Pepper Spray Trial Begins

by Nicholas Wilson

TV network broadcasts of police videos showing the young forest activists moaning and writhing in pain outraged viewers nationwide. The use of the chemical weapon on non-violent sit-in demonstrators was unprecedented, and even California's ultra-conservative Attorney General said it was beyond accepted police community standards. An FBI investigation begun last fall continues.

Trial began August 10 in a federal civil rights suit filed by nine of the activists who were swabbed or sprayed at close range. Dubbed Headwaters Forest Defense vs. Humboldt County, the suit charges officers used excessive force. The activists seek an injunction against using chemical weapons on peaceful protesters plus damages for pain and suffering.

The incident at Riggs' office closely followed two other incidents when pepper spray was used on sit-in protesters who had locked their wrists together inside metal pipes. On September 25, seven activists sat locked in a circle in the lobby of Pacific Lumber Company's Scotia offices to protest the logging of ancient redwood forests. On October 3, two young men locked arms through the tracks of a logging bulldozer at Bear Creek. The protests all centered on the Headwaters Forest acquisition deal brokered by Sen. Dianne Feinstein, which activists insist would allow Pacific Lumber to circumvent the Endangered Species Act.

Arcata attorney Mark Harris says Humboldt County has been called the "Deep North," a reference to brutality against civil rights activists in the Deep South during the sixties. In 1990, Harris got a federal injunction to stop county jailers from shaving the heads of jailed Redwood Summer protesters. Humboldt Sheriff Dennis Lewis testified that there was hostility to forestry activists in his county, and even members of his own family had told him he ought to "hang them."

U.S. District Court Judge Vaughn Walker is a Republican appointee with a reputation for being strict and conservative. Walker last fall refused an injunction to immediately block use of pepper spray on non-violent demonstrators, saying he wasn't going to "second-guess" officers in the field. He has ruled against allowing any evidence about the topic of Headwaters, but also barred the defense from portraying the activists as Earth First! extremists, saying the trial must be narrowly focused on the issue of excessive force. Although the jury will decide the case and the amount of damages to award if they find for the plaintiffs, Walker alone will decide if the defendants must pay legal bills for the activists if they win.

The six-person jury consists of five women and one man with ages ranging from early thirties to late seventies, and a racial mix of Whites, Asians and Hispanics.

The legal team for the activists has won against Pacific Lumber before. Boulder attorney Macon Cowles, associate Susan O'Neill of La Jolla, and Harris sued Pacific Lumber successfully in 1995 in the first Endangered Species Act case ever to prevent logging on private property.

The nine plaintiffs are Molly Burton, Vernell "Spring" Lundberg, Michael McCurdy, Eric Neuwirth, Maya Portugal, Lisa Sanderson-Fox, Jennifer Schneider, Terri Slanetz, and Noel Tendick. They range in age from 16 to 40, with most of them on the younger end of that range.

Cowles said pepper spray was first approved in California in 1992, but only for use by law enforcement officers against violent suspects. Pepper spray is a concentrated extract of hot cayenne peppers, and is also called oleoresin capsicum (OC). It causes severe burning pain, temporary blindness and inflammation of the eyes, paralysis of the larynx, difficulty in breathing and disorientation.

Cowles told the jury that Humboldt forestry protests had been going on for years, especially since Redwood Summer in 1990. Direct action tactics often include trespass on lumber company property, blocking gates or logging roads. Activists have used various devices to immobilize themselves and make it difficult to remove them. After beginning with chains that were easily cut with bolt cutters, they switched to hardened bicycle locks, then metal pipes to protect their chained wrists.

For years deputies used portable grinders to cut through the pipes and remove them. Other tactics successfully used by officers included negotiation or simply waiting until the activists voluntarily unlocked themselves.

But in 1997, the officers decided in advance to try using pepper spray as their preferred method of dealing with the "lockdown" protests, though it had never been used in that way before.

Cowles said the pepper spray tactic failed, and that in each of the three episodes at least some of the activists endured the pain without releasing themselves, and officers still ended up using the grinders to cut them apart.

A key defense argument is that the choice to use pepper spray was made out of concern that grinders might injure someone or start fires. But Cowles said there is no case of that ever happening. He said the sheriff's department acted on its own initiative in deciding to use pepper spray; no civilian authority asked them to get tougher on activists.

He pointed out that every one of the plaintiffs had undergone rigorous non-violence training and pledged not to use violence in any way. They are willing to break the law by trespassing and accept the consequences of being arrested because it is so important to them to save the few remaining ancient forests. They refused to unlock even when in pain because the tradition of non-violent protest is to endure discomfort.

Judge Walker abruptly cut Cowles off, saying his time was up.

One of three private Eureka attorneys representing the defendants, Nancy Delaney began the defense opening statement by saying that state restrictions on pepper spray were greatly relaxed after thousands of reported cases showed that it didn't cause injury, but rather prevented injury. Since 1996, civilians have been allowed to buy it for defensive use only, but law enforcement officers are permitted to use it as a tactical tool. She said that the officers' motivation was only to do their duty to protect everyone involved.

Officers had to develop new tactics, she said, because lockdown protesters were making it harder and harder to remove them. Officers went to great lengths to protect the protesters from injury, using space blankets to shield them from grinder sparks and goggles to protect their eyes from particles.

She said pepper spray is an organic, food-grade product that causes no injury. The suggestion and request to use it came up the chain of command from the deputies responsible for using the grinders. The department researched the idea and found a legal precedent in a Texas case. Chief Deputy Philp went to the chemical weapons training officer and asked what would be the most minimal way to use pepper spray. In training, deputies are often given a dab of pepper spray on the cheek using a cotton swab. That is sufficient to cause burning of the skin and pain and tears in the eyes, but it doesn't get into the nose or mouth.

Delaney pointed out that protesters were not restrained by deputies, but by their own choice. In the first instance in Scotia, seven protesters locked themselves into a circle. Also, they were seated on carpet, posing a fire danger. Deputies saw no way to use the grinder safely. She said the use of pepper spray was considered a success because three of the protesters unlocked. The remaining two pairs of activists could then be carried outside where a grinder could be used without fire danger.

At the second instance, with the two protesters' arms locked together through a bulldozer's track, deputies thought they couldn't use a grinder because there wasn't enough room, plus the fire danger from fuel and oil. They first applied OC minimally, using swabs, but when that didn't make them unlock they applied full face spray at close range. When they still refused to unlock, a grinder was used.

In the Riggs office protest, it was the Eureka city police who responded. When they learned of the deputies' previous successful use of pepper spray on lockdown demonstrators, they asked the sheriff's department for help. Delaney said the videos would show the officers were courteous and compassionate as they applied pepper spray.

Delaney finished the defense opening statement by saying, "if we do our job as well as the officers did, you will see that this use of force was justified and not excessive."

The first day of trial closed with Cowles giving a brief rebuttal. Delaney had said the officers used pepper spray in a minimal way, using swabs to apply it to the eyes while avoiding exposure of the nose and mouth. But in the bulldozer incident deputies sprayed the young men full face from inches away, and the video shows the burning agent dripping from their noses and mouths. Cowles said the force used was excessive and unreasonable.