Head Waters Forest Defense v. The County of Humbolt
| Decision Date | 31 January 2001 |
| Docket Number | No. 98-17250,98-17250 |
| Citation | 240 F.3d 1185 |
| Parties | (9th Cir. 2000) HEADWATERS FOREST DEFENSE, Plaintiff, and MOLLY BURTON; VERNELL "SPRING" M. LUNDBERG; MICHAEL MCCURDY; ERIC SAMUEL NEUWIRTH; MAYA PORTUGAL; LISA MARIE SANDERSON FOX; JENNIFER SCHNEIDER; TERRI SLANETZ; NOEL TENDICK, Plaintiffs-Appellants, v. THE COUNTY OF HUMBOLDT, a political subdivision of the State of California; HUMBOLDT COUNTY SHERIFF'S DEPARTMENT; DENNIS LEWIS, Sheriff; GARY PHILP, Chief Deputy; MARVIN KIRKPATRICK, Deputy; JOHN SYLVIA, Deputy; CIARBELLINI, Sgt.; CITY OF EUREKA, a political division of the State of California; EUREKA POLICE DEPT; BILL HONSAL, Captain; JAMES MANOS, Sgt., Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
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[Copyrighted Material Omitted] COUNSEL: Mark Hughes, Denver, Colorado, for the plaintiffs-appellants.
Nancy K. Delaney, Eureka, California, for the defendants appellees.
Margaret C. Crosby, for amicus curiae American Civil Liberties Union Foundation of Northern California.
Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding. D.C. No.CV-97-03989-VRW.
Before: Myron H. Bright,1 Harry Pregerson, and William A. Fletcher, Circuit Judges.
ORDER
With the filing of the Amended Opinion, the panel, as constituted above, has unanimously voted to deny the petition for rehearing. Judges Pregerson and W. Fletcher voted to deny the suggestion for rehearing en banc and Judge Bright so recommended said rejection.
The suggestion for en banc rehearing has been circulated to the full court, and no judge of the court has requested a vote on the suggestion for rehearing en banc.
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
OPINIONNine environmental activists, along with an entity called Headwaters Forest Defense, brought this action under 42 U.S.C. S 1983, alleging that the use of pepper spray on the activists during three protests in Humboldt County constituted excessive and unreasonable force in violation of their Fourth Amendment rights. The named defendants included Humboldt County and its Sheriff's Department; Humboldt County Sheriff Dennis Lewis and Chief Deputy Sheriff Gary Philp, who authorized the use of pepper spray; the City of Eureka and its Police Department; as well as each law enforcement officer who participated in the protesters' arrests. The district court granted summary judgment on qualified immunity grounds in favor of all individual defendants, except for Sheriff Lewis and Chief Deputy Sheriff Philp.2 A jury trial in this case consumed nine days. At the close of plaintiffs' case-in chief, the district court ruled that Lewis and Philp were also entitled to qualified immunity as a matter of law and dismissed the case against them. After deliberating for six hours on the remaining claims, the jury announced that it was irreconcilably deadlocked. The district court declared a mistrial and set a new trial date. But eight weeks later, the district court reversed itself and granted defendants' motion for judgment as a matter of law.
Plaintiffs contend on appeal that the district court erred in ruling that Sheriff Lewis and Chief Deputy Sheriff Philp were entitled to qualified immunity as a matter of law because historical facts were in dispute and that the court erred in directing a verdict in favor of the remaining defendants. We agree.
In the fall of 1997, environmental activists staged three nonviolent protests against what they perceived to be the unnecessary logging of ancient redwood trees in the Headwaters Forest along California's northern coast. During each protest, two to seven protesters linked themselves together using self-releasing lock-down devices known as "black bears." A "black bear" is a ten to twenty-five pound steel cylinder (about one-fourth of an inch thick) with a rod or post welded into the center. The protesters placed their arms into the steel cylinders and attached steel bracelets worn around their wrists to the center rods or posts in the "black bears " by using mountain climbers' carabiners. Each "black bear" linked two protesters together. When in place, the devices completely immobilized their arms and prevented their separation. By simply using their hands to unclip the carabiners on the inside of the cylinder, the protesters could disengage themselves from the devices. If the protesters did not voluntarily agree to release themselves, the lock-down devices made it difficult, but not impossible, for law enforcement officers to take the protesters into custody upon arrest. To forcibly remove "black bears," the officers had to use a Makita grinder. A Makita grinder is a hand-held electric grinder that can cut through steel.
The protesters' use of these lock-down devices is at the heart of this case. Since 1990, nonviolent environmental activists had on many previous occasions used these and other mechanical devices to link themselves physically together during similar protests in Humboldt County. Over the years, the devices became increasingly sturdy and more difficult for the police to remove forcibly. The initial devices were bicycle locks or lightweight metal cylinders, weighing less than five pounds. By 1995, they had evolved into the "black bears" that were used here.
In 1997, the Humboldt County Sheriff's Department organized a special response team comprised of Special Services Deputies to deal with the environmental protests. The officers selected for the team were those with special training and experience in the use of a Makita grinder to remove lock down devices safely. By the fall of 1997, one of the officers had used a Makita grinder to remove hundreds of lock-down devices from the arms of environmental protesters. He had done so safely, without causing injuries to either himself or the protesters.
Nevertheless, because a Makita grinder generates sparks when used, the defendants claim to have had a growing concern about the danger involved in using it. So, in the summer of 1997, the Humboldt County Sheriff's Department explored alternatives for effecting the arrest of environmental protesters in lock-down devices -including the use of oleoresin capsicum aerosol ("OC" or "pepper spray"). Defendants Lewis and Philp consulted a certified trainer in the use of pepper spray, the county's risk manager, and its district attorney. And they read much of the available literature on the subject. By summer's end, defendants concluded that the use of a lock-down device by any protester -even an otherwise nonviolent protester who posed no danger to the public, himself, or the arresting officers -constituted "active resistance" to arrest, warranting police use of pepper spray as a "pain compliance technique."
But, according to then-California Attorney General Dan Lungren, the use of pepper spray under these circumstances was unprecedented; its use had been previously "limited to controlling hostile or violent subjects." Even Sheriff Lewis conceded at trial that no law enforcement officer in Humboldt County, the State of California, or anywhere in the nation had ever used pepper spray on nonviolent protesters as it was used in this case. The defendants nonetheless contend, and the district court found as a matter of law, that the officers' use of pepper spray during the three protests at issue here was reasonable and appropriate under the circumstances.
The first protest took place on September 27, 1997, at the headquarters of the Pacific Lumber Company in Scotia, California ("the Scotia protest"). During the Scotia protest, plaintiffs Vernell "Spring" Lundberg (a minor at the time), Jennifer Schneider, Molly Burton, and Eric "Sam" Neuwirth, along with three others, ran into the Pacific Lumber Company lobby, sat down in a circle, and locked themselves together using the "black bears." Meanwhile, other activists held a peaceful rally (including folk music and protest songs) and a mock trial of the owner of Pacific Lumber Company on the sidewalk in front of the Pacific Lumber Company building. Still other activists hung protest signs from the roof of the Pacific Lumber building.
Pacific Coast Lumber employees called the Humboldt County Sheriff's Department, which dispatched its special response team. Upon arrival, the officers observed that the seven protesters had placed the "black bears" under their arms and legs, making it particularly difficult to use a grinder to remove them. The officer in charge decided that using pepper spray was the most appropriate and safest way to arrest the trespassing protesters. He and the other officers testified that they made this decision solely because of the difficulty in using a grinder in these circumstances. It was "immaterial" to them that the protesters were peacefully engaged in an act of civil disobedience, as opposed to being violent. And the protesters outside the building were not a factor in their decision to use the pepper spray on those inside the building. Indeed, it is undisputed that the protesters both on the roof and outside the building were nonviolent, did not interfere with ingress or egress to and from the Pacific Lumber building, posed no safety risks to the public or to the officers, and willingly dispersed when their rally and mock trial were ended or when the police directed them to do so.
The Sheriff's videotape of the incident reveals that the officers never attempted to negotiate with the protesters. Once they made the decision to use the pepper spray, the officers simply warned the protesters repeatedly that if they refused to release themselves from the "black bears" the officers would apply pepper spray to...
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