No Pepper Spray on Nonviolent Protesters


For immediate release
April 20, 2005

Plaintiffs and Defense Spar Over Attorney General Opinion on Pepper Spray in 2nd Week of Pepper Spray Q-Tip Trial

Contact:  Karen Pickett, 510-548-3113

San Francisco, Calif.--After Defense attorneys implied that then-Attorney General Dan Lungren supported direct application by Q-tip into the eyes of non-violent demonstrators, the plaintiffs' counsel cried foul.  Plaintiffs' attorneys then argued before the judge without the jury present that it was a misrepresentation, given a letter from Lungren stating the direct swabbing is "not accepted police community standards."  The judge has not permitted that letter to be entered into evidence in the civil rights case about the use of liquid pepper spray on protesters engaged in sit-ins for Headwaters Forest in 1997. The jury will decide whether that use of the caustic chemical was "excessive force" when used against non-violent protesters.  The jury has not been permitted to hear about the letter.

The Nov. 17, 1997 Lungren letter references the Attorney General's review of the use of pepper spray by law enforcement and the Humboldt county incidents.  The letter found that use of pepper spray to be "unprecedented."  Further, the letter states, after "conditionally" approving use of pepper spray products for use "limited to controlling hostile or violent subjects" in 1992, the office reviewed the 1997 incidents and found the direct swabbing and close range spraying "in conflict with POST [Peace Officer Standards and Training] training" and "neither supported nor directly addressed by training." The Defense was citing POST guidelines, but guidelines that were only changed after the 1997 incidents when two Eureka police officers joined the panel and lobbied to blur the lines between passive and active resistance in arrest situations.  The Eureka officers and Humboldt county were feeling the heat of  public outrage following the airing of video footage of the sit-ins and pepper spraying on national TV. The entire Lundgren letter is available upon request.

Plaintiff Spring Lundberg commented, "It was clear in 1997 that they violated accepted community standards by their actions.  Now almost eight years later they are attempting to rewrite history because of this lawsuit."

Sheriffs' Deputy Marvin Kirkpatrick -- the one who actually applied liquid pepper spray to the eyes of of nine locked down protesters and sprayed it directly in the eyes of three of them from inches away -- finished his testimony on Monday 4/18. After the first of three incidents, he advocated increasing the dose of pepper spray and waiting longer to provide first aid for coercive purposes. He said direct application of pepper spray results in what "some people refer to as pain".  Current Sheriff Gary Philp was on the stand Tuesday when the Attorney General issue arose.

Expected on the stand Wednesday and Thursday are:

  • Dave DuBay, Defense Technologies, who testifies in cases where use of pepper spray is challenged
  • Dennis Lewis, defendant who was Humboldt County Sheriff when pepper spray incident took place
  • Maya Portugal, plaintiff who was 16 years old when she was doused with pepper spray at the sit in at the office of Congressman Frank Riggs.
  • Vernell Spring Lundberg, plaintiff  who was 17 years old when she was swabbed with pepper spray
  • Anthony Bouza, former Minneapolis chief of police who is Plaintiffs police practices expert
  • Sam Neuwirth and Noel Tendick, plaintiffs, who are suing for violation of 4th Amendments rights.

Court sessions continue through Thursday this week  at the S.F. Federal Building (450 Golden Gate Ave., Courtroom 10, 19th floor) before the Hon. Susan Illston. Court schedule is 8:30 am -1:30 pm.

Background and legal documents are available at Press packets including video footage and courtroom drawings by court artist K. Rudin are available through the above number.


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