Pubdate: Tue, 27 Oct 1998
Source: Orange County Register (CA)
Copyright: 1998 The Orange County Register
Contact:  http://www.ocregister.com/
Author: Bob Egelko-The Associated Press

JUDGE THROWS OUT PEPPER-SPRAY SUIT 

The Stinging Substance Had Been Dabbed On The Eyelids Of Nonviolent
Protesters. 

SAN FRANCISCO — Saying police can use "pain compliance" to break up
sit-ins, a federal judge on Monday dismissed a lawsuit by anti-logging
protesters whose eyes were swabbed with pepper spray.

The ruling by U.S. District Judge Vaughn Walker bars a second trial, which
had been scheduled for Nov. 16. The first trial ended in a hung jury Aug.
25, with jurors deadlocked 4-4 on the question of whether officers used
excessive force by applying the burning chemical to the eyelids of
nonviolent demonstrators.

"The uncontroverted evidence presented at trial unequivocally supports the
conclusion that the officers acted reasonably in using OC (pepper spray) as
a pain-compliance technique in arresting plaintiffs," Walker wrote.

He said the pepper spray caused only "transient pain without significant
risk of physical injury" and was a legitimate means to end the protesters'
"organized lawlessness." No reasonable juror could conclude otherwise, the
judge said.

The protesters and their lawyer disagreed, citing the jury vote and the
public outcry over a sheriff's videotape of the demonstrations, which was
shown on national television.

"We know the people of this country are against this," said Vernell
"Spring" Lundberg of Arcata, who was 17 when her eyelids were smeared with
pepper spray on a Q-tip during a sit-in at Pacific Lumber Co. headquarters
in Scotia last fall.

"Your lungs close in and you can't breathe," she said. "I was
hyperventilating and scratching into my leg to deal with the pain of this
substance."

Attorney Brendan Cummings said the protesters would appeal.

The ruling appears to give police "a green light to use torture on
nonviolent protesters," he said. He quoted Walker as saying after the jury
deadlock in August that "reasonable minds may differ" on whether the
officers used excessive force.

Eureka Police Chief Arnie Milsap, whose officers applied pepper spray to
persuade demonstrators to unchain themselves at a congressman's office, was
pleased by the ruling and said police would continue to use the chemical
when necessary.
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Checked-by: Patrick Henry