor, and four women
locked their hands and legs to it, Cowles said.
The environmentalists targeted Riggs because they see him as a "shill" for
the logging industry, Cowles said. The deputies again escalated their use
of the spray, this time holding back the women's eyelids and swiping
cotton swabs on their eyes, he said.
Cowles contended the incidents violated the county's written rules on
using the spray, an "off the books" use of what is a "good tool" when
used properly. The spray incapacitates its subjects with severe pain,
coughing, twitching eyes, temporary loss of upper body control,
disorientation and anxiety, he said.
The deputies could have negotiated with the protesters or cut them loose
with grinders, which takes about 20 minutes each and previously had been
used more than 50 times, he said.
Nancy Delaney, the deputies' attorney, said the deputies acted properly
and with the demonstrators' best interests in mind. The deputies applied
the spray safely to counter what they saw as dangers posed by cutting
through increasingly heavy locks, she said.
Stronger locks
At first, she said, demonstrators used standard bicycle locks that
deputies could sever with bolt-cutters. Then they used Kryptonite locks
that required grinders. In the incidents at hand, they used pieces of pipe
weighing some 25 pounds, she said.
The deputies feared using the grinders would spark a fire or cut the
protesters, she said, and began considering other options. At their
regular breakfast meetings, several deputies in the Special Services
unit hatched the idea of directly applying the chemical to prompt the
protesters to unlock themselves, she said.
She described the spray -- made of cayenne pepper and known scientifically
as oleoresin capsicum -- as "a natural, organic food-grade product."
Before the incidents, Chief Deputy Philp researched the issue and
consulted with both the Humboldt County district attorney's office and
the county risk assessment officer, she said.
The deputies intensified the applications only when initial efforts did
not achieve the desired effect, she said, adding that they were
"courteous, compassionate" and washed the spray off with water as soon
as possible.
The trial is expected to last two weeks. The plaintiffs, who do not
claim they were permanently injured, seek unspecified payments for
pain and suffering and a finding that the applications violated the
Fourth Amendment's ban on unreasonable seizures of their bodies.
Deputy, sprayed protester testify
Officer says you could put pepper spray on your steak and eat it
By Seth Rosenfeld
OF THE EXAMINER STAFF
A Humboldt County sheriff's deputy testified that pepper spray was so
safe that people could use it instead of horseradish.
"If you wanted to spray it on your dinner steak... certainly you could
spray it on your steak and eat it," said Deputy Wayne Hanson.
Hanson's remark came in the second day of a trial in San Francisco
federal court on whether deputies used excessive force in wiping
pepper spray directly around the eyes of nine people protesting
Pacific Lumber's plans to cut old-growth trees in and around the
pristine Headwaters Forest.
The suit claims this was an unprecedented use of pepper spray not
sanctioned anywhere else. Humboldt County officials said the
applications at three separate protests had been proper and that they
were prepared to do it again.
Macon Cowles, the plaintiff's lead lawyer, began Tuesday's session by
questioning Hanson in an effort to show that sheriff's training
manuals recommended the spray for physically aggressive, violent
suspects.
Hanson acknowledged that state memos said the spray was "designed to
incapacitate aggressors" and was effective against "vicious animals."
But he maintained it also could be used to induce inmates to leave
their cells and posed less risk of injury than twisting a wrist.
He said he knew of no reported case of permanent injury from the
spray, calling it "a pretty minor use of force."
The second witness, Vernell Spring Lundberg, said she had felt intense
pain when deputies rubbed the liquid around her eyes during a Sept. 25
anti-logging protest at Pacific Lumber Scotia headquarters.
"It was the most pain I ever felt," said then-17-year-old Lundberg as
she ran a finger across her eyelid to show jurors where a deputy
swabbed her. "I could not get enough air. I was trying to breath."
Mark Harris, one of her attorneys, played a sheriff's video tape of
the protest that brought widespread criticism of the swabbing when
televised last year.
It showed seven peaceful protesters sitting in a circle on the floor
of the lumber firm's office, holding each other with homemade metal
devices called "black bears."
The "lock box" devices -- pieces of pipe through which the
protesters slide their arms and lock hands -- are intended to
delay police efforts to remove them from the protest, she testified.
The deputies warned the demonstrators that if they didn't leave in
five minutes, they would use pepper spray on them, and three left.
The deputies, who appeared to be gentle throughout, then held back the
head of each of those remaining and applied the spray with cotton
swabs. The demonstrators remained passive, but cried in pain and
gasped.
"I only did one eye," one deputy told a protester. "I'm going to do
the other eye if you don't release."
After repeated applications failed to prompt them to unlock
themselves, the deputies sprayed them with water to wash off the
pepper spray.
Eventually, the deputies carried the four outside on gurneys. Lundberg
and her partner unlocked themselves, but deputies used a grinder to
cut loose the other two.
Nancy Delaney, an attorney for the Sheriff's Department, said the
mixed results led the deputies to use heavier doses of pepper spray at
two subsequent demonstrations.