No Pepper Spray on Nonviolent Protesters
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 created 4/19/03

Pepper Spray Trial Move to SF Sought
Environmental activists contend Humboldt County community's hostility precludes fair jury 

April 15, 2003

By MIKE GENIELLA
THE PRESS DEMOCRAT, Santa Rosa, California

Contending recent anti-logging protests have made Humboldt County "too polarized" to allow a fair retrial, environmental activists Monday asked a federal court to move to San Francisco a federal suit over use of pepper spray against protesters.

The high-profile case is set for May 12 in a Eureka federal courtroom, but activists' attorneys said local residents harbor "extreme hostility" toward environmental activists, especially in view of current tree-sitting protests and other anti-logging tactics.

"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," attorneys said in a motion filed with the U.S. District Court in San Francisco.

The attorneys are members of the same Bay Area legal team that won a $4.4 million federal verdict last year against the FBI and the Oakland police on behalf of two Earth First activists.

In the motion filed Monday, they contended the current level of hostility in Humboldt County is so palpable that they are "very concerned" about their own physical safety. Lawyer J. Tony Serra of San Francisco said on recent visits to Eureka he "felt the threat of being physically assaulted."

Attorneys representing Humboldt County law enforcement agencies said Monday they will oppose moving the case back to San Francisco for retrial.

"We think it's appropriate to try the case in the federal court here, so the factual question still at issue can be addressed by a community which will be impacted by any verdict," said Eureka attorney Nancy Delaney.

Delaney said she had not read the motion in any detail, but she said she disagreed strongly that a panel of Humboldt County residents can't fairly hear the case. "We try federal cases here all the time," Delaney said.

A federal appellate court last year ordered the pepper spray case retried after overturning U.S. District Court Judge Vaughn Walker's decision to toss out the case. Walker, following a San Francisco federal jury's 4-4 deadlock, said evidence presented during the first trial "unequivocally supports the conclusion that the officers acted reasonably."

But the appellate judges said a jury, and not Walker, should actually decide whether authorities' decision to swab protesters' eyelids with pepper spray was reasonable.

The contentious case, which in 1997 drew national attention, stems from action taken by Humboldt County sheriff's deputies during protests at the Eureka office of former Rep. Frank Riggs, R-Windsor, and at Pacific Lumber headquarters in Scotia. When nine demonstrators refused to unlock themselves from metal devices that joined them, their eyelids were swabbed with liquid pepper spray in an effort to force them to release themselves.

Authorities said they decided to adopt that technique rather than continue to rely on grinders they'd previously used to cut through the metal sleeves.

When police videotapes of the incidents were repeatedly televised across the nation, they provoked a fierce debate over a tactic that had never been tried before.

Activists' attorneys Monday also filed a new motion to prevent Walker from presiding over the retrial, contending the judge's decision to order the retrial held in Eureka underscored a "biased and prejudiced mindset" on Walker's part.

Copyright 2003 The Press Democrat. Posted here under the Fair Use Doctrine under U.S. copyright law.


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