ER - Lungren attempts to have subpoena quashed

4/22/2005
Lungren attempts to have subpoena quashed

by Diane M. Batley
The Eureka Reporter

Rep. Dan Lungren is trying to avoid an appearance in court for the third pepper spray trial, Lundberg v. County of Humboldt.

The office of Attorney General Bill Lockyer filed a motion Thursday to quash the subpoena calling for Lungren to appear as a witness in the trial.

The previous two trials resulted in hung juries.

Plaintiffs’ attorneys want Lungren (R-Folsom), who was California’s attorney general in 1997 when protesters were swabbed in the eye areas with pepper spray by Humboldt County and city of Eureka law enforcement officers, to testify about a letter he allegedly sent to then-state Sen. Mike Thompson.

The letter stated that the swabbing of pepper spray “onto the eyes” of an individual and the close spraying of pepper spray are unusual applications of pepper spray and are not accepted police community practices.

The plaintiffs have not been allowed to enter the letter into evidence so they decided to subpoena Lungren.

The motion to quash the subpoena states, “Mr. Lungren, in his capacity as a United States congressman as well as in his former capacity as attorney general of the state of California, is not properly subject to this subpoena as plaintiffs’ counsel has failed to demonstrate the existence of exceptional circumstances necessary to overcome the general rule that high-ranking government officials are not subject to witness subpoena; the subpoena is invalid because witness fees were not tendered simultaneously with the subpoena as mandated; the subpoena was not personally served upon Mr. Lungren as mandated; and the subpoena was not served within a reasonable time for Mr. Lungren to respond as mandated.”

A hearing on the motion is expected to occur in federal court on Monday, April 25 at 1:30 p.m.

During three incidents in 1997 in the lobby of Pacific Lumber Co. offices in Scotia, PALCO timberlands at Bear Creek and in the office of then-Rep. Frank Riggs in Eureka, protesters locked themselves to black bears. When they refused to release themselves, law enforcement officers used pepper spray on them.

The plaintiffs in the case were protesting the Headwaters Agreement and the cutting of old-growth redwoods.

The plaintiffs are Maya Portugal, Noel Tendick, Vernell “Spring” Lundberg, Terri Slanetz, Mike McCurdy, Lisa Sanderson-Fox, Jennifer “Banka” Schneider and Eric Samuel Neuwirth.

The defendants in the case are Humboldt County, the city of Eureka, former Humboldt County Sheriff Dennis Lewis and Humboldt County Sheriff Gary Philp, who was chief deputy sheriff when the incidents occurred.

Lundberg, Schneider and Neuwirth’s eye areas were swabbed with Q-tips dipped in pepper spray at the Scotia incident on Sept. 25.

McCurdy and Tendick were swabbed in the eye areas and sprayed with liquid pepper spray at the Oct. 3 incident at Bear Creek.

Sanderson-Fox, Portugal, Schneider and Slanetz were swabbed in the eye areas with pepper spray. Slanetz was also sprayed with the liquid pepper spray at the Oct. 16 incident.

A jury of six women and two men will decide whether Humboldt County and city of Eureka law-enforcement officers used reasonable force to enable the arrests of protesters to occur or excessive force, thus violating the protesters’ Fourth Amendment right against unreasonable search and seizure.

(Diane M. Batley is in San Francisco covering the trial and can be reached at diane@eurekarerporter.com.)