No Pepper Spray on Nonviolent Protesters

(posted 4/14/05, revised and extended 4/16/05)

Log of 2005 Trial in Pepper Spray Q-Tip Suit
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Days One and Two, April 12 and 13, 2005

by Nicholas Wilson,

Note: This is not an official transcript. It is a condensed paraphrase except where quotation marks are used to indicate verbatim quotes. It is based on notes taken in the courtroom. At times the questions and answers are given to convey the flavor, especially in cross-examination.

Page Index

Day One, Tuesday April 12, 2005
Jury Selection

Day Two, Wednesday, April 13, 2005
Plaintiffs' Opening
Statement by Dennis Cunningham
Defendants' Opening Statement by Nancy Delaney
Terri Slanetz Direct Examination by Dennis Cunningham
    Cross-examination by Nancy Delaney
    Redirect by Dennis Cunningham
Michael McCurdy Direct Examination by Robert Bloom
    (First part and summary of Bear Creek Videotape)

Day One, Tuesday, April 12, 2005

Jury Selection

An eight person jury was chosen after an all day process that included individual questioning of the individual juror candidates by Dennis Cunningham, lead counsel for the Pepper Spray Eight plaintiffs. The jury includes 6 women and 2 men; one woman is Philippine-American, one man is Latino, and the rest are white. About a dozen of the panel of about 50 juror candidates were excused for hardship, most of them because they were self-employed or contractors who would lose two weeks' income if they served.

Judge Illston began by asking the jury candidates about their backgrounds, and whether any of them had any family connections or life experiences that might influence their impartiality. All jury candidates could hear the questions and the answers of the others

Only one African American was included in the jury candidate panel. He works as a security guard, and said he remembered seeing police videotapes of this case on TV, and that he had already decided that the Humboldt County deputy sheriffs were wrong to use pepper spray as they did. He added that he had personally been  abused by police.

Another man said the protesters got what they deserved because they were trespassing and were warned they would be pepper sprayed if they did not unlock their arms from each other and submit to arrest. Another said he liked police and couldn't stand protesters.

Mr. Goldoff (sp?) said he had seen the videos on TV. He said, "What they did to these kids was so cruel and vile that I canít imagine any justification for it." Judge Illston: "In the courtroom you'd hear evidence from both sides. There are two sides to every story. Do you think you could listen to the testimony and evaluate the evidence objectively?" Mr. Goldoff: "Iím sure they would have some rationalization for what they did. But I just think what they did was so cruel, so violent and so despicable that there could be no justification for doing that to a bunch of kids." Judge: "You don't think you could keep an open mind?" Mr. Goldoff: "It would be very difficult." In later questioning he said he had been injured by a chunk of concrete thrown by a police officer in Chicago during the 1968 Democratic Convention. 

All of those who said they didn't think they could be fair and impartial to both sides were excused for cause. Many others expressed leanings one way or the other but said they thought they could be fair or would try to be. Some had grown kids who were police officers.

Dennis Cunningham finished questioning 35 of the 38 jury candidates remaining after the hardship cases were excused before his 90 minute time limit was up. Then it was Nancy Delaney's turn to question the panel for the defendants. She took only about 10 minutes to try to rehabilitate a half-dozen people whom Dennis had got to admit they favored the police. She got each of them to say yes, they thought they could listen carefully to the evidence of both sides and to the judge's instructions as to the law and then make a fair judgment.

Then the lawyers and parties of both sides joined in a huddle with the judge out of hearing of the jury and the public. Each side asked the judge to excuse jurors for cause whom they felt were clearly biased. The judge granted enough challenges for cause to reduce the panel to 16, after which each side exercised their four peremptory challenges, taking turns one at a time, until the final jury of eight remained. At this point it was after 4 PM, and after having the jury sworn in and instructing them about the duties and prohibitions involved in being jurors she sent them home, to return for court beginning at 8:30 the next morning.

Day Two, Wednesday, April 13, 2005

Opening Statements and First Witnesses Terri Slanetz and Michael McCurdy

The main part of the trial got under way today with further instructions to the new jury, followed by opening statements by plaintiffs and defendants. Judge Illston told the jurors not to read or listen to any news reports about the case or look for information about it on the Internet. She also told them not to talk to anyone at all about the case, including family members and including other jurors until they meet to deliberate at the end of the trial. They are not even to tell family members what the case is about, but just to say that they are serving on a jury and are ordered not to talk about it.

The judge explained that what attorneys say is not evidence. Attorneys for each side would give an opening statement to give the jury an introduction to what the case was about from their point of view, and what the evidence was expected to show.

Plaintiffs' Opening Statement

As lead counsel for the plaintiffs, Dennis Cunningham went first. He began by re-introducing the other members of the legal team who were present: J. Tony Serra, Bob Bloom, Bill Simpich, and Gordon Kaupp. He re-introduced the plaintiffs, all eight of whom were present in the courtroom for the first time. Plaintiff Mike McCurdy had just flown in from Michigan. The others are Spring Lundberg, Terri Slanetz, Lisa Sanderson-Fox, Jennifer Banka Schneider, Maya Portugal, Noel Tendick and Sam Neuwirth.

Mr. Cunningham said the case was about protest and civil disobedience, arrest and police use of force in making arrests. The claim of the plaintiffs is that if force is not needed then no force is reasonable and any force used is excessive. The events in this case took place in the fall of 1997. It has been a long litigation, and plaintiffs hope for final resolution this time.

1997 was a time of struggle in Humboldt County over the so-called harvesting of ancient redwood trees on land supposedly owned by Pacific Lumber Company. Pacific Lumber has over a hundred year history in Humboldt County. Many residents, including many law enforcement officers, have family connections with the company and with logging. In the mid 1980s the company was taken over by Maxxam Corporation, run by corporate raider Charles Hurwitz of Houston, Texas. After the takeover the company tripled its rate of logging and changed to clearcutting, which takes everything, literally stripping the land naked. Rain washes the soil from the mountainsides into the creeks and causes siltation of the creek and river beds, hurting salmon spawning and causing other problems.

Ancient redwood trees are huge and valuable, and thousands of board feet of lumber can be made from a single tree. The protests focused on trying to preserve the old trees from the liquidation logging of Maxxam/Pacific Lumber. They included civil disobedience to try to disrupt or slow the logging. There were also efforts through conventional channels, including lobbying legislators and regulators and filing lawsuits. But when those efforts failed there were actions, mostly by young people to take direct action to halt logging by blockading logging roads and gates, and by locking themselves to gates and to logging equipment so that they could not be used. Those tactics did slow or temporarily halt the logging at that place and time, and it called public attention to the issue because activist were willing to be arrested and go to jail for it.

Law enforcement was called in to clear blockades and remove locked-down protesters. At first the protesters locked down with bicycle locks, then chains and padlocks. Police could cut them loose with bolt cutters. The protesters developed more ingenious ways to delay their removal, including locking their wrists to each other inside metal tubes. They started with thin-wall light tubes that were easily cut into, then switched to heavier pipe. Dennis showed the jury a "black bear" like the ones used in the incidents in this case. It consists of two lengths of about 4" diameter steel pipe welded together at right angles in 45 degree miter cut. Each leg of the device is about 18" long, the right length for a person's forearm to be inserted up to the elbow. Inside, welded into the joint, was a metal crossbar. Protesters put a piece of chain around their wrists with a snap connector that could be hooked to the crossbar, and only they could unhook it.

But the police were always able to defeat the lockdown devices and remove the protesters without injuring anyone. They used a high-speed electric grinder with a thin cut-off disk to either cut through the weld joining the pipes and then reaching in and unhooking the clip, or they sometimes made four shallow cuts where the crossbar was welded in and then removing it and the protesters.

After years of dealing with locked down protesters this way, the Humboldt County Sheriff and his chief deputy decided to escalate and use pepper spray. They claimed that the grinder was unsafe, and that sooner or later a protester or a deputy would be injured. They claimed pepper spray, which they called oleoresin capsicum or OC, was safe. They cooked up a way to use a Q-tip to swab liquid pepper spray on or near the eyes.

But the grinders always had worked, in dozens of prior instances. Pepper spray was not necessary. When no force is needed then any force is unreasonable. That's the crux of this case. The cops wanted to intimidate the protesters, to subject them to intense pain and fear, to prevent them from locking down. They say it's all "food grade ingredients," and no big deal. But it IS a big deal. It's extremely painful for a long time. The cops had other means that had worked in the past and since to deal with protesters. They could negotiate, make a deal. They could wait them out. And always the grinder was a 100% effective last resort.

Headwaters was a big area of very big old trees, about 7500-8000 acres of untouched old-growth forest at the heart of about 65,000 acres of partially logged forest that still contained many old-growth trees. Years of protests over Headwaters led to an effort to save them reaching Congress, and a deal was being made to save just the 7500 acre part and pay Charles Hurwitz of Maxxam hundreds of millions. There was opposition to that deal because people wanted the whole complex saved, and they didn't think Hurwitz deserved to be paid so much taxpayer money for the small portion to be saved by the deal. Congress member Frank Riggs, who represented Humboldt County and other Northern California forest areas, received more money from the timber industry than any other member of congress. He was a high profile friend of big timber and a harsh critic of forest protesters. That's why he was the target of one of the protests that this case is about.

Pepper spray is a chemical weapon intended to overcome physical resistance and to defend against attack, for use against someone fighting the cops. There was no prior instance of using it against passive resistance. They were using pepper spray to coerce passive protesters who they knew were committed to nonviolence. The cops say it's a "pain compliance" technique. But that's wrong. Examples of pain compliance are twisting someone's arm until they comply, and then releasing the pressure when they do, giving immediate relief from the pain. The cop can modulate the pain, using a little, then more until getting compliance, then giving relief. But pepper spray causes immediate and intense painful burning sensation, and there's no way to quickly end the pain if compliance is obtained.

The protester plaintiffs in this case are young people with great commitment and dedication to their cause. They try to stop the forces that are destroying the forest as quickly as possible for fast profit. They're trying to call the public's attention to the problems they see.

There's no dispute about what happened. It's all on videotape. This case is about if it was necessary and reasonable to use pepper spray in these circumstances or unreasonable and unlawful.

Dennis ended by saying that by the end of the trial he thought the jurors would see clearly that the plaintiffs were right, that the use of pepper spray was unnecessary and unreasonable. He said that if they agreed, that they would have to consider compensation and set the amount of damages to compensate the plaintiffs for the wrong done to them. Dennis was finished after about 40 minutes.

Defendants' Opening Statement by Nancy Delaney

Nancy Delaney gave the defendants' opening statement. She introduced the other members of the defense legal team, William Mitchell and William Bragg, and the two individual plaintiffs, former Humboldt County Sheriff Dennis Lewis and former chief deputy, current Sheriff Gary Philp. She said the opening statement is like the picture on a crossword puzzle box. It gives an overall picture that helps the jury fit together the pieces of evidence that come in. She said there are pieces in this case that don't belong in the puzzle box at all. One of them is what the protests were about. "It is not about saving one more redwood tree." Law enforcement officers are trained and given policy direction to do their job. Lewis and Philp are good bosses. They responded to concerns that came up the chain of command from the field guys, the hands-on "Three Musketeers" of the special services squad that wield the grinders.

(Note: This is paraphrase of Nancy Delaney. Not given for the truth of the matter, but only for her state of mind.) On the Scotia tape you'll see the grinders used in detail. The deputies took risks to themselves by not wearing gloves, getting burned on hot metal, reaching in past sharp edges, just so they wouldn't dull their sense of touch and endanger the protesters. They said it was not a question of if but when the grinders would cause a "catastrophic injury."

The activists developed devices that were harder and harder to defeat. Law enforcement's job is to remove trespassers. They don't take sides. It could be the KKK protesting, or pro or anti abortion protesters. When OC was first authorized for use in California, the Attorney General required written reports to be done for each incident. After 35,000 incidents with no serious injury, the reporting requirements were abolished. Civilian use is now okay for self defense, and anyone can go to a Walgreens and buy it. Law enforcement officers are not limited to defensive use of OC. They can use force to get compliance with lawful orders.

Philp's research showed that some cops used numchuks that resulted in broken bones. OC can be used to incapacitate people by delivering a full spray for a specified number of seconds. But Philp didn't want to incapacitate protesters, he wanted them able to unlock themselves and go with officers. He asked service deputies if they could come up with a way to do limited applications. They told him that in chemical weapons training each officer is required to put a finger into pepper spray and smear it near their eye. They came up with the idea of using a Q-tip.

According to Delaney, the minimal way to spray OC is close up. She said it's counterintuitive, but true. "It's like hair spray, where you need to spray from far enough away to get full coverage." She claimed that the label warning to not use at less than three feet meant that using it closer would diminish effectiveness, and that the greatest effectiveness was had by being about five feet away to give enough distance for the stream of liquid from the canister to aerosolize before reaching the target. Another reason, she said, for not spraying closer than three feet was the so-called hydraulic needle effect, which Delaney said means the stream can pick up particles in the air and propel them into the soft tissues of the eye. But she said that doesn't apply if the eye is closed, as it was in these cases at issue. "You'll see the deputies swabbing near, not directly in or on the eyeball."

Plaintiffs disparage the use of the spray bottle of water the deputies used to wash the OC out of the eyes, but that's what the OC vendors sell for that purpose. Not one of the plaintiffs sought medical attention after these incidents.

Congressman Riggs' Eureka office is not a political office. It's where a widow goes if she didn't receive her social security check. You'll see a video of the protesters entering Riggs' office. There were others besides the four women, and they brought in a big stump and scattered wood chips around the carpet. You'll see the Riggs office tape first. Sixteen year old Maya Portugal was not warned by the others, like Jennifer Schneider, how bad pepper spray was. That protest happened not long after the Oklahoma City bombing. Office staffers were terrified by the protesters entry, and Rhonda Pellegrini thought a bomb had gone off when the stump hit the floor with a boom. She'll tell you she had thoughts that she wouldn't live to see her children grow up.

Deputy Daastal continued to look for safer ways to remove locked down protesters. He considered a big pipe cutter, but that could rip someone's shoulder off. Sgt. Ciarabellini figured out a gradual procedure for dealing with protesters, not rush in like gangbusters and immediately apply OC, but give warning and time to think it over.

The protesters are not trained in safety. One deputy got cut removing a barricade of branches and stuff that included some barbed wire. Protesters in the woods at Bear Creek wolf howled to communicate with each other and with the protesters who were locked down. The protesters at Riggs's office said "maybe we should scream" and they went 1, 2, 3 and screamed all together.

The plaintiffs have an expert witness, Mr. Bouza, who has some very weird ideas. He wrote that law enforcement officers are sexual predators. Very weird ideas. 

Ms. Delaney was done after talking about 50 minutes.

Terri Slanetz, plaintiff and first witness, Direct Examination by Dennis Cunningham

After a short break the jury heard the first witness, Terri Slanetz, questioned by Dennis Cunningham. Terri lives in Oakland where she works as a naturalist teaching children about nature at YMCA and American Youth Hostel camps as well as at the Oakland Museum of California. She grew up in Southern California and New Hampshire. She first became an activist in college in the nuclear weapons issue during the early 1980s. She did civil disobedience at the Nevada Nuclear Test Site and was arrested for trespassing there. Later she became aware of redwood logging. There's only 3% left of the original old-growth redwood forest. She cooks for an organization that feeds people. She cooked at the Earth First! base camp in 1995, -6, and -7 feeding the thousands who came to the mass rallies for Headwaters Forest.

Dennis asked Terri how the Riggs office demo came about. Terri had been cooking at base camp, but wanted to become more directly involved. She had hiked in 1996 into an old-growth redwood forest and was very impressed. There were huge trees, very beautiful. It was very quiet. There were ferns as tall as people. They had to walk through a clearcut to get there. It was hot, dry, and devastated. What was taken was irreplaceable. It's being destroyed in our lifetimes. This is our only chance to stop the destruction and save it.

They had heard that Congress Member Frank Riggs was in town. He received more timber industry money than any other member of Congress, and he always favored the industry position. Four women decided to do a civil disobedience action, a sit-in. It would be peaceful, theatrical, and send a strong message. They would sit around a stump with wood chips and sawdust strewn about, and they would lock their arms together inside "black bear" lockboxes. Lisa and Terri were old friends from Oakland, and both were working in the camp kitchen. Terri met Banca and Maya at camp, and she was very inspired by young Maya, who also worked in the kitchen and was the first to volunteer for the Riggs action. Lisa volunteered next, to support Maya, and Terri didn't want Lisa to be in jail alone, and she wanted to support Maya too.

On the day of the action, October 16, 1997, they entered the Riggs office in Eureka and locked down. They said "good morning" to the office staff and asked to speak to Riggs. The cops came and told them to unlock or be pepper sprayed. They refused to unlock and were swabbed in the eyes with a pepper spray soaked Q-tip, and then Terri was sprayed in the eyes from a few inches away.

At that point the police videotape of the Riggs office incident was shown to the jury. Most of the jurors showed by facial expression and body language that they were strongly affected, repulsed by what they saw on the tape.

Dennis Cunningham objected to the showing of the tape after the point when the four protesters had been removed from the office, but the defense insisted. The judge explained to the jury that she had previously ruled that the police tapes would be shown in full so that neither side could be accused of choosing only the portion that favored their position. The final 10 minutes or so of the tape showed the protest rally continuing outside the Riggs office. There were chants including: "Represent the public, not the corporations," and "Stop corporate torture."

When the 43 min. tape ended, there was a short break, and then Terri's testimony continued. She said being swabbed and sprayed directly at close range with pepper spray hurt a lot. Her eyes, nose and skin were burning. She had not expected them to go through with spraying her, thinking it was just a threat. When planning the event they expected to "break a small law in order to call attention to a great wrong." She said she didn't expect the cops to use pepper spray in the congressman's office, and guessed she was in denial about that, since she knew pepper spray had been used at two previous protests. The pain did not subside, it continued very strongly. Her pulse was racing, and she was trying to deal with "pretty extreme pain." It felt like a shock when she was sprayed. Terri's first reaction was not wanting the direct spraying to happen to her friends. So she decided to unlock. 

The police spraying of water with a spray bottle didn't help. It caused more pain, and it spread pepper spray down her face. She was not allowed to wash with flowing water until hours later when she had been processed and assigned a regular cell in jail. She couldn't open her left eye, the one directly sprayed, for hours, and it was painful for days afterward. She was fearful about possible long term health effects because she knew that the city of Berkeley had decided to ban police use of pepper spray after learning there had been over 100 deaths associated with pepper spray use.

Delaney objected to Terri's mention of health effects and deaths, and asked for it to be stricken from the record, but the judge allowed it in as evidence of Terri's state of mind, not for the truth of the matter.

Terri also felt emotional aftereffects. Her faith in humanity was diminished. She had a persistent feeling of having been violated. She remained fearful about long-term effects on her eyes and health. She had dizzy spells, headaches, and blurry vision, which she never experienced before being pepper sprayed.

She was in jail five days. Delaney moved to strike, saying a defense motion in limine granted by the judge prohibited mention of length of jailing. The judge agreed. 

Terri Slanetz Cross-examination by Nancy Delaney

Q: Were you aware in jail that you could fill out a form requesting medical attention? A: Not at first. Later I filled out one for a cold sore, but thought that the only treatment offered for pepper spray was saline solution, and I didn't think it would help.

Q: When you entered Riggs' office, were there others who brought in a large stump and spread sawdust and wood chips? A: Yes

Q: And these were people you knew only by their "forest names"? A: Yes.

Q: And one of them was "Reverend Jim" of the Church of the Great Green Frog? A: Yes.

Q: And one of them was wearing a black ski mask, correct? A: I don't believe so, no.

Ms. Delaney then showed a videotape of the protesters' entry to the office. The four women ran in with one arm already in a lockbox and quickly sat down in a circle around the stump and locked their free arms into the lockbox attached to the person next to her. They said "good morning" to the receptionist, who immediately set off an alarm and began calling police. Another woman staffer said "No one's getting out of here," and went to lock the door.

In replies to Delaney's questions, Terri said there had been two or three meetings to plan the action and practice locking down. She understood that using black bears would delay arrests. She did not understand that planning the action together was conspiracy. She did not know that spreading wood chips on the floor was vandalism. She did not notice anyone with a black ski mask on. She did not offer to leave if pepper spray would not be used, and said she didn't think it was offered them as an option.

Q: Were you aware that grinding you out with your arm inside the pipe posed a risk of injury to you? A: Yes, in the same sense that driving there posed a risk. I was also aware that there had never been an injury from a grinder before in dozens of protests.

Q: Are you aware that capsaicin, an arthritis medicine, is an ingredient of OC? A: Yes.

Q: Did you and others inside try to communicate with people outside? A: Yes.

Q: It was a while after officers arrived before they first used OC wasn't it? A: It seemed like a very short time, and was not more than 20 minutes maximum.

Q: So your best estimate is about 20 minutes? A: No, I said at most 20 minutes.

Dennis Cunningham objected that we had just seen the tape and that only three or four minutes elapsed from the time officers entered the office until pepper spray was used. Furthermore, those inside had no way of knowing when the cops arrived outside.

Delaney asked if Terri had sought any medical treatment for her eye. Terri said she had seen an herbalist about it.

Delaney had no more questions.

Re-direct examination of Terri Slanetz by Dennis Cunningham 

Q: Did the cop who put the pepper spray in your eye ever explain that it was harmless and would do no lasting damage? A: No, and he didn't ask if anyone had asthma or any other health problems.

Q: Did the office staff seem afraid of you? A: No, and one woman locked the door, she said to keep anyone from leaving. A woman took a Polaroid photo of us, she said for the congressman's scrap book.

Q: Did you see anyone in a ski mask that day? A: No, and we did not intend to scare anyone. We wanted to make a strong, theatrical statement that could not just be brushed off.

Q: Did you hear any loud boom like the Oklahoma City bomb when the stump was set on the floor? A: No.

Q: Are you still feeling any effects from what happened? A: I have nightmares. I feel nervous around police. It was hard to watch the videotape again.

With that, Terri Slanetz was excused from the witness stand.

Michael McCurdy Direct Examination by Bob Bloom

Mike McCurdy is 30 years old now. He lives in Lansing Michigan where he manages an organic vegetable farm where they teach mentally handicapped people and rehabilitate them into the workforce. He also teaches nonviolence training. He is engaged to be married in June. He has spent considerable time in Northern California. There came a time in 1997 when he and Noel Tendick locked together through the tracks of a logging bulldozer and they were both pepper sprayed by Humboldt County deputies.

The police videotape of the Bear Creek incident was shown. On the tape, another pair, a man and a woman, also locked arms through the tracks of a bulldozer. Sgt. Pete Ciarabellini, the incident commander, tells them that if they do not unlock he will use a chemical agent on them that will make life very unpleasant, will make life miserable for them for a while. He also tells them if they release they will not be arrested. They comply, but they are arrested anyway.

Sgt. Ciarabellini tells Mike McCurdy and Noel Tendick that they are part of an unlawful assembly and are trespassing. He tells them they are under arrest and that he intends to use a chemical agent if they do not unlock. About three minutes later he gives them an ultimatum: release or be pepper sprayed. Noel and Mike are chanting together: The Earth, the air, the fire, the water, return return return return. Only five minutes from the start, a deputy grabs Noel's head and another swabs a Q-tip dunked in a cup of pepper spray on his eyes. Noel shouts out: "They are torturing us!" Moaning is heard. Only a minute or two later they are told they will be sprayed instead of just swabbed, and it will be worse. The camera is in close as Deputy Marvin Kirkpatrick sprays Mike back and forth across both eyes. Mike or Noel shouts:" They're spraying us!" He asks the deputies: "Why are you torturing us? We're nonviolent people."

Five minutes later, Ciarabellini tells the pair that he will spray them again if they don't release. He says they have cans and cans of pepper spray and plenty of time. Mike and Noel still do not release. At Ciarabellini's signal, a deputy approaches them with a spray bottle and begins spraying Noel's face and eyes. He cries out in pain. A deputy says it's only water. Neither protester could open his eyes by this point. The deputies begin using an electric grinder to cut through the two lockboxes joining the pairs arms. The tape ends before it is over.

Back in the present, it's 1:27 PM, time to quit for the day. The judge admonished the jurors not to talk with anyone about the case, including each other and family members, and not to expose themselves to any media coverage or Internet information.

Court recessed for the day, to resume at 8:30 AM Thursday.

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