No Pepper Spray on Nonviolent Protesters

 posted to website 2/11/03

Plaintiffs' Settlement Offer Letter

Dennis Cunningham
Attorney at Law
3163 Mission St., #301
San Francisco, CA 94110
415-285-8091/FAX 285-8092

By FAX Transmission

January 31, 2003

Nancy Delaney
William Mitchell
Mitchell, Brisso, Delaney & Vrieze
Eureka, CA
FAX 707-444-9586

Re: Headwaters v. Humboldt

Dear Friends:

I'm writing at the Court's direction, based on my clients' strong desire to lay this case to rest, where they see themselves as altogether vindicated by the Court of Appeals in the issue which moved them to Go to the Law in the first place. The trouble is that on that overriding question of whether police may lawfully use painful chemical agents on non-resisting protesters engaged in a sit-in, you seem to hold the position -- stated by Nancy to me and Brendan Cummings on the telephone, and again to the Judge the other day if I heard you right -- that your clients are not and should not be bound by the higher Court's decision.

Not to put words in your mouths (and if I'm misstating your position, I know you'll let me know), I believe what you said was, roughly, that 'Law Enforcement', i.e, your clients, 'has to retain the option' of such use -- and I'm assuming this includes daubing in and around the eyes, spraying full in the face at close range, withholding rinse relief, and other applications designed to coerce a non-resisting protester, by torment, to release from a black bear. You seemed to reject out of hand any compromise involving an agreement to desist from these tactics, which we believe the Court has clearly proscribed.

If I'm right, your view of the posture we're in is that the authority of police to use force on unresisting demonstrators, inflicting pain and terror where they already have physical control, is an open question, despite the Court's ruling. I don't see it.

Look at the ruling. The Court made the following statements seriatim, and I quote

  • [I]t would be clear to a reasonable officer that using pepper spray against the protesters was excessive under the circumstances.
  • The facts reflect that... the pepper spray was unnecessary to subdue, remove, or arrest the protesters (citing Graham v. Conner).
  • Characterizing the protesters' activities as "active resistance" is contrary to the facts of the case.
  • Defendants' repeated use of pepper spray was also clearly unreasonable.
  • [A] continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.
  • Because the officers had control over the protesters it would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control, and even less necessary to repeatedly use pepper spray against the protesters when they refused to release from the "black bears."
  • It also would have been clear to any reasonable officer that the manner in which the officers used the pepper spray was unreasonable. (Defendants) Lewis and Philp authorized full spray blasts..., not just Q-tip applications, despite the fact that the manufacturer's label on the canisters... 'expressly discouraged' spraying... from distances of less than three feet.
  • [I]t would have been clear to any reasonable officer that defendants' refusal to wash out the protesters' eyes with water constituted excessive force under the circumstances.
  • Spraying the protesters with pepper spray and then allowing them to suffer without providing them with water is clearly excessive under the circumstances.
  • [R]egional and state-wide police practice and protocol clearly suggest that using pepper spray against non-violent protesters is excessive.

We think this adds up to a very explicit and categorical affirmation of the basic principle that the use of force and infliction of pain on unresisting persons -- by chemical agents or otherwise -- cannot be squared with the Fourth Amendment. We think it pretty much requires a finding that the officers' undisputed use of pepper spray in this case, and their defendant commanders' orders for such use, were unconstitutional. We assume the Court's holdings will be embodied in the Jury Instructions in a new trial (or of course there'd be another appeal...). Forgive me if I'm missing something obvious, but I can't see how the Court's opinion leaves the defendants with anything much to defend in another trial, even though they may have the right to one. And we just might be entitled to summary judgment on liability, which would pretty much guarantee a big fee award, as would a plaintiffs' verdict, of course.

In short, it seems to me this is a case the County ought to settle and ought to want to settle. But the plaintiffs have a strong and insistent concern -- not least in light of what we take as your aforementioned position about the law -- with what the Sheriff's policy and practice is going to be from now on; they really want that addressed as part of a positive process of compromise to end the case. So.

Beyond the pepper spray incidents, the plaintiffs maintain there has been a good deal of illicit force used against their movement by the cops over the years -- even just since the great march and mass civil disobedience at Carlotta, so beautifully and brilliantly led by Judi Bari, in September, 1996 -- and more recently, officers have repeatedly winked at violent actions against protesters by timber workers. Consistent with their commitment to non-violence -- to say nothing of the need for safety and protection -- the plaintiffs are very concerned with changing that state of affairs. They yearn to see the principle they struggled and sacrificed for put into practice.

So we believe resolution of this case should be linked to a larger truce, which could come about through mediation. For my clients, that is the obvious, positive way to settlement -- especially since Sheriff Philp has already shown himself at least somewhat open to these concerns. Of course, there are money issues a lot of legal work got done, even just since the plaintiffs' previous settlement offer in 1998, and there's a fairly substantial expense bill outstanding. But there also would be a fairly substantial expense for the County to go back to trial -- not to mention the social cost of renewed uproar in the community over the issue -- and it would be facing quite a large fee claim in a loss, possible punitive damages, and/or yet another appeal; let alone another hung jury, heaven forfend...

But I tell you the money really is of secondary interest over here, and I feel sure that if meaningful agreements can be reached, on (not) using gratuitous force (by pepper spray or otherwise), (not) turning the blind eye to attacks from the private sector, and (not) arresting identified legal observers at protest sites in the woods, my clients will be very amenable to reasonable resolution of the money part.

But it won't work unless your side, the cops, that is, can countenance, and accommodate, the principle of required restraint which is affirmed in the Court of Appeals' decision. If they can open to it, a mediation ought to succeed; certainly it ought to be tried. As Spring put it to me, 'the fruitful potential of open-minded discussion' is what we offer.

Let me know what you think.


Dennis Cunningham

cc     Judge Walker

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