>Aug. 25, 1998
>©1998 San Francisco Examiner
>Pepper spray suit ends in mistrial
>Jury evenly split over how cops halted redwood protest
>Seth Rosenfeld and Anastasia Hendrix
>of the Examiner staff
>In a case watched around the nation, a federal judge on Tuesday declared a
>mistrial in a lawsuit in which nine environmentalists accused Humboldt
>County deputies of using excessive force by wiping pepper spray on their
>eyes during a nonviolent protest.
>U.S. District Judge Vaughn Walker set Nov. 16 for a possible retrial after
>the jury forewoman said the jurors could not reach a unanimous verdict.
>The jury had deliberated less than six hours on Monday and Tuesday before
>reaching a deadlock at 9:40 a.m. Tuesday. The jury consisted of six women
>and two men.
>Deputies swabbed the pepper spray directly on the eyes of the nonviolent
>protesters who refused to leave the Pacific Lumber office in the nation's
>first such use of the chemical. The vast majority of law enforcement
>agencies use pepper spray only against violent or threatening people. A
>videotape of the incident -- showing the protesters writhing and screaming
>in agony -- caused a national outcry.
>The judge declared a mistrial after the jury sent a note to the court
>saying "We the jury are deadlocked and feel a unanimous verdict is not
>"We split down the middle and we couldn't seem to move one another from
>that position," jury forewoman Pat Schimke said afterward.
>She said the jury split 4-4, with half concluding the police acted properly
>while the others believed the deputies should have used other means to
>remove the protesters.
>Schimke said the four jurors who thought the spray was excessive felt the
>deputies could have used less-painful methods to remove the protesters,
>including waiting them out, talking to them or grinding through metal
>sleeves they were using to make their removal difficult.
>"Some made the argument that police need to use anything in their toolbox
>that was necessary," said Schimke, who was among the four who concluded the
>force was excessive. "We just had a philosophical difference."
>She said the videotape was "very moving."
>But the other four jurors concluded it merely showed police doing their
>job, she said.
>Plans for retrial
>Schimke said she found the deputies' use of pepper spray very disturbing.
>"If you can't sit down in a nonviolent way and protest on behalf of your
>beliefs without being subjected to the police swabbing your eyes with
>pepper spray or some other chemical agents . . . I think that's sort of
>going back to the days of the cattle prod and the fire hose."
>Schimke is a retired medical technician from Oakland's Children's Hospital
>and lives in Hayward.
>Mark Harris, an attorney for the protesters, said they would retry the case
>"There is an issue here that people feel very strongly about," he said.
>"This is a hard-fought battle."
>Nancy Delaney, an attorney for the Humboldt County Sheriff's Depertment,
>said the jury's failure to conclude that deputies had used excessive force,
>"certainly shows that it is not an abuse as originally portrayed by the
>She said the officers acted properly and used the spray to avoid other
>Gary Philp , chief deputy sheriff, said the department's policy still
>allows for similar use of pepper spray.
>"It's still within our use-of-force policy," he said.
>Three incidents in '97
>The suit stemmed from three separate pepper spray episodes during fall 1997
>protests against the logging of ancient redwoods in and around Headwaters
>Forest along California's North Coast.
>Most were first-time protesters who were using metal devices to attach
>themselves to their demonstration sites. Several were teenagers.
>On Sept. 25, 1997, four protesters used 25-pound pipe sleeves to lock
>themselves together during a protest at Pacific Lumber's front office in
>Scotia. After they refused to unlock themselves, deputies used Q-tips to
>swab the noxious substance in the corners of their eyes.
>On Oct. 3, two demonstrators locked themselves between a bulldozer and the
>Pacific Lumber property, prompting deputies to again put the stinging
>chemical in their eyes and to spray them in the face from three feet away.
>The protesters still refused to unlock themselves and the deputies had to
>cut them free.
>Less than two weeks later, on Oct. 16, a group of protesters placed a tree
>stump and sawdust in the office of Rep. Frank Riggs, R-Windsor, so that
>four women could lock their hands and feet to it.
>This time the deputies lifted the womens' eyelids and used the cotton swabs
>to put the pepper spray directly on their eyes.
>Pepper spray is incapacitating, causing those who come into contact with it
>severe pain and symptoms that range from coughing, twitching eyes,
>temporary loss of upper body control, disorientation and anxiety, according
>to Macon Cowles, the plaintiffs' lead lawyer.
>©1998 San Francisco Examiner Page A 1
David M. Walsh
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