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Pepper Spray on Demonstrators OK'd by Judge, New Police Guidelines

by Nicholas Wilson

Find other articles in the Monitor archives about police use of pepper spray

In a case closely watched around the nation, a judge canceled a second jury trial and ruled that it was not excessive force when police swabbed pepper spray in the eyes of nine Humboldt County forest activists a year ago.

Although a retrial was set for November, federal District Judge Vaughn Walker chose to decide the case himself on October 26, approving a defense motion for a directed verdict in favor of the police. An appeal of the ruling has been filed.

Judge calls pepper spray "negligible risk"
A San Francisco trial of the case in August ended with a hung jury. For the retrial, the activists replaced their legal team with noted San Francisco lawyer J. Tony Serra and Berkeley lawyer Brendan Cummings.

"It's a green light to torture," said Serra. "Anyone who has seen the video knows it's torture." He said he was "aghast" that Walker had not allowed the case to go to a new trial. "Justice has been dealt a body blow."

Attorney Cummings said, "The judge's ruling basically states that no reasonable juror could conclude that the police violated the plaintiffs' constitutional rights by rubbing pepper spray into their eyes. Given that at least half the jurors felt that it was an unconstitutional violation, and that much of America and the world was outraged by it, it's an incomprehensible ruling."

The motion approved by Judge Walker was originally filed midway through trial, after lawyers for the forest activists had presented their evidence. When Walker responded by saying that he would delay his decision, one of the plaintiffs' lawyers confided to the Monitor that he was concerned the judge might sit on that motion until after a jury verdict, then use it to overturn the jury's verdict if it was for the activists.

When Judge Walker accepted the jury's statement that it was split 4-4, he told them not to feel bad because "reasonable people can differ" over the use of pepper spray in this way. Apparently he changed his mind in the three months between the end of the trial and his long-delayed ruling on the motion.

In his ruling, the judge wrote: "The uncontroverted evidence presented at trial unequivocally supports the conclusion that the officers acted reasonably in using OC (pepper spray) as a pain compliance technique in arresting plaintiffs ... and no reasonable juror could conclude otherwise."

Walker opined that the law did not require police to use the least force possible, and that they could reasonably conclude that using pepper spray was a safer alternative than using grinders to cut them out of the steel pipes protecting their arms.

He also found that "the force used was merely the infliction of transient pain without significant risk of physical injury.... The negligible risk, if any, associated with OC spray as used by defendants cannot be deemed sufficient to render the defendants' use of force unreasonable...."

Humboldt sheriff renewed use of pepper spray before Walker's ruling
Noel Tendick, one of the forest activists in the case, said he was "shocked" at Walker's ruling. "We feel that the use of pepper spray on nonviolent demonstrators is unreasonable and a violation of our civil rights."

Tendick also spoke for the others in expressing concern over the sheriff's renewed use of pepper spray at Grizzly Creek October 7 and 8, even before the judge's ruling. "We share a determination to stop this from happening," he said. "It's a very deep hurt that was given to us, and we don't want anyone else to suffer it. We're deeply concerned about activists' rights in Humboldt and across the country. This ruling creates a disturbing trend that says it's okay for law enforcement to use unreasonable and excessive force, that it's okay for law enforcement to act as punishers, and that it's okay for us to be punished for our political beliefs."

Plaintiff Spring Lundberg said police use of pepper spray was an outrage. "As many of us have seen in the weeks since David "Gypsy" Chain was killed out in the woods, civil rights and human rights are under attack in this country. Those of us on the front lines protecting the forest and speaking out have got to stand together against police brutality and against corporations that hold greed more important than human and community needs."

Of course, not everyone was unhappy with the judge's decision. Outgoing Representative Frank Riggs, who vigorously defended police use of pepper spray on what he labeled "ecoterrorists" in his Eureka office, applauded the judge's ruling. In a media statement, the former police officer said: "I have been ridiculed and vilified by those who side with the protesters -- and their sympathizers in the media -- who argue perversely that it's somehow OK to resist arrest and jeopardize the safety of others as long as it is in the name of a politically correct cause."

Monitor editorial, "Torture by any Other Name"
Walker's ruling was strongly criticized in an Oct. 27 San Francisco Examiner editorial captioned "When Torture is 'Reasonable:'"

To say that Walker's Orwellian ruling is absurd is a vast understatement. Except for the excruciating pain, we'd urge Walker to try daubing pepper spray in his own eyes before he recommends the torture for others. As for his tortured logic, it's hard to say no reasonable juror would find pepper spray to be excessive force when four jurors already have, in the original trial.


It isn't necessary to torture citizens to get them to comply with the law. What's next: Bamboo under the fingernails? Electric cattle prods? When the courts condone cops' causing pain, we're all in deep trouble.


The appellate court should look at some simple facts: Pepper spray applied directly to the eyeball is torture. It's excessive force. It's cruel and unusual. It's punishment without indictment, trial or conviction. It isn't necessary. It's barbaric -- it violates the least common denominator of civilized behavior. Without batting an eyelash, the appellate judges should overturn Walker's ruling.

ACLU lawyer and Police Practices Project Director John Crew said that though he disagreed with judge Walker's ruling, it appeared to narrowly apply to circumstances surrounding the logging protests. "Law enforcement should not be mistaken and think the court has given the green light to using pepper spray on all nonviolent protesters involved in civil disobedience," he told the Examiner.

Pepper spray on passive resisters approved in police guidelines
But less than two weeks after the ruling, on November 5, the California Commission on Police Officer Standards and Training (POST) approved new Crowd Control and Civil Disobedience Guidelines. The guidelines include the statement that "Agencies should develop policies and procedures for the deployment of nonlethal chemical agents during incidents of civil disobedience." Direct application of pepper spray on passive resisters is listed as an option under this guideline.

When Humboldt plaintiffs Tendick, Lundberg, and Lisa Sanderson-Fox attended the POST meeting to speak against adoption of the new guidelines, they heard commission members citing Walker's decision as support for police use of pepper spray on passive demonstrators. They were told that the commission does not set policy for law enforcement agencies, but only issues guidelines which agencies may choose to adopt or not in setting their own policies.

But in fact, POST guidelines carry great weight with police department policy makers. The draft version of the new guidelines was cited by a defense witness in the August trial as evidence that Humboldt authorities' use of the caustic chemical was within accepted police policy standards. The guidelines were developed in direct response to the widespread public outrage over the Humboldt pepper spray incidents.

In a letter to state senators after the police videos were broadcast last year, California's law-and-order Attorney General Dan Lungren said the "very unusual applications" of pepper spray were "in conflict" with state guidelines. It appears, though, that rather than change their policy to conform to the guidelines, Humboldt authorities instead set about changing the guidelines. At Eureka Police Department's request, two of their officers, Captain Murl Harpham and Sergeant Duane Fredrickson, were added to the 23-member POST committee that developed the new guidelines just approved by the commission.

Over 100 deaths nationwide after police use of pepper spray
Attorney Cummings told the Monitor that the notice of appeal of Judge Walker's ruling was filed with the district court November 24. Cummings is now awaiting instructions from the Ninth Circuit Court of Appeals regarding a schedule for the appeal. He said appeal specialist Mark Hughes, an attorney with Earthlaw, has joined the legal team representing the activists. Earthlaw is a Denver nonprofit environmental group that uses the law to defend the West's forests, air, water, and biodiversity. It recently opened an office in Palo Alto.

As many as 35 people have died in California after being pepper-sprayed, according to the ACLU, and there have been over 100 deaths nationwide after police use of pepper spray. Supporters of pepper spray say there's no proof the substance caused the deaths associated with it.

Mark Lappe, Ph.D., of the Center for Ethics and Toxics has written "As a toxicologist, I can report that capsaicin, the active ingredient of capsicum (pepper spray), is among the most noxious chemicals identified to date. It not only produces profound pain at micro-doses, but it enhances the pain produced by later stimuli. Less well known is the fact that capsaicin is a mutagen and a potent chromosome-breaking chemical. Through its activities on the inflammatory system, it can also aggravate the airways in asthmatic patients, accounting for at least two deaths nationwide."

A new video, "Fire in the Eyes" has been just released by the Headwaters Action Video Collective, an affiliate of the Trees Foundation of Redway, California. The half-hour video is a compilation of police and documentary videotapes of the three 1997 Humboldt pepper spray incidents plus new footage from the October 1998 Grizzly Creek incident. The fast paced and professionally edited program blends the graphic footage together with voice-over narration and background music. More information is available at on the KMUD radio website.

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Albion Monitor December 14, 1998 (

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