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Cavenagh vs Humboldt County

  Table of Contents of Complaint

Dennis Cunningham SB#112910
3163 Mission St.
San Francisco, CA 94110
415-285-8091/FAX 285-8092

Attorney for Plaintiffs


NAOMI WAGNER and ELENA ZUNIGIA, for themselves and others similarly situated, as a class,



JOHN DOES 1-X (H.C.S.D.); California Highway Patrol Officers RON KELLER,
J. LATHAM (#11682), (Estate of) M. BARTZ,(FNU) BLOOD, and JOHN DOES 2-X
(C.H.P.); CITY OF EUREKA, California, ERNIE MILLSAP, Chief, Eureka Police
Dept., and JOHN DOES 3-X (Eureka P.D.); JOE SILVA, Calif. Department of
Forestry; and JOHN DOES 4-X (Others),


No. _______________


Class Action

Jury Trial Demanded

I. INTRODUCTION (contents)

1. This is a class action for money damages and
possible injunctive relief, brought on behalf of some three to four
hundred people who sought to conduct a political demonstration at the
town of Carlotta, in Humboldt County, on November 15, 1996, protesting
against destructive logging practices at the Headwaters Forest and other
locations in northern California, and illegal, abusive conduct by police
at prior demonstrations. Defendant members of the Humboldt County
Sheriff's Department, joined by officers from the California Highway
Patrol, and the Police Departments of Eureka, Fortuna and Arcata,
California, and elsewhere, under the command and direction of Humboldt
Sheriff Dennis Lewis, unlawfully broke up the demonstration by falsely
declaring it an Unlawful Assembly under the state penal code; they then
arrested large numbers of those present (the plaintiff class) without
probable cause or any legal grounds, for offenses which did not occur.
Thereafter, many of those arrested were physically and psychologically
mistreated by defendants, and several were held for many days on
exorbitant bail set for false charges which were later dropped.

2. Numerous class members were injured by improper use of
plastic handcuffs causing abrasions, gashes, and numbness which lasted
for up to one month or more. Some were chained for long periods and
forced to sit in mud by the side of the road. Many plaintiffs were
subjected to unnecessary and excessive force by various defendant police
officers, including unwarranted, indiscriminate and excessive application
of pain compliance holds.

3. Further, while being wrongfully held in custody by defendants in
the Humboldt County Jail---after many of them were wrongfully transported
from public property at the rally site onto Pacific Lumber Company
property---many plaintiffs and class members were physically and verbally abused,
denied food, water and medications, and confined in overcrowded, inadequately ventilated,
and otherwise inhumane conditions. Some had warm clothing, shoes and in some cases socks
taken from them before being placed in cold cells where they were left overnight.

4. Thus, in particular, the actions of defendants complained of
herein include violence and intimidation by threats of violence which
were committed against the various plaintiffs because of their political
affiliation and participation in the rally; defendants likewise
interfered by threats, intimidation or coercion with plaintiffs' exercise
and enjoyment of the rights secured by the Constitution and laws of the
United States and of California. (Cal Civil Code ##51.7 & 52.1)

5. Plaintiffs aver that the individual defendants, in making the
baseless Unlawful Assembly declaration and the unlawful dispersal order,
in arresting and brutalizing dozens of plaintiff class members, holding
many of them in custody on bogus charges, subjecting arrestees to
brutality and other maltreatment, and otherwise causing them injury and
constitutional deprivation, acted pursuant to an unspoken, illegal and
unconstitutional policy of the County of Humboldt, ordained and
promulgated by defendant Lewis with the concurrence and/or acquiescence
of other county policy-makers, and joined in as a matter of policy by the
City of Eureka, through its Chief of Police and other officers. Under
this unlawful policy, defendants sought to and did suppress and
"neutralize" plaintiffs' protests against "liquidation logging" and
police misconduct, and to punish, intimidate, chill and discourage
members of the plaintiff class for the Nov. 15 protest and any they might
contemplate in future.

6. Likewise, the actions of the defendant officers came about
pursuant to an unlawful conspiracy among them, whereby a Meeting of the
Minds was reached by verbal and non-verbal means under which the officers
would carry out the unlawful actions against the plaintiff class
described above and hereinafter, with the same unlawful, unconstitutional
objective of suppressing legitimate protest despite the First Amendment,
punishing plaintiffs for engaging in it, and chilling and discouraging
them from similar future activities.

7. This action is brought pursuant to 42 U.S.C. sections
1983, et seq. and 1988, and the California Constitution, civil rights
statutes and common law. Jurisdiction is based on 28 U.S.C. sections 1331
and 1343 and the aforementioned federal statutes. Plaintiffs further
invoke the pendent jurisdiction of this court to decide claims arising
under the California Constitution and California law. Plaintiffs have
filed administrative claims in compliance with Cal. Govt. Code §910 et
seq, and such claims have been denied.

III. PARTIES (contents)

8. The Plaintiffs. Plaintiffs at all times relevant were and
are residents of the State of California.

9. The Defendants.

A. HUMBOLDT COUNTY is a political sub-division of the State
of California. Defendant DENNIS LEWIS is and was at all times applicable
herein the Sheriff of Humboldt County. He is sued individually and in his
official capacity. He is charged with responsibility for selecting,
training, assigning, administering supervising and controlling all
officers and employees of the Humboldt County Sheriff's Department,
including jail staff, and for generating official and unofficial policies
of the Sheriff's Department. Defendants GARY PHILP, GREG BUSSEY, PETE
JIMENEZ, (FNU) McALLISTER and JOHN DOEs Nos. 1-X are sworn members of
the Humboldt County Sheriff's Department, and agents and employees of the defendant County.

B. Defendant (FNU) BARTZ was a captain or commander of the
California Highway Patrol, now deceased and here sued through his Estate,
who was responsible for CHP plans and operations at the Nov. 15
demonstration, and in command of other CHP officers who participated in
police operations at and near the site of the demonstration on that day.
He communicated and coordinated with defendant Lewis and others on plans
and operations, and joined in the illicit, unconstitutional policies of
Humboldt County which caused the injuries and deprivations complained of
herein. Defendants RON KELLER, (FNU) BLOOD and JOHN DOEs Nos.2-X are
other CHP officers who participated in the wrongful police actions
against the plaintiff class.

C. Defendant CITY OF EUREKA is a municipality incorporated under
the laws of the State of California. Defendant ERNIE MILLSAP is and was
the Chief of Police of Eureka, and responsible for command of
participating Eureka officers and for adoption of the same unlawful
policy of Humboldt County as the policy of Eureka, making the City
jointly liable with the County and the individual defendants for the
wrongs and violations suffered by plaintiffs. Millsap is sued in his
individual and official capacities. JOHN DOEs Nos. 3-X are other unknown,
named members of the Eureka P.D. who joined in causing the wrongs against plaintiffs.

D. Defendant JOE SILVA is an officer of the California
Department of Forestry, who was brought in to help with police operations
and helped cause violations. Defendants JOHN DOEs Nos. 4-X are sworn
peace officers of the state of California, from, inter alia, the Cities
of Fortuna and Arcata, and other unknown jurisdictions, who joined in the
police operations complained of and caused or helped cause injuries and
constitutional deprivations complained of herein.

E. The true names of the defendants designated above as John
Does are presently unknown to plaintiffs, but they can and will be
identified, whereupon plaintiffs will seek leave to amend this complaint
so that the true names are substituted. Several of the John Doe
defendants were supervisors of other defendants, who participated in the
authorization, planning, supervision, and execution of the police conduct
complained of herein. Additionally, on information and belief, one or
more of these defendants, with deliberate indifference to plaintiffs'
rights and the clear possibility that such rights would be violated as a
result, failed to adequately train and supervise defendant officers who
were involved in violation of the plaintiffs' rights. All defendants at
all material times acted in concert, under color of state law and the
purported authority of their office, and within the scope of their
employment. Defendants, and each of them, were the agents of each other,
and were acting within the scope of said agency in doing the acts alleged

10. Each of the defendants caused, and is legally
responsible for the below-described unlawful conduct and resulting
injuries by, among other things, personally participating in the unlawful
conduct or acting jointly or conspiring with others who did so; by
authorizing, acquiescing in or setting in motion policies, plans or
actions that led to the unlawful conduct; by failing to take action to
prevent the unlawful conduct; by failing and refusing with deliberate
indifference to plaintiffs' rights to initiate and maintain adequate
supervision and control of officers engaged in the use of force against
plaintiff class members, and by approving and ratifying wrongful action
and unlawful conduct against plaintiffs by other officers, and failing
to take logical and necessary remedial and/or disciplinary action.

IV. CLASS CLAIM (contents)

11. The named plaintiffs listed on the caption sue herein for
themselves and others similarly situated as a CLASS, consisting of all
those persons who foregathered in Carlotta on 11/15/96 for the purpose
of carrying on a protest demonstration against evil logging and police
practices, including those who would monitor, assist and support those
actually demonstrating. All members of the class had their First
Amendment rights infringed when defendants broke up the demonstration
without just cause by arbitrarily declaring an Unlawful Assembly, and
ordering plaintiffs to disperse. Within the class are two sub- classes, A
and B: those arrested and those not arrested. In turn, each subclass
contains a sub-subclass of those plaintiffs subjected to additional
violations---beyond unlawful dispersal and false arrest---in the form of
brutality or other maltreatment, whether in custody or at the scene.

12. There are so many individual claims arising from this
unlawful police action by defendants that joinder of all of them would be
impracticable and horribly burdensome on plaintiffs and counsel. There
are several questions of law and fact common to the class and subclasses,
which will be seen to predominate over separate questions in a way that
makes lass certification appropriate. The claims of the named plaintiffs
are typical of those of the class members and the various subclasses
noted, and this group has been assembled with the assent of much larger
numbers of the class as reliably able to fairly and adequately represent
the interests of the class as a whole.


12. Sometime on or before November 15, 1996, defendants
met and formulated and agreed upon a plan to declare a state of unlawful
assembly at the November 15 rally, in order to provide extraordinary
powers to law enforcement which would be used to suppress lawful First
Amendment expression of opposition to police brutality, and lawful
petition to the government regarding the threatened liquidation of the
Headwaters Forest.

13. At no time on November 15, 1996, were there
conditions of extreme peril to the safety of persons or property in the
County of Humboldt, or actions of the gathering (plaintiff class of)
demonstrators which were unlawful or violent, boisterous or tumultuous,
or other conditions which remotely justified or warranted defendants in
making the said declaration. To the contrary, the rally event was
extremely peaceful and without any threat of imminent peril or danger.

14. Notwithstanding the non-existence of emergency
conditions contemplated by the California statute, to wit, Penal Code
sections 407, 409, defendants conspired to make the bogus declaration,
and an order to the participants to disperse on pain of arrest. This
warning was not only unwarranted and unlawful, but was made in an
inadequate and misleading fashion, such that the plaintiffs could not
hear and/or could not understand defendants' (unlawful) orders.

15. The November 15 event at Carlotta was planned to
protest not only the liquidation of the Headwaters Forest, but continuing
local police brutality and suppression of free speech, exemplified by
serious misconduct on the part of many officers in several non-violent
protests in Humboldt County during the previous weeks; these included a
rally on September 15, 1996, at which more than a thousand people were
arrested for crossing a police line to symbolically trespass on Pacific
Lumber Co. property.

16. On November 15, defendants had no arrest warrant and no
reasonable suspicion or probable cause to believe that plaintiffs had
committed or were engaged in any unlawful act. There was no reason to
believe that the gathering at Fisher Road endangered or was likely to
endanger persons or property.

17. Approximately 75 people were encircled and arrested
with no adequate warning of the (unreasonable, improper) unlawful
assembly declaration, no coherent, audible order to disperse, and no
reasonable opportunity or pathway to disperse. After they were encircled
and detained, the police ignored numerous requests from many plaintiffs
for an opportunity to disperse. Those arrested included persons who had
been engaged in lawfully expressing or attempting to express, or looking
for a place to express, their opinions about the Headwaters Forest issue,
and protest about police misconduct relating to former events on that
issue. Others who were passers-by or onlookers, or were observing or
reporting on the events for the news media, were also arrested.

18. In the course of detaining and arresting the
plaintiffs, defendants used plastic handcuffs on several plaintiffs in an
improper and unsafe manner, which caused moderate to severe pain and
some substantial injury, including lacerations and nerve damage.

19. Those arrested were taken to the Humboldt County Jail
in Eureka and held for several days, after which many were released
without charge. Plaintiffs were subjected to abusive, punitive
conditions as above described. Many were denied medication or medical
attention and most were forced to go without food for twelve to sixteen
hours. Criminal charges were pursued against many plaintiffs for several
months, requiring them to make repeated court appearances, then dismissed
across the board. During the pendency of the false charges many arrested class members experienced substantial emotional distress, fear and anxiety.

VI. CONSPIRACY (contents)

20. Plaintiffs charge that some or all of the defendants
engaged in an unlawful conspiracy in which they arrived at an
understanding and Meeting of the Minds whereby the police would harass,
intimidate, punish and retaliate against the participants in the November
15th protest because of their political beliefs and expressions
criticizing and denouncing police brutality. To effectuate this unlawful
objective, the conspirators determined that a large and intimidating
force of police would be deployed, to prevent the expression and
communication of the message of plaintiffs' constitutionally protected
activities and otherwise interfere with plaintiffs' protest, summarily
punish the participants, chill and deter other protest marches and
rallies intended to express criticism of the police, and generally show
dissenters "who's boss" in Humboldt County.

21. The police actions and conduct described above,
including but not limited to the decision and related activities involved
in declaring the bogus Unlawful Assembly despite the fact that conditions
lawfully required therefor did not exist, the decision and related
activities involved in the mass arrests of the plaintiffs without
probable cause and the maltreatment of plaintiffs while they were in
custody, were part of, and were overt acts taken in furtherance of, the
said conspiracy.

VII. POLICY (contents)

22. The injuries and constitutional violations suffered
by plaintiffs as described herein were directly and proximately caused by
unspoken, unconstitutional policies of the defendant County of Humboldt,
joined in by the City of Eureka and carried out by officers from all
involved jurisdictions; the same were effectuated by and through by
directives, acts and omissions of authorized policy makers of the County
and the City, particularly Sheriff Lewis and his commanders, and Chief
Millsap---along with the late Capt. Bartz from CHP. Thus the
constitutional violations and damages to plaintiffs that occurred as
described herein were directly and proximately caused by the acts and
omissions of top officials who have, for years, deliberately ignored and
indulged violence and intimidation against protesters by officers
assigned to "monitor" political protest demonstrations, deliberately
failed to supervise and control such officers so as to prevent violations
of protesters' rights, and deliberately undermined and stultified the
citizens complaint process. As a result, rank and file officers
understand there is little or no risk involved in brutal attacks on or
illegal mass arrests of persons exercising Free Speech rights.

23. In addition, the County, the sheriff's department and the
command-level defendants are well aware, and have been told and notified
many times, that such illegal arrests and such brutal attacks occur, and
have occurred again and again, to the point where a pattern and practice
of brutality against protesters is readily evident, also going back
years, and the defendants have done nothing to remedy these evil

24. As a direct and proximate result of the conduct and
unspoken policy of defendants described herein, their failure to take
reasonable steps to remedy the pattern and practice of police misconduct
and abuse, and their deliberate indifference to the serious threat to the
rights of protesters, plaintiffs were each denied her or his
constitutional, statutory, and common law rights as stated below, and
have suffered, and continue to suffer, mental and emotional distress,
humiliation, embarrassment, discomfort, fear, shock, anxiety, pain and
other harm.


25. The constitutional rights which plaintiffs accuse defendants
of violating herein, to wit: freedom of speech, association assembly and
petition under the First Amendment; freedom from unreasonable seizure in
the form of false arrest, false imprisonment, brutality and physical
abuse, and deprivation and other maltreatment while in custody; and
freedom from false and baseless prosecution, were Clearly Established
under the law at the time fo the events complained of. Defendants thus
have no excuse or justification for the alleged violations, and no
qualified immunity from suit seeking redress of same.


26. In engaging in the above conduct, defendants acted
with malice and oppression, and deliberate indifference to plaintiffs'
rights, thus entitling plaintiffs to punitive damages against defendants.

X. INJUNCTION (contents)

27. Defendants' policies, practices, conduct, acts and
omissions alleged herein have resulted, and will continue to result in,
irreparable injury to plaintiffs for which there is no plain, adequate
and speedy remedy at law. In particular, plaintiffs continue to suffer
harm as a result of the continuing existence of the police records of
their arrests herein; they fear repeated abuse by mis-use of plastic
handcuffs---which has occurred repeatedly since Nov. 15, 1996, in other
protests; above all, defendants continue to use baseless declarations of
Unlawful Assemblies as a pretext with which to suppress lawful protest
activities. Therefore, plaintiffs seek injunctive relief restraining
defendants from misusing plastic handcuffs and requiring defendants to
seal and destroy the records of plaintiffs' arrests, and to refrain from
bogus declarations of Unlawful Assembly as an illicit mechanism with
which to cut off legitimate, protected protest activity.

Part 2

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