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Pepper Spray Trial Ends In Hung Jury

by Nicholas Wilson

story on trial
SAN FRANCISCO -- A mistrial was declared on August 25 in the closely-watched federal civil rights suit charging that police use of pepper spray against nonviolent Headwaters Forest demonstrators was excessive force.

The two-week ended with the jury evenly split on whether Humboldt County deputies acted appropriately as they swabbed and sprayed pepper spray in the demonstrator's eyes. Judge Vaughn Walker declared a mistrial after finding it unlikely that further deliberations would produce a unanimous verdict. He set a November 16 date for a new trial.

Deadlocked by retired dock worker
The jury foreperson told reporters that even though the jurors deliberated less than five hours, they were firmly deadlocked. "There was one man on the other side that wouldn't change if a bomb had gone off in his lap," said Patricia Schimke with a chuckle.

She referred to retired dock worker Marty Roland, who said in a television interview he didn't think swabbing pepper spray across the eyes was excessive force. "That's a tool they would have to use to do these things with," Roland said. During deliberations he said that if demonstrators came on his property and sat down, he'd get out a gun, according to Schimke.

Schimke found the deputies' use of pepper spray very disturbing. "If you can't sit down and express your beliefs in a calm, nonviolent way without the police coming and putting chemical agents into your eyes, I think that's sort of going back to the days of the cattle prod and the fire hose," the retired medical technician said.

"The police are supposed to protect everyone, not just property owners but other citizens as well. If they can arbitrarily use any means whatsoever to get you to do whatever they want, to me it's not right," Schimke said. "None of us disagreed with the use of pepper spray for its intended use against aggressive, combative or violent people. But to use a swab on your eye or spray you directly in the face with it ... that didn't set right with four of us." Watching the police videotapes of the incidents made her very sad, she said.

Plaintiffs' attorney Mark Harris said after court, "This is a very important case that's being watched across the nation by law enforcement agencies and civil rights groups. People have been protesting peacefully in America throughout its history."

"What we have here is the gratuitous application and reapplication of pain as a means of compelling obedience," said Harris. "Both these young people on either side of me are straight-A students. Noel Tendick graduated as the valedictorian of his class in Half Moon Bay, and he started his own chapter of Amnesty International. Spring Lundberg has spent her young life fighting against the ravages of a multinational corporation coming in and taking over a small logging town. These are the leaders of the future for us. And if we say as a society that it is okay for police to hurt these people simply to get them to stand up and move several feet, then I think we have crossed a threshold into a place that I hope we would never go. That will be the focus of our trial in November."

Frank Riggs claimed it was a victory for law enforcement
Asked if it was worth the trouble and expense to retry the case, Harris responded, "We've started down a road, and the road hasn't ended yet. The use of pepper spray in this fashion is unprecedented in the nation. The fact that this particular jury split on philosophical grounds is not cause for people to fold their tents and walk away. So, while we don't relish the prospect of continuing to fight this battle -- and certainly it is very expensive and draining -- there is no other choice for people who believe this is the right thing to do."

Spring Lundberg agreed, saying, "We must see this to the end for the civil rights of this whole country or we'll have excessive force like this happening again, and with pepper spray as the weapon of choice. It's all about upholding the Constitution, so you can bet that we'll keep this going."

Asked why he thought four jurors supported the police position Noel Tendick said, "It's difficult to go against police officers who we want to believe are there to serve and protect us. We want to believe that they respect our rights. We put them in a position of trust, so when they violate that, it's of course difficult to believe. That's why we're here; they need to be questioned."

Speaking for the other side, lead defense counsel Nancy Delaney commented, "We believe ultimately the tactical use of pepper spray will be understood for what it is, an attempt to avoid injury." She said the hung jury was a victory for the defendants because it showed that reasonable citizens could agree after viewing the videotapes that police actions were justified.

Congressman Frank Riggs, whose Eureka office was the site of the one of the incidents, also claimed it was a victory for law enforcement "that a jury in arguably the most liberal district court in the whole country could not agree unanimously that police used excessive force." He derided the suit as "frivolous" and said he hoped the protesters would drop it rather than burdening Humboldt taxpayers with the cost of a retrial. Riggs, a former policeman himself and an ardent supporter of Pacific Lumber, cheered the officers' use of pepper spray on people he labeled "ecoterrorists." His support for the police in the incidents is generally cited as the reason for his political downfall. He withdrew last spring as a Senate candidate, saying he was unable to raise the funds needed to stay in the race. He plans to stay in Washington as a lobbyist.

The protester-plaintiffs offered to drop the suit before trial if Humboldt County would agree not to use any chemical agents against nonviolent demonstrators in the future and to pay their legal costs up to that time. The settlement offer was refused.

The judge will soon consider Humboldt County defense motions asking him to throw out the case based on evidence heard (or not presented) at trial. Judge Walker has already dismissed the case against all the individual officers who were defendants when the suit began. Only Sheriff Dennis Lewis and Chief Deputy Gary Philp remained individual defendants, but after plaintiffs rested their case Judge Walker granted a defense motion to dismiss the two based on reconsideration of the qualified immunity issue in light of the evidence. That left Humboldt County and the City of Eureka as the only remaining defendants.

Trials for misdemeanor trespassing and resisting arrest charges against many of the same activists are scheduled for mid-September in Eureka. Noted defense attorney J. Tony Serra will join Harris on the defense legal team.

For nearly ten years deputies had dealt with the lockdown devices by cutting through them

The basic issues of the case were covered earlier in "Pepper Spray Trial Begins." But during nine days of trial testimony and some three hours of police videotapes many significant details were revealed. Most of the plaintiffs were young, bright, new to forest activism, and came to Humboldt to participate in the mass Headwaters rally which kicked off last year's "protest season" September 14. They seemed sincerely motivated to engage in civil disobedience as a way of calling attention to Headwaters Forest

They had locked their wrists to pins inside lockdown devices they called "black bears," two elbow-length pieces of steel pipe welded together at right angles. Their purpose was to prolong the protests by making it more difficult to remove them. For nearly ten years deputies had dealt with the lockdown devices by cutting through the welds with a flexible cut-off disk in a high-speed portable grinder. This usually took about 10 to 20 minutes each.

The deputies testified that the main reason they decided to use pepper spray was concern that eventually someone would be badly injured by the grinder or that sparks thrown from it would start a fire. They admitted in cross examination the grinders had been used some 100 times before without any injury or fire, but insisted it was "just a matter of time."

After Sheriff Lewis approved use of pepper spray as the preferred way of dealing with locked down protesters, Q-tips, cups and large canisters of pepper spray were distributed to each patrol sergeant. But there was nothing in writing stating the new policy, or documenting the research and consultations behind the decision -- "Not even a sticky-note," as lead plaintiff lawyer Macon Cowles said in his closing argument. The department's only written policy covering pepper spray stated the rules for its use on jail prisoners, and limited that use to hostile or aggressive prisoners. The sheriff admitted that the use on nonviolent demonstrators was unprecedented nationally.

When the novel technique was first used at the Pacific Lumber office, pepper spray was dabbed at the outside corners of the eyes. One person with asthma, fearful that pepper spray might be fatal for her, unlocked before it was applied. Two more unlocked after one application when they were threatened with another treatment. That left two pairs who still refused to release. They were carried outside on stretchers where one pair then unlocked. The remaining pair were cut loose with a grinder. They were the youngest, Maya Portugal, 16, and the oldest, Sam Neuwirth, age 40, an organic vegetable farmer. Both are from Humboldt County.

"It was the most pain I ever felt in my life"
The deputies held a meeting afterwards and decided to use a heavier dose next time and leave it on longer before giving water for first aid. When Noel Tendick and Mike McGuire locked arms through an idle logging bulldozer, the deputy first applied a dab as before. The two friends, both about 20, sang and chanted to help endure the pain. When they still refused to unlock the deputy did a second application with a saturated swab fully across both their closed eyelids. When that didn't get results, the two were sprayed across the eyes from inches away, and the video showed the caustic liquid dripping from their faces and noses. Despite three applications of pepper spray, they still refused to give up, and the deputy cut them loose with a grinder.

In the third incident, at Riggs' office, the video showed that the deputies again escalated their tactics by trying to force open the eyes of the young women, and in at least one case they succeeded in swabbing directly on the eyeball. When that was not successful the deputy grabbed Terri Slanetz by her long hair, then held her head between his knees and sprayed into her left eye from about two inches away. She testified she couldn't open that eye until the next day, and even then felt pain. She said being pepper sprayed was a major trauma that left her still emotionally sensitive, having recurring nightmares and being afraid of police.

When the videos were projected on a large screen opposite the jury, many of the plaintiffs were overcome with emotion. Spring Lundberg, age 17 at the time, was on the witness stand as the first video was shown. Demonstrators outside the Pacific Lumber office were shown chanting "50,000 acres, no compromise," and "Not one more ancient tree." Lundberg was visibly shaken throughout the hour-long tape, and collapsed in sobs several times as the tape showed her and her friends being methodically swabbed with pepper spray. The jury appeared stone-faced.

In her testimony, Lundberg, a straight-A student from Arcata, said pepper spray was swabbed on her eyelids two or three times during the incident. She did not unlock because she didn't want to set a precedent that would encourage the deputies to continue using pepper spray on nonviolent demonstrators.

"It was the most pain I ever felt in my life. I didn't know what to do, it hurt so much. I couldn't breathe. It felt like the walls were closing in." The pain and soreness lasted until the next day, and she still has emotional effects and suffers panic attacks when she gets something in her eye. She weighed 135 lb. at the time, and told the officers she was a minor, she said.

Locked next to Lundberg at the Pacific Lumber sit-in was Molly Burton, then 18. She had just graduated from high school in Virginia, where she was an honor student. She said she joined the demonstration because the wanted to express concern over forest and wildlife destruction, and to stand for her beliefs. She expected to be arrested and charged, but not pepper sprayed for peacefully sitting in. During her testimony she was very emotional, and several times had to struggle to speak.

As the video was shown for the second time with Burton on the witness stand, not only she but all the plaintiffs and many in the audience were in tears. This time many of the jurors appeared moved as well.

Jennifer Schneider, Lisa Sanderson-Fox, and Terri Slanetz are friends in their late twenties who had come to Humboldt as volunteers with a group which feeds the hungry, and they worked together cooking for the Headwaters rally. Schneider is a New Yorker who became a Buddhist nun and studied with the Dalai Lama, and who has taken a vow "to save all beings." She was the only activist who was pepper sprayed at both the Pacific Lumber and Riggs demonstrations.

When asked in cross examination what she wanted the police to do, she replied, "I wanted them to treat me like a human being and not subject me to cruel and excessive torture." Asked why she didn't unlock, she said, "I kept thinking of the ancient trees being cut down. They didn't have the option to unlock (and be spared). So I wanted to stand firm for them."

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Albion Monitor August 31, 1998 (

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