No Pepper Spray on Nonviolent Protesters

(revised 4/19/05)

Log of 2005 Trial in Pepper Spray Q-Tip Suit
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Day Three, April 14, 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 when the questioning is adverse to the witness.

Page Index

Michael McCurdy Direct Examination by Robert Bloom, continued (Jump to start of Mike's testimony near the end of the previous page)
    Mike Cross Examination by Nancy Delaney
    Mike Re-Direct Examination

Jennifer Banka Schneider Direct Examination by Tony Serra
    Scotia Video summary
    Banka Cross Examination by Nancy Delaney
    Banka Re-Direct
    Banka Re-Cross

Deputy Sheriff Marvin Kirkpatrick Direct Examination by Bill Simpich

Michael McCurdy Direct Examination by Robert Bloom, Continued

Mike's fiancé is employed and is also attending school for midwives. After high school in Michigan, Mike traveled and spent time in Central America and on the Navaho Reservation helping people scheduled for forced relocation document problems there. He studied Spanish and Arabic in adult school. While in Israel he taught nonviolence training to Israelis and Arabs. He worked as a telemarketer fundraising for various organizations including the Republican Party, a Peace Officers' Association, and Paralyzed Veterans. He became aware of the redwood logging issue and heard of Judi Bari and the 1990 assassination attempt on her. He's 30 now, and was about 22 when he first came to Northern California.

He traveled to attend the big Sept. 15, 1997 mass rally for Headwaters Forest. Bonnie Raitt, Woody Harrelson and other celebrities were on stage. Thousands of people came. He stayed on at base camp after the rally. He walked into the redwood forest for the first time. It was the first old-growth forest he had ever seen, because they're all gone in Michigan. They were incredible. "I had never seen anything like it in my life." He felt he had to do more than carry a picket sign to save it. He also walked through a clearcut. "It looked like a desert after they cut all the trees and dragged them across the land with bulldozers, wiping out other plant life."

Mr. Bloom asked Mike how the Bear Creek protest happened. He said he had heard about damage to the stream by clearcutting. "We thought we could stop it, or slow it down, by tree-sitting or blockading the road." Mike sat 150 ft. up in an old-growth redwood tree for a few days before the the lockdown protest event. He was very motivated to do whatever he could to protect the forest while following strict nonviolence guidelines, which was also his own philosophy. From his tree he could see bulldozers plough into the old-growth, dragging trees and tearing up the ground. One morning Noel called up to him and asked if he wanted to be part of an action locking down to bulldozers. He did. He expected to be arrested and jailed for it, and was willing. Mike had heard about the use of pepper spray on the lockdown protest at Scotia PL headquarters a week or so earlier, but he thought it was an isolated case of police brutality. He didn't know it was policy. He knew it was possible but didn't really believe they would do it to him.

On the day of the protest, they arrived early at an old-growth area adjacent to a state park, getting there just before sunrise when the loggers would show up, and Noel and Mike locked both arms together through a bulldozer's tracks. They used one straight pipe lockbox and one black bear (90 degree lockbox). The loggers were angry at first when they found them, but the two protesters talked with them, and the situation de-escalated somewhat.

Ms. Delaney objected to hearsay evidence if Mike was going to say what the loggers said. Mike told the judge he was only going to say the situation de-escalated, not what the loggers said. The judge said she simply heard Mike giving his perspective. Mr. Bloom told him to just tell what happened.

Mike: The situation became fairly calm, basically. There were conversations that were calm. At one point the police showed up. The loggers told them – well, the police arrived somehow. [laughter in court]. Ciarabellini said we’re going to do to you what we did to your friends in Scotia. They weren’t at the time my friends, but have since become my friends. We tried to talk police out of doing it, told them, we’re not violent, we’re not going to run away. There's no reason to do this. We tried to reason with them, but they pretty much said we’re going to do this and you’re not going to talk us out of it. A fairly large period of time went by, maybe an hour. Sometimes loggers would talk to us, they’d be talking to the loggers. Then an official statement was read, and they said they were going to do this. I was chanting, and Noel was chanting. I’ve done a lot of yoga and meditation, and I was trying to get in a meditative state. I was very scared. There was mud on the bulldozer, I wiped my face in it thinking it might protect my eyes. They lifted my head up by my hair and [applied] pepper spray to my eyes. I slowed down my breathing, kept chanting, tried to separate myself from pain. Soon they sprayed pepper spray over my eyes. That intensified it, and made it harder to breathe. 

Mike said he knew the other pair, a man and a woman, who were locked down to another bulldozer, had given up and unlocked. He remembered hearing Sgt. Ciarabellini say on the video that if they didn't disperse he would arrest them, and when they unlocked he arrested them anyway. He knew Carl Anderson was head of Pacific Lumber security, and he saw him at the scene that day.

He heard Noel's cries of pain when they first pepper sprayed him, and it made him afraid. Then they swabbed pepper spray on his own eyelids, both sides, and not just at the outer corner. Bob Bloom brought out a print of a video still frame showing Mike's face with globs of pepper spray over his eyelids and nose. Mike agreed it showed him, and it was entered into evidence as Exhibit 43. Bob showed a 2'x3' blow up of it to the jury.

Mike said after he was sprayed the pain was increasingly intense and it was more difficult to breath. He felt like he was choking, and he was hyperventilating. But he did not unlock. Why not? Mike: "There were a couple of reasons. One was, we were there to make statement, try and protect forest. I felt it was very profound issue and I would be lessening the issue, and my statement, if I unlocked. And it became at that point a struggle, making a statement against torture, for human rights. I felt if I unlocked it would give them permission to do this to others, because they’d say look it works, we can do this to whoever we want. I felt if I unlocked I’d pass it on to next activists, make it that much harder to stop." 

Eventually the deputies began to use a Makita electric grinder to cut him out. It took about 40 minutes to free him from the time they started preparing him. The videotape ended before they finished, but he had nothing to do with that, and was unaware everything was being taped because he couldn't open his eyes.

What happened when they finished with the grinder and separated his arms from Noel's? Mike: "I was then asked to stand up and get out from underneath the bulldozer. I said something to the effect that I couldn’t see. I lay there. I was having trouble breathing. The pepper spray intensified in effect the longer it was on me, at least the first half hour or 40 minutes. At that point was very difficult for me to function. A police officer grabbed my sweatshirt and started dragging me by the hood. I began choking and couldn’t breathe. The sweatshirt was smashing my Adam’s apple. That wasn't on the video. He was arrested, and one of the charges was inciting to riot. He doesn't believe he was. There were about six people in the woods to support the lockdown, making about 10 people in all who were part of the action.

At the jail he was escorted by someone, whom he of course couldn't see. A female offered him a sterile solution and helped him rinse his eyes, then let him use a sink to wash. It helped some, but he still couldn't open his eyes. He was taken and photographed, and then he was allowed to shower and could finally open his eye briefly to see where he was. He recalled that the spray bottle water at the scene was more painful than helpful. Asked if there was any lasting effect, Mike answered: "There’s definitely a paranoia, a little bit. More than anything, it was a very humiliating and degrading experience. It was the most humiliating thing that ever happened to me. It affected me psychologically. I felt it was a violation of my dignity."

Mike McCurdy Cross-Examination by Nancy Delaney

Q: At all times when pepper spray was applied, your eyes were shut, weren't they? A: Yes.

Q: You were asked to release before it was applied and were told pepper spray would be used if you didn't, correct? A: Yes.

Q: You were told the others had released? A: Yes.

Q: They did that to persuade you to release, didn't they?

Bloom: Objection: he can't say what was in their minds.  Judge: Sustained.

Q: Did it appear to you that was their purpose? A: Yes, they were definitely trying to convince me to unlock.

Q: Were you ever told that if you did unlock that pepper spray would still be used? A: No.

Q: When you were picked up and as you described it dragged by the hood, you refused to get up, correct? A: I did not get up when I was prompted, but I couldn’t see, I was under the bulldozer, I was trying to explain that to them as best I could.

Q: Did the officers position themselves in a manner to assist you? A: I could not see. I’m not sure where officers were. Or, I believe there was only one officer. I believe he used one arm, but maybe two. I couldn’t see, but I believe I was just dragged by the hood.

Q: Before you were moved, could you feel the officer place hands on you? A: I don’t recall that, no.

Q: When you complained the hood affected your breathing were you released? A: At some point – I’m not positive, I believe I was dragged out from beneath the dozer and then I was dropped

Q: You didn’t pass out from loss of breathing or anything of that sort? A: No I didn’t.

Q: Did you tell them dragging you out by the hood affected your breathing? A: I'm not sure.

Q: Did it leave any marks on you? A: I don't know.

Q: Is much of what we see on your face in photo Ex. 43  mud on your face? A: It depends on if you're referring to the dirt or the white stuff dripping down my face and across my eyes. 

Q: Was there mud that you intentionally put on your face? A: Yes. 

Q: Did you do that to interfere with the effect of the pepper spray. A: That was my desperate hope, yes.

Mike agreed that he refused water spray when first offered because the officer told them he was going to use more pepper spray. He heard Noel scream in pain when they sprayed him with it. When he did realize from Noel that it was water he still refused it because he understood it was more painful when water was applied. 

Mike agreed that he understood that the men who came to go to work couldn't do so while he remained locked to their equipment. That's why he was there, to stop them from cutting down old-growth redwood forest and endangered species habitat.

Q: When the officers tried to communicate with you, you ignored them and chanted? A: That was after a long period of communication, after it was clear they were about to use pepper spray.

Q: Did activists shoot video that day? A: Yes, in self defense because of the long history of logger and police brutality against protesters, so we could document it.

Q: Did you see that tape shot by activists? No, they were arrested and the tape confiscated. 

Q: Did you ever try to get it back or see it? A: I don't think I ever did.

Q: Before you locked down did you pay any attention to where the fuel tank was located? A: No.

Q: Did the officers put a protective blanket over you before grinding? A: I don't know, maybe partially.

Q: Were you aware of the danger posed by the grinder? A: No, because there were no prior injuries like that.

Q: Did you consider there could be a first time? A: No, and there's a fair amount of wiggle room inside the lockbox. My hand was not in the area they were cutting into.

Q: Did the officers tell you they were concerned about the risk of injury? A: They could have; I don't recall.

Q: Did they tell you pepper spray was safer than the grinder? A: I think they said it was safer and faster.

Q: Did you suffer any physical injury? A: Yes, it hurt a lot. My eyes were swollen shut. That was physical.

Q: Once the effects of pepper spray were alleviated, you didn't have any lasting physical injury attributed to the Bear Creek incident did you? A: That's correct.

Q: And you didn't seek medical attention? A: Correct

Mike McCurdy Re-direct Examination by Bob Bloom

Q: You said it seemed an hour went by from the time officers first arrived to the time the pepper spraying was done. Is that a fair estimate? A: To the best I can recollect, yes.

 Q: Did Ciarabellini tell you it was important they get you out of there quickly? A: Yes, he said we’re going to do this because it will be faster this way. 

Q: Do you know what took an hour? A: They said they were waiting for their cameraman to arrive before they started applying pspray. 

Q: Did you hear any discussion among officers about if we want to do this quickly, maybe we shouldn't wait for the camera? A: No.

Q: Were you in a position to drain the fuel tank? A: No.

Q: Did you hear or see efforts by officers to drain the fuel tank? A: No.

So ended the testimony of Michael McCurdy.

Jennifer Banka Schneider Direct Examination by J. Tony Serra

Jennifer's personal name is Banka. It's her forest name and her Buddhist name. She used to live in a Buddhist monastery and took vows to reduce suffering in the world. She studied in a monastery and temple at Tassajara in Los Padres National Forest. She has the status of Buddhist monk. She doesn't live in a monastery now, but she still upholds her vows. She teaches yoga. She had four years of college. She came to Northern California in 1991 from New York. She came to study and work at organic farming at an institute in Round Valley, in Mendocino County. She heard about the redwood forests while there. She traveled to India, but promised to return for the Headwaters rally in September 1997. She took additional vows, and the first one is not to kill. 

After returning to California she was working in the kitchen at base camp. She heard about the Scotia protest being planned. She wanted to volunteer, to take it to the source, which was Pacific Lumber. Before coming to base camp she had done other protests to protect animals. She did an anti-fur protest in San Francisco, and other protests. Right before Scotia she went to a rally and protest at Fisher Gate, on the main road into Headwaters Forest. She went there to support other activists. She practiced for the lockdown at base camp. Base camp was a place where the activists camped, shared communal meals, and supported one another.

Scotia videotape

After a brief break, the Scotia police videotape was projected for the jury. This was the first of the three incidents chronologically, and it was the first time anywhere that pepper spray was applied with Q-tips directly to the eyes of nonviolent protesters. The tape began with a rally outside Pacific Lumber's headquarters office in Scotia, a company town. There are chants like "Hurwitz out of Humboldt." There are signs, a giant Charles Hurwitz puppet, and scores of hippies, many with dreadlocks. The scene changes to inside the PL office. It is relatively quiet. Eight protesters are seated and locked together in a close circle, with their legs over the black bear lockboxes to make them harder to get at. They sing "Keep your eyes on the prize, hold on." They chant: "50,000 acres; no compromise," and "Not one more ancient tree." Sgt. Pete Ciarabellini arrives and reads a proclamation of unlawful assembly and commands the protesters to disperse. "You must leave within five minutes or you will be subject to arrest. I intend to use pepper spray or chemical Mace to get you to release." One woman protester says she has asthma and is a school teacher. The voice of PL security thug Carl Anderson is heard saying smugly: "You got an education coming." 

We now skip most of the gory and gut-wrenching details of the 55 minute video, but in summary, some of the protesters gave up at the threat of imminent pepper spray, breaking the circle. Some gave up after being swabbed once. Some of the protesters were swabbed twice, and in the end there were two pairs left attached to each other: Banka Schneider and Sam Neuwirth, and Spring Lundberg and Molly Burton (a former plaintiff who moved away and is no longer in the case).  When the two pairs still refused to unlock after repeated swabbing with pepper spray, they were put on stretchers and carried outside by a long path through the building and out the back way, instead of directly to the outside through the double doors they had come in through. Once outside, Molly and Spring decided they had made their point and unlocked, and were taken away. Banka and Sam still refused, and the tape showed much of the procedure of cutting the lockbox open by grinding at the welded seam where the two legs of the box were joined. The deputy doing the work carefully ground almost but not all the way through the weld. Then he used a hammer and cold chisel to extend the cut. He used a long screwdriver to pry the parts of the pipe apart, then used a bolt cutter to snip through the carabiner clip that attached the wrist chains of the protesters to a pin welded into the lockbox. Once they were freed, Jennifer and Sam were led away. The tape continued for a few minutes to show the outside protest and some of the activists with signs being escorted down from the roof of the PL building. The tape ends and is entered into evidence as Plaintiffs' Exhibit 1.

Tony Serra continues questioning Banka Schneider.

Asked if she did any preparation for being pepper sprayed, Banka said no, neither she nor anyone had any idea it would be used. It never had been used this way before. She expected that the cops would try the ways they have dealt successfully before with lockdown protests: negotiate with the protesters, wait them out, or use the grinder as a last resort. They had used the grinder over 100 times before with no injury at all to either officers or activists. The location of the protest was the Pacific Lumber headquarters, and the reason was that Charles Hurwitz had taken over the company, began clearcutting, and doubled the amount of trees cut. He was accused of theft. Banka did the action as an example of nonviolent protest. She expected to be arrested and fined and to do community service, and she was willing to accept all that.

Q: Was there any threat to office employees? A: No, we talked with employees and told them that we were nonviolent.

Q: Did the officers make the employees leave for their safety? A: No, they stayed in the same room with us. They didn't display any anger or fright.

Q: When you were threatened with pepper spray, why didn't you unlock? A: To show solidarity with the trees; they couldn't move when threatened, so neither did we.

Q: When the grinding was done on the weld in the lockbox, where was your hand with respect to where the grinding was going on. A: A few inches away. I didn't feel in any danger. I had goggles on that the police provided to protect my eyes.

Q: What was the reason you locked together in a circle? A: It was symbolic; redwoods grown in the forest in groups with their roots interlocked.

Q: Did the officers cover up the windows so the people outside couldn't see what was happening to you? A: Yes. It made us feel afraid of what they had planned for us.

Q: Were there any female officers present to handle the mostly female protesters? A: No, and that made me feel unsafe.

When Banka heard that pepper spray was going to be used, she started crying. Then she prayed and chanted to give herself and everyone there compassion. At first she imagined pepper spray would be sprayed in the air, because she knew the manufacturer label cautioned to use at 3 ft. minimum distance. She wasn't told it would be swabbed directly on the eyes with a Q-tip. The first time she knew that was when they did it to her. It hurt, burned, and it intensified. She started crying and the tears made it worse. She spent 5 days in jail. She asked for and was denied a blanket and other things.  She was not offered water to wash her eyes with when she first got to jail. She could feel the effects of the chemical for the rest of the day, and it kept reactivating the next day as well.

Tony Serra showed Banka a print of a video still from the police video. She agreed that it showed the scene. It was projected on a large screen for the jury. In the photo, Ex. 33, three or four of the activists are seen, and one officer is holding Banka's head and swabs her eye. Banka said it hurt intensely, "it was excruciating." The cops did not offer to carry the two of them, Banka and Sam, outside and use a grinder to separate them. She talked to them but "they seemed intent on using pepper spray."

The Riggs office event was more severe for her because they spread her eye and applied a pepper spray soaked Q-tip directly to her eyeball. She was afraid she would die. She couldn't get her breath. She was very afraid, and she was very choked up in talking about it. Tony presents a print of video still Exh. 42A showing Banka being swabbed on her open eyeball as her eyelid was spread open by a second cop.

Q: Can you tell us what is depicted in 42a? A: They’re opening my eye and applying it to my eyeball via Q-tip. 

Q: Are you confident it was applied directly to the eyeball? A: Yes. I could feel it on my eyeball. As they were doing it they came over and one officer came over and held my eye open and I screamed "Not on my eye! You’re opening my eye."

Q: Which eye do you recall direct contact with the eyeball and Q-tip? A: Both.

Banka was not involved in planning the Riggs office protest because she was up in a "tree village" to block a clearcut. She didn't think pepper spray would be used there because it was in a congressman's office, "and I didn't think they would torture us in a congressman's office." Riggs' office was chosen because he was aligned with the timber industry. Deputy Kirkpatrick asked her if she had told her friends what was going to happen to them. She had, but she felt he was using psychological tactics on her, trying to make her feel responsible for what they would do to her friends. She had talked about it to Lisa and Terri, but she didn't get a chance to talk to Maya. She knew Maya was only 16, but "Maya was a young, competent, strong and courageous woman. I loved her and I supported her decision to participate, and so did her parents."

Banka unlocked at Riggs' office after being swabbed when they threatened to spray her directly and she was afraid she would die as a result. The video showed her legs shaking after she released and was seated on a bench. It was involuntary. Maya stamped her feed when she was pepper sprayed. Banka was panicked because she had bronchitis, and she could feel her lungs closing down.

Why did she expose herself to being pepper sprayed a second time? "Because I made a commitment to try to save all beings. And I wasn’t going to let what they did to me stop my commitment. And if it meant taking on suffering for a little bit to help show greater injustice, like other people around world had taken on suffering to show things inhumane, and I wanted those forests there for generations, I wanted to go back and fight for what I believed in, and I wanted to tell other people what was going on.

When she asked for medical treatment in jail, they brought her stuff that looked like chemicals, so she didn't put any in her eyes. She requested medical treatment specifically for her eyes.

Q: Going back to the Riggs office, when you first entered did you hear someone say anything? A: Yes, I heard one of the secretaries say "no one is getting out of here." She ran around locking doors. Her name was Rhonda Pellegrini, as I learned later.

Q: Did you take steps to forewarn the office employees of this demo? A: Yes, two people went ahead and went right up to the secretaries and told them this was a nonviolent protest and we were here to talk to the congressman. We had a dialogue and I talked to them as well, and they understood.

Q: Are you the kind of person who seeks formal medical treatment, from doctors, dentists? A: No.

Q: Tell the jury whether or not the water applications helped you or hurt you? Your sensation with regard to water being sprayed as first aid? A: It wasn’t first aid. It made it worse because it just spreads everything all over your face and in your mouth and reactivates it. There were times I had so much mucous I couldn’t breathe. I kept trying to wipe it on my sweatshirt. It just kept spreading it.

Q: Since those two pepper sprayings and Q-tippings on your person, have you experienced anything negative that you previously did not experience? A: I just had fear. I do protest and I have a fear of having chemical agents used on me  and used on my fellow nonviolent protesters.

Q: Have you had bad dreams? A: I’ve had nightmares.

Q: Has the experience changed attitude to law enforcement? A: Yes

Q: To men? A: Yes. Because they were the ones that did it to me.

Q: Have you in any fashion relived the experience? A: Yes, by having to watch these videos again, it brings it up all over again.

Q: And we saw you emoted even while testifying here after watching the video. Is that common with you? A: Yes, they’re my friends. And in Riggs he did me last, so except for Lisa who I couldn’t see because of the stump I could see what they were doing to the others. And at Scotia I could hear Molly and Spring crying, and I was friends with Molly, and I could hear her say "You’re hurting me, don’t hurt me."

Q: Was it traumatic for you?  A: Yes

Q: Has it been post traumatic for you? A: Yes.

Jennifer Banka Schneider Cross-examination by Nancy Delaney

Ms. Delaney asks Banka to approach the projection screen with the blow up of the video frame showing her eye being held open as it is swabbed with a Q-tip. She asks Banka to point to the white of her eye. Banka points to the left, and then the right side of her iris. Delaney then shows Ex. F1, about 1 frame before or after the one previously on the screen. Now the white Q-tip is below the center of the eye. 

Q: Do you now see that what you identified as the white of your eye is the Q-tip? A: I see the Q-tip and the white of the eye.

Delaney passes the picture around the jury. 

Q: We all agree the picture depicts your left eye? A: Yes.

You were deposed Feb 10, 1998. You were under oath. You were told if you answered questions at that time the question and answer may be read to a jury in this action. And you were told you’d have an opportunity to review your deposition transcript and make corrections? A: Correct.

Delaney: I’d like to read from p141 lines 10-12 of Ms Schneider's deposition. Q: Was your eye open or closed when the pepper spray was applied? A; I can’t recall.

Delaney:  You told Mr. Serra you observed applications to Terri and Maya. No one opened eyes of Terri or Maya that you observed? A: Not that I could tell.

Q: Wasn’t it after there was this distorted digital blowup where the Q-tip looks like the white of the eye that you decided to say your eye was open when applied?

Objection to editorializing about the image. Sustained.

Q: Did you first indicate your left eye was open when applied after observing this digital photograph? A: No.

Q: Did you change the deposition testimony in any way? A: Yes I refreshed my memory and saw the videos because I was so frightened when I was trying to recall everything and I couldn’t recall everything.

Q: My question was, did you ever submit a written change to the deposition between the time you gave deposition testimony and you gave an account of having your left eye open or recalling it being open? A: No.

Q: Back to the beginning, before Scotia. I believe you told us there was practice for the events? A: Yes.

Delaney: For the record, this is Ex. E.

The defense shows an activist's videotape of protesters practicing lockdown at base camp. Then it shows a truckload of big logs on the highway ahead of the van carrying them to the Scotia PL office. The activists wait in the van outside the office. They bail out of the van and run inside with a lockbox already attached to one arm. They quickly sit down in a circle and lock down. They say hi to the receptionist and they chant "Hurwitz out of Humboldt, Maxxam go away." A young woman goes around helping them adjust the lockbox positions.]

Q: Did that video depict practicing for event at Scotia? A: Yes.

Q: Did you participate in that practice? A: Yes.

Q: And it depicted the entry into the office at Scotia long before law enforcement was aware of event? A: Yes.

Q: Who were the people assisting in the event? A: Other activists.

Q: You told us before that the woman going about the office assisting you in moving the lockboxes, she's ... A. Ann.

Q: Referred to as Anarchy? A: Correct.

Q: And Duff? A: I think he was the videographer.

Q: And Olive? A: No I don’t think Olive was there.

Q: Do you recall any of the others assisting you? A: Just Deer.

Q: Who is Deer? A: Another activist.

Q: What is Deer’s name? A: I don’t know that.

Q: Before the event at Scotia, had you ever had a device such as that ground off you inside an office building? A: No

Q: Do you have a special name for lockdown in office, like urban action? A: I don’t have a special name.

Q: You’d never before had a lockdown device physically removed by grinding inside a building? A: That’s correct.

Q: You told us your fingers were several inches from the point of grinding?

Mr. Serra: Objection to examination based on the photo because there’s no foundation that’s her finger.

Delaney: Ms Schneider, do your recognize the lockbox depicted in photo Ex. B9 as the lockbox to which you were connected with Mr. Neuwirth: Those were Neuwirth’s fingers? A: Yes.

Mr. Serra: Objection,  no foundation

Judge: She just said they were Mr. Neuwirth’s fingers.

Serra: That’s speculation. How can someone know someone’s fingers. There’s no foundation.

Judge: The objection is overruled given the state of the evidence. And you may show it, Ms. Delaney.

Delaney: The concern you expressed that these events created for law enforcement have not stopped you from locking down in these types of devices, has it? A: Correct.

Q: In fact, you’ve locked down in a device where your colleague was burned by another agency when officers were attempting to manually remove the device? A: That’s because they didn’t do it correctly.

Q: That was San Francisco Police and Fire Dept. trying to take one of these off? A: Correct.

Q: And they got it wrong and your colleague’s arm was being burned, and you still didn’t unlock? A: No, I screamed out pour water down your lockbox, you’re not doing this correctly.

Q: So you understood that Humboldt County were taking the utmost care? 

Serra: Objection, calls for a conclusion.

Judge: Sustained.

Delaney: Humboldt County law enforcement didn’t injure your colleague, did they? A: Correct.

Q: Did you have any thought that there may be a risk of injury when someone such as Mr. Neuwirth’s fingers were as close to the cut as it was? A: I know there’s always risk of injury.

Q: You indicated to Mr. Serra you had undergone backwoods and nonviolence training. A: Mm-hm.

Q: And in that training you use a direct action manual? A: Correct.

Serra: Objection to Direct Action Manual. There’s been ruling on that so I move to strike it.

Judge to jury: Take a ten-minute recess. Don’t talk to anyone about this case, I mean not anything related to case. Even prior experiences you may have had that are similar or dissimilar to what happened here. Stay totally away from the case until deliberations.

The jury leaves.

The judge tells Ms. Delaney the ruling on the plaintiffs' motion in limine regarding the manual is that she may bring it up only in relation to the defendants' state of mind, but not in connection with the plaintiffs. Delaney argues that Serra opened the door by going into nonviolence training, so she should be able to bring up the manual in connection with that. The judge gets hot with Delaney, saying the order is clear that she can't bring up the manual. She can question plaintiffs about nonviolence training, but she can't bring up the manual.

When the jury is back, Delaney continues cross-examining Banka Schneider.

Q: Did the training you said you did before your action include how to delay arrest? A: No.

Q: You heard on the Scotia video a smart aleck statement that: "You're going to get an education." That wasn't a law enforcement officer, right? A: Right.

Q: You never heard from any law enforcement officer that pepper spray was to be used for any other reason than to get you to release, right? A: True.

Q: You didn't tell others they shouldn't do the Riggs office action did you? A: They're independent people. I told them what happened to me and they made their own decisions.

Jennifer Banka Schneider re-direct examination by Tony Serra

Mr. Serra: I want to read from your deposition different lines from the same page read by Ms. Delaney: "Q: By the time they swabbed your right eye, had you closed it? A: I closed it as soon as they let go so they wouldn't stick it back in."

Q: To what were you referring? A: To my eyeball.

Mr. Serra reads another page where Banka shows how the cops forced her eyelid open. He has her demonstrate to the jury what she showed in the deposition. She placed the fingers of one hand above her eye and the fingers of the other hand below it and spread the eyelids apart.

Mr. Serra has someone get a wrist chain from the defendants' exhibit collection and has Banka put it on. Then he has her place her arm alongside a black bear lockbox and simulates with a pen the location of the rebar pin which the wrist chain is locked to. He asks Banka to estimate the distance between her hand and the pin. She balks, saying she's not good at estimates, but accepts Tony's estimate of 5 or 6 inches.

Q: So while being ground out, your hand was five or six inches back from where the grinding was going on? A: Yes.

Banka re-cross-examined by Nancy Delaney

Delaney: Are all chains used in lockboxes identical? A: Yes.

Q: Exactly? A: Pretty much. I don't know everyone's exact carabiner and chain.

Q: Is there any way an officer can know for sure how far back the hand is? A: I don't know, but they have cut out over 100, and they can see the chains and carabiners, so they should know.

Brief re-direct by Serra

There was a brief final question regarding an incident in Sacramento where Banka clarified that someone else, not her, was involved, and they used a U-lock, not a black bear, so the situations were not comparable.

Deputy Sheriff Marvin Kirkpatrick Direct Examination by Bill Simpich

Deputy Marvin Kirkpatrick is now and was at the time of the 1997 incidents employed by the Humboldt County Sheriff's Office as a deputy sheriff. He's been a deputy for 19 years. He was a member of the Special Response Team to deal with protests, also known as the Earth First! Response Team. Sgt. Pete Ciarabellini was in charge of the incident at Scotia in September 1997. Asked for the record to name those in the chain of command above him, he does so, naming Lt. Busey, Chief Deputy Philp and Sheriff Lewis among others. Kirkpatrick received a special commendation for his service at year's end in 1997. He agreed that he never had heard of any threat of violence from Earth First!ers.

After brief training in the use of the electric grinder, Kirkpatrick ground out a protester for the first time in 1997 at Carlotta. Before that he had practiced cutting a piece of large pipe with the grinder. He knew that grinders had been used dozens of times before with no injury and with success at removing protesters. With scant experience using a grinder he told a superior he feared causing an injury with the grinder. 

He soon learned he would be the one to use pepper spray on locked down protesters. He said the reason for using pepper spray was to prevent injury to protesters. Turning to a transcript of Kirkpatrick's deposition testimony, Mr. Simpich established that he had previously said neither Philp nor anyone else had told him why pepper spray was to be used.

Q: So Philp told you to apply the pepper spray with a Q-tip to the outside corner of the eye? A: Yes.

Q: Was there any discussion about swabbing across the eyelid or spraying directly at close range? No.

Q: Any discussion about first aid? A: No. I knew first aid.

Q: Philp didn't say use water for relief? A: No. I knew that.

Q: Did you receive any training in using a Q-tip? A: No

Q: Any discussion about using pepper spray on juveniles? A: No

Q: Doesn't pepper spray have to be in the eye to be effective? A: In the eye area.

Mr. Simpich read from Kirkpatrick's 1998 trial testimony where he said pepper spray has to get into the eye to be effective.

Q: Is that so it causes enough pain? A: No, to be effective.

Q: Are  you telling us pepper spray doesn't cause pain? A: Some people call it pain.

On further questioning the witness resists admitting that the purpose of using pepper spray is to cause pain.

Q: You knew the recommended first aid was free flowing water, but you only used a spray bottle? A: That's what was available.

Q: Wasn't the purpose of the spray bottle to offer a little relief and make the protesters want more? A: No.

Q: Was there any discussion at the scene of negotiating with the protesters as an alternative to using pepper spray? A: No.

Kirkpatrick said he used only one Q-tip for multiple protesters at each event, three events, three Q-tips. He wasn't concerned about the possibility of spreading an infection from one protester to others.

Q: You said that at the Scotia event you just dabbed a little pepper spray on the cheek at the outside corner of the eyes? A: Yes.

A portion of the police video was projected on screen, showing the swab clearly moving from side to side as Kirkpatrick applied pepper spray to plaintiff Sam Neuwirth. Kirkpatrick denies the video shows what it clearly does. Mr. Simpich shows more of the video where Kirkpatrick swabs Spring Lundberg, clearly moving the swab from side to side as she wriggles to try to avoid it. 

Q: Were you concerned about possibly poking her eye with the Q-tip? A: No.

In further questioning Kirkpatrick said he had not used a Q-tip to apply pepper spray to anyone since the 1997 incidents. He reaffirmed earlier testimony that he considered pepper spray less painful than a bruising blow or a broken bone. After the Scotia incident he was debriefed by Philp. 

Q: You advocated longer and stronger use of pepper spray? A: No.

Q: You told Philp you thought it should be left on longer? A: True.

Q: You told Philp you wanted a stronger dose? A: I don't recall saying that.

Reading from deposition, Kirkpatrick had said earlier "I felt it was too little chemical agent. We needed to use more."

Q: That's stronger, right? A: No

Q: You wanted to use more pepper spray? A: Right.

Q: More equals stronger, right? A: No, I thought stronger meant higher concentration of agent.

Q: Chief deputy Philp didn't chastise you at all for anything you did at Scotia, right? A: True.

Q: He authorized you to use full spray? A: Yes.

Q: You’d never heard of anybody using full blast spray against locked down forest protesters, had you? A: Correct.

Q: He said keep it on longer before first aid? A: Correct.

Q: At Bear Cr. there was a claim of fire danger. But there was a fire extinguisher sitting in the bed of a parked truck when he was being ground out? A: Yes, available to us at all times.

Q: At Bear Creek you waited longer to give first aid? A: Yes.

Q: At Bear Creek, you say you put pepper spray on the cheek by the outside corner of the eye? A: Yes.

Q: But the video showed that by accident or design you wiped it across the eyelid, right? A: No.

Q: When Sgt. Ciarabellini told you to use spray you aimed it at Mike's face? A: Yes from about a foot away.

Q: You sprayed it directly in the eyes? A: No, above the eye area, so it would run down into the eyes.

A clip of the video was displayed. It clearly showed plaintiff Mike McCurdy being sprayed at close range back and forth across both closed eyes and in between.

Q: You were trying to maximize the effect of pepper spray weren't you? A: No.

Q: Then were you trying to minimize it? A: No

It was 1:35 PM and time to quit for the day. The questioning of Marvin Kirkpatrick will be continued. The judge reminded the jurors not to talk to anyone at all about the case and to avoid exposure to media stories or the Internet about this case or issues involved in it.

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