The lawsuit, which alleged a variety of civil rights violations, was filed by Rebecca Kay Smith, one of two activists who camped out in trees scheduled to be cut down in 2002 on the Bitterroot National Forest as part of the Bitterroot Burned Area Recovery plan.
Smith, who was 22 at the time, was arrested after a month of tree-sitting and eventually convicted in federal court of a handful of misdemeanors, including camping too long on national forest land and resisting arrest. In 2003, she was sentenced to three years on probation and spent 30 days in a prerelease center in Butte.
Smith claimed the officers violated her civil rights primarily by using excessive force in dealing with her, but also deprived her of her First Amendment rights and unreasonably seized her property.
U.S. Magistrate Jeremiah Lynch, however, ruled against her one week before the case was set to go to trial, dismissing the case on summary judgment motions from Ball and Brandeberry. Lynch's 37-page order was released Monday and covers at length his view of Smith's claims.
Smith said Tuesday she will appeal Lynch's ruling, though she hasn't decided yet whether to take the case to U.S. District Judge Don Molloy or to the 9th U.S. Circuit Court of Appeals.
“We will definitely appeal, because we feel that the judge really deprived a jury of hearing the facts of the case,” said Smith, who is now a second-year law student at the University of Montana. “He said the facts weren't in dispute, but I think they definitely are, and that's why a jury should hear this.”
The incident that led to the lawsuit began in early July 2002, when Smith and Joel Wyatt situated themselves about 50 feet up two trees that were set to be cut in the Little Bull and Big Bull timber sales, part of the forest's larger burned-area recovery plan.
The protesters strung a banner between the two trees and got food and water daily from a support team down below. They had minimal contact with law enforcement during the first two weeks, but were told that if they stayed more than two weeks, they would violate the forest's two-week camping restriction.
After those two weeks passed, U.S. Forest Service and other law enforcement agents secured the area, notified the two they were under arrest for violating the camping rule and ordered them down.
The two refused, and eventually Ball, who has been a search and rescue coordinator, was called in to climb the trees and bring the protesters to ground. However, because they locked themselves to the trees, Ball could only cut down most of their supplies of food and water before retreating.
With depleted supplies, Wyatt stayed another week but ultimately came down and was arrested. Smith had managed to save more water and food and remained in her tree for yet another week.
Eventually, however, officers used a cherry picker to bring her down from the tree, claiming they'd done so at least in part because they were concerned about her safety.
After her criminal case was resolved, Smith filed suit against Ball and Brandeberry, who never actually dealt with Smith but directed the operation designed to bring her out of the tree.
Although Smith alleged violations of her First and Fifth Amendment rights, Lynch focused primarily on her Fourth Amendment claim that the officers had used excessive force in dealing with her.
“The plaintiff's second amended complaint sets forth vague allegations of other purported violations of her constitutional rights,” Lynch wrote. “Š It is not clear from the plaintiff's pleadings or submissions the specific facts on which the plaintiff relies in support of each of these claims.”
For instance, Smith's First Amendment claim appears to rest on the fact that her protest - and thus her free speech - was ended by her removal from the tree and subsequent arrest, Lynch wrote.
However, Lynch said Smith still had “ample opportunities” to protest. But her immediate problem was that she violated the “content-neutral camping restriction,” a violation that had nothing to do with her protest, Lynch said.
The most serious claim, as Lynch viewed the case, was the excessive force claim. Law enforcement is not prevented from using reasonable force, Lynch noted, and officers who have done so are generally immune from liability in lawsuits.
A judgment about such force is done under the standard of the Fourth Amendment's objective reasonableness standard, which is described by the U.S. Supreme Court as the “perspective of a reasonable officer on the scene, rather with the 20/20 vision of hindsight.”
Lynch noted Smith's claim that Forest Service officials generally don't arrest people for breaking the camping regulation, instead just issuing them citations. While true, Lynch wrote, the argument has no legal significance.
“Accordingly, the issue at hand is not where (Ball and Brandeberry) had authority to arrest the plaintiff, but whether they exercised that authority in a reasonable manner,” Lynch wrote.
He found that they did. All Ball did was cut down some of the protesters' supplies and tried to coerce them to come down, Lynch said. After that, he left and never came back.
Smith also argued that by limiting food and water, the officers endangered her welfare, an argument Lynch dismissed.
“Plaintiff's speculation about what injuries she could have suffered, but did not, cannot support a claim of excessive use of force,” Lynch wrote.
Ball didn't use excessive force, Lynch said, because he neither touched nor injured Smith. Without an injury, he said, it's very difficult to maintain an excessive force claim. Nor did Brandeberry use excessive force in directing the police action, the magistrate said, because he was always working with information that indicated that Smith was in good health.
Smith said Tuesday that Lynch's opinion was “political” and overreaching, usurping the role of a jury.
“He said there are no disputed facts, but we believe that's not true,” she said. “We dispute a lot of what's in there and we had three or four days of witnesses to talk about it. It's a shame the jury won't get to hear them.”
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)
Joel Wyatt wrote on Nov 20, 2008 9:29 AM: