San Francisco Bay Guardian, November 4-10, 1998
By A. Clay Thompson
THE VIDEO of Eureka police dabbing pepper spray into the eyes of Earth
First! activists sparked outrage worldwide. This week law enforcement officials
are expected to approve the tactic for use by police departments across
On Nov. 4, Peace Officers Standards and Training (POST), a statewide commission of police officers, sheriffs, and law enforcement experts, will vote on new crowd-control guidelines that list "direct application" of pepper spray as a legitimate technique. If POST approves the new standards, state law will explicitly allow police to smear pepper spray onto eyeballs, faces, or other body parts with rags or cotton swabs.
Critics say the new standards give cops license to torture.
"The horror of what they did to us is bad enough," said Earth First! member Noel Tendick, who had the chemical daubed in his eyes by Humboldt County sheriff's deputies. "Now it's going to happen over and over."
Tendick and other North Coast activists filed suit against Humboldt County sheriffs and Eureka police, charging them with three incidents of excessive force. On Oct. 26 federal judge Vaughn Walker threw the suit out. The plaintiffs plan to appeal.
Since the early 1990s, more than 60 citizens have died in police custody after being hit with pepper spray -- prompting scrutiny from Amnesty International in a recent report on human rights abuses in America. More than 40 of those deaths occurred in California.
In response to the televised pepper-spray swabbings, state senator Mike Thompson (D-St. Helena) introduced S.B. 1844, a bill requiring statewide standards for dealing with protesters. POST began hammering out guidelines months before Gov. Pete Wilson signed the bill in July.
Among the police officials tapped by the commission to draw up the guidelines were a pair of bona fide experts: Capt. Murl Harpham and Sgt. Duane Frederickson, both of the Eureka Police Department -- one of the agencies charged in the Earth First! suit.
The new Crowd Management and Civil Disobedience Guidelines describe tactics for handling demonstrators and California penal codes for charging them. Guideline 10 lists "considerations" and "issues" regarding the "Use of Nonlethal Chemical Agents," including oleoresin capsicum, or pepper spray. The "delivery methods" listed for pepper spray and other chemical weapons are "direct application, spray, expulsion, pyrotechnics, etc."
The American Civil Liberties Union blasted the POST guidelines as overbroad and dangerous. ACLU representatives say pepper spray, which chokes the respiratory system and burns the eyes and skin, isn't intended for direct application.
"We have a weapon here that's designed to be sprayed from fifteen feet away -- a weapon that causes pain the experts say is like bobbing for french fries in a vat of hot oil," ACLU attorney John Crew told us. Crew fears the guidelines may lead some departments to use the weapon in ways that are unconstitutional and possibly lethal.
POST says the 25-page manual isn't a policy mandate for local departments but simply "a resource for law-enforcement executives."
In an interview with the Bay Guardian, POST assistant executive director Hal Snow played down the controversy. "The guidelines do not recommend direct application," he told us. "A department may decide it's reasonable. They may also decide it's not reasonable. All we're saying is, 'you ought to consider these things.' "
In response to charges that direct application of pepper spray is cruel
and unsafe, Snow said: "The courts have been very clear that this use of
agents is very much accepted. POST follows the law. The police follow the law."
Harpham produced and starred in "Dealing with Active Resisters," a 15-minute video defending his department's use of pepper spray. In the video, Harpham complains about the rising cost of arresting environmental activists who block logging by chaining themselves to timber equipment, vehicles, or each other. Pepper spray, according to the captain, is an alternative to waiting out "locked down" protesters or cutting their self-imposed bonds.
"We tried pain compliance, and that didn't work. Our position is that we'd rather go to pepper spray than baton or nunchucks," Harpham told the Bay Guardian. The captain described how his officers recently soaked a piece of gauze in pepper spray and dripped it into the faces of three locked-down enviros before arresting the protesters. "One held out six minutes," he said.
"Pepper spray is not reasonable; it is potentially lethal," said Vernell "Spring" Lundgren, an activist who received the pepper-spray-in-the-eyes treatment from members of the Humboldt County Sheriff's Department. "It is pretrial punishment."