No Pepper Spray on Nonviolent Protesters

For immediate release
April 7, 2005

Pepper Spray Q-tip Swabbing Case Back in Court

Trial Starts With Jury Selection On April 12, 2005

Media Contacts: Karen Pickett, Josh Brown 510-548-3113

Video images, photos, legal documents, and other background and links available at Beta cam video news releases and courtroom drawings by court artist K. Rudin are available through the contact phone number. Interviews with jurors from the Sept. 2004 trial can be arranged through media contact.

San Francisco, Calif.-The question has simmered for nearly 8 years: Is direct application by Q-tip of liquid pepper spray into the eyes of passive protesters a violation of their Constitutional rights? On April 12, 2005 Judge Susan Illston will hear the case at the Federal Courthouse (450 Golden Gate Ave., San Francisco, courtroom 10, 19th floor). Jury selection will be Tuesday with opening arguments expected Wednesday, April 13. Court schedule is Mon.-Thurs., 8:30 am -1:30 pm.

When Humboldt County sheriff's deputies thrust pepper spray soaked Q-tips directly into the eyes of activists at sit-in protests calling for the protection of the ancient redwoods of Headwaters Forest in northern California, Amnesty International condemned it as "tantamount to torture." SF Chronicle and Examiner editorials agreed. The activists sued.

After the first trial in 1998 ended without a verdict, the original judge -- since removed for bias -- threw the case out. The jury forewoman commented, "If you can't sit down in a nonviolent way and protest on behalf of your beliefs without being subjected to the police swabbing your eyes with pepper spray or some other chemical agents -- I think that's sort of going back to the days of the cattle prod and the fire hose." After years of appeals as high as the U.S. Supreme Court, the case was reinstated and sent back for a new trial before a new judge. The activists have attempted to settle the case with Humboldt County if the county would revisit their use-of-force policy.

At the second trial in September 2004, the activists recounted their temporary blindness, trauma and extreme pain as they told of panic attacks and nightmares that stayed with them long after the incidents. Said plaintiff Spring Lundberg, who was 17 years old at the time of the incidents, "This case relates to the rights of anyone in this country who wants to raise their voice against wrongs they see. That's why we're back to get court recognition that this use of pepper spray on people staging a peaceful sit-in is excessive force."

When the second trial ended in a jury split 6-2 in favor of the activists, jury foreman Dr. E. D. Feigenbaum said, "I was in favor of the plaintiffs. I felt the way the pepper spray was used was excessive. When they wiped it into [the plaintiffs'] eyelids and started spraying, that was excessive." Another juror said, "I am appalled and dismayed that this [lack of verdict] happened. I do hope there is a third trial and the plaintiffs win."

Pepper spray was originally brought into usage as a bear repellant, certified for police use in California in 1992, and usually used against violent attackers, more recently to disable violently resisting suspects in custody. Despite many injuries and an estimated 100 in-custody deaths, its use by police is on the rise, as is the use of Taser technology, also linked with many deaths and injuries. Pepper spray has been used in recent years for crowd control at mass mobilizations such as the 2004 Republican Convention.

The activists are represented by the legal team that won the unprecedented victory against the FBI in the civil rights case Judi Bari vs. FBI including Dennis Cunningham and J. Tony Serra.


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