California: Court May Reinstate Suit by Logging Protesters
12/7/99
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Title: Court May Reinstate Suit by Logging Protesters; Humboldt
County police accused of brutality for using pepper spray
Source: San Francisco Chronicle
Status: Copyright 1999, contact source for permission to reprint
Date: December 7, 1999
The U.S. Court of Appeals in San Francisco appeared ready yesterday
to reinstate a brutality suit by anti- logging demonstrators whose
eyes were swabbed with liquid pepper spray during a 1997 protest in
Humboldt County.
Jurors deadlocked 4 to 4 in August 1998 on whether officers had used
excessive force against the protesters.
U.S. District Judge Vaughn Walker dismissed the suit, saying no
reasonable juror could find that the officers acted improperly. He
said the chemical, although painful, was used properly to break up
illegal sit-ins.
But at least two members of a three-judge appellate panel appeared to
agree with a lawyer for the demonstrators. That lawyer argued that
whether it is reasonable to use pepper spray on nonviolent protesters
is a question for a jury to decide.
Judge William Fletcher said both lawyers at the U.S. Court of Appeals
hearing offered plausible interpretations of the evidence.
``It sounds like a classic case to go to the jury,'' he said.
Judge Harry Pregerson noted that Walker had found enough disputed
evidence to send the case to the jury in the first place and that he
had told jurors after the deadlock that reasonable minds could
disagree about the case.
``The jury hung up 4 to 4, so you give them another chance,''
Pregerson said.
But Nancy Delaney, a lawyer for Humboldt County, the Eureka city
government and two high-ranking police officers said the evidence
showed that pepper spray caused only ``transitory discomfort'' and
was a safe, efficient method of making legal arrests.
Jurors could find excessive force only if they were asked, ``How do
you viscerally react to the use of pepper spray?'' she said. ``That's
not fair to law enforcement.''
Pepper spray has long been used by police to subdue violent suspects.
This case arises from its first known use to dislodge peaceful
political protesters by inflicting pain.
Demonstrators, protesting Pacific Lumber Co.'s cutting of old-growth
trees, chained themselves together inside 25-pound metal sleeves at
company headquarters, and later at the office of Rep. Frank Riggs, R-
Windsor, a logging supporter, in 1997. At another protest, two men
fastened themselves to logging equipment.
After warnings, sheriff's deputies and Eureka police applied cotton
swabs doused in pepper spray to the corners of the demonstrators'
eyes. Those who refused to let go were swabbed across the eyelid,
then sprayed in the face at close range. Several protesters
nevertheless held on and were eventually carried out or cut loose
with grinding tools.
Deputies' videotapes of the sit- ins, with audible screams by the
protesters, were shown on national television and played to the jury.
The officers had used grinding tools to cut through metal sleeves
more than 100 times in the past but testified that they feared the
grinders could cause injury or start a fire and that pepper spray
would be safer.