"The reversal [of the lower court decision] is a triumph of justice for all citizens who oppose police brutality. No court should usurp the function of the jury on this kind of issue. In a constitutional government, the people, through the jury system, must be allowed to abridge a policy of police misconduct, for they are the conscience of the community. With great gusto we will resubmit the issue to the jury and we are confident that they will not allow this kind of police tactic - which is no different from police torture - to prevail as a police method. We expect triumph and victory in the next trial because the case will be tried as a political and constitutional symbol, which did not occur the first time."
- Tony Serra
San Francisco - On May 4, the Ninth Circuit Court of Appeals is issued a decision in favor of the plaintiffs in a closely watched pepper spray case in which police sprayed and swabbed the chemical directly into the eyes of non-violent protesters during protests over the Headwaters Deal in 1997.
The case will most likely set new precedents for the use of chemical weapons on non-violent protesters and for deciding the immunity for law enforcement. The Ninth Circuit also decided that the plaintiffs have the right to a jury trial to determine if "excessive force was used by Humboldt County authorities.
In 1997, in three separate incidents, law enforcement in Humboldt County sprayed at extremely close range and swabbed liquefied pepper spray directly into the eyes of activists engaging in civil disobedience in the forest on Pacific Lumber property, in Pacific Lumber's Scotia headquarters, and in the office of former Congressman Frank Riggs-who decided against seeking re-election following the controversy.
The police videos show law enforcement pulling back the heads of the seated activists and swabbing pepper spray into their eyes with cotton swabs. The police and sheriff's deputies describe their actions as "pain compliance" measures to compel the protesters to unlock themselves, though on video one officer referred to their actions as "torturing".
The images, shown on TV worldwide, created a firestorm of protest denouncing the use of pepper spray on non-violent demonstrators, the direct swabbing of which was unprecedented and according to ACLU, "experimental". According to American Civil Liberties Union, pepper spray is known to cause long term respiratory, visual and nervous system dysfunction. In contrast to other pain compliance measures, plaintiffs note, the pain caused by application of pepper spray continues and even increases after arrest.
The forest activists with the Headwaters Forest Defense were protesting the Headwaters Forest agreement between Pacific Lumber Company and the Federal Government. The deal allowed the timber giant to increase logging of old-growth redwoods in exchange for the government's $500 million purchase of 7,500 acres of forest.
Plaintiffs asserted that the alleged crime - trespassing - is a misdemeanor offense and that these extreme methods run counter to the fourth amendment right to peacefully assemble. They argued that the abuse was intended to discourage pro-environmental beliefs that run against the grain in a timber driven economy. In the lawsuit filed by the demonstrators in October 1997, plaintiffs argued that their civil rights had been violated, and that there were other means available to law enforcement, that the activists posed no threat or danger, and that they were not at risk of flight.
By the time of jury deliberations, Federal District Judge Vaughn Walker, granted qualified immunity to the law enforcement officers. After a nine day trial in August 1998, the jury was evenly divided, four to four. At that point Judge Walker declared a mistrial and set a new trial date. Eight weeks later, in lieu of a retrial, Judge Walker issued a " directed verdict" in favor of the defendants, arguing that there is "no legally sufficient evidentiary basis for a reasonable jury" to find for the plaintiffs.
Plaintiffs appealed to the Ninth Circuit Court of Appeals district court in San Francisco arguing that the judge made a mistake in issuing a directed verdict, and that the questions of excessive force and immunity for officers should be decided by a jury and not a judge. The Appellate Court did not make a judgment on the evidence but rather ruled that the Judge Walker was incorrect and that the plaintiffs have the right to a new trial with a jury.
A review of cases in recent years reveals an alarming trend in increased use of pepper spray by law enforcement dealing seeking to deter and punish peaceful protesters. Leading up to the use of pepper spray on protesters demonstrating against the World Trade Organization Seattle, and on demonstrators against the IMF in Washington, DC., pepper spray was utilized in more than ten publicized and countless other undocumented cases across the country since June 1997.
Copyright Mendocino Environmental Center 2000
Permission granted to excerpt or use this article if source is cited