Could the pepper spraying and
tree cutting happen again?
By Alan Pittman
Five years ago, the city of Eugene was in such a rush to start building the Broadway Place project that they roasted tree sitter Jim Flynn alive, dousing him with can after can of pepper spray while he dangled 40 feet up in a tree.
Early on a Sunday morning, police in a fire truck rescue bucket cut Flynn's pants to his crotch to expose more flesh, allowing the spray to burn his genitals and anus. Officers punched Flynn in the arms and ribs over and over, twisted his feet and yanked his head back by the hair. After an hour of this torture the police call "pain compliance," officers tied Flynn to the rescue bucket and used the hydraulic arm of the truck to wrench him from the tree.
|Josh Laughlin, Brett Cole and Jim Flynn reminisce at Broadway Place, the site of the big protest June 1, 1997.|
Last week Flynn stood in front of an empty storefront at Broadway Place with fellow June 1st tree sitters Brett Cole and Josh Laughlin and shook his head.
"That's criminal!" says Cole, looking through the window of the storefront that has stood empty with an unfinished gravel floor since it was built. "That's what they had to nearly kill us for? They were in such a rush and five years later they haven't even put a floor in."
Five years later the Broadway Place project is struggling but a pepper spray lawsuit is heating up and the legacy of June 1st endures.
On June 1st 1997, 11 protesters climbed trees at Broadway and Charnelton in an effort to delay the cutting of 40 of downtown's largest trees until citizens could appeal to the City Council at a public forum scheduled for the next night. The city sprayed every can of pepper spray they had on protesters on the ground and in the trees, borrowing more cans from Springfield and Lane County when they ran out. In all, police shot off two dozen cans, including several large canisters, of the chemical weapon. Police also lobbed numerous tear gas grenades.
The city cut down the big trees to build a $13 million parking garage for Symantec topped by $12 million in apartments and storefronts built by the Lorig Corporation. Today, half the storefronts are empty at Broadway Place and Symantec has left for Springfield, leaving entire floors of the garage empty.
"It's a little ghost town down there," Laughlin says.
At 2 pm on a recent weekday afternoon, only one in five of the spaces in the 742-car garage was occupied. Built at a cost of $17,500 per space, the garage had 600 empty spaces.
"It seems like it was a pretty worthless project," Flynn says.
Symantec announced this month that it would lay off 270 employees to out-source jobs to Software Spectrum Inc. Software Spectrum will use one of the empty Symantec buildings in downtown Eugene and the parking garage. It's unclear exactly how many employees the company will hire and for how long.
Lorig's property manager for the apartments, Elizabeth Scott, says the 170 units are 90 percent full. An early proposal for the "public-private partnership" for the building from Lorig called for the city to waive property taxes for the building for 10 years (worth about $500,000) and for Lorig to share 10 percent of profits (about $30,000 to $50,000 a year) with the city. But Scott says Lorig has made no payments to the city. "There's no profit sharing at all," she says.
Flynn faults the project for not including low income housing. "None of us could afford to live in these places." The apartments rent from $575 a month for a studio to $1,250 for a two bedroom.
Flynn says the public subsidies for Lorig and Symantec parking were "incredibly bogus."
"It was a gross perversion of power to serve a pretty narrow economic interest," Cole says.
Flynn says the memory of the pepper spay and tree cutting has caused many people to avoid the area. "There's a lot of people in the community that have no taste for this project."
Broadway Place won a Governor's Livability Award for encouraging dense urban development. The award, with a picture of the project with the only large tree left on the site, hangs in the City Council's McNutt meeting room.
|Jim Flynn climbs a replacement tree.|
"I don't think the concept is bad," Laughlin says. "I'm into keeping the population in the urban core." But he says a slightly smaller apartment building and garage could have been built while still saving the big trees. "Obviously, they had the space," he says gesturing to an empty storefront where a majestic tree once stood.
Laughlin also says the city's approach of subsidizing urban density downtown while zoning and planning for sprawl on the edge of town works at cross purposes. "They never really look at the big picture," he says. "We're putting out the welcome mat for Wal-Mart."
City PR staff in 1997 emphasized that new trees would be planted to replace the old trees, some several feet thick. Flynn compares that argument to Weyerhaeuser's efforts to portray itself as "the tree planting company."
None of the replanted trees have grown to more than two inches in diameter, and several have died and been replanted with younger saplings. Cole says the trees "encased in cement" and with iron collars will never grow as large as the ones cut down.
The birds and other wildlife that once lived in the big trees have been replaced by cement sculptures embedded in the side of the garage. "There's no wildlife here," Flynn says. "There's just stone faces."
Flynn, Laughlin and Cole are suing the city of Eugene, alleging police used excessive force in violation of their civil rights five years ago.
The case was delayed by the search for an attorney to take the case and by waiting for decisions in related cases that might set legal precedents. Now the lawsuit is gathering steam. U.S. District Court Magistrate Judge Thomas Coffin rejected a city motion to have the lawsuit thrown out and has ordered the parties into mediation June 17 to see if a settlement can be reached before trial.
As part of a settlement, the tree sitters say they may ask for the city to change its police pepper spray policy to bar use of the weapon against non-violent demonstrators.
|Protesters hang a banner June 1.|
|Police arrive in a cherry picker.|
|The spraying begins.|
|Flynn is locked to the basket.|
Flynn is forcibly removed from his perch.
|Flynn is hosed off on the ground.|
Flynn says the city's attorney recently sent them a copy of the city policy and an offer for them to suggest revisions. Flynn says the policy change is needed but he wonders about the precedent of having to use a lawsuit to effect the change in police rules and whether the city is just out to save itself some money in the settlement.
Flynn says the city may need a "financial kick in the pants" from the lawsuit so it will "think twice about ever brutalizing anyone again."
Flynn says the spray made much of his body, including his genitals and anus, feel like it was "on fire" five years ago. Flynn alleges he still suffers neck pain after one officer jerked his head violently back and downwards by the hair. "You'd think he was trying to rip the head off a chicken."
"All I said was 'I don't want to be pepper sprayed' and held up a peace sign," Cole says. Cole says police saturated him with pepper spray and the burning chemical even got in his ears.
Cole cites studies linking pepper spray to eye damage and even death. The ACLU's Southern California office published a study a decade ago linking pepper spray as a possible factor in the deaths of more than 100 people nationwide. "It's the use of potential deadly force," Cole says.
Police officers exposed to spray during training have compared the experience to "bobbing for French fries in a deep-fat fryer" or having someone take an electric sander and "grind off all the skin from the back of your hand to your elbow."
Cole, who makes his living as a photographer and artist, says the police, "essentially took the risk of blinding me for the rest of my life for something as silly as starting their development project a day later."
Flynn, Laughlin and Cole's attorney Linda Williams say the police threatened the lives of protesters by spraying them with the blinding, debilitating weapon while they were perched high off the ground. "The use of pepper spray 30 to 60 feet above the ground submitted them to a significant risk of bodily harm or death," Williams says.
The record in the case shows the demonstrators were peaceful and posed no threat to officers or property and said they would come down from the trees in a day, Williams says. But police "doused" them anyway with doses that went way beyond training and labels on the cans, she says. "We think a jury would conclude this is a reckless and extremely dangerous use of force."
Police Capt. Becky Hanson, the officer in command on June 1st, did not return a call requesting comment. City attorney Jens Schmidt says the pepper spray "wasn't excessive under the circumstances" but the city is interested in exploring a settlement with the plaintiffs. He says court precedents give police "qualified immunity" from liability if a use of force does not clearly violate constitutional protections against excessive force. "The law was not clear," he says.
Judge Coffin disagreed with the city's immunity argument in March when he rejected a city motion to have the case thrown out. Coffin cited the precedent of a recent ruling by the 9th Circuit Court of Appeals. In that case, Humboldt County deputies had used Q-tips in the fall of 1997 to apply pepper spray directly into the eyes of anti-logging protesters who had locked themselves together. Video of the incident was aired on the national news and the deputies were accused of torture.
The case originally resulted in a hung jury mistrial, then was dismissed by the judge and then appealed to the 9th Circuit, which reinstated the trial. Humboldt County appealed to the Supreme Court, which sent it back to the appeals court for reconsideration. The appeals court ruled again this year that the case should go to a jury for retrial. The appeals court found that "regional and statewide police practice and protocol clearly suggest that using pepper spray against non-violent protestors is excessive."
|The old trees were quickly cut and removed after the protests and arrests.|
The city argued that the Humboldt case was different because the Eugene protesters were perched in trees. But Coffin said the cases were "too similar" to ignore the precedent and noted that plaintiffs had argued that their perches made the use of pepper spray even more unreasonable because of the risk of falling. "I am not sure this distinction helps them."
Schmidt says the city will appeal Coffin's ruling to the 9th Circuit and try to distinguish the two cases from each other.
The lawsuit is not the only enduring legacy from June 1st.
The incident "changes a lot of people's attitudes toward police and toward trust in government," City Councilor Betty Taylor says.
Taylor says she was "horrified" when she saw the police action five years ago. "I saw people spraying people. I saw people screaming," she says. The site made her so upset, "I had tears running down my cheeks. It was just awful."
The city has never admitted any wrong-doing or apologized for June 1st. But the city has been more careful with cutting down trees since then. City forestry and management staff have been sent out to successfully negotiate with protesters, avoiding a police response.
"The city seems afraid to cut trees without doing some public process," Flynn says.
|Cars are scarce in the parking garage during work hours.|
The city has planted more street trees downtown and saved trees at the site of the new library that might otherwise have been cut. LTD included a large oak tree in its design for a new bus station.
The City Council passed a somewhat strengthened tree protection ordinance, although the new rules have been held up by legal appeals by developers.
Although not entirely the result of June 1st, the city has stepped back from controversial urban renewal projects. The council dedicated all the resources of the downtown urban renewal district to building a popular new library instead of more city parking garages. The city's controversial Riverfront Urban Renewal District near the UO has refocused on the area surrounding the new federal courthouse.
A vote to establish a police review board narrowly failed, but the City Council set up a Police Commission to review police policies. The commission recommended minor revisions to police pepper spray and demonstration policies. The police policy now states that pepper spray should not be used to disperse crowds and restricts the use of the chemical weapon against people engaged in passive resistance by going limp on the ground.
Pepper spray is apparently still allowed if a non-violent protester is holding onto a tree or another protester, although the new policy is unclear.
Many of the key city staff involved in the June 1st incident have since been fired or resigned. Planning Director Abe Farkas and Police Chief Leonard Cooke resigned under pressure from then City Manager Vicki Elmer in the wake of the June 1st incident. A backlash by city executive staff then lead the City Council to fire Elmer. Farkas's deputy Lew Bowers and then Assistant City Manger Jim Johnson left the city recently.
"We're all still here," says Laughlin. "It's kind of an interesting irony."
After June 1st, protests became more radical in Eugene, with some anarchists breaking windows and police conducting mass arrests of demonstrators. Some of the demonstrators linked the rise of more violent protests to the police escalation against non-violent protesters on June 1st.
"It definitely stepped up the activism in Eugene," Flynn says.
Remembering June 1st makes it less likely that something like it will ever happen again in Eugene, Taylor says. "It makes me sad to even remember it. I don't like thinking about it," she says. "But I think we need to remember it."
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