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From the Publisher

May 5, 2005


About that goose


Fair warning: This is an opinion column. After covering the pepper spray fiasco for eight long years, I can't muster up much objectivity anymore.

I was a reporter outside Republican Congressman Frank Riggs' office that day when pepper spray was used in a new way on nonviolent demonstrators inside. Later I spent hours reviewing the videotapes made by both the protesters and law enforcement of what went on in the office, and earlier tapes of the arrests of the protesters at the Scotia headquarter of Pacific Lumber Co. I also spent many hours interviewing those involved, including one tough guy -- former Eureka Police Chief Arnie Milsap -- who had tears in his eyes as he showed me all the hate mail and death threats he was receiving. It was one of the longest, most detailed cover stories we ever put together.

When we finished the story, I sat down with a pretty heavy heart and wrote in my column:

"The big question is, was it wrong to use pepper spray to expedite the arrest of demonstrators? In my opinion, yes. It was wrong to use it and it was wrong to use it in a non-approved manner. [Manufacturers recommend spraying as the method of application and using a distance of 3-10 feet.] I believe in the longrun the judicial system will say so, too." [See entire PUBLISHER column, Dec. 1997]

After that, I received a bit of hate mail myself.

Unlike so many other politicians who refrained from weighing in on the question of right or wrong, U.S. Sen. Dianne Feinstein fired off an immediate, scathing letter to then-Sheriff Dennis Lewis, calling the use of pepper spray in this manner on nonviolent demonstrators "unfortunate, unnecessary and unhelpful."

Now, eight years later, the senator can add, "unlawful."

No matter what spin the county's attorney tries to put on the court decision last week, the county lost. Under orders from their superiors, city and county police officers crossed the line and used excessive force, violating the civil rights of the demonstrators. The jury decision was unanimous. That the demonstrators were only temporarily in severe pain and not permanently maimed is really irrelevant.

In that same column (December 1997) I warned that the civil rights lawsuit that would undoubtedly be filed would cost the county "far more than we spent [in 1996] citing and releasing 2,000 protesters. And it will cost us far more than the $100,000 we paid in 1991 because correctional officers in the county jail decided to teach those protesters a lesson by shaving their heads."

And don't believe for a minute those officials who are say it's not really costing the city and county very much out-of-pocket. Their own legal fees are close to $1 million so far. Somebody's paying for it. There may well be -- and there should be -- a similar amount going to the plaintiffs' attorneys. They won the case. At the end of the day, they were right. And then, there is the increase in insurance premiums that will undoubtedly follow and last for years.

Law enforcement officers made a mistake as we all do sometimes. I especially don't fault them for following orders. It's what they are trained to do. I just wish one of them would have said, "Hey, I know the effects of pepper spray are just temporary. Remember when we all used to blast each other with `OC' as a joke in the police academy? But spraying it into a paper cup, soaking up a Q-tip and rubbing it back and forth into the eyes of non-resisting demonstrators that's not exactly what it says on the label."

If you reread the Journal article online you will see that Sheriff Lewis had considered using the Q-tip application of liquid pepper spray on protesters in this creative, new way for several years. After consulting with three attorneys -- then District Attorney Terry Farmer, County Counsel Tamara Falor and a third whom Lewis declined to name -- Lewis made the call. To this day, the primary blame for this bad decision rests on those four sets of shoulders.

In addition, the Humboldt County Board of Supervisors bears some responsibility for not immediately condemning the incidents and apologizing as individuals elected to represent us, and by not taking action to settle with the plaintiffs as a collective body. Instead, they allowed their contract attorneys to endlessly drag out the case with appeals, all paid for by taxpayers' dollars. (Where is the Taxpayers League when we really need them?)

There were three current supervisors on the board at the time the train wreck was set in motion -- Bonnie Neely, wife of the district attorney at the time, John Woolley and Roger Rodoni. (There was also a serious void in leadership from Eureka city officials who willingly let the county take the lead.) Those supervisors who came on the board later had a choice of following the lead of their colleagues or seriously trying to change course. They did not.

I have wondered over the years if any of these officials actually sat through all of the tapes -- like C-Span -- rather than just the snippits on television? I wonder if they actually read the 9th District Court of Appeals decision of 2000 that was so condemning? If they did, might they not have reached the same conclusion as the jurors last week -- only a lot sooner?

Finally, the county's outside lead attorney, Nancy Delaney, was plain wrong. Again.

All those years she was reassuring the supervisors they had a good case, her law firm was sending monthly bills to the county. It was the same thing she did for two and a half years after the supervisors either inadvertently, stupidly or blatantly violated the Brown Act in 1997. (The Journal hired an out-of-county attorney to sue and eventually won the case heard by Judge J. Michael Brown. It, too, was a moral victory, not a monetary one, and we were awarded attorney fees.) [See related stories linked below.]

In both cases, Delaney advised the supervisors to fight, to stonewall, to file every motion, every appeal up to the Supreme Court in the pepper spray case -- to do whatever they had to do short of admitting a mistake was made and promising never to do it again.

But, at the risk of sounding cynical, that would have killed the goose that laid the golden egg.


Aug. 26, 2004: PUBLISHER: "To trial we go"

May 11, 2000: PUBLISHER: "No retrial: it's time to settle"


JAN. 1998: OPINION: "The Chief, the Sheriff and the Congressman" by John Arnold

May 1997: COVER STORY: "The New Majority"

May 1997: PUBLISHER: "Why the Brown Act Matters"

June 1997: PUBLISHER: "County responds to allegations"

Sept. 1997: PUBLISHER: "Sometimes too many hats"

Oct. 1997: OPINION: "Two-tiered civic rights"



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