Bari and Cherney filed their federal civil rights lawsuit in 1991, charging that the FBI and Oakland Police failed to conduct a legitimate investigation of the May 24, 1990 bombing of the two and instead used the bombing as an excuse to conduct an illegal disinformation campaign intended to destroy Earth First! and their environmental organizing. They allege that FBI conduct in this case shows the Bureau is still using the tactics of COINTELPRO even though the Bureau's covert action program targeting political dissent was found unconstitutional by Congress in the1970s and supposedly was terminated.
Using a delaying tactic seen several times before in this case, the Oakland City Attorney last winter filed an appeal of an October, 1997 District Court decision denying the Oakland police officers "qualified immunity" from suit. The appeal, now pending before the 9th Circuit Court, has already delayed for over a year the setting of a trial date, and the FBI's refusal to cooperate has compounded the effects of that delay.
The December 16 hearing on a motion to compel discovery also considered whether Bari and Cherney's legal team would be allowed to take the deposition of former FBI Director William Sessions. Both the FBI and the Oakland Police Departemnt argued to delay discovery and depositions until Oakland's appeal is resolved. Bari and Cherney attorneys Dennis Cunningham and Erica Etelson argued that Larson should order the FBI to continue with discovery and depositions that do not directly involve Oakland Police officers.
In an oral preview of his decision, Larson said that a number of depositions should be allowed, with clear restrictions to protect Oakland's interest. He said he would make his ruling in writing early in 1999. He said he will not allow plaintiffs to take the deposition of William Sessions at this time. He stated that "there was an outline" of the needed proof that Sessions had personal knowledge of the events surrounding the Bari bombing, but that further justification would be needed to allow his deposition. But he did allow that further depositions might establish the necessary connections between Sessions and this case.
"Clearly this was a victory," said Noelle Hanrahan, a supporter of the activists. "We got the FBI and the Oakland Police Department back into court, and discovery will move forward." The FBI must allow depositions with "rotor clerks" and other FBI personnel, who will be answering questions regarding the FBI's procedures and regulations regarding evidence and record keeping.
Judi Bari died of breast cancer in 1997. Her estate and Darryl Cherney are pursuing the suit, which alleges false arrest and conspiracy to violate their consititutional rights.
Copyright Mendocino Environmental Center 1999
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