Pepper spray trial jury agrees excessive force used by officers against protesters

by Diane M. Batley
The Eureka Reporter

A federal court jury in San Francisco yesterday found that Humboldt County and city of Eureka law-enforcement officers used excessive force on nonviolent protesters in 1997 when they swabbed them in the eye areas with pepper spray.

It took the jury approximately 11 hours of deliberation to come back with the verdict. The jury awarded each plaintiff only $1.

“It’s incredible,” said Noel Tendick, one of the eight plaintiffs in the case. “The great thing is that they can’t do this to people again. I think they made a bad decision and needed to be held accountable.”

The jurors found that the application of pepper spray to the protesters, the plaintiffs in the case, Lundberg v. County of Humboldt, constituted excessive force and violated the plaintiffs’ Fourth Amendment rights.

“We’re obviously delighted they found this application of pepper spray was unreasonable excessive force,” said plaintiffs’ attorney J. Tony Serra.

Serra said the verdict sets a precedent and will preclude officers across the country from using pepper spray on nonviolent peaceful protesters.

Plaintiffs’ attorney Dennis Cunningham said the principle of the case was the primary importance, but he said, “It’s pretty hard to swallow the (jury) decision that says (the plaintiffs) suffered no harm.”

He said he felt the verdict was a compromise “from the emotive state of the jurors.”

“It’s an imperfect system in an imperfect world,” Cunningham said.

“It was hard, very emotional, very difficult,” said juror Conni Chandler to some of the plaintiffs.

Some members of the six-woman, two-man jury were crying when the verdict was read and they were asked to confirm their votes.

Chandler choked up and had a difficult time verbally confirming her vote on the verdict.

“I’m so glad you guys are happy,” she said to some of the plaintiffs while in the hallway of the courthouse.

“It was a hard decision to make,” said juror Athene Aquino, while crying in the hallway.

Aquino said she thought both sides got what they asked for. She said seeing the videos of the incidents over and over again convinced her that excessive force was used.

The three protest incidents occurred in the lobby of Pacific Lumber Co. offices in Scotia, on PALCO timberlands in Bear Creek and in the office of then-Rep. Frank Riggs in Eureka.

The protesters locked themselves together with metal pipes, also known as black bears, that they placed on their arms. The officers used the pepper spray on them when they refused to release.

Officers videotaped the incidents.

The plaintiffs were protesting the Headwaters agreement and the cutting of old-growth redwoods.

This was the third trial for the case. The previous two ended in hung juries.

“Third time’s a charm,” said Maya Portugal, one of the plaintiffs.

The plaintiffs should have been given substantial awards, Serra said.

“I’m half happy and half pissed-off,” Serra said. “(The plaintiffs) should have gotten $10,000 a piece.”

“I think (the verdict affirmed) that a line was crossed and the jury agreed this was wrong,” said plaintiff Sam Neuwirth. “If this will lead to a change in policy, we will have our reward.”

“It’s apparent the jury agreed with the former sheriff (Dennis Lewis) and current sheriff (Gary Philp) that use of pepper spray did not cause any injury,” said plaintiffs’ attorney Nancy Delaney.

The jury also found that the plaintiffs did not prove that Lewis or Philp, a chief deputy sheriff at the time of the incidents, were personally involved in the use of excessive force.

The jury found that there was a “sufficient causal connection” between Lewis’ and Philp’s conduct and the use of excessive force.

Attorneys for both sides have 30 days to file any motions in the case.

Cunningham, Bob Bloom and Bill Simpich indicated they would be filing for attorneys’ fees.

Serra said he will not be asking for attorneys’ fees for himself.

“I don’t do civil rights cases for money,” he said.

The defense indicated it would fight against paying any plaintiff attorneys’ fees.

Delaney said the jury award of $1 to each plaintiff does not support attorneys’ fees.

“It makes us feel good (that) the jury did not think it was a monetary thing either,” Philp said.

He said he was glad the jury came to the resolution and that by awarding nominal damages, “it was nice to hear no one was hurt, whatever the final outcome.”

“Typically, if there are no damages awarded, no attorneys’ fees are awarded,” said defense attorney William Mitchell.

Plaintiffs’ attorneys disagreed.

“I can’t imagine we won’t get fees,” said plaintiffs’ attorney Ben Rosenfeld. “The only question is how much.”

The plaintiffs were Portugal, Tendick, Vernell “Spring” Lundberg, Terri Slanetz, Mike McCurdy, Lisa Sanderson-Fox, Jennifer “Banka” Schneider and Neuwirth.

The defendants in the case were Humboldt County, the city of Eureka, Lewis and Philp.

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