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Trial to Begin Over 1997 Use of Pepper Spray

Sheriff's deputies are accused of excessive force during Humboldt County protest.

September 08, 2004|Lee Romney | Times Staff Writer

SAN FRANCISCO — Seven years after Humboldt County sheriff's deputies applied pepper spray-soaked cotton swabs to the eyes of passive anti-logging protesters, a trial begins today in federal court here alleging the technique was an excessive use of force that amounted to torture.

Video footage of deputies daubing the liquid onto the eyes of seated protesters who had linked their arms within metal cylinders attracted national attention. Images also showed deputies following up with close-range bursts of spray and refusing water to the writhing protesters unless they unlatched themselves. The manufacturer warned users against spraying from less than three feet away.

The trial is expected to be short but dramatic. Among the attorneys for the protesters is flamboyant Bay Area hippie legend J. Tony Serra, who has promised "a political trial," complete with spirited demonstrations outside the courthouse.

The showdown harks back to the most heated days of California's North Coast timber wars. Demonstrations by the environmental group Earth First! against Pacific Lumber Co. and its logging of ancient redwoods in the Headwaters Forest escalated throughout the 1990s.

Protesters on Pacific Lumber land and other private property had begun linking arms using lock-down devices known as "black bears." In response, officers on several hundred occasions had separated them by cutting through the devices with hand-held electric grinders.

But in three 1997 demonstrations, officers turned to the direct application of pepper spray to the corners of the demonstrators' closed eyes. It marked the first known use of the substance against restrained protesters in the country.

"It is a crossing of the line to use summary punishment, to use intimidation of the whole movement by inflicting pain on a few members ... when they'd been grinding them out with no pain, no torment, for years," said Dennis Cunningham, Serra's co-counsel. "They were trying to blunt the movement and defeat it."

Lawyers for the defendants -- Humboldt County, the city of Eureka and current and former sheriff's officials -- could not be reached for comment Tuesday. But they have previously argued that applying the spray was the safest way to end the protests.

They have also argued that their clients are entitled to immunity granted in many instances to law enforcement officials acting in the line of duty. The jury expected to be chosen today will be the second to hear the protesters' lawsuit. After a jury deadlocked in 1998, U.S. District Judge Vaughn Walker declared a mistrial, then reversed himself and dismissed the case in favor of the defendants.

He was overturned on appeal and the case was scheduled for retrial. Walker then sought to have the case moved to Eureka. Plaintiffs appealed again, arguing that they were not likely to get a fair trial there and that Walker was biased. In a rare move, the U.S. 9th Circuit Court of Appeals removed Walker from the case, saying his actions revealed "an appearance of an absence of impartiality."

The U.S. Supreme Court declined to reverse that decision, clearing the way for today's trial.

Civil libertarians hope the trial will send a strong message that pepper spray should not be used on nonviolent protesters.

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