October 26, 1998
Filed at 3:07 p.m. EST
By The Associated Press

SAN FRANCISCO (AP) -- A lawsuit by anti-logging protesters whose eyes were swabbed with pepper spray was dismissed Monday by a federal judge, who said the officers used reasonable force.

A jury had deadlocked in August in the trial of a damage suit by the nine demonstrators, who accused Humboldt County and Eureka officers of brutality in their use of the chemical to break up sit-ins.

A retrial had been scheduled Nov. 16.

But U.S. District Judge Vaughn Walker, who presided over the trial, ruled Monday that a retrial was not needed because no reasonable juror could find using pepper spray to be excessive force.

He said the pepper spray caused only "transient pain" without significant risk of injury and was a legitimate means to end the protesters' effort to invade private property, obstruct business and hinder law enforcement.

Courts have repeatedly upheld "the use of pain compliance to gain the cooperation of a resisting arrestee," Walker added.

Lawyers for the two sides did not immediately return telephone calls seeking comment.

The decision delighted Eureka Police Chief Arnie Milsap. "I'm not one to gloat over these things. It's just part of doing our business," he said, adding that his officers will continue to use pepper spray when necessary.

"It's not used against peaceful protesters or just passive protesters. It's used against people who are violating the law or trespassing," Milsap said. "Our policy is to facilitate peaceful dissent."

The lawsuit stemmed from protests last fall in which opponents of Pacific Lumber Co.'s cutting of old-growth trees chained themselves together inside metal sleeves at company headquarters, and later at the Eureka office of Rep. Frank Riggs, R-Calif., a logging supporter. At another protest, two men fastened themselves to logging equipment.

In all three instances, sheriff's deputies and Eureka police warned the protesters, then applied cotton swabs doused in pepper spray to the corners of the demonstrators' eyes. Those who refused to release were swabbed across the eyelid, then sprayed in the face at close range. Several protesters still held on and were eventually cut loose with grinding tools.

The protesters contended the officers could have waited, negotiated or used their previously successful method of grinding through the metal sleeves. They accused the officers of inflicting gratuitous pain to send a message.

The officers testified that the grinders might have injured someone or caused a fire. They also noted that the pepper spray caused no lasting injury.

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