Jury Deadlocks 6-2 in Favor of Plaintiffs.

SAN FRANCISCO (22 Sept) -- The eight jurors in the Pepper Spray by Q-tip trial informed the judge at 3:15 Wednesday afternoon that they were "hopelessly deadlocked" and could not find resolution through further deliberation. After encouraging them to rethink their opinions and meeting privately with the jury foreman, Judge Susan Illston declared a mistrial. It was then that plaintiffs and defendants learned there were six jurors in favor of plaintiffs and only two against. Read More...

9/21: Closing Arguments Conclude, Jury Deliberates. The defense (police) yesterday presented its entire argument, calling just four witnesses. Some highlights include testimony elicited from Sheriff Gary Philp and retired Sheriff Dennis Lewis under eviscerating cross-examination by plaintiffs' attorney, Bob Bloom:

• The defense objected to mention of Saddam Hussein's use of pepperspray as a torture tool in Iraq.
• Sheriff Lewis admitted that the grinder had been used hundreds of times by his deputies to quickly extricate locked-down protesters with no injuries to protesters or deputies, aside from a deputy cutting his finger on a jagged pipe edge.
• Sheriff Philp and Lewis said they had no concern that applying pepperspray with q-tips and blasting directly in the face of non-violent, non-hostile peaceful activists might be uncivilized or unconstitutional.
• Sheriff Lewis described Carl Anderson, the Pac. Lumber security chief previously on the stand, as a close friend. Lewis also claimed Judi Bari as a friend, to which Plaintiff's attorney Bob Bloom "objected" apparently on principle alone, not for any legal reason (overruled).
• Sheriff Lewis stated that family and friends who were Pac. Lumber employees urged him to get tough with and even "hang" the protesters.
• Sheriff Lewis admitted he had been teased by these folks as being "too soft" (Judge Illston sustained an objection to the word "wimp").
• Sheriff Lewis admitted that botched arrests at a large demonstration of thousands of anti-clearcutting protesters, which resulted in the dismissal of all charges, had been a major embarrassment for the department, as had an incident where Charles Hurwitz was pied outside a private shmooze event.
• Sheriff Lewis reiterated something previously stated in his deposition, that in authorizing his new methods of applying pepperspray, unprecedented and unstudied anywhere in the U.S., he "used pain as a means of coercion" to gain compliance. Bloom asked, "did you know that is the dictionary definition of torture?"; Sheriff Lewis responded "No!"

Sept 8: Being heard before Federal Judge Susan Illston, the case revolves around the question of whether direct application of liquid pepper spray into the eyes of passive protesters is an appropriate police tactic. Jury selection began on Sept. 8th. The start date changed from Sept. 7th to the 8th A lunchtime solidarity rally was held on Wednesday, September 8th at noon on the Polk St. side of the Federal Building. Jurors who might be passing by on the street were repeatedly asked to not listen to the speakers and performers. Photos Video Report Oral arguments began on the 9th at 8:30am. An info night was held Sunday, September 5th at the Long Haul in Berkeley. It included a screening of the film Fire in the Eyes.
Headwaters Forest Defense v. County of Humboldt et al. charges use of excessive force by law enforcement in that county. After the first trial in 1998 ended without a verdict, appeals court decisions and finally the U.S. Supreme Court have sent the case back to federal court in San Francisco. An evidentiary hearing was held on August 24th, the next hearing will be jury selection at the beginning of the trial, on September 8th in the federal courthouse in San Francisco at 450 Golden Gate Ave., with Judge Susan Illston presiding (likely in in courtroom 10, on the 19th floor). More details

The lawsuit stems from three Headwaters Forest protests in 1997, at the height of the campaign to save ancient redwoods. Activists had locked themselves to each other in a circle at sit-in protests in rural northern California. As Sheriffs' deputies tried to remove them, they used the unprecedented tactic of application of pepper spray by Q-tip. When police footage aired on national tv, the horrified public saw officers force activists' heads back, pry open their eyes and precisely smear the burning chemical into their eyes. Most of the activists were young-some were first time protesters. The activists subsequently filed suit against the Humboldt County Sheriffs Department and Eureka Police. This time, the case will be argued by the legal team that won the historic 2002 victory in the Judi Bari v. FBI civil rights case.

S.F. Federal District Judge Vaughn Walker threw the case out in 1998 after a jury deadlock, issuing a "directed verdict", claiming "no reasonable juror" would decide the activists' rights had been violated by the tactic Amnesty International called "tantamount to torture". However, the 1998 jury forewoman said at the time, "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."

The 9th Circuit Court of Appeals scuttled Walker's finding, ruling in May 2000 that the plaintiffs had a right to trial by jury. Amicus brief from the ACLU about pepper spray. That court also removed Walker from the case for bias following his attempt to move the case to the polarized community of Eureka. In the seven years since the first trial, appeals court decisions have all favored the plaintiffs, who attempted to settle the case with Humboldt County, if law enforcement would alter their policy of using chemical agents on non-violent protesters. Generally, pepper spray is recognized as a tool of last resort when suspects in custody are violent or out of control.

Nopepperspray.org | Bay Area Coalition for Headwaters (BACH) | Fire in the Eyes, documentary by Earth Films