No Pepper Spray on Nonviolent Protesters

(posted in part 4/19/05, revised 4/20/05, completed 4/24/05)

Log of 2005 Trial in Pepper Spray Q-Tip Suit
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Day Four, Monday April 18, 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

Deputy Sheriff Marvin Kirkpatrick Direct Examination by Bill Simpich (Continued from previous day)
    Kirkpatrick Cross-Exam and Direct Examination for Defense by William Bragg
    Additional portion added 4/20/05 
    Re-Direct Exam by Simpich
    Re-Cross by Bragg
Lisa Sanderson-Fox Direct Examination by Bill Simpich
    Cross-Exam by Delaney
    Re-Direct by Simpich
Sheriff Gary Philp Direct Examination by Dennis Cunningham (completed next day)

Deputy Sheriff Marvin Kirkpatrick Direct Examination by Bill Simpich (Continued from April 14, 2005)

Q: When we broke on Thursday I asked if your intent was to minimize pain at Bear Cr. Your answer was no? A: Correct.

Q: Did anyone warn you not to get within a foot when spraying pepper spray? A: No

Q: You threatened to spray Noel Tendick a second time? A: No, Sgt. Ciarabellini did the talking.

Q: The intent was to bluff him out? A: Yes.

Q: Mr. Tendick was led to believe he was going to get sprayed again? A: Yes.

Q: Then you sprayed with water? A: Yes.

Q: You knew a little water would hurt, and he was screaming? A: I don't know if I'd say he was screaming.

Q: You're torturing the victim for another 5 min. by giving little bits of water?

Objection. Sustained.

Q: You didn't offer a hose or bucket of water? A: None were available.

Q: No bathroom anywhere at Bear Cr.? A: No.

Q: This was done to passive protesters sitting down and not threatening officers or anyone? A: It was active resistance.

Q: Noel Tendick was dragged on the ground when he couldn't walk, right? A: He refused to walk.

Q: No tarp or blanket was used used, he was dragged through wet mud? A: True.

Q: An officer kicked him? A: I didn't see that.

Q: The video camera was turned off then? A: True.

Q: In your previous debriefing after Scotia you were told to use more PS and leave it on longer? A: Yes.

Q: At Riggs office you met Eureka PD Sgt. Manos outside and then went inside? A: Yes.

Q: Did you consider you were there for any other reason than to use pepper spray? A: Yes.

Q: Did special services deputy say a grinder would be dangerous inside? A: Yes.

Q: You knew there had been no injuries before from a grinder? A: Yes.

Q: Fire danger was from wood chips? A: Yes.

Q: They could have been swept up, couldn't they? A: That wasn't the only consideration.

Q: There was no fire danger at Scotia, right? A: True.

Q: You could have used a fire retardant blanket at Riggs office, right? A: Yes.

(portion missed here)

Q: You could have negotiated with the protesters at Riggs? A: Yes.

Q: The Eureka PD video guy was a trained negotiator, right? A: I didn't know that.

The witness agreed it was the peak of Pacific Lumber cutting season and there were thousands of protesters in the area for the big September 15 rally, and hundreds at base camp. The three protests at issue were not the only ones going on.

Q: Sgt. Manos ordered use of pepper spray and said spray if Q-tip didn't work? Yes.

Q:  Your incident report says you put pepper spray into the eyes of the protesters? Yes.

Q: You knew a juvenile was there? Yes, but I didn't know which one.

Q: Policy doesn't differentiate juveniles? A: True.

Q: Can you now tell us which plaintiff was 16 at time? A: Probably that one. (Indicates Maya Portugal.)

(Videotape is shown showing first swabbing of Maya.)

Q: You loaded up the Q-tip, dunked it twice before swabbing both her eyes? Yes.

Q: She wasn't moving her head was she? No.

Q: You were stroking it back and forth across her eyes? No.

(Shows tape again. He is clearly stroking swab across her eyes.)

Q: That shows stroking each eye two or three times doesn't it? No.

Q: You got as much as possible into her eyes? No.

Q: You testified in deposition and at previous trial and in your report that you only applied pepper spray to the outer corner of the eye? Yes.

Q: Your purpose is to get it into the eye? Yes.

Q: Did you see anyone holding Jennifer Schneider's eye? Yes, Sgt. Manos.

Q: The purpose is to open eye? No

Q: You heard her say "No, don't open it?" Yes.

(Shows tape of Banka being swabbed, saying don't open it.)

Q: Now do you agree you swabbed across her eyes two or three times? No.

(Show tape again.)

Q: Does that change your testimony? No.

Q: You wouldn't describe what we saw as trying to minimize pain, would you? A: Yes I would.

Q: You were trying to scare these women to death, right? No.

Q: None of the four were linked to the stump? A: True, they were linked to each other.

Q: After two released you had only two linked women. You could have carried them out, right? A: No.

Q: Stretchers would have been useful for that? Yes.

Q: You sprayed Terri from just inches away? A: No, about a foot.

(Show video clip. Pause tape. Manos is holding Terri's head.)

Q: Now, Manos has pulled her by the hair again? Yes.

Q: You're going to spray her a second time right? No.

Q: You wouldn't describe that as minimizing pain would you? Yes, I would.

Q: On passive protesters? A: It was active resistance.

Q: You sprayed water on faces even when they said they didn't want it? A: Not true.

Q: You didn't let them use a restroom to wash because you were told to withhold first aid? A: (unclear)


Deputy Kirkpatrick Direct-Examination for Defense by William Bragg

(Note: Although he was called as a Plaintiff's witness, Kirkpatrick is also a Defense witness, so the Defense counsel is not limited to cross-examining him on the topics covered in the direct exam by Plaintiffs, although he will include cross-exam questions too.)

Kirkpatrick grew up in Garberville, in Southern Humboldt County. The county is a large mostly rural county, about an hour's drive north and south, with a population about 120,000, mostly clustered in the area around Eureka, the county seat.

The deputy is married, with a 19 year old son and 11 year old daughter. He got into law enforcement first as a reserve deputy about 1983-4 when he was about 21. He took reserve deputy training course at College of the Redwoods, and had some chemical agent training. It's a junior college with a certified police academy, but he didn't have full police academy before reserve. He wanted to see what law enforcement was like before going through the full academy. He was a reserve deputy in a backup, ride-along role for about two and half years. He liked it. He graduated police academy in April 1986. He was trained in all aspects of  law enforcement at the academy: chemical agents, defensive driving, police tactics, firearms, ethics, narcotics, the laws.

In chemical agent training he was exposed to CN and CS. It was before OC pepper spray. CN and CS are tear gases, chemical synthetics. Mace is a company that makes CN. It's a brand. Synthetic means a concoction of chemicals. OC is natural, an extract from the cayenne pepper family in a liquid form.

Pain compliance is a technique to inflict pain or discomfort to get compliance. He was trained in it at academy. Techniques included wrist locks, pressure points and the like. Mr. Bragg has the deputy demonstrate a wrist lock and a carotid pressure point on him in front of the jury. Kirkpatrick says there is potential for injury from pain compliance, including tissue injury, sprains and bruising, and people have been injured, including broken bones. 

After police academy, Kirkpatrick had additional chemical agent training in July 1998 (after the incidents at issue) for the purpose of becoming an instructor, and he qualified as a chemical agent instructor. He got the training at Napa college. It was a 32 hour POST certified course.

POST is an acronym for Police Officer Standards and Training. They issue guidelines for training and policy development. Each department still makes its own policy. The makeup of POST includes some law enforcement officers or retired officers. POST issued a chemical agent policy guideline.

Kirpatrick took training in civil disobedience control, including chemical agents, and covering lockdown and non-lockdown situations. Pepper spray was included, but they applied it with gauze pads which deliver considerably more agent than Q-tips do. There were about 20 or so in the class at Napa, and only two from Humboldt. The rest were from all over. Napa, Sacramento, US Navy.

Q: Were they being trained on application of pepper spray to the eyes of lockdown protesters? A: Yes.

Q: Similar to the manner you applied OC to eyes but you used Q-tips and they said use gauze and it delivers more pepper spray? A: Yes.

Q: The purpose of OC in eyes is to induce pain and discomfort? A: Yes.

Q: Last week you were asked if OC causes pain and you said some would say that? A: Yes. Some people in training said it was irritation and some said it was painful.

Q: You said it was less painful than a broken arm? Yes.

Q: Why? A: Because it's temporary discomfort that will go away. A broken bone hurts much longer.

Q: Prior to 1997 protests, did you use OC on any non-aggressive person resisting an order? A: Yes. It was a traffic stop. The person refused to get out of vehicle. Held onto steering wheel. I used OC on him. Sprayed in the eyes and whole face.

Q: That was maximum exposure to OC? Yes.

Q: Why did you use maximum? A: I used enough to overcome resistance.

Q: It involved airways? Yes.

Q: So it was approved for non-aggressive people who wouldn't follow orders? Yes.

Objection: This was 1998 and so not relevant. Defense: No it was before 97. Judge: Overruled.

In 1997 Kirkpatrick was assigned to a special response team to handle demonstrations. Sgt Ciarabellini headed the team and there were three or four others including Kirkpatrick. Special services officers were a different thing, including a boat patrol, livestock, beach patrol, and search and rescue, all involving special skills. The special services needed for protests included using grinders, jackhammers, and tools like that. Kirkpatrick had no expertise in that kind of equipment, but he got some training from special services with the Makita grinder, jackhammer, cutting torch, and hammer and chisel. The trainees were shown to operate the tools and cut pipe with the grinder. They were shown how to cut the weld on a black bear lockbox, then use a chisel and then a crowbar to pry it open.

Kirkpatrick was not exclusively on the special response team. He did patrol duty, all kinds of situations. Regular law enforcement patrol duty. Special duty was about 10% of time. The rest of the time he dealt with violent crimes, domestic violence. Child abuse, both physical and sexual.

Q: You sometimes had the perpetrator right there, having seen what they had done? Yes.

Q: Did you take out your anger on them? A: I did my job to enforce the law and take subjects into custody.

Q: Would you say that dealing with protesters made you angry? No.

Q: Did you personally participate in decision to use OC on protesters? No.

Q: You did tell supervisors you were worried about injury from the grinder? Yes.

Q: Did you actually grind anyone out of a black bear? Yes, one and a half times.

Q: You got the second one half way done and then turned the job over to someone else? Yes.

Q: It only took once to decide that wasn't the way to go? Yes. I was concerned about cutting off a finger, ligaments, bone. "I told Ciarabellini about my concerns. Somebody's going to get hurt, not only them but possibly us, because grinders are dangerous."

(missed a little here)

Kirkpatrick learned pepper spray had been authorized about two days later. Ciarabellini told him, and Philp was there at that meeting. He was given two canisters of OC pepper spray and two canisters of Mace brand CN. Eventually cotton swabs were issued too. He understood any use of chemical agents was to be minimized and to exclude involvement of the airways. CN is like a vapor, carried by air. It causes contamination of the whole area. Pepper spray is heavier and is more limited in area of coverage. Otherwise everyone in the room would feel it.

Q: You are now qualified as instructor in chemical agents? Yes.

Q: In retrospect is there any additional training you feel you needed to use OC on protesters? (missed answer)

Q: How were you instructed to apply OC? A: Apply a little to the outside corner of the eye.

Q: Did you consider how to avoid injury to the eye with Q-tip? Yes, hold at an angle outward from eye and to the side.

(Bragg asks Kirkpatrick to demonstrate for the jury how he would apply OC with a Q-tip, using a pen as a stand-in for the Q-tip. Then Bill Simpich supplies an actual Q-tip. Bragg sits in a chair and Kirkpatrick demonstrates to the jury. Afterwards, Bragg has the Q-tip numbered as an exhibit. Judge asks if he wants it in evidence. He says no. Simpich says yes and it is received in evidence.)

(Following portion added 4/20/05)

(Note: To save the hours of work necessary to edit and format for web presentation, the following portion is presented in semi-rough form. We're leaving off the Q and A labels, but each line usually begins with a question, and is followed by an answer. We don't have the staff to edit it further, and we're sure most people can get the meaning and extract the essential information. Please remember that although this looks like a verbatim transcript, it often varies from the exact words used, and is paraphrased as accurately as we can remember and typed as  rapidly as possible, with no time to correct typos or catch every nuance. Quotation marks are placed around anything important that is felt to be verbatim. And now we return to the regularly scheduled program.)

Turning now to the Scotia incident, was it the first time you were involved in applying OC to lockdown protesters? Yes

Were you involved in the decision to use pepper spray in this way? No. Ciarabellini was.

Did you suggest OC instead of CN? Yes to avoid contamination of the area.

Ciarabellini authorized him to use chemical agent.

There was a quote read last week. I'll re-read p 238 line 15 of your deposition, and continue to 239

Quoting the deposition transcript:. If your superior officer tells you to do something does that make it reasonable? No. If I felt it wasn't reasonable I wouldn't do it.

Q You have to comply with sheriff's office use of force policy? Yes.

Do you feel the order by Ciarabellini violated that policy? No

On the video you had some conversation with protesters before applying OC? Yes

Why? To give them another chance to unlock, avoid OC.

You recall a lot of screaming going on at Scotia? Yes

Was the person screaming pepper sprayed? No, she had already unlocked.

Is pepper spray available to the public? Yes.

Do I have to register to get it? No. You have to be 16 to buy it

Can people take it to parties, movie theaters? Yes

At the conclusion of Scotia event, after first aid, were 4 protesters carried outside? Yes.

By sheriff's personnel? Some of them. also Pacific Lumber and the fire dept.

Why? We didn't have enough people and they had the back boards to carry with.

You heard of injury to officers from carrying people? Yes

A deputy was injured? Yes from carrying a protester. Back injury ended his career.

Picking them up on a backboard, was there concern about the heavy black bears? Yes, possible injury or fractured arm.

(missed a bit here)

Were the pairs of protesters carried side by side? Yes

What would happen if one of those carrying them tripped and fell? Possibly broken arm of protester.

(break 10 min at 11:05)

(Judge reads a note from a juror. "Tracy (the judge's clerk), one of the plaintiffs attorneys keeps turning to the jury with an exploitative look. Is that proper conduct?" (He's referring to Bill Simpich. Mr. Rolley is the juror)

(After break and before jury returns, Bill asks the judge if he may address the jury and apolgize. She tells Bill he may not speak to the jury.)

(When the jury is in, judge tells them the note was the right way to go when they perceive a problem.)


How did you decide to use a spritz bottle? I needed to use water for first aid. It's commonly done in the field by other departments.

When did you decide to stop spraying water? When the protesters said stop.

Did you ever withhold water? No.

(Shows videotape Scotia timestamp 1:23 PM spraying Molly with water, she sobs and cries in pain. MK sprays Spring. Then Molly again, then Spring again. Spring reacts in pain at being sprayed at 1:28. MK tells her not to open her eyes. The tape goes on and on with MK spraying Sam, Banka, Spring and Molly, while chewing gum. Bragg pauses tape at timestamp 1:42:56 and asks MK about what he's saying to Spring and Molly. MK says he's telling them if they unlock they can use a hose outside to wash their eyes out. They didn't release.)

Q: Did they open their eyes when you sprayed water? Yes

(Continue tape until it ends at timestamp 1:43)

Q: After this event there was a meeting with a supervisor? Yes

Subject of discussion was possibly increasing the time the protesters would be subjected to or allowed to experience the OC, and increasing the quantity? Yes.

Last week you were asked if you were going longer and stronger and you said not stronger but more quantity? Yes

Are there different strengths of OC? I think they're all about 10%. I thought he was asking about using a more concentrated, stronger OC solution.

(missed question)  A: Situation where they would feel pain from water would be if they kept eyes tightly closed and then the water washes it into the eye. Or mud.

Was the operation successful? Yes. At Scotia they w ere all with legs over lockboxes where you couldn't use a cutting device. Using OC got some to release and made it easier to deal with the rest.

How long un til you got to Bear Cr. from time you got request? About an hour. It's 5-6 miles but it's a logging road.

Where's the nearest structure? Probably in Pepperwood area, 7-8 miles total, slow on logging road.

How many locations where people locked down at Bear Cr.? Two, an upper and a lower. The upper site was man and woman locked to loader. Use OC on lower site, two guys locked to bulldozer.

Who authorized using OC at Bear Cr.? Ciarabellini.

Did you ask them again to unlock? Yes. Why? Wanted to give them another chance to avoid pepper spray.

There were other protesters in the woods? I could hear them yelling.

Were there efforts to communicate from woods to Mr. Tendick? I heard them talking but don't recall what they were saying.

Did you arrest them? We got a couple of them, not all.

After they released was Mr. McCurdy the one under the dozer? Yes.

Did deputy reach under and pull him out? Yes.

Did McCurdy walk to van? (missed part of answer) Deputies picked him up by arms and walked him. (not sure if referring to Noel or Mike)

The earlier pair unlocked when warned chemical agents would be used? Yes.

How were you first notified to respond to Riggs office? Believe it was radio from dispatch to me. Sheriff dispatcher.

Met with Eureka Police Sgt. Manos outside. He asked me what we had done with earlier lockdowns. I told him we had used grinders and later chemical agents. He talked to special services too when they responded. Dep. Reynolds was spec. serv. guy.

Did you make any recommendations? No.

Sgt. Manos told me it was dangerous to use a grinder inside. He talked to Capt. Honsel of Eureka PD.

When you first arrived did you enter the office immediately? No, was outside at first.

Did you have chemical agents with you? They were in vehicle.

You had to go back to car to get them? Yes

Did you personally inquire of each protester if they would release before using OC? yes

This was after you were authorized to use OC? Yes, to give them another chance.

Were you ordered by superior to do that? No

We saw officer grab protester by ponytail. Is that a proper means of restraint? Yes

(missed some)

Did you hear J. Schneider say don't open them, referring to eyes? Yes.

(Shows tape Riggs timestamp 10:46 AM slow motion swabbing of Banka's right eye.)

Were you applying it by just touching the outer corner, even though it looks like you're swabbing it back and forth? Yes

Did you see left eye open when you swabbed? No.

Was it in fact the Q-tip and not the white of her eye that we see in the video? Yes.

Did you withhold water? No

Was that operation a success? Yes. We got compliance. No injuries

So Ms. Portugal's parents were able to pick her up at juvenile hall and not the hospital? Yes.

That's all.

(SIDEBAR requested by plaintiffs at 12:11 PM)

(Bragg moves Exh ____ and __ in evidence)



Were q-tips ever used on nonviolent protesters after 1997? There was one event in 97 after the 3 here, and we used cotton balls, not Q-tip.

None of your training had to do with Q-tips or cotton balls? No.

You complained of grinder danger? Yes

There were other deputies who had used grinders dozens of times? Yes

You were a grinder rookie, but you made a complaint? Yes

Last week I asked if you were tantalizing protesters with a little water and not giving them enough when they wanted it? Yes, but that's not what happened.

Does grinding cause pain? Could burn them.

Do you use water to cool pipes to avoid pain from burns? Yes.

You could have waited out or negotiated without causing pain. Yes.

The guy in the car that you sprayed, he could have had a gun, so you had to protect yourself? I sprayed him to overcome resistance.

Fact is these protesters were not aggressive were they? No

Were you aware the manufacturer's guideline said don't use closer than 3 ft.? Yes.

You were aware you were being videotaped? Yes

(Trial transcript page 837 line 13-20 Bragg says it's not contradictory. Judge allows reading.)

Quoting: Ciarabellini told you leave it on longer, wait longer to apply first aid.

So you withheld first aid? No. Gave it as soon as ordered.

Was there a restroom at Riggs office? Yes.

You didn't offer use of it to wash out their eyes? No, I applied first aid.

You didn't allow them to use restroom? Would have if they asked. Didn't offer

(missed some)

At the time of the Scotia incident you hadn't had any training in chemical agents for five years? True

You didn't get any additional pepper spray training until 1998? True

POST doesn't make policy does it? No just guidelines.

POST doesn't decide constitutionality does it? No

That's for this jury to decide? Yes

POST guidelines didn't recommend using pepper spray by q-tips nonviolent protesters did it? Yes it did.

(missed some)

POST had discussions with Humboldt officers after an avalanche of media about the Q-tip pepper spray exposure on TV? Don't know when they issued guidelines.

(Bill presses him, but Bragg objects, sustained).

POST doesn't mention Q-tips? No it recommends gauze pads.

(missed some)

You were told to stick to your report, don't budge? Don't understand the question.

You insist you applied OC only to outside corners of the eyes? Yes

You're sticking to your report? Yes.


You're trained to write a truthful and factual report? Yes.

So you just stick to the truth? Yes.

Kirkpatrick excused at 12:20

Plaintiff Lisa Sanderson-Fox questioned by Bill Simpich

Lisa now lives in El Paso, Texas, where she is studying midwifery, and she will be leaving today after court to return there. She is a community health care provider and educator.  She previously lived in Southern Mexico providing women's health care.

Lisa worked with the group Food Not Bombs, and she had gone to the September mass rallies for Headwaters in 1995, -6 and -7 to help provide food. In 97 she went hiking in the woods at Owl Creek and saw clearcuts right next to intact old-growth redwood forest. That made her want to do more.

She engaged in dialogue with a logger in woods. It was inspiring. They talked about chemicals, Garlon, impact on water, poisons in drinking water. He felt powerless to make any change. He wasn't aware of toxicity of Garlon.

Lisa said the Headwaters deal was not a good one, as Headwaters was 60,000 acres but the deal was just for a little bit of it, and they could clearcut the rest. It was very upsetting to see the devastation of a clearcut and think about what forest was left still being devastated.

Lisa went to a meeting at base camp about Riggs. She understood he was going to be at his Eureka office  and it would be an opportunity to engage with him. Lisa knew arrests were possible if they did a sit-in at Riggs' office, but the only person committed to being arrested was Maya.

Lisa didn't know Maya's precise age. She was a local person.  She was inspired by Maya's bravery and decided to volunteer herself. Terri joined them and a day or so later Banka joined, only a day before the action.

Lisa had no personal experience with lockboxes, so she practiced with them. She had heard of pepper spray being used before, but thought it was sprayed. She hadn't seen the videos of the Scotia and Bear Creek incidents, and didn't know the details of what deputies did at those previous actions.

The training Lisa got was about being nonviolent. Civil disobedience and locking down were part of the American tradition of protest since the 1920s. Women locked down then in Richardson Grove. Lisa wasn't sure that incident led to formation of Save the Redwoods League, but allowed it was possible.

Lisa told the secretary at Riggs' office on the day of the incident that they wanted to talk to Riggs about logging, jobs, watershed damage and the like. She talked to two secretaries at Riggs' office. She learned one secretary's father is a logger.

Neither office worker indicated at all they were scared when the protesters arrived. One woman was angry and tried to lock everyone in the office. After they explained what they were doing there a secretary took out a Polaroid and took snapshots "for the congressman's scrapbook."

The mood at first was lighthearted, friendly, wanting to communicate. They sang and talked. When the cops came the atmosphere changed a lot. They told the four they were trespassing.

Lisa was scared when told chemical weapons would be used. She didn't know what would happen. It was scary. Lisa wasn't concerned about being ground out of the lockboxes because it had been done a long time.

Lisa has personal experience with metal work and used a grinder.

She probably asked the cops to use a grinder. They said there was fire danger if the did that. She may have suggested that they sweep or vacuum up the wood chips strewn about the floor.

Lisa refused to unlock because: "I didn't want to be scared off from my decision to make a stand. I owed it to all those who went before." She also didn't want to make the cops feel they could win by using pepper spray, and do it to others.

They swabbed pepper spray on Terri first. That affected Lisa because she knew that Terri was there to support her. That was very painful for Lisa.

"My head was pulled back by the hair. I felt the Q-tip crossing my eyelids 2 or 3 times. I felt it spreading into my eyes and mouth. It was extremely painful but also terrifying. I remember feeling very sad about what was happening." She felt a need to maintain commitment to being there.

Why not release after being swabbed?  "I wanted to be as strong as I could, to be brave, to maintain commitment.

After the threat of full spray it was up to each person to decide what to do. Maya felt she couldn't stand it. She had respiratory  problems and she could die. She decided to unlock.

The cops did not ask them if anyone had respiratory problems.

The pain lasted for several hours. Lisa had blurry vision for about a week afterward. The stuff gets in the eyelashes and gets into the eyes when they're opened again or when they get wet.

Any effects on you since then? "I've been afraid of effects on my eyes. I've started getting spots in front of my eyes. I get nervous and anxious around police. I have nightmares involving cops. I've become emotionally fragile. I feel a lot of sadness at what happened. I feel the burden of that experience and how it affected all of us."

Direct examination ended at 12:53 PM.


Lisa Sanderson-Fox Cross-examined by Nancy Delaney.

Did you understand that pepper spray wasn't used because you were trespassing but because you were resisting arrest? No

Did you realize you were resisting arrest? No

Did you think the way to talk to your congressman was to spread litter around his office? No and I wasn't part of that.

That was done by others who were part of your affinity group? Yes

Part of your concern was Riggs' support the Headwaters Deal"? Yes

The chanting we heard on video indicated your opposition to that deal? Yes.

You wanted to talk to Riggs because he supported the deal? Yes

But so did Feinstein? That wasn't the point.

It was happening under the Clinton admin? Yes

And it was approved? Yes

It resulted in a portion of headwaters being preserved and other interests were accommodated by allowing logging of a portion? Yes, of a very large portion.

Are you still opposed to the deal"? Yes

We've talked about the length of wrist chains being all the same? I've only had one experience so  I can't speak to that.

The lockboxes were configured so you could hold hands inside? Yes

So your hands were in the area of the rebar pin that you clipped onto? They could be or they could be further back.

Was the Riggs office protest what you would call direct action? We referred to it as civil disobedience.

Was one of the first things to decide what kind of event it would be at Riggs, direct action or civil disobedience? Possibly.

What is the difference between direct action and civil disobedience? In civil disobedience the participants expect to be arrested.

So it involves breaking the law and accepting the consequences? Yes, being arrested.

Does it mean submitting to arrest without resisting? I don't accept that we resisted.

Didn't you resist? That was one of the charges against us.

Did you understand the officers asked you to release and go with them? Yes

Who was involved in planning the Riggs office protest? A number, myself and Maya, Olive and Rev. Jim and others.

How long was it planned? About four days.

How many meetings did you have? I don't recall.

At least once a day for four days? Possibly.

What did you talk about? What our message would be, what to put on banners, things like that.

Was it decided to issue a press release? Yes

Did you decide this would be a lockdown as opposed to a simple protest demo? Yes

Did Ms. Schneider tell you pepper spray had been used at Scotia? Yes, but not in detail.

The Riggs protest occurred 10/16/97? Yes.

And 10/3 was Bear Cr.?   I hadn't heard about that.

Did the use of pepper spray at Scotia affect planning for Riggs?   No. We didn't expect it to be used in a congressman's office.

Lisa didn't know Banka very well before Riggs event.

Delaney reads from Lisa's prior trial testimony: "You didn't infer from your talking to Jennifer Schneider that there was any lasting effect of pepper spray at Scotia?" and you answered "True."

You did know Maya was 16 at the time didn't you? Yes

Did you inquire if she had parental permission? No

You treated her like an adult? Yes, I respected her.

Do you recall how long it took after officers arrived before pepper spray was used? It seemed very fast, quick.

There were two separate groups of law enforcement officers at Riggs. Lisa doesn't recall which group arrived first.

Delaney reads Lisa's prior testimony: The first group arrived in blue uniforms. Lisa says that refreshes her memory.

It was later that the group in tan uniforms arrived? Yes

Do you recall it was some time after the 2nd group arrived that there was any discussion of chemical agents being used? Some time, yes.

Did they offer to let you leave and not use chemical agents? I don't recall any offer to let us leave.

Had you ever heard of a protester being pepper sprayed after unlocking? It only ever happened once before.

You said lockdowns used a long time? Yes

Did you suggest the officers get a shop vac to remove fire danger? That was one of the things I said.

You had no idea did you of what the officers could offer you to get you to release?  If they had said we could meet with Riggs that probably would have done it.

Beyond that was there anything that came to mind that they could offer?  It wasn't about interacting with police. It was to talk to our congressman and to send a message about the Headwaters deal.

Did you know what kind of activities normally took place at that office? We understood it was where Riggs came when he was in town and he would meet with constituents.

Did you know it was where people needing help with Social Security could come for service? No.

Did you realize your action would interfere with widows getting help? That was not our intention.

You didn't research that? No.

You didn't consider unlocking before pepper spray was applied? Personally I wanted to stay committed as long as I could.

You were given time to consider? Yes

You were holding hands inside lockboxes and conferring on whether to unlock? Correct.

When pepper spray was applied, your eyes were closed? Correct.

They made no effort to open your eyes? The skin was spread out but my eye was not opened.

You released after Terri was sprayed? Yes

You refused water spray? It spread the pepper spray and made it hurt more.

There was no time you requested water and it was denied? True.


Lisa Re-Direct by Bill Simpich

Lisa didn't like the Headwaters deal because the other 52,000 acres would be cut down. She still definitely thinks it was a bad deal.

The sixty days of protests coincided with the old-growth logging season, after the endangered Marbled Murrelet nesting season ended.  There were more than 20 protests that season.

It was fairly calm after sat down, and the staff were still making phone calls.

The cops never gave them a chance to use a bathroom or free flowing water.

Lisa was excused at 1:42 pm.


Defendant Gary Philp Direct Examination by Dennis Cunningham

Philp is  the current sheriff of Humboldt County, but at the time of three 1997 incidents he was Chief Deputy, and he had recently been appointed to that position.

Philp said there had been concerns from a number of officers about grinders for a couple of years. He, Sheriff Lewis and others held policy discussions and decided to allow use of pepper spray if the situation warranted. Sheriff Lewis agreed with that decision.

Philp said the use of pepper spray was within the department's use of force policy. He agreed the policy says only use reasonable force as needed to bring the incident under control.

Q: So you're saying there was no control until they unlocked? A: The situation was not under control until we removed the protesters and secured them under arrest.

Q: In your discussions about policy you said we can say they're not under control until they unlock and come away? Objection: argumentative. Sustained.

Philp agreed that whatever was done was his and Lewis' responsibility, and the county's.

He stands behind the actions shown on tape.

Q: No question if it were decided it was unconstitutional you would be responsible? Partly.

Q: But you're responsible either way? Partly.

Lockdowns had been going on since about 1995. They were simpler to deal with at first. They became more difficult and the tactics of the department rose to meet them.

Q: There had never been a time when you couldn't arrest a lockdown protester? Not true. There were times when we left them alone because it would have been too dangerous to try to remove them.

Q: Sometimes officers talked them into releasing, bargained with them? Yes.

Q: No bargains were offered in these three cases were they? There was some discussion with them.

Q: The deal was unlock or we'll pepper spray you, use chemical agents? I'm not sure what they said.

Q: The history that led up to it was mounting success by this movement, more people, more public attention, big rallies with thousands? Yes.

Q: There were 10,000 at the 1996 rally and over 1000 arrested? A: The arrests were by prearranged agreement between the protesters and property owner.

Q: The company drew the line in the wrong place, didn't they? They did.

Q: There had been a lot of complaints of police brutality in years leading up to it?  There were some, wouldn't say a lot.

Q: Wasn't there a woman named Angela "Garlic" who made complaints over and over about injuries to protesters, and one woman had her wrist broken by deputies?

Delaney: OBJECTION there was  jury trial on that and we won.

Cunningham: I didn't say anything about a jury trial, I asked if there were complaints.

Judge calls a sidebar. It's 1:58 PM  It goes on for 3-4 minutes

Judge to jury: I've told counsel we're going to focus on what happened in this case and not in other incidents. I instruct you to disregard the questions and answers leading up to this point.

Cunningham: There was a period leading up to these incidents in which there was not a lot of love lost between sheriff's personnel and protesters? A: I wouldn't use that term; we tried to just do our job.

There's a history of logging protests in Humboldt back to the 80s?  Yes.

The decision to use pepper spray on passive people came after you did research on what the consequences might be to your office to use it?  A: I'd say it was about what the health effects of the product would be.

You didn't make any medical inquiry into possible lasting injury did you? A: There were studies put out by police organizations that went into that.

These were all about effects on combative subjects, right; it wasn't ever used on passive resisters before right? True.

You don't agree there's any difference between active and passive resistance? A: Resistance is resistance if we can't make the arrest.

You heard Mr. Kirkpatrick say this was active resistance? Yes

The distinction was abolished by POST guidelines after these incidents, to try to get you out of a jam, isn't that true?


(Missed a bit)

Q: You like the term compliance and non-compliance better than resistance?  Yes.

Because that gets rid of legal cases about active and passive resistance? (missed some) A: There have been a  lot of cases about reasonable force. I learned about some when I went to FBI academy.

There were cases that set standards depending on officer safety, threat by protesters, the Graham test, whether the subject was resisting? (Something about grinder danger to officers.)

Are you saying the threat to officer safety was from using the grinder? Yes.

The grinder had been used successfully dozens of times without injury? A: Yes but there was concern over potential danger.

There was no need to use force at all in these cases was there?   A: we knew it was reasonable to use force to overcome resistance, the question was what kind of force.

(Judge calls for a sidebar after repeatedly telling Dennis not to cross-examine Philp about legal cases and what they held was the law on use of force. She said he can ask Philp what he did and what he knew, but the jury will hear about the law from her.  Dennis seemed at a loss for how he can question Philp about his understanding of the law without asking him about the cases and what they held.)

Dennis: Is one of the things you would rely on the decision in the Forrester case? A: It's one of the things.

Did you have a consultation with Kim Kerr, the new risk manager for Humboldt? Yes.

Did you have a situation on the __ of Sept 1997 where an officer called from Fortuna and asked if pepper spray could be used there?  A: By the time I talked to Lt. Cobine about it the situation had been resolved. I don't recall discussion of pepper spray then.

Did you talk to Kim Kerr in the hall outside her office? I recall in her office. Told her we were contemplating using OC on people locked down.

You say you had a general discussion with her about this technique, not about a specific instance where officer were awaiting a decision? True.

(missed question  re meeting at DA Farmer's office)? A: Chief Millsap and __ were there.

You asked DA if officers would be subject to criminal charges for using OC this way? Q: It's one thing I asked.

One study cited in a training guide by International Association of Chiefs Of Police you thought gave you support for using OC? Yes.

That guide says use pepper spray only to control unrestrained, noncompliant subjects ?

Objection: compound. Sustained

You say they were unrestrained? A: They didn't have handcuffs on.

It is time to quit for the day. The jury is admonished and released for the day.

Judge and lawyers continue. Judge discusses the time limits imposed and suggests plaintiffs are going to have to speed up or run out of time.

Court recessed until the next morning.

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