Pepper Spray, Pain and Justice
...by Ed Denson
Pepper Spray as a police tool first came to the notice of the courts in a footnote describing torture of suspects in India.|
"During the discussions which took place on the Indian Code of Criminal Procedure in 1872, some observations were made on the reasons which occasionally lead native police officers to apply torture to prisoners. An experienced civil officer observed, 'There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil'e eyes than to go about in the sun hunting up evidence.' This was a new view to me, but I have no doubt of its truth." - Sir James Fitzjames Stephen
Today's pepper spray is a far cry from the natural substance the police in India found useful. Ads on the Internet tout it as being thousands of times more concentrated and consequently having much stronger effects. It is strong enough to be classified by the Army as a "chemical agent."
CLMP has been questioning the increasingly inappropriate use of pepper spray by the Humboldt County Sheriff's Department since we became aware of it. Statewide, most of the problems and deaths resulting from pepper spray use have involved incidents where the officers felt a need to subdue a person so that they could make the arrest. Such use is the intended use. In Humboldt County, however, the problems have arisen from police use of pepper spray where there is no need to subdue anyone. In the past, Humboldt deputies have used the spray to move crowds, and have, in effect, threatened to use it where its effects could endanger or kill activists, if they would not come down from places that the police could not reach to grab them.
It was not until the fall of 1997, however, that Humboldt County authorities apparently decided to make use of pepper spray as a torture to compel obedience from nonviolent, passive activists conducting sit-ins. The new twist here was that the chemical agent was not sprayed from a distance at the person the deputy intended to hurt. It was liquified, thus concentrating it, and then swabbed near or directly upon the eyes.
There were three incidents which shocked the nation, and seem to add Eureka to the list of towns infamous for disgraceful assaults on citizens by the police. Ironically, law enforcement themselves foresaw the possibility that Eureka could become another Selma, at a meeting with activists several years ago. I doubt that anyone sitting at that table, including Sheriff Dennis Lewis, imagined that Sheriff Lewis himself would be the one who was to do the damage.
The three incidents involved forest activists protesting to save Headwaters Forest -- a struggle which has been ongoing on the North Coast for nearly a decade. Here are descriptions of the incidents from court documents filed by the activists:
"On September 25, 1997, Defendants Eric Samuel Neuwirth and Grace Nichols, along with four other adults and one juvenile...took part in a nonviolent and peaceful demonstration at the offices of the Pacific Lumber Company (PL) in Scotia, CA. The five women and two men peacefully sat in a circle on the floor in the public lobby area of PL's office. The demonstrators were engaged in symbolic speech to call attention to Pacific Lumber's logging practices in and around Headwaters Forest."
On October 3, 1997, at Bear Creek, two men locked down to logging company equipment.
"On October 16, 1997, Defendants Lisa Sanderson-Fox, Jennifer Schneider, and Terri Slanetz, along with Maya Portugal, a sixteen-year-old juvenile...took part in a nonviolent and peaceful demonstration at the offices of Congressman Frank Riggs in Eureka, CA. The four women peaceably sat around a small tree stump that had been placed on the floor in the public lobby area of Mr. Riggs' office. The women were engaged in symbolic speech to call attention to then-currently pending legislation regarding Headwaters Forest."
In each case the police attempted to end the nonviolent action by swabbing liquid pepper spray near, and sometimes in their victims' eyes.
Here is the description of the Riggs' office torture, from the criminal defense pleadings of the victims: (I have removed some of the longer cites; the full document is on the web at www.peppersprayvictims.org )
In a methodical, deliberate fashion, officers of the Eureka Police Dept. and deputies of the Humboldt County Sheriff's Dept. proceeded to forcibly apply oleoresin capsicum pepper spray directly to the eyes and faces of the seated and restrained women.
Immediately prior to the application of the pepper spray upon the seated women, Sgt. Manos of the Eureka Police Dept. told them that, due to a purported "fire hazard" relating to a small amount of sawdust scattered around the stump, he and other officers would use pepper spray upon them to force a quick closure to their protest...The four women pleaded with Manos and other officers present not to use the searing chemical on them. Deputy Kirkpatrick, recognizing Jennifer Schneider as one of the women he had encountered and dealt with in a similar fashion in the offices of Pacific Lumber in Scotia on September 25, said "Jennifer, you better let your other friends know what this feels like."...
Terri Slanetz was the most vocal of the four women in imploring to the officers that using pepper spray was a wholly unjustified and inappropriate response to a peaceful protest. Sgt. Manos pulled Terri's head back by her hair while Deputy Kirkpatrick proceeded to rub a Q-tip soaked in pepper spray across first her right and then her left eye. ...
Lisa Sanderson-Fox was seated next to Terri. Lisa pointed out to Sgt. Manos the presence of a vacuum cleaner in the room that could be used to remove the sawdust, and with it any hypothetical fire hazard "necessitating" the use of pepper spray to remove the women. Sgt. Manos yanked Lisa's head back while Deputy Kirkpatrick rubbed the pepper spray-soaked Q-tip in her eyes.
Manos and Kirkpatrick next moved to sixteen-year-old Maya Portugal. Sgt. Manos peeled back her eylids, exposing the whites of her eyes, while Kirkpatrick inserted the chemical-soaked cotton swab. Kirkpatrick dragged the Q-tip twice across Maya's right eye, three times across her left.
Finally, after three applications of pepper spray failed to achieve law enforcement's stated purpose of ending the peaceful protest, Manos and Kirkpatrick proceeded to the fourth women present, Jennifer Schneider. Sgt. Manos pulled on her upper eyelid while Kirkpatrick peeled down her lower eyelid and rubbed the chemical swab across her exposed cornea. Kirkpatrick smeared the swab back and forth four times across her opened right eye and three times across her left eye. ...
Deputy Kirkpatrick used the same cotton swab to smear pepper spray into each of the four women's eyes, never pausing to exchange it for a sterile one after each contact with a different woman's eye.
Following this initial application of pepper spray to each of the four women, Manos and several other officers left the room, leaving the women to sit in agonizing pain. When the officers returned several minutes later, Manos told the women that water sprayed on their eyes would help ease the pain, but that he would only reward them with it if they would first agree to his commands.
Once it became apparent that the first applications of pepper spray had been ineffective in accomplishing any police objective beyond the purposeful infliction of intense pain and fear, Kirkpatrick informed the women that they would next be subjected to an "actual spray" of the chemical. (As Manos talked about withholding medical treatment with water, one of the deputies taunted the women by slowly filling a spray bottle with water in front of them.) For the next five minutes, the women attempted to reason with the various officers present not to torture them further. An officer stressed that "the spray will be worse."
As the women pleaded with the officers not to torture them, an officer of the Eureka Police Dept., wearing black gloves, picked up and carried the American flag out of the Congressman's office, presumably not wishing to soil it with the fallout from the imminent spraying.
Following repeated threats to spray her, Maya separated from the other three women. Officers immediately took hold of her arms, wrenched them up and behind her back, pulled her up from the floor, handcuffed her and led her blindly from the room.
After Maya was taken away and repeated threats were made to the remaining women, Jennifer started to separate from Terri. Terri remained the most vocal of the women. Again, Sgt. Manos pulled Terri's head back by the hair. Terri screamed and asked, "What's next, thumb screws?" Sgt. Manos replid, "No, this will be enough." Manos again violently pulled her head back by the hair and held her while Kirkpatrick waved the canister of pepper spray inches from her eyes. Kirkpatrick sprayed Terri directly into her left eye, discharging the pressurized chemical from a distance of less than two inches. In the videotape of the incident, pepper spray can be seen foaming across her face. The women, blinded and traumatized, separated from each other. One of the officers present said, "We're not torturing you anymore."
The three women were not afforded any medical treatment. The four were instead taken to jail. Lisa, Terri and Jennifer were held in jail for five days prior to being ordered released at their arraignment.
Inexplicably, the police videoed their actions, and the videos brought national outrage when they aired on television. Eureka City and Humboldt County authorities weathered a storm of phone calls and mail from people who were angry at what the videos revealed about the actions of the Sheriff's deputies. Amnesty International denounced them. Even Attorney General Lungren, who introduced pepper spray to the state's law enforcement arsenal, said that the use in these cases was not in accordance with state policies. Essentially, the only two important people who did not share the national revulsion about these incidents were a Humboldt County Republican party activist, who ran a series of ads on local TV purporting to tell the truth about the torture and to warn business owners of the danger he imagined they should fear of similar sit-ins at their establishments; and the Federal Judge who refused to issue a temporary restraining order against the practice. He said that "reasonable people could differ" on the issue, which will probably go down in legal history as one of the more extraordinary statements to come from the bench.
Many things have been changed by these three incidents. It is likely that Sheriff Lewis will not be able to be re-elected. Perhaps Rep. Frank Riggs will suffer the same fate; he has already moved to a different race. The far right, which seems to control the Humboldt County Republican party, has been strengthened, and Eureka, which already attracts "white flight" racists from southern California, may now be joining Idaho as the place for right-wing extremists to live. Certainly the prospect did not daunt the Eureka City Council, which supported its police chief, Arnie Milsap, for his responsibility for one of the torture incidents.
The legal battles which have emerged from these three nonviolent sit-ins have been interesting and intricate. Criminal charges were filed against some of the participants in the sit-ins. No charges have been filed against any of the officers. Arcata attorney Mark Harris, who has been joined by attorney Tony Serra, is handling the defense of the activists. Among the motions they have filed are:
1. A motion to drop the charges because the Deputies' conduct was so outrageous that it negates any wrong done by the people sitting-in. I believe the legal reasoning behind this is that the court itself would not want its proceedings connected with any conduct as bad as that of the Sheriff's deputies.
2. A motion for the court to recuse (i.e., remove) Humboldt County District Attorney Terry Farmer and his office from the case. This would require them to turn the prosecution over to someone else. The argument here is that the DA must not have a personal interest in the case. The office can't be used to advance his interests or prejudices; it must instead be used to administer disinterested justice.
Does the DA have a personal interest in the case? The defense charges his office with being biased against forest activists in general, and these activists in particular. Noteworthy in the defense's eyes is the fact that after the defendants filed a civil case against the county, the DA increased the charges against them in criminal court. If the DA is being sued by the defendants he can't very well not be personally involved in their case, since convicting them in Eureka's State Court could very well help him evade liability in San Francisco Federal Court; and finally the DA himself will likely be called as a defense witness at trial, which fact alone should cause him to quit the case.
Related to this are defense charges that the DA has, in this case, kept the defendants in jail longer than the law allows. I believe this charge is also being made in the case arising from the November 15, 1996 police riot in Carlotta, where some 70-plus people were charged with a variety of more-or-less invented "crimes." In that case, it appears that the DA misused his office to both hold people in jail too long, and to harass them by dragging out the pretense that charges would be brought against them in court, and then dropping charges on the day of the trial. This tactic caused the maximum disruption to the lives of the innocent people arrested that day, at the minimum cost to the county government. Some defendants demanded that they get a trial to clear their names, but the DA said that trials cost too much, and refused to meet them in court unless they sue him.
Are these valid tactics for the DA's office to use? May the Sheriff and the DA single out forest activists for "special treatment" when they are arrested and charged? The argument for this would be that the protests are costly to the county, and in an effort to contain those costs by reducing the number of protesters, or to prevent nonviolent civil disobedience which is expensive to the government, the government may use its discretionary powers to make the experience these activists have with the criminal justice system as unpleasant and costly as possible. The use of pepper spray to torment activists who are nonviolently sitting-in can be seen as the latest and most extreme step in this campaign.
The difficulty with this approach is that it puts the Sheriff and the DA into the position of the judge. It metes out punishment -- pain, days in jail, costly trips to court, disruption of normal life -- without the bother of proving guilt. Did the Queen in Alice in Wonderland say, "First the sentence, then the trial"? Even children can see that this is backwards. Can the courts? We will find out, because in both the November 15 suit and the pepper spray defense, this issue is being raised.
The pepper spray cases, the November 15 case, and the CEQA cases will all probably be decided in 1998. They have the potential to correct many wrongs in the way county and state authorities treat activists, demonstrators, and protesters. This would be a very good year for fans of civil liberties to give all possible support to the legal teams, and to the people who have been the victims of law enforcement and prosecutorial misconduct. As the old saying goes, "The people united cannot be defeated."