Within hours of the incident at Congressman Frank
Riggs’ Eureka office, state, national and international news media
were broadcasting a thirty second taped "bite" from the last
part of a forty-five minute stand-off between Humboldt County Sheriff’s
Deputies, Eureka Police Officers and a group of protesters. Following
the filing of a lawsuit, the Legal Defense Fund determined that given
the notoriety of this incident, it was prudent to provide LDF panel
attorneys to protect our members’ rights. The Legal Defense Fund
assigned panel attorney William R. Rapoport from San Mateo to represent
the eight Deputies and two Sergeants from the Sheriff’s Department who
were involved in the Congressman Riggs’ incident, as well as two prior
incidents in Bear Creek and Scotia. After receiving voluminous materials
from insurance counsel and from the president of the DSA, Rapoport spent
two days in Eureka attending the depositions of the Sheriff’s
employees. The Eureka officers were represented by panel attorney Mike
Morrison of Janssen, Malloy, Needham, Morrison & Koshkin Attorneys
at Law in Eureka. The lead counsel for both the city and county was
Nancy Delaney.
The protesters, were highly motivated, dedicated, and
have been quite successful in inventing devices which have made it ever
more difficult for the police to effect arrest and placement of
trespassers in custody. The Humboldt County Sheriff’s Department, and
to a lesser extent, the Eureka Police Department, have made efforts to
counteract these changes in order to effect arrest. As the lockdown
devices became more formidable, the means of separating protesters
became more difficult. For example, the steel pipe that was in use in
this case had in the past been cut with portable power grinders. In
these cases, the devices were of quarter-inch rolled steel pipe, welded
and fitted with an internal carabinier locking device that could be
released only by the protesters.
Law enforcement became more and more concerned about
the substantial risk of using these grinders for removal of lockdown
devices, both to law enforcement and to the protesters. In an effort to
effect the taking of trespassers into custody, administration in the
Humboldt County Sheriff’s Office considered the application of pepper
spray, via cotton swab, to the eyelid area of protesters, followed by
close range spray if necessary. The direct application technique was
based on application methods commonly used in pepper spray training
courses and was designed to minimize exposure to airways. After some
investigation into the legality of such a process, the administration of
the Sheriff’s Department authorized the use of pepper spray on
protesters resisting efforts to be taken into custody. Indeed, the
application of pepper spray in that manner proved effective in its
allowing law enforcement to effect arrest and custody.
Defense counsel prepared and filed a motion for
Summary Judgment or, in the alternative, partial summary judgment for
the individual deputies and police officers. The motion contended that
the actions of all defendants were reasonable as a matter of law; the
partial summary judgment motion was based upon a claim of qualified
immunity for the individual officers. Judge Walker’s written ruling on
the Motion for Summary Judgment was issued approximately one week before
trial. The Motion for Summary Judgment was denied, but partial summary
judgment was granted on the basis of qualified immunity.
Judge Walker ruled at either pretrial or at the close
of the plaintiffs’ case that all individual officers and deputies were
protected by qualified immunity and dismissed the case against each and
all of them.
Both sides had disclosed an expert witness before
trial. Plaintiffs had designated former Sacramento Police Department
sergeant Peter Reedy, and the defendants had engaged Joseph J. Callahan,
Jr. However, Judge Walker ruled that neither expert could testify at
trial. Significantly, however, plaintiff’s expert, Reedy, agreed at
deposition that the protesters in each of the circumstances was subject
to arrest. The sole issue for the jury, accordingly, was whether or not
the force used to effect the arrest was reasonable under the
circumstances.
Following a trial of two weeks, the jury of eight was
unable to reach a verdict, and deadlocked at 4-4. A mistrial was
declared. The City and County have filed a Motion for Judgment as a
Matter of Law, pursuant to FRCP subsection 50(b). That motion is
scheduled to be heard on September 25th (after this paper goes to
press).
At the time the Sheriff’s Department was
considering the use of pepper spray on forest protesters, POST did not
have guidelines that were of any assistance. Shortly before trial
commenced, POST did indeed adopt training guidelines for the direct
application of pepper spray on non-violent protesters. The guidelines
are similar to the protocol put in place by the Humboldt County Sheriff.
