No Pepper Spray on Nonviolent Protesters

(posted 5/3/05)

Log of 2005 Trial in Pepper Spray Q-Tip Suit
  Trial Log Index page

Tuesday, April 26, 2005

Plaintiffs' Closing Arguments

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 typed notes taken in the courtroom. 

Page Index


Dennis Cunningham Closing Argument

Dennis Cunningham gave the main closing argument for the plaintiffs. He began by thanking the jury for their service and their patience. 

The question before you is very simple, and I could sum it up in a few sentences. But I have a chance to talk to you now in more detail. It's important that you decide this case, that you take the time to consider everything and come to a conclusion. We emphasize that the sheriffs had an alternative that had worked every time, and that made it unnecessary for them to use pepper spray.

Nothing is more basic to living together as humans than to control the use of force. Police power arises out of the need to regulate behavior in society. The heart of police power is the authority to use force on people in a reasonable way. We have police power in America in a way that may be unique, under a constitution that limits the power of government over citizens. The 4th amendment is an important limitation on use of force; it requires that force must be reasonable. 

If there is no need for force then no force may be used. That's the basic rule. The police don't decide what's reasonable force. POST doesn't decide that. The courts and juries decide what's reasonable. In this case, you decide what's reasonable. The testimony of defense experts or POST that they see nothing wrong with using pepper spray like that does not control if it's unreasonable. The law does, and you, the jury, do. What is necessary force? They can't use force that isn't necessary, or is excessive, or is unreasonable.

You have to ask yourself as a good starting point, what were the police faced with? What did they have to do? Mostly young people were engaged in nonviolent civil disobedience. There was a change in policy here. They had always done it one way, and then the sheriff decided to change policy and do it a different way.

Civil disobedience comes from a long tradition in America. Women wanting the right to vote chained themselves to the gates of the White House. Many historic actions interfered with business-as-usual by passive resistance. Passive resistance has a long and honorable tradition in this country, as much as defendants want to write it out of existence. Active resistance is someone fighting you. Noncompliance is not active resistance, and it has a long tradition. It's people saying we're going to put our bodies on the line to force the issue. When nothing else works, use physical interference with business-as-usual. 

Humboldt had a 10 year history of nonviolent passive resistance to the increased clearcutting of old-growth redwood forests. The deputies never were unable to take anyone into custody when they decided to do so. The grinder was available, and Chief Bouza called it a wonderful tool. They used it many times without injury. There is a basis only in imagination for saying it would cause injury. The deputies were skillful and careful not to hurt people, and it always worked.

You'll have the written instructions that the judge read to you so you can refer to them if something isn't clear. Some of the factors to consider are severity of crime, threat to officers, attempt to escape. None of those justify this use of force. If the protesters actively resisted arrest that's a crime and they would be charged with it in criminal court. You deal with it in the legal system, not punish them on the spot, not inflict pain unnecessarily. Don't let them take an opportunity to hurt and intimidate protesters.

The pepper spray methods didn't work. Dep. Kirkpatrick said he could call it a success at Riggs office because they got full compliance, but they didn't at the two prior incidents. They escalated and made it worse. They could have carried out the two at Riggs like they did the two pairs at Scotia. They didn't have to grab them by the hair and hold them and swab and spray them with pepper spray. The grinder had been 100% effective in the past in over 100 incidents.

The stuff about grinder injury is speculation, nightmares. The justification for use of force here is bogus. The reasons they gave was what might happen. Yes a power tool is dangerous, but no they never had an accident. In one case a smart aleck protester got a minor finger cut that didn't require medical attention and wasn't even written up. They said they could use pepper spray because it makes it easier for them. But they can't. They have to do difficult things and face danger in the course of police work. That's their job. That's what Chief Bouza told us.

Look at the question of leadership in the sheriff's department. They had found a way that worked, grinders to cut the protesters loose. Then when protests intensified, and Philp became chief deputy, they decided to do this pepper spray tactic, and it didn't work. They went back to how they did it before, and it continues to work without hurting people. 

About every defense witness conceded that if they couldn't use pepper spray they would grind them out, including Sgt. Ciarabellini yesterday. And that's what they have done. Sgt. Manos called the sheriff's office expecting to get the protesters ground out. That's what he expected. Then he learned they planned using pepper spray and he said 'sounds good to us.' They wanted to put these protesters in their place, tamp down the protests by making them afraid pepper spray would be used.

You heard Mr. DuBay say pepper spray was food grade, but  he admitted it hurts.

There was no real effort at negotiation with the protesters, just an ultimatum to release or get chemical agents used on them.

Sgt. Ciarabellini admits the kind of "negotiation" they used to do before they got pepper spray often worked. They didn't just add pepper spray on at the end of previous use-of-force policy, they replaced the previous policy with using pepper spray as nearly the first option. First they would swab eyelids, then pry eyes open and swab them, then spray directly on the eyes if the swabbing efforts didn't work. Then they would withhold relief, and tell the protesters: "release and we'll give you water."

They claim it's a "pain compliance technique," but it's not. Pain compliance involves modulated application of pressure and pain, and then stopping the pain as soon as there is compliance. That's not what the use of pepper spray is.

Sgt. Ciarabellini claimed they checked if a grinder could be used. He claimed it would have caused fire danger, but they had ways to deal with that. He claimed the space was too tight, but the Special Services squad specialized in solving difficult physical problems.

Let's talk about the definition of control. The Graham vs. Conner case talks about attempts to escape. The defendants try to change the language from passive resistance to noncompliance so they can try to sweep away the dividing line between someone who's fighting them and someone who's not. They're playing a word game about control, and resistance, and about grinder safety.

They claimed they were minimizing the application of pepper spray by swabbing it on, to keep it out of noses and mouths, but it ran down into noses and mouths, and down necks.

The water spritzer bottle worked okay at Scotia to relieve the pain, but not on the later cases when more pepper spray was used. The spritzer inflamed the pain on Noel at Bear Cr. At the Riggs office they could have walked the protesters into the bathroom to wash their faces, but they never offered that.

They claim a potential, hypothetical danger, but that doesn't override the actual reality that it always worked and never injured anyone.

You heard defendants keep putting in disparaging stuff to try to discredit plaintiffs: 'They use forest names, don't go to doctors, there was a guy in sunglasses and hood, scared me to death and sounded like a bomb. They practiced; how diabolical. Bad people. They don't care about risk to officers. They only care about their own cause or campaign.'

Because we can conceive of the grinder wheel breaking doesn't mean it will happen. The wheel can't penetrate far into pipe, just an inch or so. Fear of cutting somebody's hand off is just a bogus scare tactic.

It's a fraudulent claim that no harm was done to the protesters, that pepper spray doesn't hurt, and that it caused no lasting injury. The activists didn't go to a doctor afterward; there's no medical bill. They can't show lost pay from work. So no damages, they say. 

One guy said he doesn't even call that pain, only discomfort. That's false. It hurts!

We could play word games and call it torture, and it meets the definition of torture. But we would be embarrassed to call it torture in comparison with what you read in the papers about what's going on today in places like Iraq.

But this infliction of pain crossed the line. It was excessive and unnecessary.

So the law says if there is injury you must compensate by giving them money to make them whole. You can't unring the bell and take away the mental consequences of what they went through. The way our system works is to put a money value on what was done. You should put enough value on it to show it's important, to act as a deterrent to police not to do that any more.

Afterwards as you reflect on what you saw and heard here, you can't get away from who these plaintiffs are. They are different from most of us. Banka took a Buddhist vow to protect all living things. They took a principled stand from the depth of their beings. That's why they continued to resist when they were being hurt. They put their bodies on the line. Using pepper spray on them wasn't right, wasn't necessary. The grinder alternative was proven and effective.

I know you're going to reach a decision that this action was wrong.

Following Dennis Cunningham, there were closing arguments for the defense by William Bragg and Nancy Delaney. Last to speak was Tony Serra, giving a final rebuttal to the defense arguments.


Tony Serra Rebuttal Closing Argument

I'll try to address all the issues, but it will be very succinct. I think you'll see that that we met our burden of proof on each issue. I counted in Mr. Bragg's presentation about 15 issues to address:

Questions are not evidence, but they supply meaning to answers. Example: Was the car green?" Answer: Yes. The answer is meaningless without the question. Lawyers are ethically bound to ask only questions for which there is a good faith basis to ask.

They claim there is no evidence pepper spray causes injury. Recall Mr. DuBay conceded there were 100 deaths associated with pepper spray wherein there were two where pepper spray was a contributing cause. Secondly, pain is injury. Recall the platitude that the eyes are the windows of the soul. Eyes are the pathway to the mind. Eyes are the most sensitive orifice in the body. The plaintiffs will remember and relive the pain they suffered for years in the future.

Mr. Bragg said the fact that females and juveniles were involved are non-issues. But they knew there would be juveniles and women involved as there always had been. Not having women officers present showed an attitude of disregard for humane consideration. It showed their attitude toward these young people.

Q-tips a non issue? Prior to these incidents Q-tips had never been used this way before, and they never have been since. Q-tips near the eye are dangerous, and could cause poke in the eye injury. 

The defense claims no one was hurt? My answer is that the pain and the psychic injury is real. It was a horrible experience. It was an experiment on these young people, they unleashed a fury, a horror on them. It was never done before or since.

The defense claims water spray bottles were good enough for relief of pain from pepper spray. But it's an issue because it spread and reactivated the pain. It spread it to the nose and oral passage. Free flowing water would have relieved the pain and not spread it. It shows the callous attitude of the officers.

We heard from Chief Bouza, 76 yr. old, very experienced. He said never inflict pain on a nonviolent protester. That is the moral path, the valid path. He takes only the cases where he feels there is social merit.

The defense claims the hydraulic needle effect is a non issue. It says on the pepper spray cans use from 3 ft. away or more. At Bear Creek the spray was right close up and it ran into the nose and mouth. They violated the 3 ft minimum distance when they sprayed close and when they put it on with Q-tips

They claim there's no distinction between passive and active resistance. But you heard there was a distinction in the use of force policy between active and passive resistance. They changed it after these incidents.

You heard Banka tell about the length of chain allowing the hand to be withdrawn from the danger area where the pipe was being cut.

Negotiation? They never made any real effort to negotiate. Didn't offer to let them meet Riggs, for example, which is what they said they were there for.

What they did here was tantamount to torture. It should never be allowed to happen again.

They claim there's a great danger of serious injury from the grinder. They had one case of a guy getting a minor scratch that didn't even require medical attention. No fire has ever been caused by using the grinder to cut protesters loose. There have been over 100 successful uses of the grinder. There's no evidence a Makita grinder ever injured anyone or caused a fire.

The defense says the protesters' trespass crime was made more serious because there was conspiracy. But the evidence is fraught with commingling of law enforcement and Pacific Lumber. They are incestuously combined. The law enforcement guys were partisan to PL's cause. Ten thousand protesters came from all over the country the year before. The cops used intentional sadism to try to break the movement. We haven't put on evidence of conspiracy, but you can infer it from the testimony. There was no cause for using force.

Mr. Bragg said the redwoods are a non-issue? How dare he? There is a concern the world over for them. The cause of the protesters is not a non-issue. There was something akin to genocide going on. The ancient redwoods were being wiped out. These activists were so motivated they were willing to go blind! All of them are dedicated to serving humankind. They are the best of our children.

Mr. Bragg talked about KKK and Nazis being empowered if police can't use force to remove them from Black churches and synagogues. 

Judge: You are about out of time, Mr. Serra. 

Let me end like this. Banka has provided this to me. A statement of Dr. Martin Luther King: "You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling, for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored."

That's what these young people were doing. They are committed to peaceful resistance to an ideology of destruction that threatens all of us.

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