FROM THE

August 26, 2004

To trial we go

by JUDY HODGSON

You think Humboldt County is polarized this year over Bush and Kerry? Let me remind you that we were every bit as split seven years ago when the county was featured on major television news programs around the world for nearly a week.

I am referring to the pepper spray incident, where police and sheriff's deputies calmly and methodically sprayed the chemical in a paper cup and, using Q-tips, repeatedly swabbed the eyes of timber protestors who were screaming and writhing in pain. Apparently we have to live through this ignominious chapter of our history all over again in two weeks when it goes to trial in San Francisco.

On one side of the issue in 1997 were many in the timber industry, their families and friends, and some law enforcement officers, their families and friends. On the other side were the rest of us, embarrassed and incredulous.

In our first edition after the incident, the Journal editorialized:

"Do we support law enforcement? Well, of course we do. Good law enforcement, just as we support members of the clergy who give compassionate counsel, teachers who are well prepared and dedicated to their students, judges who make thoughtful, independent decisions and competent, caring nurses and physicians. These are all professions that on the whole attract people not just because of a salary but because of a higher calling.

"But the big question is, was it wrong to use pepper spray to expedite the arrest of demonstrators? Yes. It was wrong to use it and it was wrong to use it in an unapproved manner. We believe in the long run the judicial system will say so, too." [See entire column in the Dec. 1997 North Coast Journal]

In January 1998 we published a great opinion piece by former Eureka City Manager John Arnold (available on our Web site) called, "The chief, the sheriff and the congressman." Arnold wrote:

"Pepper spray, of course, replaced Mace, which replaced chokeholds and other physical force, which replaced the club, which replaced the gun as the acceptable means of subduing those threatening a police officer. None of those were ever acceptable to be used on passive resisters.

"A law enforcement officer is not allowed to mete out punishment. ... Child molesters under arrest are not allowed to be put in pain by an officer. Killers aren't. Wife abusers aren't. The crime does not matter. Cops don't punish."

The pepper-spray incidents (there were three) were not cases of cops out of control or poorly supervised. In fact, the officers were ordered to apply the chemical in that manner. It was a case of very bad policy from the top law enforcement officers in this county -- former Sheriff Dennis Lewis, who told us he had consulted former District Attorney Terry Farmer and other attorneys before making his decision, and EPD Chief Arnie Millsap. (Current Sheriff Gary Philp was also named as a defendant in the civil trial against the county and the city of Eureka.)

The jury deadlocked in 1998 and the judge threw out the case. But every appeal since has gone in favor of the protesters and their right to have the case heard by a new jury.

I have read the entire unanimous decision by the 9th District Court of Appeal, which has now been upheld all the way to the U.S. Supreme Court. In it 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." He urged the parties to compromise and settle the case, and so did we in a May 2000 editorial, "No retrial -- it's time to settle."

Inexplicably, county and city officials have not done so. For seven years all we have heard was, "We can't comment on a pending lawsuit."

And so, to trial we go.

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