1. Pepper spray ban rejected 2. SPECIAL NOTE re: FBI's criminal investigation of Humboldt County Sheriff's department
----------------------- 1. Pepper spray ban rejected from pressdemo.com Nov. 15, 1997 -----------------------
Pepper spray ban rejected
By MARY CALLAHAN Press Democrat staff writer
SAN FRANCISCO -- A federal judge refused Friday to grant a temporary court order barring the use of pepper spray on nonviolent protesters, saying he was ""not in a position to substitute his judgment'' for trained police who defend its use.
The issue of whether pepper spray constitutes ""unreasonable force'' in coping with protesters, and violates their civil rights will be decided at a jury trial next year.
Environmentalists are trying to prevent use of pepper spray after Humboldt County authorities swabbed liquid pepper spray in and around activists' eyes during three videotaped Headwaters Forest protests this fall.
""Even though engaging in a protest to save forests bespeaks of lofty ideals and an honest concern, when that protest invades the private property of others, be they a congressman or a lumber company, it is also a crime under state law,'' U.S. District Judge Vaughn Walker said in his decision.
""Officers of the law are charged with arresting those who commit crimes and they must do so efficiently and with the least risk reasonable to all, including themselves and, most especially, potentially affected innocent bystanders,'' Walker said. ""Depriving officers of effective means of upholding the law is a harm which prevents the balance of hardships from tipping sharply in plaintiffs' favor in this case.''
Though the immediate ruling means Eureka police and Humboldt County sheriff's deputies may continue to use pepper spray to disperse peaceful protests, an attorney for the activists said he ""would frankly be shocked'' if they did so, given the outrage expressed around the nation in the wake of the tapes' release.
""If they do, it will be solid evidence that they are acting in wanton and reckless disregard of people's safety and rights,'' attorney Macon Cowles said.
Chief sheriff's Deputy Gary Philp said only that, ""It's all on an individual basis how it's handled.''
He and Eureka Police Capt. William Honsal, who both attended the hearing, otherwise declined to say what the future would hold.
As they prepared to leave the courthouse, Philp and attorney Nancy K. Delaney, who represents both police and the county, were surrounded for several minutes by protesters chanting, ""Two, four, six, eight. Ban the pepper spray, ban the hate.''
Environmentalists say the threat of pepper spray ""torture'' has deterred many activists in recent weeks from protesting the $380 million Headwaters deal, which was signed by President Clinton on Friday.
But several of those involved in the suit against police and the Sheriff's Department said they'll continue their fight to save more forest acreage, even if it means suffering the pain of pepper spray again.
""I've seen the Berlin Wall come down in my time.... There's still hope,'' said Jennifer Schneider, one of the nine pepper-sprayed protesters who filed the suit.
""They gave us the gift of outrage,'' said another, Noel Tendick.
The suit arose after members of the Headwaters Defense Coalition staged three sit-ins to protest a bill preserving 7,500 acres of old- growth forest owned by Pacific Lumber Co. Environmentalists contend 60,000 acres must be saved to protect the sensitive ecosystem.
The demonstrations were held Sept. 25 at Pacific Lumber's Scotia headquarters, on Oct. 3 at a logging site known as Bear Creek and Oct. 16 at the district office of Rep. Frank Riggs, R-Windsor.
On each occasion, demonstrators used V-shaped steel pipes, or sleeves, to link themselves together and resist arrest.
In the past, the sleeves have been removed with the use of metal grinders and pipe cutting utensils.
But under a policy adopted in mid-September, deputies and police warned the activists to release or face having pepper spray dabbed around their eyes.
Authorities and their attorney say the policy was adopted after due consideration aimed at avoiding risks associated with grinding or cutting the metal sleeves off, or trying to lift and carry linked protesters out of buildings.
Officers also have said that their own training in use of the agent includes smearing some around their eyes, without long-lasting results.
""The Q-tip is a minimal way of applying it,'' Delaney told the court Friday. ""... We have law enforcement using a substance that's legal (and) made available to the public in a legal fashion.''
Tapes of the incidents in Scotia and at Riggs' office, however, show what Cowles called ""a progressive application to the eyes, which was much more forceful in the third than the first,'' he said.
Cowles also said he'd obtained medical opinions stating that besides the ""severe immediate pain'' suffered from pepper spray, its direct application could cause ""the risk of serious injury up to and including blindness.''
While authorities say the substance was applied ""about the eyes'' only, officers in the last tape from Riggs' office can be seen forcing back the heads of four women and swabbing pepper on partially opened eyes. In one case, spray pepper was squirted into one woman's eyes from just an inch or two away.
In the Scotia demonstration, which started with a circle of seven protesters connected through steel pipes, officials continued to apply the spray even when all but two pairs had unlinked.
The two remaining pair ultimately were placed on stretchers and carried outside, where one couple released from the restraints voluntarily and another was freed with the use of a diamond-tipped grinder.
Judge Walker agreed with Delaney that traditional methods of coping with the protesters present other risks that could lead to injury.
Walker said, however, that questions about use of the chemical agent are sufficiently serious that he will expedite a trial on the matter. Attorneys said it was likely the trial would take place midway through next year.
While a civil jury ultimately may decide the direct application of pepper spray constitutes ""unreasonable force,'' prohibiting its use without a trial ""would impair their ability to enforce the law,'' creating a ""significant hardship.''
Copyright 1997, The Press Democrat
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----------------------- ----------------------- 2. SPECIAL NOTE -----------------------
The FBI has launched a criminal investigation of the Humboldt County Sheriff's department. It is unclear how serious they'll be, given that they are already the defendant in a lawsuit over their involvement in the bombing of Earth First! activist Judi Bari, so citizen vigilance and pressure are needed if the investigation is to be vigorous and result in substantive action. Please contact your governmental representatives and let them know how you feel about the use of pepperspray against nonviolent protestors.
President Clinton phone: 202-456-1111 fax: 202-456-2461 email: president@whitehouse.gov
Louis J. Freeh, Director Federal Bureau of Investigation J. Edgar Hoover Building 935 Pennsylvania Avenue, N.W Washington DC 20535-0001 phone: 202-324-3000 email: director@fbi.gov
Attorney General Janet Reno Department of Justice 10th Street & Constitution Ave, NW Washington DC 20530 phone: 202-633-2001
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