No Pepper Spray on Nonviolent Protesters
FAQ ó Frequently Asked Questions
What incidents are the lawsuit based on?
The federal civil rights lawsuit claims law enforcement used unlawful excessive force against non-violent forest activists in three incidents in the fall of 1997. The activists were engaged in peaceful sit-ins with their arms locked to one another inside metal sleeves designed to prolong the demonstrations. Using a tactic never before used anywhere, county sheriff's deputies stuck pepper spray drenched Q-tips into the protesters' eyes to try to coerce them to unlock. When most of the protesters still held fast, officers applied a second dose of the searing chemical agent, and then sprayed some of them directly in the eyes with canisters held a few inches from their faces.
Where and when did these incidents happen?
They happened in Humboldt County, California, in the Coast Redwood forest region about 200 miles north of San Francisco. The first incident occurred on September 25, 1997, in the office lobby of Pacific Lumber in Scotia, the second was at a Pacific Lumber logging site in Bear Creek on October 3, 1997, and the third was in the Eureka district office of then-Congressman Frank Riggs on October 16, 1997. Humboldt is where most of the last remaining ancient redwood forests in the world grow, and they are being rapidly liquidated by the chain saws of Pacific Lumber. The company was taken over by corporate raider Charles Hurwitz and his Texas-based Maxxam Corporation in a junk-bond financed hostile takeover in 1986.
Was there any media coverage of the incidents?
When shocking excerpts of police videos of the incidents were shown on network TV news on October 31, 1997, there was international outrage and condemnation of the police tactics. Several major newspaper editorials and Amnesty International called it torture: the use of severe physical or mental pain or injury to punish or coerce.
Who are the plaintiffs?
There are eight plaintiffs, all Headwaters Forest non-violent activists who were pepper-sprayed at the three incidents. Our ages at the time ranged from 16 to 40, with most at the younger end of that range. Our names are Vernell "Spring" Lundberg, Michael McCurdy, Eric Samuel Neuwirth, Maya Portugal, Lisa Marie Sanderson-Fox, Jennifer "Banka" Schneider, Terri Slanetz "Compost" and Noel Tendick. We not only represent other activists who work directly to defend what they believe, but also the greater public in general. If the plaintiffs donít prevail, the door is wide open for law enforcement across the country to utilize pepper spray in this manner on whomever they choose.
Who are your attorneys?
We are now represented by the award-winning legal team that won the Judi Bari and Darryl Cherney car-bombing federal civil rights lawsuit against the FBI and Oakland Police Department in June 2002. (www.judibari.org) The team includes attorneys Dennis Cunningham, J. Tony Serra, Bob Bloom, Bill Simpich, Ben Rosenfeld, John Tanghe, and paralegal Alicia Littletree. Attorneys Brendan Cummings, Mark Hughes and Alan Chen are responsible for the great appellate win in our case which overruled the original trial judge's decision and gave us the right to a second trial. Brendan Cummings of the Southwest Center For Biological Diversity (www.sw-center.org) has been with us from the beginning, and continued to work with the Bari/Cherney legal team to bring the case back to trial. He will not be involved in the actual trial.
Who are the defendants?
The lawsuit began with Humboldt County's then-Sheriff Dennis Lewis, Chief Deputy Gary Philp, a number of individual deputies, the sheriff's department and Humboldt County itself; the Eureka chief of police and individual police officers, the Eureka Police Department, and the City of Eureka. By the end of the first trial all of the individual officers were given "qualified immunity," removing them from the case. However, we appealed the qualified immunity of the top officers who ordered the pepper sprayings, and we won. So now the remaining defendants are sheriff Philp, ex-Sheriff Lewis, Humboldt County, and the City of Eureka. They are all represented by Nancy Delaney, Bill Bragg and William Mitchell of Mitchell, Brisso, Delaney, and Vrieze. (www.mitchelllawfirm.com)
What are you suing for?
We are suing for punitive and compensatory damages for violation of our Fourth Amendment right to be free of unreasonable search and seizure by use of excessive force. More than anything else, we want to stop law enforcement from using pepper spray in this way against non-violent demonstrators.
What happened in the first trial?
The first trial took place in August 1998 in U.S. District Court in San Francisco and lasted approximately two weeks. After deliberating for only an afternoon and morning, the jury announced they were deadlocked 4 to 4. The jury selection process failed to obtain an un-biased jury: one of the jurors said he didnít believe police should be restricted in any way and said he would have "gotten his gun" if the plaintiffs had been on his land. Judge Vaughn Walker said he could see how reasonable minds could differ, dismissed the jury, and scheduled a new trial date. A short while later however, he threw the case out on the defendants' summary judgment motion, saying no reasonable juror could find in favor of the plaintiffs. In the first trial we were represented by Mark Harris, Macon Cowles, and Sue O'Neill. (See our News and Commentary page in the August-October 1998 date range for articles covering the trial and the subsequent summary judgment.)
What happened with the appeals?
The case has seen many levels of the appeals process, including the U.S. Supreme Court three times. After Judge Walker threw the case out, we plaintiffs appealed to the U.S. 9th Circuit Court of Appeals, based in San Francisco. On May 5, 2000, they granted us our first victory by denying qualified immunity to Sheriff Lewis and Chief Deputy Philp and overturning the summary judgment, thus giving us an opportunity for a new trial. The defendants appealed that decision to the U.S. Supreme Court. The Supreme Court sent the case back to the 9th Circuit for reconsideration. The 9th Circuit again ruled strongly in our favor. The defendants again appealed all the way to the Supreme Court. In November, 2002, the Supreme Court denied the defendants' appeal, leaving the 9th Circuit decision standing and sending us back for a new trial.
Rulings at the appellate level are legally-binding precedent. The 9th Circuit not only overturned the summary judgment, but worded the decision so strongly in our favor as to effectively determine that the way the police used pepper spray in these instances was indeed excessive force and a violation of our rights. (Quotes from the 9th Circuit decision Complete 9th Circuit decision on the official court website)
When the case was returned to the jurisdiction of Judge Walker he ordered the new trial to be held in Eureka. We appealed to the 9th Circuit to cancel the move to Eureka because it has long been economically dominated by the timber industry, and the community there is strongly polarized about logging issues, which would make it difficult to find an impartial jury which could reach a unanimous decision. We also asked the 9th Circuit to remove Judge Walker from the case for seeming biased in his rulings in the case, including his moving the trial, on his own initiative, to Eureka. The 9th Circuit granted our appeal, keeping the trial in San Francisco and removing Judge Walker. The defendants appealed that decision all the way to the Supreme Court (for the third time), which declined to hear their appeal, letting the 9th Circuit ruling stand.
What happened at the second trial?
U.S. District Judge Susan Illston was assigned to hear our case, and our second trial began Sept. 8, 2004, in San Francisco. This was the first trial in which we were represented by our new legal team. We got a second hung jury, but this time split 6-2 in our favor. The two holdout jurors couldn't accept that cops can do anything wrong. Judge Illston set a new trial date of April 11, 2005 for our third trial.
What's happening now?
At this writing, we are preparing for the third trial. We expect it to be more streamlined and focused. We hope the third time's the charm.
Is there any chance of a settlement?
Our attorneys broached the topic of settlement in early 2002. The defendants' counsel adamantly refused to compromise the police use of pepper spray in this manner, even with 9th Circuit case law effectively making it illegal. Judge Walker ordered the plaintiffs to submit a written settlement offer and the defendants to reply to it within 3 weeks. Our attorney submitted an offer based on a request for mediation. Settlement offer. The defendants said they would settle if we would drop our suit, allow them to continue to use pepper spray as they did on us, and both sides would pay their own attorney fees and costs. In other words they called for total surrender, which is absurd given the strong 9th Circuit findings in our favor during appeals.
What did the pepper spray feel like? Can it cause serious or lasting harm?
Capsaicin, the active ingredient in pepper spray, is one of the most painful, noxious chemicals known. It is derived from the hottest red peppers, and is highly concentrated. It causes severe burning that lasts for hours and hours. It causes inflammation of respiratory tissue and disrupts the heart, thus rendering it extremely dangerous to people with asthma and/or heart conditions. It has been linked to numerous deaths throughout the country. When sprayed at a close range (as in the three incidents that this lawsuit is about) the potential exists for corneal damage and retinal separation. The long-term effects are not known.
Aren't these the type of situations pepper spray, a "non-lethal" chemical agent, is designed for?
No. Pepper spray is intended for self-defense against violent, combative individuals. It was originally developed for defense against attacking grizzly bears. In these instances we were all non-violent and non-aggressive, and we were all locked down by our wrists. We were not a danger to anyone and were already under the physical control of law enforcement officers, as the 9th Circuit agreed. What's more, the manufacturer's guidelines say not to use the spray at distances less than three feet. In three cases officers applied direct sprays to the eyes from a few inches away, risking permanent injury! Pepper spray has been linked to numerous deaths across the country, causing severe respiratory distress and heart failure. Pepper spray's inclusion in the police arsenal was based on a bogus promotional campaign conducted by former FBI agent Thomas Ward, who has since been convicted for taking kickbacks from a major pepper spray manufacturer. (Note: see A Short and Sordid History of Pepper Spray)
What is Headwaters Forest and what's so special about it?
Headwaters is the best piece left of the remaining unprotected old-growth redwood forest in the world. At one time, old growth redwood forest stretched unbroken from Big Sur in north-central California up into southern Oregon. Industrial logging over the past 150 years has decimated this ecosystem, and today only 3% of the original redwood forest remains unlogged. It took thousands of years for the forest to reach its level of complexity and vitality. With its web of unique plants and animals, it is absolutely irreplaceable. This is why we locked down and didn't unlock even after getting pepper sprayed.
Headwaters Forest is in Humboldt County, California, part of the temperate rainforest of the Pacific Northwest. Something that makes Headwaters so special is its relatively untrammeled tracts of living forest, versus the fractured pockets of woods interspersed with clearcuts that mark most forests or even protected parks. The species that inhabit this ecosystem require large areas of healthy forest ó little preserves just don't work. Headwaters is home to numerous endangered species, including the marbled murrelet, the spotted owl, the pacific giant salamander, and the coho salmon.
Only 7500 acres were set aside with the "Headwaters Deal" of 1997, but this ecosystem is actually 60,000 acres, and this is the minimum needed for the health of this sacred place. On a larger scale, industrial logging is destroying old growth forest everywhere at an alarming rate. Its difficult to realize the huge loss we are facing if we don't do all that we can to protect places like Headwaters forest.
What were you protesting about, and why were you willing to endure such punishment?
Much of Headwaters Forest is "owned" by Pacific Lumber Company. For decades, PL was owned and operated locally by the Murphy family, and the company utilized relatively sustainable harvesting techniques. However, in 1986 the company was the victim of a hostile takeover by Texas corporate raider Charles Hurwitz and his Maxxam Corporation. Hurwitz tripled the cutting rate to pay off the high-interest junk bonds he used to finance the takeover, doing away with time-honored practices of slower logging with more job security. This accelerated liquidation logging has had devastating effects on the bioregion, as well as the local economy. Loggers are rapidly cutting themselves out of their own jobs, destroying their own job security and their children's as well. The great schools of Coho salmon are gone that until recent years spawned in the pristine streams and rivers that flow from the redwood forest, and gone too is the salmon fishing industry that once thrived off the Humboldt coast. The Coho has recently been added to the endangered list under the federal Endangered Species Act.
Essentially, livelihoods have been ruined or are on the brink of ruin, whole species of plants and animals are endangered, and an incredible ancient forest is being destroyed for nothing except the short-term gain of one company, even one man. When you consider this ecocide, when you witness first hand thousand-year-old trees cut to the ground, then it seems that getting arrested, even being pepper-sprayed, are small prices to pay.
As a species, humans are making war on this planet. It is crucial for those of us with conscience and awareness to stand up, bear witness, and act in whatever nonviolent ways we can. For us, that meant locking down, saying no more cutting, not today. Just to slow the destruction for a couple hours, to bring attention to the issue, was well worth it. How do you compare human suffering to the murder of thousand-year-old beings?
Since the time we originally locked down, we have witnessed tremendous devastation to the Headwaters Forest area, and beyond. More and more acres have been clearcut, stripped bare of all growth. Ironically mirroring the pepper spray they poured on us, gallons of toxic herbicides have been sprayed on the forest clearcuts, poisoning the water for the fish and the people who live in the area. Fortunately, people are still working to stop the herbicides and protect what's left through lawsuits, community organizing, and direct action.
What were you locked in?
We locked arms together inside welded metal sleeves known as "lockboxes" or "blackbears." Two metal pipes are welded together at an angle so that one person can put her arm in one sleeve and another person can put his arm in the other sleeve to link together for a sit-in or around a piece of logging equipment. Inside the pipes at the point where the sleeves meet is welded a steel pin. With chain bracelets and a rock climbing carabiner clip, you can put your arm in the pipe and clip to this pin and therefore be "locked-down." This way people can delay being pulled apart from fellow activists at an action so the forest has that much more respite from the logging. The police have been cutting through the welds of the lockboxes for years, never injuring either officer or activist. It doesn't take more than ten minutes when they've chosen to do it, but as protests increased, they argued they needed pepper spray to defeat the lockboxes and get us out of there "quicker and easier."
Do you know of anywhere else where pepper spray has been used on non-violent protesters' eyes?
Historically, painful chemical agents have been used on those who speak out in all kinds of contexts. In Humboldt County, striking timber workers were sprayed and attacked sixty years before we were. (See Dan Fortson's article "Sixty Years Before Pepper Spray ó The Holmes-Eureka Strike.")
Today, there is an alarming trend in the U.S. toward increased use of pepper spray and other chemical agents on nonviolent protesters. Our case is unique in the application method, but police use of chemical agents has happened in the past and has continued since we filed our case.
In October 1998, our case had just been thrown out of court, and the Humboldt County police felt they had the green light to use pepper spray on people again, even though we were appealing and would in time win landslide victories. People blocked a logging road and locked themselves to logging machines at a place activists named Gypsy Mountain. Our comrade David "Gypsy" Chain was killed there by a tree deliberately felled in his direction by an irate logger. The day people were pepper-sprayed, the activists had locked-down to preserve the crime scene and to stop the logging. Several women were pepper-sprayed, this time not with Q-tips but with cotton balls that were soaked in the searing liquid. Police actually squeezed out the cotton balls into the women's faces, leaving the chemical pooled in their eye sockets.. There is video of this incident, as well as our own, in a documentary about our case called "Fire in the Eyes."
Nationwide, Pepper spray has been used inappropriately on peaceful demonstrators in Eugene, Oregon, at the WTO protests in Seattle in Nov. 1999, and in more incidents across the country than we can list here. It's not only used on protesters but on people in nursing homes, on prison inmates, and on young people. It's becoming common practice for law enforcement officers to use pepper spray and other chemical agents on individuals or groups of people when they do not fully, instantly comply with exactly what the officer demands, whether it be a reasonable request or one that violates citizens' rights. Because these "non-lethal" agents have proved lethal in many circumstances, and because their deployment often violates people's basic rights, we continue to oppose their excessive use.
How can a person help your efforts to end pepper spray use on nonviolent protesters?
Please see our What You Can Do - Action Page
Can I make a tax-deductible donation to your legal fund?
Yes. Please see our Contributions page for more information.
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