No Pepper Spray on Nonviolent Protesters
www.nopepperspray.org

Archive Page

Older items removed from the home page.  Modified 5/6/05


Page Index

Report on 3/3/05 Motions Hearing
3/10/05

Report on 11/30/04 Motions Hearing
12/1/04

Hung Jury
9/22/04

Your Help Needed
8/18/04

Report on 8/24/04 pretrial hearing
8/24/04

Supreme Court brief 
2/21/04

New trial date 9/7/04
2/21/04

9th Circuit Won't Reconsider Ruling in Our Favor  
10/24/03

9th Circuit Removes Judge Walker!  
9/2/03

Judge denies trial site motion, we will appeal

Report on 4/24 hearing on trial site, judge bias

Motions re trial venue, judge recusal

Summary Judgment Motion

Link:
Tantamount to Torture - Making Contact Radio Program 6/30/99

The Jury Has The Case! 
(posted Tuesday, April 26, 2005 at 5:40 PM) (see 4/27 update below)

The jury of six women and two men now has the case in their hands. They have chosen to begin deliberations Wednesday morning at 8 AM and continue until 12:30 PM.  

After hearing testimony from defense expert witness on police practices Don Cameron Tuesday morning, the jury heard Sheriff Gary Philp answer a few more questions from defense attorneys. Then the defense rested their case. 

Judge Illston read jury instructions, including the legal factors they must consider in deciding whether the actions of Humboldt County Sheriff's Office and the City of Eureka Police Department used unconstitutional excessive force when they applied pepper spray to the eyes of locked down forest protesters in three incidents in 1997. 

The plaintiffs' closing argument was expertly delivered by lead counsel Dennis Cunningham. The defense closing arguments were given first by William Bragg and then by Nancy Delaney. Plaintiffs' counsel Tony Serra had the final word, delivering a passionate rebuttal to the defense argument.

The jury was sent to the jury room with instructions to choose a foreperson and then to set their schedule, which they have now done. They are allowed to deliberate on Friday if they choose, even though it is not a normal trial court day and the judge will be in the courtroom hearing motions in other cases. 

It is not unusual for a jury to send questions to the judge, and in that event she must consult with both sides before answering. During deliberations, attorneys for both sides will be standing by within 15 minutes call to the courtroom in case of questions or announcement of a verdict. 

The activist-plaintiffs feel strong in their presentation of the evidence and have faith in the eight individuals on the jury to thoroughly discuss the issues, and see through the rationalizations and excuses of the defense.

Stay tuned for any developments as soon as we learn them. 

 

Update: Jury Sends Note, Sets Schedule (posted 4/27/05, revised at 6:22 PM)

The jury began deliberations Wednesday morning at 8:00 AM. Within the first 20 minutes they sent two notes, one setting their schedule for deliberations and one requesting three things: a cork board to pin up Polaroid photos of each witness taken by the court clerk, a legal dictionary, and a copy of the 4th Amendment to the U.S. Constitution. 

As court protocol requires, Judge Illston called both sides into the courtroom and asked how they felt about each item requested by the jury. All agreed that a pin-up board was okay. All agreed that a legal dictionary can't be provided -- they can send a note if they need a definition. 

As for the 4th Amendment, Dennis Cunningham said the plaintiffs are willing to provide it. Nancy Delaney said the defendants object to providing the 4th Amendment, saying all they need to know about it is contained in the jury instructions. The judge said she agreed. Rather than call the jury into the courtroom, it was agreed that she would go to the jury room to tell them her decisions.

In the Judi Bari vs. FBI civil rights trial in 2002, that jury also requested copies of the 1st and 4th Amendments. Attorneys for the FBI and Oakland Police opposed that request too.

The jury has set the following deliberation schedule: Wednesday from 8 AM to 12:30 PM; Thursday from 8:30 AM to 5:00 PM; and, if needed, Friday from 8:30 AM to a time to be decided. 

When the request for a cork board was discussed, someone joked that maybe cork wasn't environmentally correct. Dennis Cunningham quipped that maybe it should be made of plastic or some other synthetic material.. Delaney then quipped that she preferred a slab of redwood.

The jury went home at 12:30 PM today with no further word.

Stay tuned for further updates.


Trial nears conclusion, will go to jury Tuesday April 26 (posted Monday, April 25, 2005)

The plaintiffs rested their case in chief on Thursday, April 21. The defense case began Monday, April 25, with six witnesses testifying, and it is expected to be concluded by 10 AM Tuesday. Only two defense witnesses remain to be heard, police practices expert Don Cameron, and a brief recall to the witness stand of Sheriff Gary Philp. Then the judge will instruct the jury in the law as it applies to this case. The jury will hear closing arguments of one hour from each side, after which they will be sent to the jury room to begin deliberations. 

The jury will choose a foreperson, and then set their own schedule for deliberations. They could choose to begin deliberating immediately, or to wait to start Wednesday morning. Most juries are eager to begin deliberations as soon as possible in the hope of being done with the case quickly and returning to their normal lives. It is fairly likely that they could decide to start immediately. It is possible they will decide to stay late, conceivably reaching a verdict late Tuesday afternoon. Most likely a verdict would come sometime Wednesday, and there is a small chance that deliberations could go on past Wednesday.


  Lungren subpoena withdrawn (posted Monday, April 25, 2005)

Dan Lungren fought to quash the subpoena served on him last week by plaintiffs, who wanted him to testify about his 1997 letter as then-Attorney General of California, which said the use of pepper spray applied by Q-tips to passive protesters and spraying it from inches away from their eyes was not within the then-accepted standard of police practices in the state.

The office of the current Attorney General of California, Bill Lockyer, filed a motion to quash the subpoena on various technical legal grounds, saying in essence that now-Congressman Lungren is too high a government mucky-muck to be pestered and dragged into court to testify about this trifling matter.

A hearing on the motion to quash, originally set for Friday, April 22, was rescheduled for Monday April 25, 2005, at 1:30 PM, immediately following the regular trial session. However, plaintiffs' lead counsel Dennis Cunningham told Judge Illston Monday morning that plaintiffs were withdrawing the subpoena, and the hearing was not held.

Defense counsel Nancy Delaney immediately moved for a mistrial, claiming that the Lungren subpoena was nothing but a publicity stunt, and that it was intended to influence the jury. Judge Illston said the jury is admonished daily to shield themselves from the media or any discussion about the case with anyone at all, including each other and their own families. The judge denied the motion.

The reason Lungren was subpoenaed was that the judge would not allow the letter to be admitted as evidence, sustaining an objection by Delaney that it would be hearsay.

You may find the Lungren letter issue of interest, so links are provided below.


Letter to Supporters - March 20, 2005

Come to the trial! 

  • You're ALL invited to the Pepper Spray Trial!

  • Come witness the trial that will decide the fate of protest and chemical weapons in these times!

  • We need a presence in the courtroom to show support!

    • San Francisco Federal Building, Judge Susan Ilston's Courtroom

    • 450 Golden Gate Ave. at Polk (Civic Center BART stop)

    • Must have photo ID to get in

    • Monday - Thursday 8:30 a.m. to 1:30 p.m. with two 15 min. breaks

    • Call 510-835-6303 for more info

Dear Friends,

We are the Pepper Spray 8, forest activists and plaintiffs in the pivotal civil rights case Headwaters Forest Defense vs. County of Humboldt, which interweaves the fate of our imperiled forests with the right to peacefully protest free from assault by pepper spray.

In 1997, while engaged in nonviolent sit-ins to protect old growth redwoods, Humboldt County and Eureka police applied pepper spray directly to our eyes with Q-tips. Shocking images from police videotapes caused international outrage. Amnesty International called the police behavior cruel, inhuman and degrading treatment..."tantamount to torture."

We've successfully fought numerous legal obstacles, winning appeals and making precedent, and going to trial twice, but the journey for justice is not quite over. We send this letter now at a critical juncture: We begin our new jury trial this April 12, 2005, and you're ALL invited!

There are two simple ways you can stand with us to protect the freedom of dissent in this country: 

  • DONATE what you can to keep our case alive-every little bit helps, and donations will continue to be needed!  Click here for the Contributions Page.

  • ATTEND TRIAL in San Francisco, CA starting April 12th and continuing about two weeks. We need to publicly show our support and keep a presence in the courtroom for this important jury trial.

Last September, our case went to jury trial in San Francisco for the second time (represented by the same award-winning legal team that won a stunning jury verdict two years ago for Earth First! activists Judi Bari and Darryl Cherney against the FBI). After three weeks of trial testimony, the jury's deliberations came to a quick halt when just two of the jurors adamantly believed that police should be allowed to inflict severe pain on peaceful protesters. Although we had the majority, we need a unanimous verdict to protect the tradition of peaceful protest.

Let's make sure "the third time's the charm," because this case is more important than ever! We must not let the police open the door to using pain as coercion against nonviolent people, protecting the politically powerful Pacific Lumber/Maxxam Corporation in their devastation of ancient forests.

Civil rights in this country today are an endangered species just like the ancient redwoods we aim to protect. The fact that our case is a contentious one is the very reason we need to follow through with it and win the retrial, in defense of everyone's rights. Because as Frederick Douglas said, "Power concedes nothing without a demand."

Sincerely Yours,

THE PEPPER SPRAY 8: Spring Lundberg, Terri Compost, Mike McCurdy, Sam Neuwirth, Maya Portugal, Lisa Sanderson-Fox, Jennifer Banka Schneider, and Noel Tendick.

------

Letter of Support from a Juror in the September 2005 Second Trial

Dear Pepper Spray 8,

The trial ended today as a hung jury. We deadlocked (6 -2). I am greatly troubled and disappointed about the outcome...creat[ing] an underlying current that it's ok to use excessive force on peaceful protestors. I am appalled and dismayed that this happened. I do hope there is a third trial and the plaintiffs win.

Sincerely,

(One of the jurors)


 

Report on Mar. 3, 2005, Motions Hearing

A hearing took place March 3 on our (plaintiffs') motion to reconsider the court's order ruling out punitive damages and our motion for a more in-depth jury selection process.

Judge Susan Illston didn't rule on the motions on the hearing day, but she said she's inclined to deny them but to allow expanded time questioning prospective jurors.

The judge rejected a suggestion by the defense to show one of the police torture videos to the prospective jury panel during juror selection. That would have given the defense a chance to spot and reject from the jury all those who showed any emotional or human reaction to the horrific police actions shown in the video.

The judge accepted our lawyer Tony Serra's suggestion to have both sides present abbreviated 15 minute statements to the jury pool to let them know what the case is about, but no photos, videos or other evidence would be allowed. There would still be full opening statements presented after the jury is chosen and the trial begins. Jury selection would probably take up all of the first day.

 Click here for a more detailed report on the hearing and links to the motions being heard.


Report on Nov. 30, 2004, Motions Hearing 
(posted 12/1/04, revised title and text on 4/7/05)

The judge set April 11, 2005 as the date when a new jury trial in our federal civil rights lawsuit will begin. The announcement came at a hearing Nov. 30, 2004, when Judge Susan Illston also granted our motion to reopen discovery and allow us to use expert witnesses, something we were not allowed to do in the first trial in 1998 or the second trial in September 2004.

Judge Illston also granted a defense motion to disallow punitive damages against the two individual defendants remaining in the case, former sheriff Dennis Lewis and current sheriff, then chief deputy, Gary Philp. Our attorneys have petitioned the judge to reconsider that ruling (see the Plaintiffs' Motion For Revision of Order linked from Legal Documents Index Page). They also filed a Motion for Expanded Voir Dire (questioning of prospective jurors) to weed out those with strong biases that prevent them from giving us a fair trial.


Jury Deadlocks 6-2 for Plaintiffs!

Wednesday 9/22/04 6:00 p.m.

The jury deadlocked 6-2 in our favor. Jurors spoke with plaintiffs and attorneys in the hallway afterward, telling us that the two who opposed us simply favored the police view in all respects. The two said they felt pepper spray wasn't so bad, and they believed the defense argument that the grinder alternative was more dangerous. One of the two told plaintiff Terri Slanetz that if you don't want to be pepper sprayed just don't lock down. Apparently in their opinion, the police can do no wrong, so there is no such thing as excessive force. This is the second trial in which a hung jury resulted from pro-police bias that wasn't exposed during jury selection.

Spring Lundberg told reporters: "This case is about defending nonviolent civil disobedience as part of our American heritage. I don't want to go through another trial, but we will, and we'll do it better and make sure that nonviolent people are not assaulted with chemical weapons. People don't want to question the badge and uniform at this time in our history, but that's exactly what needs to be done to preserve our right to nonviolent protest."

After closing arguments Tuesday morning, the case went to the jury about 12:30 p.m. The jury deliberated until after 5 p.m., when they sent a note to the judge saying there was "adamant opposition" within the jury. Judge Illston sent the jurors home for the night with instructions to sleep on it. The jury resumed deliberations this morning about 9 a.m. 

Just before noon they sent another note asking: "Can you change the decision from 100% to majority decision?" There was a court session at 1:30 p.m. at which our attorneys cited case law allowing a jury verdict by majority vote if both sides agreed, and we said we would agree. The defendants refused, blocking that approach. Our side also cited case law supporting giving stronger instructions to the jury to try to resolve differences. The judge agreed to do that. 

The judge also agreed with our suggestion that she call the jury foreperson into her chambers to ask if all jurors were participating in deliberations. She did so, and reported that the foreperson said there was an abundance of deliberation. The judge then called the jury into the courtroom and gave them the stronger instruction to work to resolve their differences. But it was no use, and a half hour later the clerk said there was another note from the jury foreperson saying the jury was hopelessly deadlocked, and further deliberations would be pointless.

The judge called the jury back into court at 3:15 and asked for a show of hands by any juror who felt that further deliberations would be useful. When no one raised a hand the judge accepted that the jury was deadlocked. She dismissed the jurors, telling them that they are now free to talk about the case to anyone they pleased, or not to. Many jurors did stop in the hallway afterward and shared their views with reporters, plaintiffs and attorneys. 

The judge set a deadline of Oct. 10 for motions from both sides, and a date in November for a hearing on those motions. It was just such a motion from the defense after the first trial that the original judge used as a vehicle to decide the case in favor of the defendants and block a new trial, a decision that was overturned by the appellate courts. 

Lead counsel Dennis Cunningham said the plaintiffs are ready to go back to trial at the earliest opportunity. Spring Lundberg noted that the first trial jury deadlocked four to four, that this time it was six to two in our favor, and that "next time we'll do it better and win it. The third time's the charm!"

(For another report on the second trial outcome see the 9/22/04 Press Release)


Second Trial Starts Sept. 8, 2004 Your Support Is Needed
(Our August 2004 letter to supporters)

Dear Friends,

The Headwaters Forest pepper spray trial is fast approaching, and it couldn't be a more pivotal time!

Recall the shocking TV news footage: Humboldt County police forcing pepper-spray soaked Q-tips into the eyes of nonviolent protesters at sit-ins for the protection of the ancient redwoods of Headwaters Forest in northern California. The 1997 incidents drew international outrage and condemnation. The ACLU called the officers actions tantamount to torture.

We are the Pepper Spray 8. Please stand with us to obtain justice for our case and to protect the freedom of dissent in our country by donating generously now.

Over the last 7 years we've successfully fought numerous legal obstacles, from a biased judge and venue in the heart of timber country to scrutiny by the US Supreme Court. A recent ruling has moved our trial back to San Francisco with a new judge. This September 7, 2004, in a San Francisco federal courtroom before Judge Susan Illston, our case will finally have a fair trial!

We have a good chance of prevailing with the same award-winning legal team that won a stunning jury verdict last year for Earth First! activists Judi Bari and Darryl Cherney against the FBI and Oakland Police. In addition, earlier court decisions have created case law which strengthens our position before the jury.

We need your tax-deductible donation to seize the opportunity to obtain justice. Even though our expert civil rights lawyers only get paid if we win we still face thousands of dollars in trial support costs. Creating a temporary office and outreach to the press and the community are critical to the success of the trial.

Also, we need you to come and witness the trial. A courtroom full of people who want pepper spray torture stopped can make a huge impact!

Recent global events have illustrated that police abuses spread when authorities decide certain groups and individuals don't deserve human rights protection. Shockingly, state officials have condoned what police did to us by incorporating these practices into guidelines for dealing with civil disobedience in California! This case can turn that around.

A dramatic election year is upon us, and the world is watching. It has never been more important to defend our rights to be free from torture by chemical weapons. Stand with us against police brutality! Defend your rights! Send your tax-deductible donation today!

Sincerely Yours,

Spring Lundberg, Terri Compost, Mike McCurdy, Sam Neuwirth, Maya Portugal, Lisa Sanderson-Fox, Jennifer Banka Schneider, and Noel Tendick.

-----------------------

To help support the Pepper Spray Case you can donate three ways:

1) Send your check or money order to:

Pepper Spray Fund
c/o Trees Foundation
PO Box 2202
Redway, CA 95560

2) By Credit Card: (print, fill out and mail to above address)

Name On Credit Card:____________________________________

Mailing Address: ________________________________________

City, State, Zip __________________________________________

Visa __MC __Card Number ________________________________

Exp. Date ___________

Amount $________________

Signature _____________________________________

3) Click on the link to make a secure online donation through Trees Foundation 


Report on August 24, 2004 pretrial hearing
(posted 8/24/04)

Defendants Ask Judge to Ban Any Mention of Headwaters Forest or Pacific Lumber During Trial; Hearing continues Monday Aug. 30 at 4PM.

The final pretrial on Aug. 24 finally began after 4 p.m., with our legal team and the defendants' lawyers each trying to define what testimony and evidence would be allowed in the trial. The hearing is not finished, and will continue at 4 p.m. on Monday, Aug. 30. 

Among the hotter issues was the defense asking the judge to bar plaintiffs witnesses from mentioning Headwaters Forest, Pacific Lumber or logging issues at all. Our lawyers objected that this would strip the case of all the context for the protests in which pepper spray was used. Judge Illston agreed, saying that the defense could make normal objections on the basis of relevance, and she would decide those in the usual way, but she was not going to issue a blanket rule banning all mention of the issues and circumstances of the protests.

The defense is trying hard to resurrect the issue of qualified immunity, a legal doctrine that shields law enforcement officers from being sued if a reasonable officer could believe that his or her action is lawful. The judge in the first trial of this case, Vaughn Walker, granted qualified immunity to the two individual defendants, ex-sheriff Lewis and current sheriff Philp, but he was overruled by the 9th Circuit Court of Appeals. Our lead counsel Dennis Cunningham argued that immunity is a question of law, not of fact, meaning it is for the judge to decide, not the jury. Also, he said, the question of immunity is supposed to be decided early in the litigation in order to spare officers from the burden of preparing for trial if they are immune. Defense attorney Nancy Delaney argued strongly that the jury should decide the issue after hearing all the evidence. Judge Illston took the issue under submission, and will rule on it later.

The defense wants to bring in videotapes of many other protest actions prior to the three in 1997 when the pepper spray torture tactic was first used. We objected that it is an effort to demonize logging protesters and make it seem okay for police to punish them with pepper spray.

Because this trial is a continuation of the 1998 trial before Judge Walker, Judge Illston said she was inclined to adopt Walker's rulings on motions about evidence made during the first trial, but she allowed arguments about them as she made her way down a list of twenty-some motions. At 5:30 p.m. Judge Illston said that the hearing would have to be continued later because the courthouse was closing and there were still too many issues to dispose of. After some discussion the judge said the hearing would resume at 4 p.m. on Monday, Aug. 30.

We learned that due to likelihood that the trial scheduled just before ours will run a bit longer than originally planned, our trial may not begin until Sept. 8, a day later than scheduled. The trial will be held beginning at 8:30 a.m. each day and ending at 3:30 p.m. with a 45 min. lunch break and two shorter breaks in the morning and afternoon. Trial sessions will not be held on Fridays. Judge Illston has allowed eight days for the trial. There will be eight jurors.


Supreme Court brief filed (2 /21/04)

Our legal team filed a brief with the U.S. Supreme Court in opposition to the defendants' appeal. The document is available for viewing or download as an Adobe Acrobat PDF file.

Click to read Opposition to Petition for Certiorari (289 KB)


New Judge Sets Sept. 7, 2004 Retrial Date as Defendants Appeal Again to Supreme Court (updated 2 /21/04)

Judge Susan Illston set the retrial date in our case for September 7, 2004 in Federal District Court in San Francisco. At the first hearing before the new judge, Judge Illston granted our request to delay the trial a few months. One reason was that our star paralegal, Alicia Littletree, is expecting a baby in February. Lead counsel Dennis Cunningham told the judge that Alicia's participation is vital to prepare the case for trial. 

Another reason to hold the trial later was the appeal filed by the other side. By September it will be known whether the Supreme Court has agreed to hear the appeal, which if so would delay the trial until the appeal is decided.

Defendants Humboldt County, City of Eureka, the ex-sheriff and his chief deputy (the current sheriff) appealed again to the U.S. Supreme Court, this time seeking to overturn the 9th Circuit Court of Appeals ruling removing Judge Vaughn Walker for bias and canceling his attempt to move the trial from San Francisco to Eureka. Eureka has long been the scene of roiling political controversy over logging by Maxxam/Pacific Lumber, which is currently bankrolling an effort to recall Humboldt County District Attorney Paul Gallegos, who filed a fraud suit against the lumber giant last year. The pepper spray torture incidents that gave rise to our case all happened during nonviolent protest demonstrations against Maxxam/Pacific Lumber logging of old-growth redwood forests.


9th Circuit Won't Reconsider Its Ruling In Our Favor (posted 10/24/03)

Our civil rights lawsuit moved a step closer to a new trial this week when a federal appeals court denied a defense petition to reconsider a recent decision replacing the original trial judge for appearance of bias and canceling that judge's order moving the trial from San Francisco to Eureka. The new judge has set a hearing for November 21.

On October 22 the U.S. 9th Circuit Court of Appeals denied a petition by Humboldt County and the City of Eureka for a rehearing of plaintiffs' emergency writ. The action reconfirmed the appellate court's September 2 ruling in favor of plaintiffs (us).

Pursuant to the September ruling, Judge Vaughn Walker, who presided over the first trial of the case in 1998, has been replaced by Judge Susan Illston. Judge Illston has scheduled a hearing for November 21 at 230 PM, when she is expected to set the date for a new trial in U.S. District Court in San Francisco.

Dennis Cunningham, lead counsel for the Headwaters Forest activists, said he was pleased with the appeals court's latest action and was looking forward to taking the case to trial. 


9th Circuit Grants Our Appeal! (posted 9/2/03)

The Ninth Circuit Court of Appeals' five page Order grants our (plaintiffs') petition for a writ of mandamus, reassigning the case to a different judge and restoring the case to San Francisco for trial. The Order was filed 9/2/03.

The Court sided with plaintiffs in finding that "Eureka and Humboldt County are known for their strong ties to the logging industry and that there have been many incidents of hostility directed toward environmental activists in Eureka and its environs."

The Court further observed that "Although there is a federal court facility in Eureka, no federal district judge has held a trial there in the last thirty years."

The Court therefore ruled that "On this record it appears that the district court's actions reveal an appearance of an absence of impartiality sufficient to warrant reassigning this case.  We therefore GRANT petitioner's requested relief and direct the Clerk of the Northern District of California to reassign this case to another district judge through the Northern District's random selection process; we also VACATE the order transferring the re-trial to Eureka."

Click here to read the 9th Circuit's Order. (PDF file, 104 KB)


Plaintiffs' Reply Brief in Support of Petition for Writ of Mandamus, etc. filed 6/2/03 (PDF file, 50KB)

The Reply Brief rebuts the arguments in Defendants' Answer Brief. Regarding the issue of location of trial, we argue that Eureka is a hotbed of hostility to forest defense activists and our cause, that census figures cited by defendants are a diversion, that the protest context of the  case is relevant, and that the defendants' claim that we are forum shopping is a perversion of the term. Regarding the issue of recusal of Judge Walker, we argue that our motion was timely, that the judge did not give us a fair opportunity to respond to his moving the trial to Eureka on his own initiative, that the judge's effort to revive the issue of qualified immunity without any legal basis for doing so is evidence of bias, and that the district court has dodged the issue of the appearance of bias.

The U.S. 9th Circuit Court of Appeals has now received all the briefs for consideration of our petition for writ. We now await the court's decision, which should come in a matter of weeks.

Our online legal documents page contains copies of the two orders which we have appealed to the 9th Circuit in our Petition for Writ of Mandamus: 
Order Denying Motion for Recusal of Judge Walker and 
Order Denying Motion re Situs of Trial.


Appeals court stay order temporarily blocks Eureka trial from starting!

We received the good news late Thursday, May 8, 2003 that the U.S. 9th Circuit Court of Appeals issued a stay order (PDF file) today delaying our trial until our emergency appeal is decided. Our case was assigned to the same three-judge panel which handled our previous appeal and strongly reversed Judge Walker's decisions dismissing our case and granting immunity to the sheriff and his chief deputy. 

Attorney Ben Rosenfeld, who prepared the emergency appeal, had this to say: "We are grateful the court has taken our appeal seriously because it is serious. We were ready to go to trial on May 12 as scheduled, but we want it to be a fair trial with an unbiased judge and jury, and this is the way that can happen. Of course, there has been no decision yet on our petition to hold the trial in San Francisco and assign a different judge. But the 9th Circuit takes our arguments seriously enough to delay the trial until it has time to consider them carefully. We are hopeful that they will ultimately make the right decision."

Today's order instructs the defendants in our suit to file a response to our petition for writ of mandamus by May 20. We will have until June 2 to file a reply. We think the appellate panel will make a decision sometime in June.

Plaintiff Spring Lundberg commented on KMUD radio news this evening: "I love Humboldt County, I love the forests here, and I love the people. I think it's unfortunate that a multinational corporation is ripping us apart. I believe in bridging the gap between workers and forest defenders, and I hope that can happen and heal our community. I do love Humboldt County, but I believe that our pepper spray trial needs an international forum, and that will happen if we get a trial in San Francisco.  And I would just add that this case should no more be tried in Eureka than a civil rights trial in 1965 should be moved to Selma, Alabama."

You can listen to a streaming MP3 file of the KMUD news segment on our Audio Page.


We have filed an emergency appeal writ re location of trial and reassignment of judge (posted 5/6/03)

Today our legal team filed an emergency motion and petition for a writ of mandamus with the 9th Circuit Court of Appeal seeking quick action to keep the trial in San Francisco and to remove Judge Walker from our case for bias against us. 

You'll find the complete appeal documents in legal format on our Legal Documents page. Below is most of the text of the Emergency Motion, which provides a brief summary of the reasons for the appeal and the need for immediate action. (A few legal citations and other details have been abridged here for brevity and simplicity. We are the "plaintiff-petitioners.")

Emergency Motion to Consider and Decide Petition for Writ of Mandamus on Shortened Time (abridged, boldface added) filed 5/6/03

Plaintiff-petitioners request that the Court consider and decide their "Petition for Writ of Mandamus and Exercise of Supervisory Authority," filed herewith, on an emergency time basis, in order to prevent irrevocable harm resulting from the district judge's decision to move the retrial of this case, scheduled to begin in just one week, on May 12, 2003, from the neutral place of San Francisco -- where the first trial occurred, all papers have been filed, and all hearings have been held -- to Eureka, a community pulsing with active, current, overt hostility toward plaintiffs and their interests. Plaintiffs have exhausted all remedies in the district court.

The district court has articulated no good reason for changing the place of trial. It is readily apparent that plaintiff environmental activists cannot get a fair trial and an impartial jury in Eureka, a community where logging interests predominate, and daily radio, print, and television ads by the Pacific Lumber Company (the main object of plaintiffs' protests) equate environmentalists with "terrorists", and exhort the community to band together to "defend" itself against them. Plaintiffs have submitted numerous press clippings and declarations, including one from the Mayor of Arcata, attesting to the community's hostility toward environmental activists.

Plaintiffs respectfully request that this Court intervene swiftly, in order to prevent a miscarriage of justice and a waste of everyone's resources, and direct the district court to return the trial to San Francisco, the site chosen by plaintiffs in order to avoid the very prejudice they now face. In addition, plaintiffs request that the Court order the case to be reassigned to a different district judge, in order to curtail his actual and apparent bias, manifested by a series of rulings which have no rational purpose except to ensure plaintiffs' defeat, and thereby vindicate his dismissal of the case in October 1998, after the first jury deadlocked, before he was firmly reversed by this Court.

Plaintiffs are eager to begin the retrial of this case, but only if they can hope to actually resolve it, before a fair and impartial jury. The course set by the district judge, however, portends an unfair trial and another appeal. Therefore, plaintiffs are willing to suffer a delay in the trial schedule in order to prevent the impending miscarriage of justice.
... 
(click for full version PDF file)

Click to jump to the abridged introductory sections of Petition for Writ on the Legal Documents Page

The official appeal papers are on our Legal Documents Page


Judge denies trial location motion (posted 5/5/03)

Judge Walker has denied our motion to hold the retrial in San Francisco instead of moving it to Eureka. "We want the appellate court to intervene, and order the case to remain in San Francisco so it won't be tried in a hotbed of prejudice," our lawyer Dennis Cunningham told the Press Democrat. The federal appellate court has the power to issue a stay order delaying the trial until it can hear the appeal, but it is rare for it to do so.

In his ruling released April 29, Walker said, "This case is not about the so-called 'Timber Wars,' but instead about police practices." We strongly disagree; this case certainly is about the timber wars. All three pepper spray torture incidents that are the basis of this suit took place during protests against Pacific Lumber logging of Headwaters Forest. They were part and parcel of a continuing nonviolent struggle over Headwaters and old-growth logging that is the centerpiece of what some call the timber wars. Yes, the case is about police practices, but only in the context of the timber wars. The important issue is not whether the judge can pretend there's no connection, but whether the average juror in Eureka could treat forest defense protesters impartially in a case where the police were acting on behalf of the timber industry.

Unless the appeals court blocks it, the trial begins on Monday, May 12 in a federal courtroom in Eureka, the heart of redwood timber country, in a community deeply split over timber industry vs. forest activist issues. Also on May 12, the Humboldt County DA will file additional charges in state court in the fraud suit against Pacific Lumber, guaranteeing that controversy will be roiling during jury selection and opening arguments in our case. There will also be a major hearing in the DA's case on May 13. 

(Note: the appeals court blocked it, see item above)

 

Link Humboldt Truth In Action Center (posted 5/5/03)

At the linked site you can sample the Pacific Lumber propaganda ads smearing nonviolent activists as "ecoterrorists" and see a letter to PL bosses asking them to cease and desist such divisive ads. A May 5 press release from the Bay Area Coalition for Headwaters said:

More than 60 doctors, lawyers, City Council members, clergy and local residents from this rural community have called for the cessation of ads broadcast on radio, tv and newspapers by Maxxam/Pacific Lumber. The ads attack protesters carrying out acts of civil disobedience against unsustainable logging as terrorists, accusing them of  "terrorizing innocent people", urging those listening to the ads to "protect our fundamental freedoms and rights".   Their attempts to whip up public sentiment against those who would oppose their management practices have the backdrop of an already polarized environment, since PL's over-cutting has put many people out of work in this timber-dependant community.

But as tree-sitters have been plucked from high altitude perches in giant old growth redwoods by contract climbers hired by PL to essentially carry out law enforcement activities, using pain compliance holds and binding activists' ankles and wrists upwards of 150 feet off the ground in the branches of giant old growth trees, the activists argue it is their rights at risk.  In fact, in an appeal of a judge's siting of an upcoming jury trial over police use of pepper spray on protesters staging a sit-in protest in Humboldt county, lawyers argued a fair trial is impossible in a "hotbed of prejudice" created by the timber company's smear campaign.

Click here to read the letter to PL and sample the smear ads. (The link opens in a new window; close it to return here.)


Report on Apr 24 court hearing on judge bias and trial site motions (posted 4/25/03)

The April 24 hearing took place in the San Francisco Federal Building before Judge Vaughn Walker. It was a case status conference that included a hearing on our motion to reverse Judge Walker's move of the trial to Eureka. Our lawyer Bob Bloom ably and forcefully argued the motion which he had drafted. Bob pointed out that it was unprecedented to move a trial from an unquestionably neutral area like the Bay Area to a decidedly non-neutral area like Eureka, especially when no one asked the judge to move it there in the first place.

Bob likened the degree of hostility toward forest protesters in Humboldt to Alabama in the era of the civil rights struggles of the 1960s. He told the judge that a recall election against the new Humboldt DA Paul Gallegos had just been formally filed, and that the main reason for it was a major fraud suit the DA has filed against Pacific Lumber. There have been daily front page newspaper stories about conflict in the community between supporters of Pacific Lumber, including its hundreds of employees and contractors, and those who applaud the new DA for finally making the big corporation subject to the law, who include forest activists and their supporters.

Evidence presented to show the state of extreme political turmoil and polarization in Humboldt County included newspaper articles and editorials and sworn declarations from people including lawyers and elected officials, including the mayor of Arcata. To a great degree, the turmoil is deliberately whipped up by Pacific Lumber, which has currently been spending tens of thousands of dollars running propagandistic TV and radio commercials and full page newspaper ads portraying nonviolent activists like our plaintiffs as "ecoterrorists" to be feared and loathed by decent citizens. You can listen to an MP3 file of the radio commercial from a link on our Audio Page.

On the issue of recusal of Judge Walker for bias against us, our motion was brought under two provisions, one based on actual bias against us, and one based on the appearance of bias. On April 23, Judge Phyllis Hamilton ruled that it was not proved that Judge Walker was actually biased against us. Judge Walker made a point of reserving for himself the decision on whether an average person in the street would think he is biased, which would require him to recuse himself. He did not give us his ruling on that at the April 24 hearing. There is a third reason Judge Walker should not preside over this trial if it is held in Eureka; there's a court rule that when a trial is moved to a new location, a new judge shall be randomly assigned to hear it. Judge Walker said that moving the trial to Eureka was not technically a change of venue in the legal sense, since both Eureka and San Francisco are administered by the same U.S. District Court. However Bob pointed out the rule specifically requires a new judge when trial is moved to a new courthouse. We believe that any unbiased judge would immediately move the trial out of Eureka.

Though the hearing was scheduled for 3 PM, Judge Walker dealt with three other cases before ours, finally beginning our hearing at 4:20 and ending it at 5:58. The judge did not rule on the trial location motion or the remainder of the recusal motion, saying only that we would hear from him about them, but not saying when. (See update in the next item above on this page.)


Motions to move trial to SF, replace judge (posted 4/16/03)

Our legal team filed two important new motions April 14 seeking to move the re-trial of our case back to San Francisco, where we filed the case and had our 1998 first trial, and also to recuse (remove) Judge Vaughn Walker for bias against the plaintiffs. Also filed was our Plaintiffs' Trial Brief, which summarizes the case background, claims and relevant case law.  

You can read the motions on our Legal Documents Page along with supporting documents, including sworn statements by attorney Tony Serra and several elected officials attesting to the extreme hostility against environmental activists and their lawyers in Humboldt County.

Below are two newspaper stories about these motions.

Pepper Spray Trial Move to SF Sought

Environmental activists contend Humboldt County community's hostility precludes fair jury 
April 15, 2003
By MIKE GENIELLA
THE PRESS DEMOCRAT, Santa Rosa CA

Contending recent anti-logging protests have made Humboldt County "too polarized" to allow a fair retrial, environmental activists Monday asked a federal court to move to San Francisco a federal suit over use of pepper spray against protesters.

The high-profile case is set for May 12 in a Eureka federal courtroom, but activists' attorneys said local residents harbor "extreme hostility" toward environmental activists, especially in view of current tree-sitting protests and other anti-logging tactics.

"This case should no more be tried in Eureka than a civil rights case in 1964 should have been moved to Selma, Alabama, for trial," attorneys said in a motion filed with the U.S. District Court in San Francisco.

Read the rest of the Press Democrat story

Read the Plaintiffs Motion re Situs of Trial and supporting documents on our Legal Page

Attorneys for Tree Activists: Recuse Judge

U.S. District Judge Vaughn Walker is biased against environmentalists and is recklessly changing the case venue, lawyers in a police-brutality suit allege.

April 15, 2003

By Dennis Pfaff
Staff Writer, Daily Journal (San Francisco legal newspaper)

SAN FRANCISCO - Lawyers representing North Coast activists who were pepper-sprayed during antilogging demonstrations in 1997 filed a motion Monday to remove U.S. District Judge Vaughn Walker from their police-brutality case, claiming he is biased against them.

In addition to recusing Walker, the plaintiffs moved to block his decision to shift a retrial of the case to Eureka. The plaintiffs warned that holding the proceedings in that polarized community could be physically dangerous and would reverse conventional wisdom for changing venues.

"This case should no more be tried in Eureka than a civil rights case in 1964 should have been moved to Selma, Alabama, for trial," the attorneys wrote. Eureka, they said, "is the center of a war zone."

The protesters, in seeking to remove Walker from the case, cited findings made by the judge when he dismissed the lawsuit when it first came before him in 1998. Some of those findings, the plaintiffs alleged, were factually wrong.

They said Walker betrayed his slant when he abruptly decided earlier this year to move the retrial to the "extremely hostile" city of Eureka.

"There can be no doubt that the conduct of Judge Walker demonstrates, both objectively and subjectively, that Judge Walker is biased and prejudiced against the plaintiffs in this case, and that any reasonable person would believe that to be the case," the plaintiff attorneys wrote.

Read the rest of the Daily Journal story


Report on March 27, 2003, Summary Judgment Motion Hearing

A hearing on summary judgment motions by both sides in our case took place on March 27 before Judge Vaughn Walker in San Francisco. Our lawyers Dennis Cunningham, Bill Simpich, and Tony Serra argued eloquently our points on summary judgment, reopening of expert witness evidence, and moving the trial back to SF, respectively (without yet filing any formal motion on the latter).

It looked for a time like Dennis had really turned the judge around and made him think about granting our summary judgment motion.  Then, the judge seemed to snap back into place like a rubber band, saying at the end of the hearing that we should be prepared to go to trial, hinting that he was going to deny the summary judgment motions.

The judge did not seem very sympathetic to Tony's passionate argument that Eureka is so inflamed given the uproar over the DA's fraud suit against Pacific Lumber and the Freshwater treesitter extractions that the lawyers and plaintiffs risk being lynched there.

A few days after the hearing we got word that the judge denied all motions and said that the trial will begin May 12 in Eureka as previously set.

Read the Plaintiffs' Motion for Summary Judgment on our Legal Documents Page.


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