Headwaters Forest Lawsuit Update
...by attorney Mariah Baird
In the Cavanagh case, the defendants (police) moved for summary judgment, claiming that they are immune from prosecution under the "qualified immunity" rule. Under this rule, the court must decide whether a "reasonable officer" could have believed that his or her conduct was unlawful given the facts before the court. In a not unexpectedly pro-law enforcement opinion that ignored and mischaracterized the evidence presented by the plaintiffs, Judge Breyer concluded that the "qualified immunity" rule applied, and granted summary judgment in favor of the defendants. Plaintiffs have appealed Judge Breyer's erroneous ruling to the Ninth Circuit Court of Appeals in San Francisco. Briefing on the appeal will be complete by the end of July 1999 and an oral argument date will then be set by the court (no date set yet).
Judge Breyer said that the police satisfied the standards for "qualified immunity" because they: (1) "allowed" the demonstrators to exercise their First Amendment rights "for a substantial period," (2) gave clear instructions to disperse and that the protest was an "unlawful assembly," and (3) were correct in declaring the assembly unlawful because "it was violating some other law in the process." The "other law" which the court cited as key to its decision in favor of law enforcement is Humboldt County Ordinance section 412. Section 412 requires persons who temporarily close or restrict a portion of a county road apply for a permit from the Director of Public Works. Thus, according to the court's reasoning, because the protesters did not apply for a permit from Humboldt County, they were in violation of section 412, justifying law enforcement's declaration of an unlawful assembly and the subsequent arrests. The court rejected plaintiffs' argument that the permit ordinance (which the defendants raised at the last minute) is unconstitutional. The court did, however, state that under the permit ordinance, "the Director of Public Works is left with very little discretion to decide when to grant a permit for the purpose of an activity that might require closure of a county road; rather, the language suggests that anyone who meets the minimal administrative requirements of the ordinance shall be granted a permit by the Director." One of these so-called "minimal administrative requirements" for getting a permit, in addition to the 14-day advance application requirement, is that the CHP or Sheriff notify the Director of Public Works that they have been contacted and agree to provide whatever traffic control is necessary. Perhaps noting the "Catch-22" of this requirement, the court suggested that in a different case (where the plaintiffs had applied for a permit but it had been denied), the permit ordinance might be challenged on the ground that it was "administered in an unconstitutional fashion -- for instance, a person who is denied a permit under the ordinance might argue that the Sheriff or CHP arbitrarily refused to provide traffic control in an effort to discriminate against the applicant's viewpoint."
After granting judgment in favor of the defendants, Judge Breyer added a few comments in favor of the protesters: "The Court wishes to emphasize that nothing in this opinion is intended to express disapproval of the conduct of plaintiffs or other participants in the November 15, 1996 protest. Indeed, the demonstrators are to be commended for expressing their deeply held beliefs in a nonviolent manner, thereby admirably conducting themselves in the tradition of our nation's deeply rooted and widely accepted history of civil disobedience."
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