Torture By Any Other Name

Analysis and Commentary by Nicholas Wilson

No juror was dismissed for having an unreasonable pro-police bias, but the leader of the pro-police jurors said the police should be allowed to do whatever they felt was needed to do their job. In other words, he believed there is no such thing as excessive force, and police should be the only judge of their own actions. Apparently, someone who chooses to break any law loses all constitutional rights and protections against police brutality. This juror's bias should have been discovered at the outset, and he should have been excused.

My personal opinion is that although the plaintiff legal team performed competently, they could have been more aggressive in raising objections to inadmissible testimony, in cross-examination and in final arguments. They never used the word torture at any time during this trial, even though the San Francisco Chronicle editorialized last November, "If it was not torture, as the protesters claim, it came awfully close." A San Francisco Examiner editorial said, "Pepper spray has its legitimate uses. Torturing citizens isn't one of them." (The clearest definition of torture is: the application of severe pain, physical or mental, for the purpose of coercion, punishment or sadistic pleasure.)

If pepper concentrate swabbed in the eyes of passive demonstrators is okay, then is it also acceptable to connect wires to their genitals and "ring them up" with an old-fashioned telephone magneto? The police witnesses refused to admit pepper spray causes pain, insisting on calling it "temporary discomfort." But all the witnesses who experienced pepper spray said it was extremely painful; more than one said it was the worst pain they had ever felt. The stated purpose was coercion, to get them to unlock, and I think it was also intended to punish. That clearly fits the definition of torture.

The argument was not made that there is a line between acceptable pain-compliance techniques and unacceptable torture. Perhaps there were strategic considerations that caused the lawyers to pull their punches; I asked Cowles why he hadn't used the word torture in closing arguments, and he said two jurors were from the Philippines and one from Burma. He was afraid they or a close friend or relative might have had first-hand experience with truly brutal torture and might be offended if he had used the word in this context.

One of the deputies testified that pepper spray was "an organic, food-grade product." He stated "you could spray it on a steak and eat it." This was clearly opinion or speculation, yet it was not challenged. A more aggressive attorney would have immediately objected and had that statement stricken from the record. In cross-examination the witness could have been asked if he had ever eaten steak a la pepper spray. If not, he could be asked to try doing so in front of the jury.

Having heard all the evidence it seems to me the real motive for using pepper spray was not a safety concern. I think that's pretext and part of a cover-up. It was to save time and effort, to punish the protesters with severe and prolonged pain, and to chill others from exercising their First Amendment right to political protest out of fear of being tortured. At the Riggs office incident the deputy who applied the pepper spray is heard on the videotape asking Jennifer Schneider, who had previously been pepper sprayed three weeks earlier at the Pacific Lumber office, "Haven't you told your friends what we're going to do to you?"

I believe the desire to punish protesters with pepper spray comes from a Humboldt County attitude toward environmental protesters that was exemplified by the sheriff's testimony that his relatives kept telling him he ought to hang the protesters. Judi Bari used to refer to the area as being "behind the Redwood Curtain."

That four of the eight jurors thought it was all right for the police to torture nonviolent demonstrators would not have surprised me if the trial had been in Eureka, but for it to happen in the Bay Area should be a wake-up call about public acceptance of police-state tactics. It might also bode ill for other lawsuits charging police misuse of pepper spray. In June, the Juvenile Justice Project of Louisiana (associated with the Southern Poverty Law Center), filed a federal lawsuit against the Tallulah Lousiana Correctional Center for Youth, charging that guards were using pepper spray to control mentally ill teenagers.

There is a move well under way to put in place new state standards for police training that would institutionalize the use of pepper spray and other chemical weapons for handling peaceful civil disobedience. Defense witness Oliver Sansen is a police academy instructor for Contra Costa County and a member of the Use of Force Committee of the California Commission on Police Officer Standards and Training (POST). He said the committee met last December 2, and included two officers from the Eureka Police Department who asked to participate. They brought with them proposed guidelines for use of pepper spray to handle civil disobedience.

Sansen said POST only makes recommendations for training and doesn't tell individual police departments what to do. He said departments each adopt their own policies, and ultimately the courts decide when a policy is wrong. But he brought to court a final draft of the new POST use of force policy which listed direct application and spraying of chemical weapons as an option to be considered in handling civil disobedience. Sansen assured the court that this policy is sure to be adopted.

Among definitions in the draft policy was this one: "passive resistance -- a commonly used oxymoron for nonviolent opposition to lawful direction of law enforcement during an arrest situation." Sansen said he believes there is no such thing as passive resistance. He said refusing to obey a police order is active resistance, which justifies use of chemical agents, and more severe force such as nightsticks or guns.

I don't believe police groups are the ones to decide whether it's okay to use torture techniques on nonviolent demonstrators. This is a constitutional issue that should be the subject of legislation passed under the watchful eye of the citizenry.