Mistrial Declared in Headwaters Case

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 even 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 an 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 affect 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, the plaintiff’s expert, Reedy, agreed at deposition that the protesters in each of the circumstances were 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 the 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.