Tuesday, November 23, 2004

Pepper Spray 8 Gain Momentum

Noel Hewitt Tendick

Seven years ago, sheriff’s deputies in Humboldt County, California, used Q-tips to apply pepper spray to the eyes of eight peaceful protesters and delivered full sprays to some of our faces. Seven years ago, we filed a federal civil rights lawsuit on the claim that our First and Fourth amendment rights had been violated.

This September, after seven years of appellate court victories, including three US Supreme Court rulings and one trial that ended in a 4-4 hung jury, we got our retrial. With a new judge, a new jury selection process and the FBI-trouncing Judi Bari legal team on our side, we had tremendous hope.

And the jury hung again.

While it’s tempting to rend our garments and gnash our teeth, consider this: six of the eight jurors voted our way. Some were so upset with the mistrial that they left the court in tears. Furthermore, another trial gives us another opportunity to make our voices heard. We will sharpen our case and drive home the point that the police were acting as thugs for Maxxam/Pacific Lumber (PL), trying to smash our forest defense campaign with torture.

We have always known that this case reverberates far beyond the Pepper Spray 8. Though centered in the ancient Headwaters Forest, the ripples from these acts touch the lives of people across the country.

Everyone in the activist community knows the heartbreak of throwing your life into something and then watching it get eaten by the system. We’ve watched so many trees fall, and we have given an exhausting amount of energy to this case, but all of us—plaintiffs and lawyers—are committed to taking it to another trial.

This one case isn’t going to save the Bill of Rights, nor is it going to stop police from stomping on dissent. But it is one strand in our web.

So what was this trial all about? Well, if you followed the logic of defense attorney Nancy Delaney, it was about how the use of pepper spray is benign compared with the potential catastrophe of using grinders to access lockboxes, the metal sleeves that we locked down with in each incident. The defendants claimed that they wanted to prevent a grinder injury by pepper spraying us. To conjure the horror of the grinding process, Delaney said in her opening arguments, “What if your child put their arm in the turkey to grab some stuffing while you were carving it with an electric knife?!”

Using the Orange Alert principle, fear of the possible was used to numb the mind to the horror of the actual. While police testified that they had no problems cutting people out of lockboxes 300 times before, they still apparently feared that the grinding wheel would fly apart, traveling up to “two miles away” and resulting in untold harm.

Indeed, all of the cops who testified sang the harmlessness of pepper spray while contradicting themselves about whether it actually caused pain or was just uncomfortable. A disturbing moment was when we learned that Marvin Kirkpatrick, the deputy who applied the pepper spray in each case, is now a statewide police trainer in the chemical’s use. None of the cops considered the American Civil Liberties Union study in which pepper spray was implicated in the deaths of 26 people.

Just when you were going to burst from being fed piles of bullshit, the plaintiffs took the stand. I’m honored to be part of such an amazing group of people, who were not only willing to hold on through the worst physical pain of their lives, but who were willing to open themselves up and share that in a courtroom. Everyone spoke beautifully about the forest we work to protect and the damage that we suffered—and continue to suffer—from police crossing the line.

I watched repeatedly as Delaney and William Bragg—the attorney who represented the PL logger who killed David “Gypsy” Chain in 1998—tried to cut into us with all sorts of distortions and ended up spinning themselves into the ground.

After the police and plaintiffs had their say, it was time for closing arguments. Delaney’s recurring theme was, “I submit to you that it makes no sense whatsoever.” For instance, “If we’re going to do nothing when protesters are nonviolent, are we going to allow them to lock down to the emergency room of a hospital? Does that make sense?” I would submit, no.

She attacked with, “But I also think of environmentalism as being something that is the antithesis of the conspicuous consumer. Ask yourself whether you’ve seen the most conspicuous consumption of law enforcement services ever.” Take that, hippies!

Actually, most conspicuous was Delaney’s profiting from the situation. Not only has she dragged this case out by filing endless appeals and stonewalling settlement negotiations, she also represents PL in its SLAPP (Strategic Lawsuit Against Public Participation) against North Coast Earth First! activists. This is one of the clearer examples of the collusion between police violence and corporate profit.

Our attorneys urged the jurors to drag the police back across the line they crossed when they used violence against nonviolent individuals. The legal team spoke of the damage that is done to everyone when such behavior is allowed.

As one of our lawyers, J. Tony Serra, said, “There are certain aspects of the case you are never going to forget. In your dream life and in your future, the images that have been brought forward during this trial will persist, echoing in your imagination. They are so horrific that no civilized society can accept this behavior as legal, moral or ethical.”

For John or Jane Q. Public to decide against the police, they have to give something up. Six of the eight jurors were willing to do this. For the other two—who refused to examine clear evidence, who felt we weren’t reaching them—it was too much to handle. I have no doubt that at some moment in the future, they will realize what they’ve done, and it will echo in their imaginations.

In the meantime, we go on to pursue another trial. We go on so that a jury can deliver the consequences of corporate-directed brutality to the police. We go on because when trees were falling and pepper spray was used on us, we didn’t unlock. We go on because we continue to believe in healthy ecosystems and the right of everyone to speak their beliefs, and because these things are burning.

Noel is a writer, massage therapist and activist in Santa Cruz, California.

For more information about our case and how to contribute to it, visit www.nopepperspray.org

Source: EarthFirst Journal


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