Key Court Victory for Bari in FBI Lawsuit

Federal District Court Judge Claudia Wilken gave her decision October 15 on a motion, filed just two days before Bari's March 2 death of breast cancer. Bari had put her life's last energy into preparing the evidence supporting the motion for a ruling that the defendants could not duck the suit by claiming qualified immunity.

Bari and fellow Earth First! activist Darryl Cherney filed the suit in May, 1991. They charged the police and FBI with conspiring to frame them for transporting a bomb that exploded under Bari's driver's seat, maiming and almost killing her as she traveled through Oakland while organizing the 1990 Earth First! Redwood Summer of nonviolent mass protests against corporate logging.

In an interview with the Monitor last November, Bari said, "This case is not just about me or Darryl or Earth First! This case is about the rights of all political activists to engage in dissent without having to fear the government's secret police."

In the new ruling Judge Wilken also ordered that Darlene Comingore, the executor of Bari's estate, may take Bari's place as a plaintiff. The judge also changed the short title of the case from Bari v. United States to Bari et al. v. Doyle et al.

Qualified immunity gives law enforcement officers protection from being sued for mistakes they make in the good faith performance of their duties. To overcome such immunity a plaintiff must show reasonable evidence that the officers knowingly broke the law or violated established rights.

Facing a jury trial some time in the not-so-distant future will be six FBI Special Agents, including terrorist squad bomb expert Frank Doyle, John Reikes, Stockton Buck, John Conway, Walter Hemje, and Philip Sena, and Oakland Police officers Lt. C. Michael Sims, Sgt. Robert Chenault, and Sgt. Michael Sitterud.

However, Judge Wilken said there was insufficient evidence against several other FBI officers including Richard W. Held, Special Agent In Charge of the San Francisco office at the time of the 1990 Oakland car bombing. Despite his history and expertise in covert "counterintelligence" operations aimed at political activists, including direct involvement in the well-known FBI COINTELPRO campaigns against the Black Panther Party and the American Indian Movement, Held claims that he was unaware of the misconduct of the agents under his supervision or of an ongoing FBI operation against Bari, Cherney and Earth First!

In comments to the Monitor yesterday, Bari's lead counsel Dennis Cunningham said he was somewhat disappointed because the judge "let Held out and she let Appel out, and she earlier let Mewborn out, and that's the whole hierarchy. We say the FBI did this on purpose because that's what the FBI does, and they would obviously be involved in that." Asked if he intended to appeal the ruling letting Held and other higher ups off, Cunningham said he needed to confer with other members of the legal team, which includes Oakland attorney William Simpich and Michael Deutsch of the Center for Constitutional Rights in New York City.

Cunningham also could see the brighter parts of the ruling. "She vindicated us about the basic evidence and about the basic stuff that went on with the officers in the field. That evidence was clear, so that's no surprise. We were challenging the court to step up to the implications of what we're saying, that this is FBI repression, but she didn't deal with that."

The FBI may appeal the ruling keeping six agents in the suit, but Cunningham said it would be hard for their appeal to succeed because Wilken's decision was well crafted and well grounded in the evidence. Justice Department attorney Joseph Sher, representing the FBI defendants, did not return a call requesting comment.

Cunningham said the next step in the suit would be to resume discovery of evidence from the defendants, and a trial date would soon be set. Trial would probably be no earlier than a year from now.

The ruling against qualified immunity for certain officers was based on the plaintiffs' showing reasonable evidence that the FBI and Oakland police deliberately misrepresented clear evidence regarding the location and makeup of the bomb in order to justify the false arrest of Bari and Cherney. The ruling also said there was evidence the Oakland officers engaged in "deliberate falsehood or reckless disregard of the truth" to obtain search warrants.

The strongest language in the ruling dealt with charges that the FBI agents engaged in a conspiracy to violate Bari and Cherney's First amendment rights. The judge ruled there is sufficient evidence that the FBI supplied false or misleading information to the Oakland Police that contributed to the false arrest and illegal searches. According to Judge Wilken, "A jury could infer from this evidence that defendants...acted out of animus towards Plaintiffs advocacy."

The full text of Judge Wilken's October 15 decision is available for reading or printing out from the Judi Bari web site at http://www.monitor.net/~bari.