By David Kravets, The Associated Press
SAN FRANCISCO (AP) - Nonviolent logging protesters who contend police went too far by swabbing pepper spray on their eyes want to retry their case again after a second federal jury deadlocked without reaching a decision.
U.S. District Judge Susan Illston declared a mistrial Wednesday after the jury 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.
The protesters who sued police argue the pepper spray was used to illegally punish and intimidate them for chaining themselves together and making it difficult for police to arrest them. They seek unspecified damages.
“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 in 1997.
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 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 said. “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.