Metropolitan News-Enterprise


Monday, January 14, 2002


Page 3


Ninth Circuit Again Rules for Headwaters Protesters in Pepper-Spray Case


By a MetNews Staff Writer


The sheriff of Humboldt County and his chief deputy aren’t immune from a suit charging that they violated the rights of environmentalist protesters when they ordered deputies to use pepper spray to break up protests, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel reiterated its May 2000 ruling that a jury could find that the use of pepper spray against non-violent demonstrators violated clearly established constitutional right, thus depriving the officials who ordered the spraying of the qualified immunity to which a district judge said they were entitled.

The panel again awarded the plaintiffs, members of the anti-Redwood-logging Headwaters Forest Defense, a trial on their claims that county and City of Eureka officers used excessive force and violated their Fourth Amendment right to freedom from unreasonable search and seizure.

The case was back before the Ninth Circuit on remand from the U.S. Supreme Court, which directed the panel to take a second look at the case in light of Saucier v. Katz, 533 U.S. 194 (2001).

Saucier held that in determining at the summary judgment stage whether an officer accused of excessive force is entitled to qualified immunity, courts must assess whether there is evidence supporting the claim that the officers violated clearly established law before determining whether a reasonable officer would have known that he was using excessive force.

The high court rejected the Ninth Circuit’s prior approach of considering the issue as a single question. In doing so, they raised the barrier for bringing excessive-force cases to trial under federal law.

The case ruled on Friday stems from three 1997 protests against logging of old-growth redwoods by the Pacific Lumber Company in the Headwaters Forest on the Northern Coast of California.

 In each incident, Humboldt County sheriff’s deputies applied pepper spray to the closed eyes of protesters, and sprayed directly into their eyes and faces, to get them to release themselves from devices that locked them to one another.

The action received nationwide attention when news organizations obtained and aired a videotape that deputies made of the pepper spraying. The tape showed protesters screaming in pain as their eyes were dabbed and sprayed with a chemical compound made from hot chili peppers.

 Pepper spray has been ruled by courts to be a reasonable method to subdue suspects, but the Headwaters incidents were the first in the nation in which nonviolent protesters were sprayed.

 The nine protesters who were sprayed conceded that they were breaking the law by trespassing on lumber company land and by refusing to disperse when ordered to do so by sheriff’s deputies. But they alleged deputies violated their civil rights by using unreasonable and excessive force.

 Before trial, U.S. District Judge Vaughn Walker of the Northern District of California granted the deputies qualified immunity, although he denied immunity to Sheriff Dennis Lewis and the chief deputy in charge of the operation, Gary Philip. Walker also denied summary judgment on the excessive force charges, saying that the question of whether pepper spray use was reasonable was a question for the jury.

 After the plaintiffs finished presenting their case, Walker reversed his decision on the sheriff and his chief deputy and granted them qualified immunity as a matter of law and dismissed the case against them.

 Then the jury, after deliberating for only six hours, declared deadlock on the excessive force charges. Walker declared a mistrial and set a new trial date, but a few weeks later entered judgment for the defendants as a matter of law.

Friday’s ruling dealt only with the sheriff and chief deputy. The remand does not require reconsideration of that portion of the earlier ruling granting a new trial on the claims against the remaining defendants, Judge Harry Pregerson explained in a footnote.

The Saucier analysis still leads to the conclusion that the decision to use pepper spray is not covered by qualified immunity, Pregerson wrote.

“We concluded in our prior opinion that, viewing the evidence in the light most favorable to the protestors, a rational juror could conclude that the use of pepper spray against the protestors constituted excessive force and that Lewis and Philip were liable for the protestors’ unconstitutional injury,” the judge explained. “This analysis is consistent with Saucier’s first inquiry: viewing the facts in the light most favorable to the protestors, Lewis and Philip violated the protestors’ Fourth Amendment right to be free from excessive force.”

The second prong of Saucier is also satisfied by the evidence, Pregerson said, because “it would be clear to a reasonable officer that using pepper spray against the protestors was excessive under the circumstances.

The case is Headwaters Forest Defense v. County of Humboldt , 98-17250.


Copyright 2002, Metropolitan News Company