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The hideous pepper spraying of college students at UC Davis yesterday reminds me of a similar case in the 90s, which I've written about several times before.
In 1997, environmentalists were staging a sit-in against the cutting of old forest in Humboldt county. The police sprayed pepper spray directly into the protesters eyes in similar fashion to what happened in UC yesterday and then used liquified pepper spray and applied it directly to the protesters eyes with q-tips. I'm not kidding. There's video:
I was writing about the use of tasers when I wrote this piece back in 2009:
Why is it that the taser videos always show a bunch of cops sauntering around, three or four of them bent over a prone person in handcuffs, blithely administering the taser as if they are merely wiping a speck of dust off the suspects shirt? I think that's the part I find so chilling --- it's so methodical, so cold, so completely inhuman --- that it seems like something out of a dystopian sci-fi novel featuring robots or aliens.
I'll never forget the horror of seeing the video of those environmental protesters having their eyes calmly swabbed with Q tips soaked in liquid pepper spray, by the Humboldt County sheriffs dept. In searching for the video I came across this San Francisco Examiner editorial from 1997, that could be written today about tasers:
Law enforcement arguments in a federal lawsuit are malarkey - pepper spray used senselessly hurts cops as much as protesters
San Francisco Examiner Monday, Nov. 17, 1997 Page A 18
It's almost farcical for law enforcement officials to continue defending pepper spray as a weapon to get protesters to follow orders. A videotape of officers applying pepper spray in liquid form to demonstrators' eyes shows the technique to be a form of torture.
Yet, attorneys for the Humboldt County Sheriff and the Eureka Police Department argue in federal court that this use of pepper spray is legitimate and unobjectionable. In court papers filed in a protesters' suit against the cops, police training expert Joseph J. Callahan Jr. says, implausibly, that the videotape could be used as a training film "illustrating modern police practices delivered in a calm, deliberate manner." (Remind us not to volunteer as guinea pigs for Mr. Callahan.)
The videotape was shot by Humboldt sheriff's deputies at an Oct. 16 demonstration, against logging in the Headwaters Forest, that took place in the Eureka office of Rep. Frank Riggs, R-Windsor. Four women who had chained themselves together with heavy metal "black bears" got liquid pepper spray rubbed into their eyes with cotton swabs, and one woman who refused even then to move had the pepper mist sprayed into her face.
This hurts, as the videotaped reactions make clear. But it broke up the demonstration pronto, and that's what counted for the law enforcers.
"At stake," attorneys for the cops argue, "is whether professionally trained police officers are to be deprived of the use of pepper spray, a substance carried by millions of private citizens in this country."
But this is really not the issue. Most people don't object to police using pepper spray the way it's designed to be used: To subdue a suspect who threatens officers or threatens to flee. Neither occurred in the case of the Eureka protesters.
Police shouldn't use pepper spray, or any other weapon, to dish out punishment to suspects. Just because cops are in a hurry doesn't make it OK for them to take shortcuts, or inflict pain to get things done.
The argument doesn't wash that no lasting damage was done by the pepper spray. By the same logic, police could use branding irons, sharp knives or psychological abuse on recalcitrant protesters as long as "no lasting damage was done."
Other police legal arguments are similarly shallow. An attorney for the cops said the use of heavy metal sleeves linked with chains that made protesters virtually immovable amounted to "active resistance," justifying the use of pepper spray.
In the past, police used metal grinders to cut through the heavy metal in order to oust demonstrators. That takes longer and is inconvenient, but it doesn't violate anyone's civil rights or threaten their physical well-being.
No one wants to live in a society where police are free to do whatever they wish in order to punish suspected law breakers. Cruel and unusual punishment is outlawed by the Constitution. And anyway, punishment is up to the courts to determine and the penal system to administer.
What cops risk through indiscriminate use of pepper spray, and its indiscriminate defense in court, is losing it altogether. If police are too dense to distinguish between legitimate use and torture, the Legislature should eliminate any confusion and outlaw pepper spray, period.
That holds true for all weapons that can be used for torture.
It took three tries and eight years, but the protesters finally won their case against the police in federal court. They were awarded a dollar.
An eight-person federal jury has returned a unanimous verdict for the Q-Tip Pepper Spray Eight activists/plaintiffs, finding the County of Humboldt and City of Eureka liable for excessive force in violation of the 4th Amendment to the U.S. Constitution.
The excessive force was used by Humboldt County Sheriff's Deputies and Eureka Police Officers when they applied pepper spray with Q-tips directly to the eyes of the eight nonviolent forest defense protesters in three incidents in 1997. Three of the activists were also sprayed directly in the eyes from inches away. Two of the young women were juveniles.
Former Sheriff Dennis Lewis and current Sheriff Gary Philp also were found liable for causing the use of excessive force by setting policies allowing the unprecedented use of pepper spray on the passive demonstrators, who had locked their arms together inside metal pipes.
The plaintiffs laughed and hugged in the courthouse hallways after the verdicts were read and applauded when jurors left their chambers. "They did the right thing," said plaintiff Terri "Compost" Slanetz, a 42-year-old naturalist from Oakland. "We've been trying all along to get a statement that this was illegal. It's a positive step toward people treating each other decently."
Juror Athene Aquino, a 35-year-old Citibank employee, said she was convinced the force was excessive by watching a video showing the deputies swapping pepper spray in the protesters' eyes. When she viewed the tape, Aquino said she "started crying. It was just very emotional."
The jury awarded nominal damages of only $1 to each of the plaintiffs, who made it clear all along that they weren't suing for the money, but to bring about a change of policy, to prevent the future use of pepper spray in Humboldt in the way it was used on them. They hope and expect that the verdict will reverberate far beyond rural Humboldt County to make it clear that police can not use the extremely painful pepper spray on non-violent people to coerce them to follow orders.
Lawyer Tony Serra called the verdict a "mixed metaphor." He said, "The verdict establishes now and forever that pepper spray applied in this fashion in these circumstances is excessive force. That will deter law enforcement officials throughout the country in the use of pepper spay and that's very good." But Serra said, "These young people suffered grievous mental anguish and should have been given a substantial amount of money to recompense them."
The defendants may be required to pay the reasonable attorney fees and costs of the plaintiffs, which will no doubt exceed $1 million for litigating the case through three trials and multiple appeals as high as the U.S. Supreme Court.
I don't know if the great civil liberties lawyer who won that one, Tony Serra, is still practicing, but if he is I'll bet he'd take the UC Davis case.
This article called "Pepper Spray, Pain and Justice" from the Civil Liberties Monitoring Project in northern California on the use of pepper stray as a torture device gives all the details of this famous case. It has informed my thinking about tasers and other uses of "pain compliance" and its implications for a free society. It's not long and I urge you to read it all if this situation alarms you.
It tells the harrowing story that you see in that video up top, including the chilling statement by the police after they were done pepper spraying one of the girls directly in the face: "We're not torturing you anymore."
It asks the question:
Are these valid tactics for the DA's office to use? May the Sheriff and the DA single out forest activists for "special treatment" when they are arrested and charged? The argument for this would be that the protests are costly to the county, and in an effort to contain those costs by reducing the number of protesters, or to prevent nonviolent civil disobedience which is expensive to the government, the government may use its discretionary powers to make the experience these activists have with the criminal justice system as unpleasant and costly as possible. The use of pepper spray to torment activists who are nonviolently sitting-in can be seen as the latest and most extreme step in this campaign.
The difficulty with this approach is that it puts the Sheriff and the DA into the position of the judge. It metes out punishment -- pain, days in jail, costly trips to court, disruption of normal life -- without the bother of proving guilt. Did the Queen in Alice in Wonderland say, "First the sentence, then the trial"? Even children can see that this is backwards.
One would think so. At the time this was written, they assumed the case would be decided in 1998. As I wrote, it was finally decided in 2009. But a jury found for the activists.
Of course it's torture. It couldn't be more obvious. The question we have to ask ourselves if our society believes torturing of political dissidents is acceptable.