The Pepper Spray Trial

By: Spring Lundberg

One year ago Humboldt County Sheriff deputies grabbed me by head and dragged a Q-tip drenched in pepper spray across my eyes. I was completely nonviolent that day, rooted to the floor of Pacific Lumber's lobby like one of the ancient redwoods we defend. PL employees, mingling with law enforcement, told us that we "had an education coming." In the lobby of company headquarters in a company town in northern California, they covered the windows with butcher paper so no one could see what they did to us. But the world saw into that room when police videotape of this incident and two others aired on television internationally.

What shocked the nation's conscience was three nonviolent, lockdown-style Headwaters Forest protests last fall. The first was a sit-in in Pacific Lumber Company's headquarters where we were protesting liquidation logging of the last of the ancient redwoods. The second incident occurred in Bear Creek, an area of residual old growth being logged by Pacific Lumber, where two activists locked down to a bulldozer. The third protest was in the Eureka office of Congressman Frank Riggs to call attention to his involvement in the highly contested Headwaters "Deal."

In all three incidents activists were swabbed with Q-tips doused in pepper spray. Three activists were sprayed directly from inches away. Close-range spraying, however, is specifically discouraged by police experts and pepper spray manufacturers and in many cases prohibited by police departments across the country.

Pepper spray, also known as Oleoresin Capsicum, or OC, has become the focus of intense controversy, as its risks include not only eye damage, burning and respiratory arrest, but possible cell mutations and increased risk of cancer. OC spray has been linked as a possible factor in the deaths of more than 100 people nationwide since it was approved for law enforcement use in 1992.

Our federal civil rights lawsuit, which stemmed from these three protests, has been ongoing for almost a year.

This past summer, in an attempt to create a positive resolution for the community, to protect civil rights for all, and to save taxpayer money, we offered a creative settlement. Foregoing any monetary award for ourselves, we demanded a permanent ban on chemical agents on nonviolent protesters and nonviolence training for the police, as well as attorneys costs. The defendants' attorneys stonewalled us, keeping the offer in the dark.

As a result, we went to trial this August, as we presented compelling evidence and heartfelt testimony about the excessive and brutal use of pepper spray as a tool of torture and punishment for one's beliefs. Law enforcement testimony was conflicting, as they tried to paint our peaceful movement as being comprised of "terrorists," and deserving of pepper spray.

Testimony underscored how significant this case truly is. Ollie Sansen, a police trainer, testified about a new report from POST, Peace Officers Standards and Training, that outlines ways of dealing with "active resisters." In an Orwellian manipulation of language, a glossary of terms defines passive resistance as an oxymoron. The report goes on to suggest that chemical agents be applied directly to "active resisters," those who go limp, lock down, etc.

On Sansen's cross examination, it came out that two Eureka Police Department members were on the committee that drafted the report a couple of weeks after the Riggs incident and directly after the civil rights lawsuit was filed.

This unprecedented application of pepper spray by Q-tip was the result of a policy implemented by Humboldt County Sheriffs in the fall of 1997. The legality of this policy was researched by Chief Deputy Gary Philp.

Philp testified that he consulted county personnel, but the policy Philp was discussing with the county never mentioned repeated swabbing to the eye-lids, or a direct spray at point-blank range, as shown in the police videos. There wasn't a policy but a decision to use pepper spray indiscriminately.

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Deputies claimed no one's eyes were opened, but a still photograph from the police video shows the protester's eyeball exposed to the Q-tip soaked in pepper spray. Deputy Kirkpatrick, the officer who did the spraying and swabbing in all three incidents, claimed on the stand that the photo depicted not a pupil, but the shadow of the Q-tip. He attempted to explain away the white of the eye as "glare."

The tape also shows multiple swipes on each eye with the swab. Kirkpatrick claimed here that he held the Q-tip stationary while the protester moved her head.

After two weeks of trial in San Francisco and five hours of deliberation, the jury announced August 25 that it was hopelessly deadlocked. Four jurors were in our favor, and four were in support of the defendants, the Sheriffs Department and the Eureka Police Department. Federal District Judge Vaughn Walker dismissed the jury and declared a mistrial, setting a new trial date of November 16 of this year.

Afterwards, the jurors conversed with both parties of the suit as well as with the media about points of the case. Jury foreperson Pat Schimke said she felt the use of the chemical on non-combative, nonviolent protesters was excessive. "The officers had other options. They could've ground them out, which they've been doing for years in Humboldt County without injuring anybody."

Schimke revealed that at the center of the deadlock was one juror in particular who "wouldn't have changed his mind if a bomb went off in his lap." He also stated that if the protesters had trespassed on his property, he would have gotten his gun.

Determined to protect the civil rights of future nonviolent protesters, all the plaintiffs have vowed to continue the fight through the next trial. Joining the lawsuit and representing us for the re-trial is renowned lawyer Tony Serra.

I am inspired by the connections which have already been made between the struggle to save Headwaters Forest and the struggle to ban pepper spray. As we obliterate our planet's last native and pristine habitats essential for survival, as human rights all over the world are threatened, we find ourselves fighting for Life on all levels.

The lines which once defined certain causes and movements as separate have begun to blur. This is one movement. We are fighting for our lives, for Life, and in this struggle the personal is political. Each day we take a stand for our community and our bioregion is one day toward a future where the greed of a few can violate neither the people nor the Earth.

SEND TAX-DEDUCTIBLE DONATIONS TO GET US THROUGH THE NEXT TRIAL TO:

THE PEPPER SPRAY FUND c/o THE TREES FOUNDATION

POB 2202, REDWAY, CA, 95560

FOR HEARING AND TRIAL DATES CONTACT:

MENDOCINO ENVIRONMENTAL CENTER at (707).468.1660