The judge surprised everyone by immediately tossing out the FBI motion
In an Oakland
California federal courtroom filled to capacity with supporters and reporters, Earth First! activist Judi Bari won a round in her false arrest and conspiracy suit against the FBI and Oakland Police Department. At a November 22 pretrial hearing, Judge Claudia Wilken began by denying the FBI's latest attempt to dismiss the suit, then ordered any further challenges to be consolidated for hearing all at the same time, and set up a timetable to move the case toward trial.
Bari and fellow Earth First! activist Darryl Cherney are suing FBI agents, Oakland Police officers, the Oakland Police Department, and the City of Oakland for violating their constitutional rights by false arrest, unlawful search and seizure, denying equal protection of the law, and conspiracy to defame and discredit them and their movement.
Judge Wilken surprised both sides by immediately tossing out the FBI motion to dismiss without hearing any evidence or oral arguments, based only on the written briefings. She then said she had a few problems with parts of the latest revision of the suit by Bari's attorney, but said she would resolve them by "red penciling" the document herself. Once that is done, the defendants (FBI agents and OPD) will have only three weeks to file any further motions to prevent the suit from coming to trial.
The judge also addressed the issue of repeated appeals by the FBI against her rulings in the case, saying she interpreted the law as allowing "only one bite at the apple." FBI attorney Joseph Sher disagreed, saying he believed new case law allows multiple appeals.
After court, Bari emphasized the significance of the case, telling reporters, "This case is not just about me or Darryl or Earth First!. This case is about the rights of all political activists to engage in dissent without having to fear the government's secret police. This is a much larger case than any of us as individuals." The case has survived repeated challenges by the FBI and OPD since it was filed in May, 1991, and Bari says there is no way that the suit could have survived five and a half years in court unless it were a strong case.
"If you turn up dead, then we'll investigate"
Bari later discovered through FBI and police files obtained through her suit that the FBI had determined within hours of the explosion that the bomb was triggered by a motion device, and OPD photos of the bombed car clearly showed that the blast damage was centered directly under her driver's seat. Bari says these facts were known to the FBI and police at the time they decided to arrest Bari and Cherney and make false charges against them in the press.
Nevertheless the two forestry activists were branded as terrorists and held on $100,000 bail, and authorities spent two months making statements to the press about finding more and more evidence linking Bari to making the bomb. The Alameda County District Attorney eventually refused to file any charges, citing a lack of evidence. This was reported only in the local press.
When the bomb exploded, Bari and Cherney were on a tour of college campuses recruiting for their 1990 "Redwood Summer" of nonviolent logging protests, inspired by the Mississippi Summer civil rights campaign of the 1960s. Bari and other forestry activists in Mendocino and Humboldt Counties received oral and written threats of violence and death from timber industry supporters in the months before the bombing, and Bari reported them to the police and turned over the written ones as evidence. A Mendocino County Sheriff's officer told Bari, "we don't have the manpower to investigate. If you turn up dead, then we'll investigate."
A year before the bombing Bari's car had been rammed from behind by a log truck in an incident reminiscent of the Karen Silkwood case. Her car was totaled, and three adults and four of their children ended up in the hospital with minor injuries. The police refused to investigate it as anything but a traffic accident, even though Bari had photos showing that the same truck had been delayed by an Earth First! blockade less than 24 hours earlier.
"We're not going after them for failing to catch the bomber -- we're going after them for failing to look for the bomber"
Although Bari expected to present some of the 14,000 pages of evidence she has obtained from FBI and police records and from sworn testimony taken in depositions, she was pleased with the hearing's outcome, saying, "at least we got the case put into a more sane kind of presentation, where when we do come back, we'll be able to argue the whole case at once, and hopefully there will be a limited number of times they can appeal."
The FBI and OPD claim the doctrine of "qualified immunity" protects them from being sued for actions in the line of duty. Bari explained that in order to overcome that barrier she has to show that their actions were not simply mistakes made in good faith but were conscious and deliberate efforts to frame her and Cherney in order to smear and discredit them and Earth First! in the public mind. Bari said she has strong evidence to that effect, and that, "they didn't make a mistake when they arrested us, they lied. They told a conscious and deliberate lie, in writing. They said the bomb was in the back seat; they knew it was hidden under my seat. They said that nails in the bomb matched nails in the car; they knew they weren't even similar."
During the hearing FBI attorney Sher argued against Bari's charge of denial of equal protection of the law, saying that a person can't sue the police for failing to catch the bad guys. Afterward Bari said "We're not going after them for failing to catch the bomber -- we're going after them for failing to look for the bomber. And that's really the distinction. We're not saying this was a failed investigation, we're saying this was a phony investigation. In fact, any lead that could have led to the bomber, they avoided. The death threats that I received before the bombing are still sitting in their evidence room, untouched, unfingerprinted, unexamined. Any lead that seemed to lead anywhere except for Earth First! or Darryl or me was very deliberately ignored by them. That's the point. It's not that they didn't succeed, it's that they didn't try."
Bari says evidence from another court case shows that the FBI was engaged in covert operations targeting Earth First! in Arizona just before the bomb exploded under her driver's seat on May 24, 1990. In the Arizona case the FBI infiltrated a small Earth First! group with agents provocateur for about two years during which they repeatedly tried unsuccessfully to get them to use explosives, and offered to provide the explosives. Finally the FBI settled for getting them to use acetylene torches to sabotage a power line from a controversial power plant, drove the activists to the scene, then arrested them in the act.
A hidden tape recorder worn by an FBI undercover agent in the Arizona case was accidentally left running when he was speaking with other FBI agents, and recorded the agent saying that Earth First! founder "Dave Foreman is the one we need to pop in order to send a message." A transcript of the tape was obtained by lawyers for the defendants in that case.
"What happened when they arrested Darryl and me in 1990 was really a continuation of the FBI's already existing attempt to discredit Earth First! by trying to associate us with explosives," said Bari. "And in case anybody doesn't know, Earth First! has never been associated with explosives in any way shape or form, except as victims, in our entire history."
When asked about the Oakland Police Department's role, Bari had this to say: "Most of you have probably seen the photos (of the bombed car) taken by the OPD. Any idiot, or as Dennis (my lawyer) wrote in his brilliant brief, Ray Charles or Stevie Wonder could have seen where that bomb was. So it's not just that the OPD were deceived, the OPD were willing collaborators. They looked at physical evidence that somebody had tried to kill me, and because the FBI said to them, 'We know these people; they're terrorists; they're the kind of people who would be involved in something like carrying a bomb...' well, even if the FBI said that, the OPD, who actually made the arrests, had the responsibility as a police agency to check out the facts for themselves.
"In fact the Oakland police have a very long history, dating back to the days of the Black Panthers, of cooperating with the FBI in COINTELPRO (so-called counterintelligence) operations. In fact (Oakland officers) testified in sworn testimony in depositions in this case that the OPD themselves conducted spying operations on Earth First! and on 300 environmental and political activist groups and individuals in the Bay Area, which the FBI is forbidden to do by the Attorney General's guidelines. The OPD comes and takes pictures of our demonstrations, writes down our names, all that kind of political spying, that the FBI is prohibited from by the Attorney General's guidelines. We asked them what they did with this information, and the OPD said they share it with the FBI."
"We're facing an [FBI courtroom] strategy that is based on delay and nothing else"
A light drizzle and rain showers did not dampen the spirit of the rally, which featured inspirational songs by a number of singers, including Bari and Cherney, a singer/songwriter who has been called the Woody Guthrie of the environmental movement. Banners proclaimed "Justice for Judi Bari" and "Save Headwaters Forest."
Bari spoke to the crowd briefly about her own case, then yielded the microphone for updates about other instances of alleged FBI and police abuse, including the cases of Leonard Peltier, Mumia Abu Jamal, and Geronimo (Pratt) Ji Jaga, all of whom are political activists said to have been framed directly by or with the involvement of the FBI.
The next hearing in the case will probably be scheduled no sooner than March, 1997. Asked if he could make a motion to expedite the case due to the fact that Bari has inoperable cancer, attorney Dennis Cunningham replied, "I think that one is developing here, and we'll try to make it at the appropriate time. We're facing a strategy that is based on delay and nothing else."
Attorneys for the FBI and the City of Oakland did not return calls from the Albion Monitor requesting comment.
Albion Monitor December 11, 1996 (http://www.monitor.net/monitor)
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