By Gina Holland, Associated Press, 11/04/02

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WASHINGTON -- The Supreme Court refused Monday to keep a California sheriff and his deputy from being sued for ordering the pepper-spraying of shackled anti-logging protesters.

The court, which turned aside the case without comment, could have clarified when officers have immunity for on-the-job actions, a subject of significant interest to justices in recent years.

In June, the high court ruled that Alabama prison guards could be sued for handcuffing an inmate to a metal pole for hours in the summer heat. Justices said the guards should have known the treatment was unconstitutional. In 2001, justices ruled that an officer protecting the vice president acted reasonably when he pushed a demonstrator into a van.

The latest case involves the arrests of nine people who staged sit-ins at Pacific Lumber Co. headquarters and a congressman's office. They were protesting the cutting of ancient redwood trees.

When the demonstrators, who had chained themselves with a 25-pound steel device, would not leave, law officers swabbed pepper spray near the demonstrators' eyes, sometimes repeatedly. Those who refused to surrender were sprayed in their face at close range.

Attorneys for Humboldt County Sheriff Dennis Lewis and Chief Deputy Gary Philp argued that the lawmen consulted with legal experts first, and that the protesters were not injured.

Deputies' videotapes of the sit-ins show demonstrators screaming after the spray was applied.

The case was at the Supreme Court for the second time in a year. Last fall, justices threw out a lower court ruling that ordered a trial for the protesters. The appeals court reconsidered and again said protesters were entitled to sue the sheriff and deputy.

The protesters, part of the group EarthFirst!, were staging events at the company offices and the office of then-Rep. Frank Riggs, R-Calif., a logging supporter. Those were among multiple protests in the fall of 1997.

Mark Hughes, the attorney for the protesters, said the sheriff wanted the Supreme Court to set a standard that would "allow law enforcement officers to inflict enormous pain on citizens through methods such as electric shock, choke holds, or (pepper spray), as long as inflicting that pain left no marks."

Hughes said no other American police force had a policy of using cotton swabs to apply pepper spray to the eyes of people who resisted arrest. In this case, he said the protesters were unarmed and unthreatening.

Nancy K. Delaney, an attorney for Humboldt County and the lawmen, said the force was reasonable.

"To brush aside as harmless the well-planned criminal activities of plaintiffs is to compromise allegiance to principles which permit the very existence of a society which is both democratic and ordered," she said.

Humboldt County is a coastal county in northern California known for giant redwood forests.

Lawmen decided to apply pepper spray to demonstrators whose arms were locked in metal bands. Some demonstrators unlocked themselves after pepper spray was applied to their eyelids. Others refused and were eventually cut loose with a grinding tool.

The case is Humboldt County v. Headwaters Forest Defense, 01-1744.