No Pepper Spray on Nonviolent Protesters
www.nopepperspray.org

 created 4/19/03

Attorneys for Tree Activists: Recuse Judge

U.S. District Judge Vaughn Walker is biased against environmentalists and is recklessly changing the case venue, lawyers in a police-brutality suit allege.

April 15, 2003

By Dennis Pfaff
Staff Writer, Daily Journal (San Francisco legal newspaper)

SAN FRANCISCO - Lawyers representing North Coast activists who were pepper-sprayed during antilogging demonstrations in 1997 filed a motion Monday to remove U.S. District Judge Vaughn Walker from their police-brutality case, claiming he is biased against them.

In addition to recusing Walker, the plaintiffs moved to block his decision to shift a retrial of the case to Eureka. The plaintiffs warned that holding the proceedings in that polarized community could be physically dangerous and would reverse conventional wisdom for changing venues.

"This case should no more be tried in Eureka than a civil rights case in 1964 should have been moved to Selma, Alabama, for trial," the attorneys wrote. Eureka, they said, "is the center of a war zone."

The protesters, in seeking to remove Walker from the case, cited findings made by the judge when he dismissed the lawsuit when it first came before him in 1998. Some of those findings, the plaintiffs alleged, were factually wrong.

They said Walker betrayed his slant when he abruptly decided earlier this year to move the retrial to the "extremely hostile" city of Eureka.

"There can be no doubt that the conduct of Judge Walker demonstrates, both objectively and subjectively, that Judge Walker is biased and prejudiced against the plaintiffs in this case, and that any reasonable person would believe that to be the case," the plaintiff attorneys wrote.

"It's startling to me that a challenge [to Walker] would be launched," countered Nancy Delaney, the lead defense attorney in the case. "He appears to have played it very straight."

Delaney, of Eureka's Mitchell, Brisso, Delaney & Vrieze, also reiterated her past support for moving the case to Eureka. It makes sense, she said Monday, to have the questions in the case "resolved by the community they will impact."

Motions to recuse a judge for bias are extremely rare, according to Federal Public Defender Barry Portman. The veteran federal court practitioner said recusal motions often are based on events outside the courtroom, such as friendships or acquaintances between a judge and a party to the case.

"If it is based on judicial acts in the course of a case, that's not cause for recusal," Portman added.

In this case, Walker will apparently have to decide whether the motion is legally sufficient, legal experts said. If he determines the motion can proceed, he then will have to turn the matter over to another judge and refrain from taking any action in the case until the recusal is decided, according to Robert Bloom, an attorney for the demonstrators.

Walker last month turned down an informal request from the plaintiffs' team to keep the case in San Francisco. One of the attorneys, San Francisco lawyer J. Tony Serra, said at the time that he was almost attacked recently while handling another case in Eureka.

Walker replied that he believes the town is "an appropriate place for a trial of this case."

The protesters sued following a series of demonstrations in which police swabbed and sprayed pepper spray onto the faces of environmental activists. Headwaters Forest Defense v. County of Humboldt, 97-3989VRW.

Defendants include former Humboldt County Sheriff Dennis Lewis and his successor, Gary Philp, as well as Humboldt County and the city of Eureka.

The lawsuit collapsed in 1998 when a federal jury in San Francisco deadlocked 4-4 on whether police went overboard in subduing the protesters. Walker dismissed the case about two months later, concluding no reasonable juror could find that using pepper spray was excessive force.

The 9th U.S. Circuit Court of Appeals has twice reinstated the case. The most recent reinstatement came last year, after the appellate court was ordered by the U.S. Supreme Court to reconsider the matter in light of a high court decision granting greater protections to police.

Among the findings criticized by the plaintiffs in Monday's motion was Walker's determination that police did not try to open the eyes of protesters when applying pepper spray. Oakland attorney Robert Bloom said widely distributed videotapes of the incidents contradict that finding.

"He actually stated findings of fact that are clearly contrary to objective fact" and were disputed by the 9th U.S. Circuit Court of Appeals, Bloom added. That "really demonstrates a mind-set that is not fair."

In a May 2000 opinion overturning Walker's dismissal of the case, the 9th Circuit cited the question of whether the protesters' eyes were open. In chastising Walker for failing to view the evidence in the light most favorable to the plaintiffs, the appellate panel referred to testimony from at least one demonstrator who claimed officers held her eyes open, but said the video images were unclear.

The plaintiffs' motion argues the decision to move the case to Eureka "could only have been motivated by bias and prejudice." They cited nine factors supporting that conclusion, including the fact that they did not request the move and were never given an opportunity to be heard before Walker ordered the venue shift. They also said he failed to consider the "great imbalance in financial resources" between the plaintiffs and defendants.

Additionally, the plaintiffs motion said jurors in Eureka would be faced with a pocketbook conflict If they order damages paid to the protesters, the money would come from local funds.

The plaintiffs also cited a local court rule that they said requires a new random assignment of a judge whenever a civil case is transferred to a new courtroom.

Bloom conceded Monday's move could fail, leaving Walker still in charge of the case and the trial headed for Eureka, where it is scheduled to open May 12.

"There's always a risk. As a matter of principle and a practical matter, we think he should not be on the case," Bloom said. I don't think he can be any more biased than he is."


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