Former Humboldt County Sheriff Dennis Lewis and Chief Deputy Gary Philp 
can be sued for pepper spraying incident 

GINA HOLLAND / AP 4nov02

WASHINGTON -- A former California sheriff and his deputy can be sued for ordering the pepper-spraying of shackled anti-logging protesters, the Supreme Court said Monday in turning aside an appeal.

The court did not comment in refusing to hear the case, which involved the 1997 arrests of nine people who staged sit-ins at Pacific Lumber Co. headquarters and a congressman's office. They were protesting the cutting of ancient redwood trees.

When the demonstrators, who had chained themselves with a 25-pound steel device, would not leave, law officers swabbed pepper spray near the demonstrators' eyes, sometimes repeatedly. Those who refused to surrender were sprayed in their face at close range.

Attorneys for former Humboldt County Sheriff Dennis Lewis and Chief Deputy Gary Philp argued that the lawmen consulted with legal experts before using the pepper spray, and that protesters were not hurt.

Deputies' videotapes of the sit-ins show demonstrators screaming after the spray was applied.

"Our national tradition of nonviolent protests is alive and well and won't be extinguished by a police policy of torturing protesters just because that torture leaves no marks," said Mark Hughes, a professor at the University of Denver College of Law and the attorney for the protesters. "It's great when courts have a conscience."

The Supreme Court considered the case for the second time in a year. Last fall, the justices threw out a lower court ruling that ordered a trial for the protesters. The appeals court reconsidered and again said protesters were entitled to sue the sheriff and deputy.

The court could have clarified when officers have immunity for on-the-job actions, a subject of significant interest to justices in recent years.

The anti-logging protesters, part of the group EarthFirst!, demonstrated at the offices of Pacific Lumber and at the office of then-Rep. Frank Riggs, R-Calif., a logging supporter. Those were among multiple protests in the fall of 1997.

Hughes said no other American police force had a policy of using cotton swabs to apply pepper spray to the eyes of people who resisted arrest. In this case, he said the protesters were unarmed and unthreatening.

Nancy K. Delaney, an attorney for Humboldt County and the lawmen, said the force was reasonable.

"To brush aside as harmless the well-planned criminal activities of plaintiffs is to compromise allegiance to principles which permit the very existence of a society which is both democratic and ordered," she said.

Humboldt County is a coastal county in northern California known for giant redwood forests. Lewis, who had been sheriff since 1994, lost a re-election bid to Philp in March and retired in September.

The case is Humboldt County v. Headwaters Forest Defense, 01-1744.

Retrial in Humboldt pepper spray case: 
Justices deny cops' bid to end lawsuit by anti-logging protesters 

BOB EGELKO / SF Chronicle 5nov02

The U.S. Supreme Court cleared the way Monday for a second jury to decide whether Humboldt County law enforcement officers violated the rights of anti-logging protesters during 1997 sit-ins by swabbing liquid pepper spray in their eyes.

A San Francisco federal court jury deadlocked 4-4 in the first trial in 1998, after seeing a videotape, aired nationally, of demonstrators screaming in pain as the stinging chemical was applied to the corners of their eyes. On the other side, police advocates urged jurors not to hamstring officers' ability to dislodge adamant protesters who had chained themselves together.

The case involved the arrests of nine people who staged sit-ins at Pacific Lumber Co. headquarters and a congressman's office to protest the cutting of ancient redwood trees.

Since the jury deadlock, the lawsuit has been buffeted back and forth -- dismissed by the trial judge, who said the officers had acted reasonably, then reinstated by a federal appeals court, which said the use of pepper spray on nonviolent protesters may amount to excessive force, a decision best left up to the jury.

On appeal, the Supreme Court, without comment, denied law enforcement requests Monday to block the retrial.

One of the nine plaintiffs, Vernell "Spring" Lundberg, said the decision was timely. After the government's reaction to the attacks of Sept. 11, 2001, she said, "I think it's important to protect the rights of people to protest. You don't have to do much these days to be called a terrorist."

She noted that the plaintiffs have replaced their lawyers at the first trial with the legal team that won $4.4 million in damages against the FBI and Oakland police this June in a suit by environmental activists Darryl Cherney and the late Judi Bari.

The pair, both members of Earth First -- as are Lundberg and some of her fellow pepper spray plaintiffs -- accused officers of framing them for a 1990 car bombing.

San Francisco attorney Tony Serra, who is leading the legal team, promised Monday to make things interesting at the pepper spray retrial -- "crowded courts, the same kinds of demonstrations and protests. We're expecting drama, and we're expecting, ultimately, vindication."

Nancy Delaney, lawyer for the former Humboldt County sheriff and Eureka police officials sued by the demonstrators, could not be reached for comment. But in court papers, she said officers used reasonable force.

"To brush aside as harmless the well-planned criminal activities of plaintiffs is to compromise allegiance to principles which permit the very existence of a society which is both democratic and ordered," Delaney said.

During the protests, demonstrators chained themselves together at company headquarteres and at the office of a pro-logging congressman. At another protest, two men fastened themselves to logging equipment.

After warnings, sheriff's deputies and Eureka police applied cotton swabs doused in pepper spray to the corners of the protesters' eyes. Those who refused to move were sprayed in the face at close range. Officers said they feared the metal grinders used to cut through chains in the past would cause injuries to the protesters or start a fire.

It was the first recorded use of pepper spray on passive protesters. The chemical is typically sprayed to subdue violent suspects.

After the first jury deadlocked, U.S. District Judge Vaughn Walker refused to allow a retrial, saying no reasonable juror could find that the officers used excessive force.

A three-judge appeals court panel overruled Walker and said jurors could conclude that officers had inflicted pain needlessly.

One member of the appellate panel urged the two sides to reach a settlement.

But Lundberg said Monday that Humboldt County had shown no interest in the plaintiffs' early offer to drop their suit if the county would agree to pay their attorneys' fees and to ban the use of chemical agents. .

The case is Humboldt County vs. Burton, 01-1744.

The Associated Press contributed to this report.

No. 01-1744	Status: DECIDED  
		Title:  County of Humboldt, Dennis Lewis, Gary Philp, and City of  
			Eureka, Petitioners  
			v. 
			Molly Burton, et al. 
Docketed:	Lower Ct: United States Court of Appeals for the Ninth Circuit  
May 31, 2002   		(98-17250)  

~~Date~~~~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 
May 24 2002 	Petition for writ of certiorari filed. (Response due July 30, 2002)  
Jun 25 2002 	Order extending time to file response to petition until July 30,  
 2002.  
Jul 30 2002 	Brief of respondents Headwaters Forest Defense, et al. in opposition  
 filed.  
Aug 14 2002 	DISTRIBUTED for Conference of September 30, 2002  
Sep 20 2002 	Reply brief of petitioners County of Humboldt, et al. filed.  
Sep 24 2002 	LODGING consisting of ten copies each of two videocassettes  
			received from counsel for the petitioners  
Oct 7 2002 	REDISTRIBUTED for Conference of October 11, 2002  
Oct 15 2002 	REDISTRIBUTED for Conference of October 18, 2002  
Oct 28 2002 	REDISTRIBUTED for Conference of November 1, 2002  
Nov 4 2002 	Petition DENIED.  
********************************************************  

~~Name~~~~~~~~~~~~~~~~~~~~~    ~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~ 
Attorneys for Petitioner:   
Nancy K. Delaney  		Mitchell,Brisso,Dalaney,Vrieze 	7074435643 
				814 7th St.,PO Drawer 1008   
				Eureka, CA 95502  
Party name: Humboldt County, et al. 
    
Attorneys for Respondent:   
Mark Hughes  			Earthlaw   
				1845 Ballaire Street   
				Denver, CO 80220  
Party name: Molly Burton, et al. 
    
Brendan Cummings  		2325 Carleton Street   
				Suite B   
				Berkeley, CA 94704  
    
Alan K. Chen  			Univ. of Denver College of Law 	3038716283 
				1900 Olive Street   
				Denver, CO 80220  
Party name: Headwaters Forest Defense, et al. 

source: http://www.supremecourtus.gov/index.html 6nov02