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Stop Police From Stalling Trial, Judi Bari Lawyer Tells Court

by Nicholas Wilson

on Bari vs. FBI, et. al.
Continuing eight years of courtroom tactics delaying trial in the civil rights suit of Earth First! leaders Judi Bari and Darryl Cherney, Oakland police asked a federal appeals court April 15 to dismiss three officers from the suit against their department and FBI.

In oral arguments before a three-judge panel of the federal 9th Circuit Court of Appeals in San Francisco, an attorney for Oakland argued the officers were entitled to rely on what the FBI told them. The Oakland attorney asked the court to overturn a lower court's ruling that the officers are not immune from being sued.

Ignoring Bari and Cherney's statements that they had received multiple death threats from logging interests, police arrested the pair on suspicion of possessing an explosive device after a bomb went off under Bari's driver's seat on May 24, 1990. But due to lack of evidence, no charges were ever filed. The case remains unsolved.

In response, the lawyer for Cherney and the estate of the late Judi Bari argued that the police were willing dupes of the FBI even though they were experienced homicide detectives who knew better. Lead counsel Dennis Cunningham said later that the crux of his argument was, "When the FBI says the bomb is in (plain view in) the back of the car, the OPD can't just look at the pavement through the hole in the driver's seat and say, 'Yeah boss, okay.'"

Frustrated by delaying tactics by law enforcement, Cunningham had dramatically held up an exhibit binder during the hearing. "I showed these same photos (of the bombed car clearly showing the bomb was hidden under the driver's seat) here in this court in 1993," he said. "We're six years down the road now, with this appeal. The FBI will be in here next with their ... appeal, and it'll be another two years ... another six years. We're entitled to intervention (by the appeals court to stop these delaying tactics)."

In a 1996 Monitor interview, Bari said FBI attorney Joseph Sher had boasted to her that he would drag the suit out for twenty years. FBI lawyers used similar delaying tactics when the Socialist Workers Party filed suit in 1973 against the Bureau over secret disruption tactics. That case came to trial after 18 years, and was decided in favor of SWP after five more years. The judge in that case ruled that the Bureau had violated the basic rights of the plaintiffs over an extended period through "the FBI's disruption activities, surreptitious entries and use of informants."

Judge had ruled that FBI and Oakland cops must stand trial
Bari and Cherney's suit charges the FBI and Oakland police with false arrest, unlawful search and seizure and conspiracy to interfere with their constitutional right to organize politically in defense of California's redwood forests. Bari died of breast cancer in 1997, but her estate and Cherney are continuing the suit.

Leaving court Two years ago, their attorneys sought to end defendants' delaying tactics by filing a motion asking the judge to rule that defendants could not escape trial by claiming immunity from suit.

Under the doctrine of qualified immunity, law enforcement officers can't be sued for honest mistakes that a reasonable officer might make in the line of duty. They can be sued, however, if they knowingly violate well-established rights, or act because they dislike someone's constitutionally- protected political activity.

In October 1997, U.S. District Court Judge Claudia Wilken had ruled that three Oakland officers and six FBI agents cannot claim immunity and must stand trial. Some other officers and agents were dismissed, and the judge also dismissed the conspiracy claim against the Oakland officers, saying there was insufficient evidence to sustain it. Oakland appealed the immunity ruling in an effort to get the remaining case against its officers dismissed, causing another year-and-a-half delay in a much-delayed case and resulting in this hearing.

Oakland's arguments
Deputy City Attorney Karen Rodrigue asked the judges to overturn Wilken's ruling that the Oakland officers aren't immune from suit because any reasonable officer would have known there were no grounds to arrest Bari and Cherney. Rodrigue said the FBI terrorist squad leader told the OPD officers at a meeting just after the explosion that Bari and Cherney were already being investigated as possible terrorists even before the bombing.

FBI agent Frank Doyle told OPD officers that in his judgment the bomb was in plain view on the floor behind the driver's seat and that there were two bags of nails in the rear of the car that matched nails taped to the bomb for shrapnel effect. To Doyle, this was evidence that the two were involved in building the bomb and were knowingly transporting it.

Rodrigue said the Oakland officers had a right to rely on Doyle's "significant expertise" as the FBI terrorist squad's bomb expert. She said the bottom line was the Oakland officers' belief that the bomb would have been visible. Even though the nails in the bags proved not to match the bomb nails, Rodrigue argued the OPD officers had a right to rely on the FBI statement that they did match.

Scathing criticism of Oakland PD by judge
In oral arguments at the appellate level, judges question and discuss issues with the attorneys, providing observers with clues how they will rule. Court observers said the Bari-Cherney side drew a favorable panel of judges. Judge Stephen Reinhardt wrote the decision in the Ruby Ridge FBI shooting case that resulted in the FBI quickly settling Randy Weaver's suit for $3 million. The other two judges were Barry G. Silverman and Mary M. Schroeder, who presided over the hearing.

Judge Silverman observed that FBI agents swore it wasn't true that they told Oakland that Bari and Cherney were terrorists, as Oakland police swore in an affidavit used to obtain a search warrant. Judge Reinhardt pointed out that two activists who had been meeting with Bari and Cherney the night before told the police that the pair were nonviolent, and that Earth First! was planning a peaceful and nonviolent campaign of demonstrations called Redwood Summer.

Rodrigue's reply that the comments of other activists would have no impact on the department's decision to arrest Bari and Cherney, brought scathing comment from Reinhardt: "The department seemed to have no interest in investigating anybody except the people who were bombed." At this, spectators burst into applause, but were quickly admonished by Judge Schroeder.

Perhaps encouraged by the judges' comments, Dennis Cunningham spoke confidently for the plaintiffs, saying that there was a "huge dispute over the location of the bomb," and that even a lay person could see that it wasn't where the FBI said it was. The bomb was clearly hidden under the driver's seat and it was disguised and covered with a towel, he said.

Judge Schroeder asked if that was clear at the scene of the explosion. Cunningham responded that it was very clear, but that FBI agent Doyle tried to pretend he didn't see the hole in the floor under the driver's seat. An Oakland police sergeant testified in depositions that he could see the pavement under the car while looking down through the hole in the driver's seat. Cunningham said the nails in the bags were so plainly dissimilar to the naked eye from the ones on the bomb that Oakland officers had no right to rely on the FBI statement that they matched. In light of the evidence at the scene, it's not rational to believe there was not a conspiracy between the FBI and OPD to falsify the arrest and search warrants, Cunningham argued.

Judge Reinhardt raised a legal question about whether the Oakland officers had reasonable cause for the arrest. Cunningham responded with his own question: "Was it reasonable cause or animosity? These Oakland police guys were duped, no doubt, but they allowed themselves to be duped. The FBI said they were terrorists; Oakland should have said 'fine, you arrest them.'"

Cunningham said that since Oakland made a point of saying the trial judge had thrown out the conspiracy claim against the Oakland officers, that gave him the right to argue that the ruling was in error and to ask the appeals court to reverse it, to reinstate the conspiracy claim.

Cunningham said that the conspiracy issue was "inextricably intertwined" with this appeal by the Oakland police, and therefore the appeals court had the power to reconsider it now, rather than when the trial is over. After Rodrigue offered her opinion that it was an improper argument, Judge Reinhardt jumped in with his own observations: "Aren't you arguing there was no conspiracy? And isn't that inextricably intertwined with the plaintiffs' claims that there was?"

Cunningham alleged the FBI told Oakland a phony story
The hearing took place in an ornate San Francisco courtroom packed with so many of Bari and Cherney's supporters that a second courtroom equipped with a big screen TV was provided for the overflow. Although there were other cases heard before and after, it was clear which case spectators came for when 95 percent of them stood up to leave after the Bari-Cherney hearing.

The hearing was over in about 30 minutes, as is usual in appeal cases. Oral arguments are kept very brief, with each side limited to ten minutes. It is an opportunity for each side to stress a few key points, and gives judges a chance to ask for clarifications.

Cunningham was pleased that Judge Reinhardt apparently agreed with many of his points. The conspiracy claim is especially important, he said, because it binds all the defendants together, making each of them fully responsible for the wrongs that resulted.

Cunningham said that even at the scene of the bombing the Oakland police and FBI had in their hands written death threats received by Bari, because they found copies of them right in her car. This was clear evidence Bari was the target and not the perpetrator of the bombing. Cunningham alleged the FBI told Oakland a phony story that they had received a tip about 'heavy hitters' from up north heading south to Santa Cruz for "an action" that included a bomb.

An FBI document obtained in discovery contains an informant report referring to 'heavy hitters from up north,' but there is no mention of a bomb or any crime. Also, it is clear from the context that 'up north' included Canada and all the western United States, and the tip referred to many other environmental groups and movements besides Earth First!.

Darryl Cherney told reporters that authorities never investigated the death threats Cherney and Bari received before the bombing, nor fingerprints or other evidence, and never accepted the pair's offers to talk to investigators about the case. "What the bombing showed is that the environmental movement is no longer safe from the repressive tactics used by the government against blacks, the left and others," Cherney said. "There's no question COINTELPRO (the FBI's supposedly discontinued covert political repression campaign) is still alive.

"The law enforcement agencies are now covering up and delaying this case, and they are violating their oaths to uphold the constitution, because they knew we didn't do it but arrested us anyway and smeared us in the media. The FBI was started up to disrupt the labor movement about 1916, and they have always been there to protect moneyed interests."

Tanya Brannan, director of the Redwood Summer Justice Project founded by Bari to maintain the lawsuit, commented "What I saw of the environmental movement in the north counties at the time was an incredible determination to act nonviolently in the face of considerable violence and intimidation from the timber interests."

The ruling on the Oakland appeal is expected to be announced in two to six months.

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Albion Monitor May 6, 1999 (

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