No Pepper Spray on Nonviolent Protesters

Page created 9/11/04 - revised 9/12/04

Start-Of-Trial Media Compilation

Scroll down or click links for stories from: TV News/ Associated Press 9/9/04

Trial Begins Over Use of Pepper Spray
Posted: September 9, 2004 at 3:40 p.m.

View the Ch. 4 news segment from the page linked below
Trial Begins Over Police Use of Pepper Spray on Protesters

by Paul Elias, Associated Press writer

SAN FRANCISCO  -- A federal retrial seven years in the making over police use of pepper spray on bound and nonviolent demonstrators got underway here Thursday. Attorneys for both sides promised to revisit the political upheaval over logging that went on behind the Redwood Curtain on California's north coast a decade ago.

Nationwide broadcast images of Humboldt County sheriff's deputies and Eureka police officers daubing pepper spray directly into the eyes of writhing and screaming young demonstrators linked with steel pipes outraged television viewers across the nation in the fall of 1997.

An initial trial a year later ended with a deadlocked jury.

At issue now -- as in 1998 -- is whether police use of the pepper spray was abusive and illegal or whether it was a legitimate law enforcement activity.

The eight protesters who filed the lawsuit argue the pepper spray was used to illegally punish and intimidate them for chaining themselves together and making it difficult for the police to arrest them. They seek unspecified damages.

"There was no need to do this with pepper spray," said Dennis Cunningham, the protesters attorney, during opening statements Thursday. "There was no need to inflict this pain and suffering on these young people who were standing up for what they believe."

The two police agencies and two municipalities being sued counter that the pepper spray was a safer and more efficient way to unlock the demonstrators than using power tools.

"The substance, which is claimed to be so odious in this case, can be purchased over the counter at Longs Drugs by an 18-year-old," defense attorney Nancy Delaney said in her opening statements. "It posed no significant risk of injury whatsoever."

She also said that none of the protesters have had any lasting health problems because of the pepper spray.

A deadlocked jury couldn't decide the case after an initial trial six years ago and the judge on that case later tossed it out.

Since then, the case has slowly wound its way through the legal system, ultimately reaching the U.S. Supreme Court. In a rare action, an appeals court removed the original judge from the case because of allegations of bias and ordered a new trial.

Now, with a new judge and fresh jury, the political drama of 1997 Humboldt County is again being replayed.

In the fall of 1997, tensions were high on the Northern California coast. Demonstrators from across the country had made their annual trek to sparsely populated Humboldt County to protest the tree-cutting practices of Pacific Lumber Co.

The 150-year-old timber industry is deeply rooted in the region's economy. After the dominant lumber company began to increase its harvest of ancient redwood trees in the 1990s, political schisms ran deep. after the dominant lumber company began to increase its harvest of ancient redwood trees in the 1990s.

An increasing number of demonstrators began to arrive in Humboldt County in an attempt to slow Pacific Lumber's annual harvest. Increasingly too, the protesters used more tactics designed to thwart and frustrate police trying to remove them by chaining themselves to trees or linking themselves together with steel tubes in company and government offices.

Looking for alternative ways to force protesters to unlock their hands and arms from pipes police otherwise had to cut off with power tools, the Humboldt County Sheriff's Department decided to use pepper spray, an eye and throat irritant designed for self defense.

"At all times, it was used to overcome resistance to arrest," Delaney said.

On three separate occasions in September and October 1997, sheriff's deputies and the Eureka Police Department warned protesters chained together at a harvest site, in the local congressman's office and in Pacific Lumber's office that they would be pepper sprayed unless they unlocked themselves from the metal pipes.

Ultimately the law enforcement officials swabbed and sprayed pepper spray into the eyes of nine protesters.

Eight of them sued Humboldt County, the sheriff and the city of Eureka.

Cunningham promised he would prove that the "sheriff's department was aligned with the timber company" and that by 1997, law enforcement officials had grown frustrated with the annual demonstrations.

"In time, they were sick of it," Cunningham said. "And they wanted to escalate it."

(Copyright 2004 by The Associated Press. All Rights Reserved.)

See the story on the website: News / Bay City News  9/9/04

Attorneys Give Opening Statements In Pepper Spray Trial

Posted: 2:03 pm PDT September 9, 2004 - Updated: 2:27 pm PDT September 9, 2004

A lawyer for eight North Coast logging protesters told a federal jury in San Francisco on Thursday that Humboldt County sheriff's deputies used painful pepper spray on the protesters' eyes in a bid to punish them.

Attorney Dennis Cunningham said demonstrators at three sit-ins in Humboldt County in the fall of 1997 expected to be arrested and taken to court and perhaps receive a penalty from the court.

Instead, Cunningham said, "The punishment was exacted on the spot in the form of pepper spray."

The attorney told the jury, "The aim was to punish them and intimidate others from sitting in anymore."

But Nancy Delaney, a lawyer for Humboldt County officials, told the jury, "There will be no evidence of anything of the sort."

She said the deputies used the spray after repeatedly begging with protesters to unlock their arms within metal pipes during the protests, which were aimed at Pacific Lumber Co.'s logging of ancient redwoods.

Delaney said the deputies considered the chemical less dangerous than using a metal grinder to try to saw through the metal cylinders in which the protesters' arms were locked.

The two lawyers made their claims during opening statements in the court of U.S. District Judge Susan Illston in the trial of a civil rights lawsuit filed in 1997 by the protesters.

The plaintiffs claim the liquid spray was smeared on their eyes or directly into their faces and caused excruciating pain, amounting to an unconstitutional use of excessive force.

The three sit-ins were carried at the company's headquarters in Scotia, in a redwood forest and in the Eureka office of former U.S. Rep. Frank Riggs in September and October of 1997.

The case drew national attention when videotapes of deputies allegedly smearing the liquid on protesters' eyes were aired on television networks in 1997.

The defendants in the case are Humboldt County; retired Sheriff Dennis Lewis; former Chief Deputy Sheriff Gary Philp, who is now the sheriff; and the city of Eureka, whose police officers assisted the sheriff's deputies in removing activists from Riggs' office.

The trial is the second to be held on the lawsuit. The first trial in the court of U.S. District Judge Vaughn Walker ended in a mistrial with a hung jury in 1998.

After several years of appeals of various aspects of the case, the lawsuit was returned to district court for a second trial under Illston.

Cunningham told the jury that as logging protests in Humboldt County increased during the summer of 1997, sheriff's deputies "wanted to escalate" their response. He said that sawing through the metal sleeves was a safe and frequently used method of ending sit-ins.

But Delaney said deputies became increasingly concerned that sawing through the sleeves could lead to a serious injury, because demonstrators were making thicker pipes that were harder to saw through.

The officers had "a right to be free from being responsible for a catastrophic injury," Delaney said.

The attorney said Philp carefully researched state, national and local reports on pepper spray and concluded that using the chemical was reasonable and safe.

"This made sense," Delaney said.

The trial is expected to last about eight days.

Copyright 2004 by Bay City News. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Read the story on the NBC11.COM site at:

KMUD Community News, 9/9/04

KMUD-FM News Director Estelle Fennell gave a full report on the start of trial with interviews of media coordinator Karen Pickett, attorney Dennis Cunningham, and plaintiff Maya Portugal. KMUD is a community public radio station located in Redway, southern Humboldt County, California, and serves the area where the pepper spray incidents took place.

Listen to this news segment from the No Pepperspray Audio Index Page.

San Francisco Chronicle 9/10/04

Friday September 10, 2004
Page B3

Retrial opens on using pepper spray on protesters' eyes

by Bob Egelko, Chronicle Staff Writer

SAN FRANCISCO--An attorney for anti-logging protesters whose eyes were swabbed with liquid pepper spray during sit-ins seven years ago opened a retrial of their damage suit Thursday by accusing Humboldt County officers of devising a strategy to punish the demonstrators, and intimidate others, by inflicting pain that amounted to torture.

The officers' attorney countered that the caustic chemical was a safe and necessary response to "organized lawlessness."

An eight-member U.S. District Court jury in San Francisco heard opening statements in the second trial of a suit stemming from the unprecedented use of liquid pepper spray to break up demonstrations at Pacific Lumber Co. and a congressman's office in 1997. Another jury deadlocked 4-4 in the first trial in 1998.

The protesters chained themselves together at company headquarters in Scotia and at the Eureka office of a pro-logging congressman, Frank Riggs, in 1997. Two demonstrators also fastened themselves to logging equipment on Pacific Lumber property.

After warnings, sheriff's deputies and Eureka police pulled the protesters' heads back and applied Q-tips doused in pepper spray to the corners of their eyes. Those who refused to move were sprayed in the face at close range.

It was the first known use of pepper spray on nonviolent protesters. The chemical -- cayenne pepper in a water solution -- is typically sprayed to subdue violent suspects.

"This probably qualifies as torture" under international law, said plaintiffs' attorney Dennis Cunningham. He told jurors that, by their verdict, they could "determine the moral unacceptability of this kind of reaction by law enforcement."

Cunningham said officers could have used electric grinders, as they had in the past, to cut through the metal sleeves the demonstrators used to lock themselves together. "There was no need to inflict that pain and suffering on these young people who were trying to stand up for what they believed in," he said.

Nancy Delaney, representing Humboldt County, its current and former sheriff and the city of Eureka, replied that officers believed it was no longer safe to use the grinders, as demonstrators were using thicker metal sleeves and moving their protests indoors, where sparks could cause a fire. She said then-Chief Deputy Gary Philp, now the sheriff, approved the use of liquid pepper spray after examining scientific studies.

"From his research, Chief Deputy Philp was satisfied it posed no significant risk of injury," Delaney said, noting that none of the plaintiffs had offered medical evidence of health problems.

"Of course it hurts. That's why it works," she said. "That's what pain compliance is. ... That's what we expect of law enforcement officers."

Delaney also noted that California's Commission on Peace Officer Standards and Training later approved the use of liquid pepper spray when someone is resisting arrest.

The suit accuses officers of using excessive force, in violation of the constitutional ban on unreasonable searches and seizures. The plaintiffs must show that officers had an alternative, such as the grinders, that would have served the purpose without inflicting severe pain.

Since the first trial, which was followed by a volley of appeals, the protesters have gotten new attorneys, the same legal team that won $4.4 million in damages against the FBI and Oakland police two years ago in a suit by two environmental activists injured by a car bomb that officers accused them of planting.

The new lawyers have promised to emphasize the political dimension of the case. Cunningham, in his opening statement, said the Sheriff's Department was "aligned with the timber companies" that were cutting old-growth redwoods.

"The movement had become more successful against the logging," Cunningham said. He said the Sheriff's Department "escalated the use of force to punish them for sitting in ... and to intimidate others from sitting in."

Not so, said Delaney, who contended officers had tried to help the protesters relieve their pain by urging them not to rub their eyes and spraying them with water.

Copyright 2004 San Francisco Chronicle

Click here to read the story from the Chronicle website.

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