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Plaintiffs Finally Victorious in Third Pepper Spray Lawsuit By LYDIA GANS

Special to the Planet
Tuesday May 03, 2005

After two hung juries punctuated by appeals all the way up to the Supreme Court, the third “pepper spray trial” finally brought resolution, with a victory of sorts, for the plaintiffs.  

At issue in the two week trial which ended last Thursday in federal court in San Francisco was police use of pepper spray. The police in the case were the Humboldt county sheriffs and the Eureka police and the plaintiffs eight young people engaged in civil disobedience protesting excessive logging of ancient redwood trees in northern California. This time the jury was unanimous in finding for the plaintiffs that the police used excessive force, but it awarded them only $1.00 each in damages. Compensation for the attorneys involved in this and the earlier proceedings can be expected to be a long process of applications and appeals. 

The plaintiffs were represented by a brilliant and dedicated team of lawyers including dynamic Tony Serra and soft spoken, fatherly looking Dennis Cunningham. In his opening statement Cunningham presented the background of the case to the jury. He explained that Pacific Lumber Company had been operating in Humboldt County for many years, practicing sustainable logging and enjoying good relations with the community. Then, in 1991, they were bought out in a hostile takeover by Maxxam Corp., a Texas based company owned by Charles Hurwitz, who was already notorious for his involvement in the savings and loan scandal. The logging operation looked like a way to squeeze out badly needed cash to cover his debts. Defying established standards of logging, plaintiffs claimed, Maxxam Corp. caused devastating effects on the environment and felled ancient redwood trees. 

When environmental activists began to organize, supporters came up from the Bay Area and beyond to participate in increasingly frequent protests. One of the plaintiffs, Berkeley/Oakland environmentalist Terri Compost, described “people in tree sits, and big demonstrations where a thousand people crossed the line and got arrested, and letter writing campaigns, and people trying to close down gates and set up blockades of people locked together.” There were different ways in which protesters locked themselves together. One method used metal tubes which they put their arms into and locked together with a pin. They could remove the pin from the inside if they wanted to free themselves but to take the devices apart from the outside required using a grinder to cut them loose.  

This was the procedure used by the police in a number of lockdowns but then in 1997 they took a different approach. They dipped Q-tips into liquid pepper spray, rubbed it in the eyes of the protesters to force them to unlock themselves, and videotaped the whole scene. They did this on three occasions, declaring that grinding would have been dangerous under the circumstances, an assertion that the plaintiffs insisted was not justified. 

Sitting in the courtroom and watching a video of the victims sitting helplessly while police pulled their heads back by the hair and dabbed the chemical in their eyes over their screams of protest was a gruesome experience. The jurors were clearly shaken, and the plaintiffs, who had experienced it and then had to watch it in the two preceding trials, had to suffer through it once more. The video demonstrated the plaintiffs’ charge that the police were inflicting punishment on them while they were clearly engaged in peaceful protest and were no threat to anyone.  

There were plenty of alternative ways to handle the situation, testified an expert witness. Anthony Bouza had been a policeman all his life, culminating his career as chief of police in Minneapolis. Since he retired he has written books and served as expert witness on police procedures. He described what he saw as a “classic case of police brutality” and several times used the term “grotesque abuse”.  

The defense took the position that the character of the protesters and the nature of the cause were irrelevant. Said defense counsel Nancy Delaney, “It is the job of law enforcement officers, when a property owner asks, to remove trespassers. It has nothing to do with their cause.”  

The cause, of course, was what it was all about for the plaintiffs. Spring Lundgren, who was only 17 at the time of her action, testified to her dismay at seeing the environmental damage caused by Maxxam. She described logging of the giant redwoods as “history being cut down.” Inspired by reading about people who had engaged in acts of civil disobedience, she reflected the views of all the protesters who suffered the pepper spray rather then unlock themselves, determined that their voices be heard. 

To be heard was the reason for going to court once again. Terri Compost says that “there are two very strong messages that are involved in this case. One is about police brutality and torture and what’s acceptable behavior of one human being to another. The other is [about] habitat destruction, the destroying of the natural ecosystems that sustain life, and the corporations that are stealing our futures.” 

After the verdict the plaintiffs spoke of their appreciation for the jurors, recognizing how enormously difficult it is to get a unanimous decision in a case involving police conduct. Plaintiff Sam Neuwirth said, “I think the results might seem to some people to lack enough punch because there were no damages but I thought about it a lot and realized how extraordinarily difficult it was for some of the jurors to swallow the fact that the police had been abusive.”  

Attorney Bob Bloom spoke for the lawyers when he explained to me that “it’s real hard to get every person in a group, in this case a group of eight jurors, to say that the police did the wrong thing. And in order to get to that point they had to compromise, it seems, on how much money the people would get. That’s what juries do all the time.” He is satisfied, he said. “This is a jury saying that this is excessive force. ... it’s not just Humboldt county (that) can’t do this. They can’t do this anywhere in the country.”