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No retrial -- it's time to settle


Here are a few excerpts from the unanimous pepper spray decision last week by the 9th District Court of Appeals three-member panel of jurists:

"The evidence established that the protestors suffered excruciating pain. A rational juror could have concluded that the intrusion was more than `minimal.'
"The decisions to use pepper spray had nothing to do with the government's purported interest in quickly removing the trespassing plaintiffs.

"There was no evidence that the police needed to use pepper spray to maintain order and preserve the rights of citizens against a `large group' and `menacing' protestors.

"A reasonable factfinder could have concluded that using pepper spray bore no reasonable relation to the need for force.

"The only crime committed was trespass. rational juror could have concluded that the nonviolent trespass did not render pepper spray necessary to effect the arrests.

"reasonableness of the force used was for the jury to decide.

"the district court erred in granting qualified immunity to Sheriff (Dennis) Lewis and Chief Deputy Sheriff (Gary) Philp."

And there's more -- including a riveting summary of the case as presented during the 1998 jury trial in San Francisco. The 29-page decision is posted in its entirety here on the Journal's website, and we urge every member of the Eureka City Council and the Humboldt County Board of Supervisors to read the decision for themselves and not rely solely on advice of their attorneys before deciding how to proceed. Here's just one reason why:

In their joint defense, the county and the city relied heavily on a 1994 case known as Forrester vs. City of San Diego, a case where protesters outside an abortion clinic were arrested by police using "nonchukus," two pieces of wood connected at one end by a cord. (The devices are used to grip a resisting arrestee's wrist in a progressively tighter and more painful manner until the arrestee ceases resisting.) Such use of "pain compliance" was found to be reasonable by the same court of appeals. But Humboldt County's pepper spray case is different, the justices say.

"Unlike the use of a lighted cigarette, which would create immediate and searing pain, the discomfort produced by (nonchukus) was gradual in nature. moment the demonstrators complied, the police released the (device)."

The pain of pepper spray can't be immediately stopped even if an arrestee complies. The justices said a "reasonable jury" could very well find that force was excessive and in violation of the 4th Amendment of the U.S. Constitution.

The manner in which the pepper spray was applied to the face and eye area of the protesters was much like the lighted cigarette in a bad B movie -- played on national television over and over again.

In addition to shooting down the Forrester arguments, the justices also took apart nearly every argument the county and city advanced. It was a slam dunk, and if you don't believe it, please read the decision for yourself.

So how to proceed? Shall we do this all over again and fight, fight, fight for our officers?

Not when they're wrong, as was Sheriff Lewis when he made the decision to use pepper spray in this manner against nonviolent protesters.

The county and city can ask the entire 9th Circuit Court to hear the mattter. If the attempt to "reverse the reversal" is not successful, the city and county can go back and retry the case before another jury, raising the stakes even higher.

But as Judge Myron H. Bright warned:

"Now that this court has established that the use of pepper spray in the eyes and on the faces of nonviolent, passive protestors may amount to an unreasonable use of force in violation of the Fourth Amendment of the United States Constitution, the most important issue in the case has been resolved."

We agree wholeheartedly with Justice Bright. The likelihood of another split jury in this emotional case is high, and he urges "the parties to compromise the respective positions of each and settle this case. If retried, this judge entertains great doubt that a second jury will be any more successful than the hung jury in the first case. The protestors suffered no permanent injury. Whether the protestors, as a matter of fact, can recover damages against defendants is highly uncertain."

What is certain is the attorneys are getting wealthier. To date the county alone has paid the outside attorneys $183,897.

Enough. City and county elected officials should direct their legal counsel to settle.

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