The nine Headwaters forest activists who were pepper sprayed last year while engaged in nonviolent direct actions have had their day in court. After two weeks of trial and five hours of deliberation, the San Francisco jury announced on August 25 that it was hopelessly deadlocked. Four jurors were in favor of the pepper-sprayed plaintiffs; four were in support of the defendants, the Humboldt County Sheriff and the Eureka Police Department. Federal District Judge Vaughn Walker dismissed the jury of eight and declared a mistrial, setting a new trial date for November 16.

Testimony during the trial underscored how significant this case is. Ollie Sansen, a police trainer in Contra Costa, California, testified about a new report from Peace Officers Standards and Training (POST) that outlines ways of dealing with "active resisters." In a chillingly Orwellian manipulation of language, a glossary of terms in the report defines passive resistance as an oxymoron. The report goes on to suggest ways of directly applying chemical agents to "active resisters," those who go limp, lock down, etc... On Sansen's cross examination, it came out that two Eureka Police Department members were on the committee that drafted the report a couple of weeks after the occupation of congressman Riggs' Eureka office and directly after the civil rights suit was filed.

This unprecedented application of pepper spray, with doused Q-tips, forced into the eyes of the activists, was the result of a policy implemented by Humboldt County Sheriffs in the Fall of '97. Purportedly, the legality of this policy was researched by Chief Deputy Gary Philp, yet Philp couldn't explain why he or Sheriff Lewis did not document any of this research.

Philp testified that he, at Sheriff Lewis' request, consulted the county district attorney, the county counsel and the county risk manager. Philp said these conversations supported pepper spray being swabbed into the corners of the eyes. However, risk manager Kim Kerr testified that she was told by Philp the policy would only involve a swab on the cheek. Additionally, the policy he discussed never included repeated swabbing to the eye-lids, or a direct spray at point-blank range, as shown in the police videos.

The plaintiffs admitted into evidence a still photograph from the video taken of the protest at Congressman Riggs's Eureka office. In the photograph one sees that, contrary to deputies' claims that no one's eyes were opened, the protester's eyeball is exposed to the Q-tip soaked in pepper spray. Deputy Kirkpatrick, the officer who sprayed and swabbed the activists in all three incidents, claimed that the still photo depicted not a pupil, but the shadow of the Q-tip. He attempted to explain away the white of the eye as "glare." The tape also shows multiple swipes on each eye with the swab. Kirkpatrick claimed here that he held the Q-tip stationary while the protester moved her head.

After being dismissed, the jurors conversed with both parties of the suit as well as with the media about points of the case. Jury fore person Pat Schimke spoke in favor of the plaintiffs and said she felt the use of the chemical on non-combative, nonviolent protesters was excessive. "The officers had other options. They could've ground them out, which they've been doing for years in Humboldt County without injuring anybody."

When pressed by reporters, Schimke revealed that at the center of the deadlock was one juror in particular who "wouldn't have changed his mind if a bomb went off in his lap." He also stated that if the protesters trespassed on his property, he would have gotten his gun.

Determined to protect the civil rights of future nonviolent protesters, plaintiff activists and their lawyers have vowed to continue the fight to the next trial. "This lawsuit is our chance to say to Humboldt County law enforcement and to law enforcement across the country, you cannot punish us for our beliefs, you cannot abuse our constitutional rights, you cannot torture us," said plaintiff Noel Tendick. "It is our chance to do our part to make sure this never happens again."