Headwaters Forest Defense v. County of Humboldt

Incident Summary & Facts

During three nonviolent protests in fall 1997 against logging of old-growth redwoods in the Headwaters Forest, environmental activists chained themselves together with self-releasing lock-down devices called “black bears”: steel cylinders with a center rod to which the protestors clipped wrist bracelets using carabiners. The protestors could free themselves by unclipping from inside. From 1990 until fall 1997, officers had “forcibly, but safely” removed hundreds of these devices with hand-held electric grinders. In fall 1997, officers instead began using oleoresin capsicum (pepper spray) to force protestors to release themselves. The court noted that in California pepper spray use was “limited to controlling hostile or violent subjects” and had never before been used against nonviolent protestors.

At the first protest (Pacific Lumber headquarters), officers warned the protestors, forced four protestors’ heads back, applied pepper spray with Q-tips to the corners of their closed eyes, and reapplied it when they did not release. Water was not given until 20 minutes after the first application. Two officers then carried the protestors out on stretchers in six minutes, and a grinder removed one remaining device in ten minutes without pain or injury. At the second protest, an officer told protestors pleading for water that they would get it only if they released, then sprayed pepper spray “directly into both of the protestors’ faces in short full bursts from inches away.” At the third protest (a Congressman’s office), officers applied pepper spray to the protestors’ eyes; a minor testified an officer pried her eyes open. Water was offered only on condition of release, and an officer sprayed one protestor’s face from within a foot.

Procedurally, the district court granted qualified immunity to the individual officers, including Sheriff Dennis Lewis and Chief Deputy Gary Philip, who authorized the tactic, and after a hung jury entered judgment for the county and city defendants. The Ninth Circuit reversed in 240 F.3d 1185 (2001). The Supreme Court vacated and remanded for reconsideration in light of Saucier v. Katz. This opinion is the panel’s decision on remand.

Core Legal Issue

Under Saucier v. Katz’s two-step framework, whether the supervisors who authorized pepper spraying of passive, nonviolent, chained protestors violated the protestors’ Fourth Amendment right to be free from excessive force, and whether that right was clearly established so that a reasonable officer would have known the conduct was unlawful.

The Holding

On remand, the panel reaffirmed that Lewis and Philip are not entitled to qualified immunity because the pepper spray use was “plainly in excess of the force necessary under the circumstances, and no reasonable officer could have concluded otherwise.” It reversed the grant of summary judgment for Lewis and Philip and remanded.

The Court’s Analysis:

• Step one (violation): Viewing the facts favorably to the protestors, a rational juror could find excessive force. Under Graham, “it is the need for force which is at the heart of the Graham factors.” Pepper spray was unnecessary to subdue, remove, or arrest. Officers could carry protestors out quickly and could remove the devices with grinders in minutes without pain or injury.
• No “active resistance”: The defendants’ label of “active resistance” did not fit. The protestors “were sitting peacefully, were easily moved by the police, and did not threaten or harm the officers.”
• Repeated use and manner of use: Citing LaLonde v. County of Riverside, once a person is under control, continued use of the spray “or a refusal without cause to alleviate its harmful effects constitutes excessive force.” The supervisors authorized full spray blasts even though the manufacturer’s label “expressly discouraged” spraying from less than three feet.
• Withholding decontamination: Conditioning water on release, and in one protest delaying water for over twenty minutes, was “clearly excessive.”
• Clearly established: No case on all fours was required. LaLonde was “not distinguishable in a fair way,” and regional and statewide police practice showed that pepper-spraying nonviolent protestors was excessive (citing Deorle v. Rutherford).