No Pepper Spray on Nonviolent Protesters
(last updated 3/27/05)
Facts About the Q-tip Pepper Spray Case
The Civil Rights Lawsuit Returns to Trial in Federal Court April 11, 2005
450 Golden Gate Ave., San Francisco, 19th floor, Judge Susan Illston
Three times within the space of a month in the fall of 1997, Humboldt County law enforcement officers arrived at peaceful sit-in protests for the protection of Headwaters Forest and, using Q-tips or spray at close range, applied the caustic chemical agent pepper spray directly to the eyes of the seated activists.
In connection with the civil rights lawsuit brought by the activists in October 1997, police videotapes of the pepper spraying were released to the public. When excerpts from these tapes were shown on national network television news, the shocking images caused international outrage. A review by then California Attorney General Dan Lungren found the police use of pepper spray in these incidents to be “unprecedented” and in violation of “acceptable police community practices”. Amnesty International called the police behavior “cruel, inhuman and degrading treatment ... tantamount to torture”.
The Civil Rights Lawsuit in Federal Court
On October 30, 1997, the pepper sprayed forest activists filed a federal civil rights lawsuit against the County of Humboldt and City of Eureka charging the Sheriffs Department and Eureka Police Department with unconstitutional use of excessive force in their response to the peaceful sit-ins. The case was filed in U.S. District Court, San Francisco.
The case went to trial in August 1998, and ended in a hung jury (split 4-4) and a “directed verdict” issued by Judge Vaughn Walker, which denied us a new trial in the case. Judge Walker claimed “no reasonable juror” could decide in favor of the plaintiffs. After years in the appeals process, Walker's decision was reversed by the U.S. 9th Circuit Court of Appeals, and upheld by the U.S. Supreme Court.
In further appeals Judge Walker was removed from the case for "absence of the appearance of impartiality." The 9th Circuit has repeatedly returned with strong decisions in favor of the plaintiff’s case. For example, the 9th Circuit ruling granting our new trial states: “It would be clear to a reasonable officer that using pepper spray against the protestors was excessive under the circumstances.”
Judge Susan Illston was assigned as our new judge and a second trial began September 8, 2004. In addition to the new judge we also had a completely new legal team, the award-winning team that represented Earth First! activists Judi Bari and Darryl Cherney in their victorious civil rights lawsuit against the FBI and the Oakland Police Department in June 2002. The team now includes Bay Area attorneys Dennis Cunningham, J. Tony Serra, Bob Bloom, Bill Simpich, Ben Rosenfeld, Gordon Kaupp, John Tanghe, and paralegals Alicia Littletree and Josh Morsell.
The second trial, too, ended in a hung jury, this time split 6-2 in our favor. The two holdout jurors said they refused to believe that the police could be wrong. Judge Illston set April 11, 2005 as the starting date for a third new trial. We are confident in our strong case and our skilled legal team, and we hope for a clear victory this third time around.
The Plaintiffs are eight citizen activists ranging in age from 16 to 40 at the time of the incidents in 1997. They are Vernell “Spring” Lundberg, Michael McCurdy, Eric Neuwirth, Maya Portugal, Lisa Sanderson-Fox, Jennifer Schneider, Terri Slanetz, and Noel Tendick. (For brief bios of the plaintiffs and listing of the legal team click here.)
The lawsuit contends that the chemical’s use as a "pain compliance" tool is insupportable by proper police standards and is a violation of Constitutional rights guaranteed under the Fourth Amendment. The suit seeks damages for these violations and an end to the police practice of using pepper spray in this way on nonviolent activists.
From 1997 to September 2004 the case was known by the official short title "Headwaters Forest Defense et al. vs. County of Humboldt et al." However HFD is no longer a plaintiff in the case, and on 9/30/04 Judge Illston granted a defense request to change the official short title to "Vernell Lundberg et al. vs. County of Humboldt et al." It is also unofficially known as the Pepper Spray Eight case, or simply as the Pepper Spray Q-Tip case.
Our legal team received the prestigious national Trial Lawyer of the Year Award for 2003 for their work on the Bari-Cherney suit, which got a record-breaking $4.4 million jury verdict. The award is given by the national Trial Lawyers For Public Justice www.tlpj.org who said in a press release: "This award is bestowed annually upon the trial lawyer or lawyers who have made the greatest contribution to the public interest by trying or settling a precedent-setting case. It is the nation's single most prestigious award for trial lawyers." For more details about the award see www.judibari.org/#TLPJ
Brief Accounts of the Three Pepper Spray Incidents at Issue in this Case
- The Scotia Pacific Lumber Office Protest
On September 25, 1997, in protest of the pending “Headwaters Deal” and Pacific Lumber’s intent to log the ancient redwood forest, several activists entered the lobby of the Pacific Lumber’s offices in the company town of Scotia, California. Eight activists seated themselves peacefully in a circle, locking to each other's arms inside metal sleeves. When they refused law enforcement’s order to unlock and leave the premises, officers forcibly seized the heads of each demonstrator, one by one, and repeatedly inserted cotton swabs saturated with oleoresin capsicum pepper spray onto the eyes of each one. After some unlocked, two pairs of protesters still locked together were carried outside on stretchers. Once outside, one pair unlocked, and the other two were cut apart with an electric grinder. Plaintiffs Spring Lundberg, Jennifer Schneider and Sam Neuwirth were part of this first incident.
- The Bear Creek Protest
On October 3, 1997, two young men, plaintiffs Noel Tendick and Michael McCurdy, peaceably protested Pacific Lumber’s destruction of the redwood ecosystem by locking their arms to each other through the tracks of an idle PL bulldozer at a logging site in the Bear Creek watershed. The deputies held the head of each Headwaters activist and inserted pepper spray into their eyes with cotton swabs. Seconds later, officers sprayed the substance directly into their faces at close range, from a few inches away. When Mike and Noel still refused to unlock they were cut apart with an electric grinder.
- The Franks Riggs Office Protest
On October 16, 1997, activists entered the Eureka, California, office of U.S. Representative Frank Riggs in Eureka, hoping to engage the Riggs or his staff in dialogue about the “Headwaters Deal.” Four young women locked arms in metal sleeves to form an unbroken circle around a tree stump that had been brought in by others. The officers held the heads and swabbed pepper spray around and into the eyes of each the women, one of whom was a sixteen year old girl. After a few minutes they applied a second round of pepper spray swabbing, forcing open the eyelids as shown on the police video. Subsequently, officers applied a full force spray blast to one of the women, plaintiff Terri Slanetz, with the spray nozzle no more than 2" from her eyes. Jennifer Schneider, Maya Portugal and Lisa Sanderson-Fox were the other three plaintiffs who were part of the Riggs incident.
About Pepper Spray
Pepper Spray, technically called "oleoresin capsicum," is a controversial chemical weapon in the arsenal of law enforcement. Originally developed as a bear repellent, the substance was certified for police use in California in 1992. When released, it causes intense pain, coughing, gagging, shortness of breath, and burning of the eyes and skin. It immediately inflames throat, nose and lung membranes and induces copious secretion of mucous in the lungs, nose and mouth. The pain caused by the spray is so intense that, once sprayed, many people temporarily lose the ability to stand. Pepper spray in combination with pre-existing respiratory conditions such as asthma can be fatal.
Officers participating in the close-range application of pepper spray in this case claimed they thought it was a “safer” way to gain compliance than using an electric grinder. However trial testimony was that the grinder had been used successfully and without injury or pain to anyone more than 100 times before in Humboldt County. In addition the nature of the chemical weapon oleoresin capsicum and the serious and perhaps permanent damage it can do have been questioned nationwide. In 1993, the United States Army Research and Technology Department reported that capsaicin, a main ingredient in pepper spray, has "profound, acute effects on respiratory function" and may cause "mutagenic effects, carcinogenic effects, sensitization, cardiovascular toxicity, pulmonary toxicity, neurotoxicity and human fatalities... the report concludes; “There is a risk in using this product on a large and varied population." As of the year 2000, the ACLU estimates a national total of 100 deaths after being pepper sprayed in police custody.
Unfortunately, in 1995 the California State Legislature passed a law which removed all reporting requirements for police use of pepper spray and although the decision to dab the chemical directly into the protesters’ eyes violated both manufacturer recommendations and standard guidelines from the National Law Enforcement Policy Center it was still left up to police commanders to decide whether that was an appropriate use of force. The National Law Enforcement Policy Center’s guidelines for use of pepper spray state that the substance should not be discharged less than two feet away, should not be used on people in restraints, and should not be used as punishment. Two of the three guidelines were violated by officers in the Scotia incident, and all three in the Bear Creek and Riggs incidents.
We argue that the Humboldt officers decision to use pepper spray torture when they had a proven safe and painless alternative was unconstitutional excessive force. We say that the sheriff's office claims that the electric grinder is dangerous and pepper spray is safe is nothing but a pretext covering up their desire to apply extreme pain to punish nonviolent protesters, something that police officers can not lawfully do.
Definition of Torture
The Random House Dictionary (1980) defines torture as "the act of inflicting severe pain, esp. as a means of punishment or coercion." Coercion was the explicit motive in this case, and we argue that punishment was also intended.
Under the international "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," a treaty ratified by the United States in 1994, torture is:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
In our case the sheriff, a public official, admits the purpose of applying pepper spray was coercion, but refuses to admit it was done as punishment or that it causes severe pain. Imagine the feeling produced by taking the hottest red chili peppers you can find, extracting and concentrating the oils and resins, and swabbing or spraying it directly in the eyes. The sheriff tries to pass it off as "temporary discomfort." Anyone who has experienced direct application of pepper spray to the eyes will agree that it causes extreme, severe, excruciating pain and suffering.
About Headwaters Forest
Located in Humboldt County, California, southeast of Eureka, Headwaters Forest comprised some of the last significant unprotected -- at the time of the pepper spray incidents -- ancient redwoods remaining on Earth. Once covering two million acres, the old-growth redwood ecosystem has been reduced to less than 4% of its pre-1850 range. Species dependent on this ecosystem are on the brink of extinction, including the spotted owl, marbled murrelet and coho salmon, to name only a few that have been federally listed as endangered or threatened. Continued loss of these priceless ancient trees affects the integrity of the entire ecosystem, fragmented and beleaguered as it is.
Civil Disobedience: A Cherished American Tradition
In this country we are blessed with not only the right but the responsibility to stand up for what we believe. Nonviolent civil disobedience is a fundamental American tradition. The pepper spray lawsuit aims to uphold and protect the right to peaceful protest and symbolic action.
The new trial begins April 11, 2005, in Federal District Court at 450 Golden Gate Ave. at Polk St, San Francisco, Courtroom 10, 19th Floor, Judge Susan Illston presiding. Trial sessions are held Mondays through Thursdays from 8:30 a.m. to 3:30 p.m. and have a 45 min. noon break. Trial sessions are not held on Fridays. The trial is expected to last about two weeks. The judge says there is a small possibility that the trial scheduled ahead of ours will last a day or two longer than expected, and if so our trial start could be delayed one or two days. Please check the home page of this website for updated information as the trial date nears.
Additional information, including many of the legal documents, news articles/editorials, photos, courtroom art, press releases and contact information can be found on the website at www.nopepperspray.org
Press contact: Karen Pickett (510) 548-3113, Bay Area Coalition for Headwaters office, Berkeley, CA.
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