by Rosemary Edmiston
On a wet day in early October Noel Tendick and Michael McCurdy sloshed through the mud onto Pacific Lumber Co. land near Stafford. They chained themselves to an unoccupied bulldozer using the welded metal pipes that have become so familiar in the environmental battlefield surrounding Headwaters Forest.
When a team of sheriff's deputies arrived they warned the two young men to release themselves or be treated with pepper spray.
"The Two," as they have come to be known in legal papers, refused and were subsequently doused with the stinging chemical, a Sheriff's Department video tape released to their attorney shows.
They were booked into Humboldt County jail in Eureka on suspicion of trespass and resisting arrest. After four days behind bars both men were released. But they were never charged with any crime.
That, Arcata Attorney Mark Harris says, is because the protesters had already been punished -- a charge that goes to the root of a heated battle between environmental demonstrators and Humboldt County's law enforcement community.
"It doesn't matter who they charge because the punishment is what they're concerned about," Harris says. "They're meting out summary punishment. They don't need a judge, they don't need a court, so they don't really need a charge," Harris says.
District Attorney Terry Farmer has heard it all before. "Whatever we do," he said, "they're going to criticize us because their primary goal is publicity. We're never going to do it right in their eyes."
Tendick's incarceration resulted in an outcry from his hometown of Half Moon Bay. Now 20 years old, Tendick was valedictorian of his high school class and a 4.0 student who once started his own chapter of Amnesty International.
A member of Tendick's church wrote the District Attorney's Office three days after the young man's arrest asking for his release. In a letter of response, Farmer outlined Tendick's illicit activity and wrote: "For this he was arrested and placed in the Humboldt County Jail. After spending a period of time in that facility it was determined that no further legal action was necessary and no charges were filed."
That statement has infuriated Harris.
But the debate goes beyond Harris and Farmer. Members of the local judicial community -- including attorneys in the county Public Defender's Office -- have quietly questioned how logging protesters could be held for up to five days on misdemeanor charges. A civil rights lawsuit which includes Tendick and McCurdy among nine plaintiffs has been filed against the county and Eureka Police Department, and a hearing over whether the District Attorney's Office should be removed from trying three protesters on criminal charges stemming from the Oct. 16 occupation of Congressman Frank Riggs' Eureka office was scheduled for Jan. 28, after The Journal had gone to press.
While Farmer acknowledges that dealing with so many protests has posed problems for Humboldt County's judicial system, he said his office has not singled any group out for special treatment.
"It's been a unique situation and certainly we've addressed it because of its uniqueness. But I don't think that the standards that we have applied are any different than what would apply to anybody else," he said.
By law, the District Attor-ney's Office must file charges against people held in jail within 48 hours of incarceration or two court days. As a result, if someone is arrested late on a Thursday or on a Friday it's likely they will have to sit behind bars over the weekend.
The district attorney said he was not aware of any protester being held for a period longer than five days -- over a weekend and a holiday plus two business days. The process was that protesters who were arrested for the first time and had no criminal record would be booked and released if they promised to obey all laws, Farmer said. "Some people refused to give that promise, some people refused to give their name.
"For those who violated that promise, the decision was made to retain them in custody until the charges could be reviewed and filed, if they were going to be filed," he said. But that never went beyond the time allotted by law, he added.
Harris, who represents in the civil lawsuit the nine protesters treated with pepper spray by law enforcement, doesn't buy Farmer's explanation and maintains the jail terms were excessive and intended to silence demonstrators who were mistreated by law enforcement.
The decision on whether a protester would be charged with a crime was also dependent on past criminal behavior, Farmer said. Money was also a big factor.
"We've certainly had to apply a cost-benefit analysis in looking at who we prosecute and who we don't prosecute because if we prosecuted everybody we'd bankrupt this county."
Harris said that thinking has resulted in haphazard charging practices.
"My position is they were punished and the charging is less important," he said. "The punishment is what law enforcement and the prosecution are after here. And when I say punishment, it's punishment with a reason and the reason is to deter people, not just from going out and committing civil disobedience, symbolic protest, but from politically organizing, from attending rallies."
In fact, Farmer said, county officials held meetings where they talked about providing a forum for demonstrators to protest legally. But the district attorney did acknowledge that the amount of time a demonstrator spent in jail was a factor his office considered when filing charges.
"We've tried to balance the cases that we've prosecuted against this goal of minimizing costs and not allowing them to shut down the court system. ...
"We should remember that these are misdemeanor trespass violations which in and of itself, without a serious record, without a proven record of repeat conduct, is not going to get you more than a couple three days in jail at the maximum. If you've already served that there's really no purpose to be served by spending not only the money allocated for prosecution but by giving you a court-appointed defense lawyer to contest that action further. This system is not going to do any more to you than has already occurred."
But whether or not a demonstrator was sprayed with pepper spray was never considered by the District Attorney's Office in charging, Farmer said.
"Pepper spray was used to effectuate an arrest after the offenses had already occurred. That was a tactical decision of the law enforcement officers on the scene, which frankly we believe to be irrelevant to the issue of whether or not they violated the law or whether or not they ought to be charged," he said.
Tensions between protesters and police exploded after the news that pepper spray was being used on nonviolent environmentalists went national on Oct. 30. But problems existed long before then.
After several years of Redwood Summer-type rallies the county had had enough. Symbolic arrests were taxing an already overburdened justice system, and some protesters were demanding their day in court rather than simply pay a fine as the county wanted.
Meetings were held and new policies drafted.
"Many of the meetings were concerned with providing an appropriate avenue of protest, and to let the people clearly know that if they violated the law there was going to be consequences and those consequences included arrest, incarceration -- means by law enforcement officers to do what they had to do to obtain compliance," Farmer said. "That ultimately included, obviously, the use of pepper spray."
Farmer said his involvement in the county's decision to adopt a new policy on pepper spray was strictly to advise officers on whether they could be criminally prosecuted for treating nonviolent demonstrators with the chemical. He maintains the new method of pain compliance is legal, basing his decision on Forrester vs. City of San Diego, a case stemming from a 1989 protest by the anti-abortion group Operation Rescue.
In that case, the United States Court of Appeals ruled in favor of the city, saying officers were operating within their legal rights when they used nonchakus -- two sticks of wood connected at one end by a cord and used to grip demonstrators' wrists -- and direct physical contact such as pushing on facial pressure points to remove nonviolent protesters from a medical clinic. All of the demonstrators arrested complained of varying degrees of injury to their hands and arms, including bruises, a pinched nerve and one broken wrist, according to the court's 1994 decision.
The appeals court found the use of force was not excessive given that the demonstrators were first warned they would be subject to pain compliance, refused to cooperate and were violating the law. And, the court said, "police officers are not required to use the least intrusive degree of force possible to execute arrest."
In Humboldt County, Farmer said, "the motivating factor in the talk of law enforcement agencies involved (in the pepper spray decision) was that they had a job they were mandated to do and they wanted to do that job with the least likelihood of causing permanent injury.
"Fortunately, in reviewing what occurred they were successful in doing that," he said.
Officials have been frustrated with the protesters, Farmer admitted, while Harris said apathy has also played a role in the changing climate between environmentalists and police.
"I think as people on the North Coast grew accustomed to the protests (they) fell asleep at the wheel," Harris said. "If nothing else, the real reason for this heightened abuse, if you will, of the law enforcement process is being brought about not by increased protest, not by increased arrests, that's not what's happening, but by a sort of assurance and feeling of confidence on the part of law enforcement that they can get away with things with impunity."
Farmer blamed growing problems on a small group of relentless protesters.
"We have tried mightily in our discussions with the community that has concerns about these issues to encourage them to exercise their protest, their concerns in a lawful manner. Thankfully, the overwhelming majority this year complied with that.
"But there's a few individuals who are bound and determined -- no matter what we do they feel the only way they can make their voice heard is to break the law. That places us in a no-win situation. We have to respond to that and that has been the overwhelming frustration of this whole thing. Ostensibly their quarrel is not with Humboldt County, their quarrel is with Maxxam, or the Pacific Lumber Co., but it's the people of Humboldt County who have to bear the brunt of this."
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