Supremes Will Hear 'Pepper Spray' Case 

At Issue: Qualified Immunity for aggressive cops

In the fall of 1997, as negotiations over the fate of the endangered Headwaters grove were reaching a climax, members of the environmental direct action group Earth First! stepped up their campaign of civil disobedience, targeting the offices of the Pacific Lumber company and then-congressman Frank Riggs for sit-ins and demonstrations. They had perfected the technique of lashing their bodies together in "lock boxes," or metal pipes inside which protesters locked their arms; once secured, it could take hours to dislodge them, as business-as-usual ground to a halt. That fall, Humboldt County sheriff's deputies hit upon a new method of removing the protesters. Pulling their heads back by the hair, deputies swabbed their eyes with pepper spray and let them writhe in pain until they agreed to unlock themselves.

When footage of the action hit the national airwaves, it caused a furor among millions who thought what they were watching was nothing less than the premeditated torture of nonviolent protesters. Soon, nine protesters -- many of whom were Oakland residents -- sued the county for undetermined damages; unless they took a big bite out of Humboldt County's budget, they thought, its deputies could establish as policy the intentional infliction of pain on inconvenient, but nonviolent, protesters. "The question here is, 'How much can we hurt them in order to convince them not to do that again?'" says Brendan Cummings, a Berkeley-based attorney serving as co-counsel for the plaintiffs.

Four years later, the case has finally reached the docket of the US Supreme Court. Throughout this struggle, it has been the hope of Earth First! and its attorneys that this lawsuit would accomplish more than merely squeezing a few dollars out of the Humboldt County general fund. They have used this case to try to draw a line in the sand, to force the courts to unequivocally state that police cannot trample civil liberties with impunity. But four weeks ago, in a case known as Saucier v. Katz, the Supreme Court indicated that it is hardly in the mood to punish police officers for stepping over the line. In fact, the court used the Saucier ruling as an opportunity to write new case law that dramatically expands protections for police officers who violate the civil rights of nonviolent protesters. In so doing, they may have rendered groundbreaking lawsuits like this irrelevant -- and the Humboldt County Sheriff's office may never have to answer for the events of 1997.

When Earth First! took Humboldt County to court, they landed before the bench of federal judge Vaughn Walker, one of the most colorful mumbers of the Bay Area judiciary. Although Walker was appointed by the Bush administration, he has often baffled observers with his libertarian views and quirky, sometimes inexplicable rulings; for instance, it is conventional courthouse wisdom that defendants in federal drug busts can expect the lightest possible sentence from Walker, who strongly favors decriminalizing drugs. On the other hand, his practice of auctioning off the right to represent plaintiffs in shareholder securities fraud suits have left people scratching their heads.

In 1998, after the initial Earth First! trial ended in a hung jury, Walker summarily dismissed the resubmitted case, ruling that "the officers acted reasonably in using [pepper spray] as a pain compliance technique in arresting plaintiffs." Many observers thought that Walker's ruling was based less on legal principles than on his personal distaste for tree-huggers who trespass on private property and presume to dictate what other people can do with their own land. San Francisco Chronicle legal columnist Reynolds Holding wrote of Walker's decision, "To bypass a jury and decide on your own one of the year's most controversial cases... you had better be the type of judge who commands rock-solid respect for sound judgment.... Unfortunately, a lot of lawyers say Walker is not that type of judge."

Apparently a panel of Ninth Circuit Court of Appeals judges agreed with Holding, for they soon reversed Walker's ruling and sent the case back for retrial. Humboldt County appealed the Ninth Circuit's decision, and it is this appeal that is sitting in Washington, waiting for the High Court's review. If judges in the Ninth Circuit don't think much of Walker's decision, it's an open secret that Supreme Court justices don't think much of the Ninth Circuit; long seen as one of the last bastions of liberal judiciary, the Ninth Circuit sees more of its decisions overturned by the Supreme Court than any other circuit, and Sandra Day O'Connor regularly attends the court's annual retreat to lecture the judges on what she sees as their reckless advocacy of progressive legal principles. The Earth First! case is exactly the sort of ruling, legal observers say, that the Supreme Court likes to throw back in the face of the Ninth Circuit.

The central issue in the lawsuit is the principle of "qualified immunity," a precedent established in the early '80s that states that even if a government official engages in unconstitutional acts -- such as using excessive force on a suspect -- he cannot be held liable if at the time he or she had a reasonable belief that the action was within the bounds of the Constitution. Even if pepper-spraying nonviolent demonstrators is unconstitutional, deputies can escape civil liability if they can claim that, at the time, they didn't know their action was a violation of the protesters' rights. "The whole idea of immunity is that we ought to give government officials a certain amount of leeway to do their job free of the worry that they're going to be second-guessed in a civil rights action for every little misstep," says Boalt law professor Charles Weisselberg. "On the other hand, it is designed to hold officials accountable when they intentionally violate known rights. It's designed to free up government officials to do their work while establishing a known bottom line under which they dare not fall."

Early in the case, Walker used qualified immunity to excuse individual deputies from the suit. It was only when he dismissed the suit altogether that Walker claimed that qualified immunity also covered County Sheriff Dennis Lewis and Chief Deputy Sheriff Gary Philp, the officials who actually devised the pepper spray policy. Cummings and his legal team are challenging this decision, in part because the ruling would free the county from liability for punitive damages. "We could still sue the county, but punitive damages can only be awarded against individual officers," Cummings says. "The jury can only award actual damages against the county, in establishing how much the pepper spray hurt. Punitive damages are the real deterrent in such cases."

But just last month, the Supreme Court issued a sweeping ruling on qualified immunity that may cut the legs out from under Cummings. Once again, the case originated in the Ninth Circuit and concerned the treatment of protesters by police. In September 1994, animal rights protester Elliot Katz was arrested for disrupting a speech given by Al Gore at the Presidio; television news cameras recorded military officer Donald Saucier indiscriminately heaving Katz into a police van. Katz promptly sued and received a favorable ruling by the Ninth Circuit, but on June 18, the Supreme Court dismissed the case, significantly expanding officers' protection against lawsuits in the process.

In the late '70s, Arthur Hellman was the director of the central staff attorneys for the Ninth Circuit; now a professor at the University of Pittsburgh, he has written extensively about the relationship between the Ninth Circuit and the Supreme Court. According to Hellman, the Saucier ruling makes it very difficult for Earth First! to get another trial, particularly since the Ninth Circuit repeatedly cited its own ruling in Saucier -- a ruling that has now been overturned -- when sending the pepper spray case back for retrial. "When you have a case in the same circuit that relied on a decision that was just reversed, it wouldn't be unlikely that the court would issue a Grant, Vacate and Remand order," Hellman says. "The GVR is a summary order; it vacates the decision and remands it back to the lower court. It would be saying to the Ninth Circuit, you handed down a decision in favor of the plaintiff in light of Saucier, but Saucier has been reversed. So take a second look at that and see if your ruling still applies. Your prior decision may be erroneous -- you should strongly reconsider it."

There may be a clear difference between forcefully throwing someone into a van during a crowd-control situation and devising with premeditation a policy of torturing people, and so the case has an outside chance of going before another jury. But even if the Earth First! lawsuit dies on the vine, the suit may have the practical effect of deterring the future use of pepper spray in cases of civil disobedience. "The Ninth Circuit had followed a rule, which was if the force was unreasonable, that rules out immunity," Hellman says. "Saucier holds that those are two distinct issues. Just because the court decides the constitutional issue in favor of the plaintiff, it doesn't have to decide the immunity issue in favor of the plaintiff. It can say it was not clearly established in 1997 that using pepper spray was a Fourth Amendment violation. But the court can also say it is clearly established now, and that would put police on notice that they could be liable in the future."

If the case does go back for another trial, it would land back in Walker's court. This time, that may actually work in favor of Earth First!. Although Walker evinced a dislike for the plaintiffs' original attorneys, Earth First! has hired the famous and colorful Tony Serra for the second trial. Word is that Walker has a particularly soft spot for fellow eccentrics such as Serra, and that the second trial may see a more sympathetic side of the mercurial judge.

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