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Pepper Spray Case Ends in Mistrial

Jurors deadlock on whether deputies used excessive force during '97 anti-logging protest.

September 23, 2004|Lee Romney | Times Staff Writer

SAN FRANCISCO — A federal judge declared a mistrial Wednesday in a case alleging Humboldt County sheriff's deputies used excessive force in 1997 when they applied pepper-spray soaked cotton swabs to the eyes of anti-logging demonstrators.

U.S. District Judge Susan Illston announced the mistrial after jurors deliberated less than eight hours and declared themselves "hopelessly deadlocked." The jury, which held fast at 6 to 2 in favor of the plaintiffs, was the second to reach an impasse in the 7-year-old case.

Nancy Delaney, an attorney for the defendants -- Humboldt County, the city of Eureka and two top sheriff's officials -- said she would seek to have the case dismissed.

Plaintiffs and their lawyers, however, vowed to retry the matter, which would ensure that the legal saga of the Earth First! protesters will continue. At issue is whether law enforcement officials violated the constitutional rights of the nonviolent demonstrators by using unreasonable force against them.

"It's a disappointment," said Bay Area attorney J. Tony Serra, who was among the plaintiffs' lawyers. "The bottom line is, we'll try this case again and again because it's a just cause. Pepper spray cannot be used in this way."

The seated protesters had locked their arms together within metal cylinders during demonstrations against Pacific Lumber Co. Plaintiffs' lawyers argued in the two-week trial that officers had successfully used hand-held electric grinders hundreds of times to cut through the pipes.

The switch in 1997 to the direct application of pepper spray, which had never been used in that manner, was designed to "break the movement," plaintiffs' attorney Dennis Cunningham told jurors in closing arguments Tuesday.

Delaney countered that the use of pepper spray was the safest way to get trespassing protesters to unlatch. Deputies feared they would ultimately cut a protester or start a fire with the grinders, she said.

"There's no movement-bashing. There's a concern for safety," Delaney told jurors.

After jurors in a 1998 federal trial deadlocked 4 to 4, 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 he then sought to have the case moved to Eureka.

Plaintiffs appealed again, arguing that Walker was biased. The U.S. 9th Circuit Court of Appeals agreed, removing Walker from the case and sending it back for retrial under a different judge. In this trial, two jurors disagreed from the outset that the force had been excessive, several jurors said.

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