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Judge Declares Mistrial in Case Over Whether Police Abused California 
Logging Protesters

*By David Kravets* Associated Press Writer
Published: Sep 22, 2004

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SAN FRANCISCO (AP) - A federal judge declared a mistrial Wednesday when 
a second jury deadlocked on the question of whether police went too far 
by swabbing pepper spray on the eyes of bound, nonviolent logging 
protesters in 1997.

U.S. District Judge Susan Illston ruled after jurors sent her a note 
asking whether all eight jurors must agree on the outcome. The jury had 
voted 6-2 in favor of the activists.

"I felt it was an unnecessary use of force given the circumstances," 
said juror Scott Michael. He said authorities could have cut the 
shackles off protesters to arrest them.

Under federal law, all jurors must agree on a verdict, unless both 
parties agree to accept a non-unanimous verdict. Attorneys for the 
protesters told the judge Wednesday afternoon they would agree to a 
non-unanimous verdict; attorneys for the Humboldt County Sheriff's 
Department said no.

The judge took the lawyers into her chambers to try to broker a 
settlement; it failed. Jurors tried once again to deliberate but 
maintained they were deadlocked.

An initial trial in 1998 on the same allegations also ended with a 
deadlocked jury, which voted 4-4.

One of the plaintiffs, Mike McCurdy, 29, said they wanted to pursue the 
case. "We believe the police crossed the line," he said.

Settlement talks ended when attorneys for the officers said they would 
not agree to the activists' demand that police stop using pepper spray 
on nonviolent protesters.

"It's like asking them not to use a gun when they respond to a robbery," 
attorney Bill Bragg told reporters.

Tony Serra, the activists' attorney, said the case was about trying to 
ban the use of pepper spray on those practicing civil disobedience. 
"They are unwilling to agree to that," he told reporters. "Therefore, I 
agree there will never be a resolution."

Just 10 minutes after the judge ordered jurors back again, they wrote 
another note saying they were "hopelessly deadlocked" and that further 
deliberations would be "pointless."

The judge then declared the mistrial.

The panel had hinted at trouble soon after deliberations began Tuesday, 
sending out a note saying: "Regretfully, there are jurors that are 
adamantly opposed and resolution does not seem likely."

The latest trial lasted two weeks. At issue is whether police use of the 
pepper spray was abusive and illegal on the protesters, who had shackled 
themselves together, or whether it was a legitimate law enforcement 
activity.

Serra told jurors officers treated protesters like "wild beasts."

Nancy Delaney, the attorney for the officers, said authorities did not 
wish to use power tools to unbind the protesters, fearing it could have 
"severed digits." She said they swabbed pepper spray to get them to 
unlock their shackles and be removed from private property.

AP-ES-09-22-04 194