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By David Kravets, The Associated Press
SAN FRANCISCO (AP) -- For the second time, a federal jury has deadlocked on the question of whether police went too far by swabbing pepper spray on the eyes of bound and nonviolent logging protesters back in 1997.
The jury in the pepper spray retrial sent U.S. District Judge Susan Illston a note asking whether all eight jurors must agree on the outcome.
"Your honor, can you change the decision from 100 percent, to majority decision?" the note asked.
The answer is "no" -- under federal law, all jurors must agree on a verdict. Illston was to query the jury about its note at about 1:30 p.m.
On Tuesday, hours after deliberations began, jurors sent Illston their first note, saying, "Regretfully, there are jurors that are adamantly opposed and resolution does not seem likely."
Illston ordered them to return Wednesday, and panelists returned their second note after a morning of deliberations.
An initial trial on the same allegations in 1998 also ended with a deadlocked jury. A judge threw out that case, saying a new jury would never side with the eight suing protesters, who allege their constitutional right to be free from unreasonable force were violated.
A federal appeals court reinstated the case and removed the first judge after years of legal jockeying.
Attorneys wrapped up the latest case Tuesday, two weeks after it began.
The excessive force case stems from 1997 anti-logging demonstrations against the Humboldt County Sheriff's Department and other defendants. To make it more difficult for police to remove them, the protesters chained themselves to trees and linked their arms together inside steel tubes.
Tony Serra, one of the lawyers representing the activists, told jurors that police officers treated them like "wild beasts."
Nancy Delaney, the attorney for the officers, said authorities did not wish to use power tools to unbind the protesters who had shackled themselves together, fearing that it could have "severed digits."
She said they swabbed pepper spray -- an eye and throat irritant designed for self defense -- on their eyes to get them to unlock their shackles and be removed from private property.
"The pepper spray is preferable and poses less risk of injury," she told the jury.
The authorities had used power tools dozens of times to unlock logging protesters, but felt it was too dangerous to do so this time, she said.
Many viewers were outraged by the images broadcast nationwide, showing Humboldt County sheriff's deputies and Eureka police officers dabbing pepper spray directly into the eyes of writhing and screaming young demonstrators.
At issue now -- as in the 1998 trial -- is whether police use of the pepper spray was abusive and illegal or whether it was a legitimate law enforcement activity. A year after the incident, the state Commission on Peace Officer Standards and Training authorized the unprecedented use of pepper spray to respond to civil disobedience.
The protesters argued the pepper spray was used to illegally punish and intimidate them for chaining themselves together and making it difficult for the police to arrest them. They are seeking unspecified damages.
"It felt like acid eating into my eyes," Spring Lundberg, 24, testified last week.
In the fall of 1997, tensions were high on the Northern California coast when the dominant lumber company began increasing its harvest of ancient redwood trees.
Demonstrators from across the country had made their annual trek to sparsely populated Humboldt County, where the 150-year-old timber industry is deeply rooted in the region's economy, to protest the tree-cutting practices of Pacific Lumber Co.
On three separate occasions in September and October 1997, sheriff's deputies and the Eureka Police Department warned protesters chained together at a harvest site, in the local congressman's office and in Pacific Lumber's office that they would be pepper sprayed unless they unlocked themselves from the metal pipes. Eight of the nine activists targeted with pepper spray sued.
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The case is Lundberg v. Humboldt County, 97-3989.