Various authors, 4/27/2004
Perhaps the worst case of US governmental harassment of an environmental activist was the way the FBI responded to a bombing attack on Judi Bari and Darryl Cherney, Earth First! activists. Their car was bombed in May 1990, and Bari was badly hurt.
The FBI and the Oakland Cal. police acted as if Bari and Cherney had done it themselves, ignoring physical evidence in the car which proved that impossible.
Bari, who had one Jewish parent and was excited about the Redwood Rabbis' and The Shalom Center's Jewishly focused participation in the defense of the redwood forests, and especially by the Tu B'Shvat Seder we held in the Redwoods in 1997, was unable to attend the Seder because of serious illness. She died later that year.
Two years ago, a Federal jury found the FBI and Oakland liable for violation of Bari's and Cherney's civil liberties. It has taken two years for out-of-court negotiations to produce a settlement in which the FBI has agreed not to appeal and the Bari estate and Cherney will receive millions in damages.
Both environmentalists and civil libertarians will welcome this result. And we should be stirred to vigilance as this case reminds us how easily the FBI has fallen into illegal, unConstitutional, deceitful, and destructive actions against decent and honorable activists.
Rabbi Arthur Waskow
The Shalom Center
The information follows, with a preface from BariNews.
Dear BariNews Subscribers,
Here's good news!
Almost two years after a federal jury unanimously found FBI agents and Oakland Police officers liable for $4.4 million in damages for violating the First and Fourth Amendment rights of Earth First!ers Judi Bari and Darryl Cherney, a final post-trial settlement agreement has been negotiated and signed by both sides in the historic case.
As of this writing no money payment has been made, and until that happens and the documents are formally accepted by the court, the settlement is not complete and final. Hopefully that will all happen within the next week or two. Meanwhile, Darryl Cherney declines to comment about the settlement, and he has ordered his attorneys to make no further comments. Copied below is a compilation of published media reports giving some of the details, not all of them fully correct, as noted.
Please mark your calendars for May 24, 2004, which will be the 14th anniversary of the 1990 car bombing that severely injured Judi Bari and Darryl Cherney. It is also the City of Oakland's official Judi Bari Day. We will let you know as soon as they are finalized what events will happen to celebrate Judi Bari and her historic legal victory!
Note: all text in [square brackets] below is inserted for clarity, to correct erroneous information, or to make comments. The following articles are presented in chronological order of publication. By far the most widely circulated is the AP story which appears last, and which was widely published nationwide and overseas on Friday, April 23.
San Francisco Daily Journal [legal newspaper]
(c) 2004 The Daily Journal Corporation. All rights reserved.
April 22, 2004
FBI, OAKLAND AGREE TO PAY $4 MILLION IN EARTH FIRST CASE
By John Roemer Daily Journal Staff Writer
SAN FRANCISCO - Negotiators for Attorney General John Ashcroft have agreed the FBI will pay $2 million to settle long-running litigation over the 1990 Earth First bombing in Oakland, plaintiffs' lawyer Dennis Cunningham said Wednesday.
The City of Oakland also will pay $2 million to end the case, Cunningham said.
The $4 million total represents a compromise nearly two years after a federal jury decided in June 2002 that three FBI agents and three Oakland police officers were liable for $4.4 million in damages.
Oakland and federal officials could not be reached Wednesday afternoon.
The agents and police officers violated Earth First activists Darryl Cherney and Judi Bari's constitutional rights in investigating the car bombing that injured Cherney and Bari, the jury ruled.
Protracted post-trial bargaining ensued. The deal struck this week means the Earth First legal team gives up millions of dollars they might have won in fees and costs, while federal and Oakland officials abandon their right to appeal the verdict.
"I'm glad it's over," Cunningham said. "But until Ashcroft has endorsed a payout order, I'm not celebrating."
The San Francisco solo [independent lawyer] headed a team that included J. Tony Serra and Robert Bloom in representing the Earth First plaintiffs in the Oakland courtroom of U.S. District Judge Claudia Wilken.
City attorney deputies from Oakland and U.S. Department of Justice lawyers from Washington, D.C., conducted the defense.
Cunningham retained Oakland attorney James Wheaton to handle settlement negotiations with R. Joseph Sher, who represented the FBI, and Oakland police lawyer Maria Bee.
The May 24, 1990, car bombing has never been solved. The FBI and Oakland police arrested Cherney and Bari, searched their homes and told the news media they were domestic terrorists transporting a malfunctioning bomb.
Those acts were the basis for Earth First's claim the officials conspired to violate their First and Fourth Amendment rights.
Bari, who died of breast cancer in 1997, was represented at the trial by the executor of her estate. Her videotaped deposition, made just days before she died, was played for the jury.
The eight-woman, two-man panel deliberated for 17 days before awarding the money to the plaintiffs.
[Note: Earth First! is correctly spelled with the explanation point as a letter in the name, but some news editors refuse to include it.]
KRON 4 News
EARTH FIRST BOMBING CASE SETTLES FOR $4M
April 22, 2004 (c)2004, BAY CITY NEWS. All rights reserved.
OAKLAND (BCN) — The U.S. Justice Department and city of Oakland have signed off on a $4 million settlement of a long-running civil rights lawsuit filed by two environmental activists injured in a 1990 car bombing in Oakland, according to lawyers in the case.
Jim Wheaton, a lawyer representing attorneys for Darryl Cherney and the late Judi Bari, and Deputy Oakland City Attorney Maria Bee said Thursday that the parties in the case signed the settlement over the past week.
The Justice Department, representing three [now] retired FBI agents, and the city of Oakland, representing three present and former police officers, will each pay $2 million.
Cherney and Bari, members of the environmental group Earth First! were injured when a bomb exploded beneath Bari's car seat as they drove through Oakland on May 24, 1990. [Correction: Earth First! is a movement, not a group, and it has no members, offices or officers.]
The two North Coast residents were on a speaking [and concert] tour to promote Redwood Summer, a campaign to protest the logging of old-growth redwoods. [Actually Redwood Summer was not specifically about old-growth; it was about corporate liquidation logging of redwood forests, including second-growth.] The cause of the bomb was never explained. [However, Judi had received several written death threats from timber industry supporters because of her organizing against the logging companies, and she had reported the threats to police, who scoffed at her and said they would investigate only if she turned up dead.]
Cherney and Bari claimed in a 1991 lawsuit that the FBI and Oakland police violated their constitutional rights when they were arrested and investigated for the bombing. [Not only did they claim it, the jury unanimously ruled they were right.]
Bari, who was left paralyzed by the bombing, was arrested in her hospital bed by Oakland police and Cherney was also arrested within hours of the blast on suspicion of possessing and transporting explosives. [Judi was left with partial paralysis in her right leg, and she was not expected to walk again. But she was tough enough to beat the odds and learn to walk with the aid of a cane, although she was in constant pain for the rest of her life.]
But Alameda County prosecutors declined to file any state charges and no federal charges were ever filed.
Bari died of breast cancer in 1997 but her estate [and Darryl Cherney] continued the lawsuit on behalf her two now-adult daughters.
In 2002, Cherney and Bari's estate won a $4.4 million jury verdict in the court of U.S. District Judge Claudia Wilken against the three FBI agents and three Oakland officers for violating their rights to free speech and protection from illegal searches [and false arrest].
Cherney and Bari claimed in the lawsuit [and the jury agreed] that they were unfairly targeted in the probe in an attempt to discredit their work. They also contended that investigators seeking search warrants made false and reckless statements, including an incorrect assertion that round-topped [finishing] nails used in the pipe bomb were the same as flat-headed [roofing] nails found in Bari's home.
Several other agents and officers, including Richard Held, former chief of the FBI's San Francisco office, were dropped as defendants at various stages of the lawsuit.
The settlement brings an end to the case with the two government agencies agreeing to forgo appeals and the plaintiffs agreeing not to seek additional attorney's fees estimated at more than $4 million. [It WILL bring an end to the case when the money is paid and the court accepts the settlement as satisfaction of the jury damage award.]
Bee said, "It's a good resolution in that it saves the city several million dollars of exposure for attorney's fees and appellate costs."
Wheaton said the jury verdict was the largest jury award levied against the FBI and that the final settlement is among the largest settlements reached with the agency outside of court.
Wheaton said that although the plaintiffs agreed not to seek additional compensation for attorneys' fees, their lawyers will in fact be paid out of the $4 million settlement. He declined to disclose the amount of the payments.
Justice Department spokesman Charles Miller said, "There's nothing I can tell you at this stage."
Miller said the agency could not comment because nothing has been filed in court. Bee said the settlement was reached out of court, but that when all payments are made a notice will be filed in Wilken's court stating that the 2002 judgment has been satisfied.
The 2002 jury award included $2.9 million for Bari's estate and $1.5 million for Cherney. [The jury also awarded 80% of the damages, or $3.5 million, for violation of the pair's First Amendment right to speak and organize politically in defense of the redwoods by trying to frame them for the bombing and smearing them and Earth First! in the media for nearly two months after the bombing. That's not a minor point, and it's too bad the mainstream media doesn't seem to get it.]
The Oakland City Council approved the city's $2 million share of the settlement last year, but Wheaton said the final details were not ironed out until last week.
SAN FRANCISCO CHRONICLE Friday, April 23, 2004 Page B - 1
FBI TO PAY $2 MILLION IN EARTH FIRST SUIT
Activists were arrested, called eco-terrorists after bomb exploded in their car
Jim Herron Zamora, Chronicle Staff Writer
OAKLAND - The federal government has quietly agreed to pay $2 million to settle a civil rights lawsuit filed by two leaders of the environmental group Earth First who were arrested and branded eco-terrorists by the FBI after they were injured when a bomb exploded in their car in Oakland 14 years ago. [Clarification: the car belonged to Judi, and Darryl was riding with her only for a brief trip from Oakland to Berkeley.]
The $2 million that Darryl Cherney and the estate of the late Judi Bari are expected to receive in the next few days is one of the largest settlements paid out as a result of the FBI's action, attorneys for the plaintiffs said.
"This is a huge victory for the environmental movement and the First Amendment,'' said attorney Jim Wheaton, who represented the plaintiffs in settlement talks. "I think this is the largest verdict ever against the FBI. I don't think there has ever been a settlement this large for someone who wasn't shot or killed.''
The lead U.S. Department of Justice attorney in the case, Joseph Sher, confirmed that the settlement had been approved Tuesday but declined further comment. An FBI spokeswoman in Washington, D.C., also declined to comment.
The $2 million federal settlement, and a separate $2 million settlement the Oakland City Council approved last year, will be divided between the two plaintiffs. Cherney will receive about one-third of the money; the rest will be awarded to the estate of Bari, who died of cancer in 1997. [In fact, according to the Santa Rosa Press Democrat, the lawyers will receive a portion in compensation for their 13 years of hard work and expenses litigating the case, then the remainder will be split as described between Judi's estate and Darryl. Judi willed half of her award to Redwood Justice Fund to work for environmental and women's justice, and the other half will be split by her daughters. The amounts are taxable.]
In 1995, the FBI paid $3.1 million to the family of Vicki Weaver, who was killed three years earlier at Ruby Ridge, Idaho. The family of Black Panther Fred Hampton, killed during a FBI raid in 1969, received $1.85 million. [And Bari-Cherney legal team leader Dennis Cunningham represented the Hampton family in that case.]
The settlement stems from a civil suit Bari and Cherney filed over their arrest after a pipe bomb exploded in Bari's Subaru station wagon on Park Boulevard in Oakland on May 24, 1990. Bari, who was driving, suffered a crushed pelvis, and Cherney received cuts from the blast.
The two, who were headed to a rally to mark the beginning of a campaign of protests called Redwood Summer, were arrested within hours, and their homes and vehicles were searched. Authorities then said they believed that Bari and Cherney had been carrying the bomb in her car and that it had detonated accidentally.
Prosecutors later [much later] declined to file charges against the pair, citing insufficient evidence, and no other arrests have ever been made.
Cherney and Bari later sued the FBI and Oakland police investigators, alleging false arrest, illegal search, slanderous statements and conspiracy. The suit said investigators focused on Bari and Cherney only as suspects and refused to consider the possibility they were victims chosen for their confrontational environmental activism. During the trial, an FBI explosive expert testified that the pipe bomb, placed under the driver's seat, had been fitted with a motion sensor and apparently exploded when Bari hit a bump in the road.
During the two-month trial, Sher maintained that Bari and Cherney were members of an extremist environmental group and, in his opening statements, compared them to domestic terrorists. A federal grand jury rejected that argument in June 2002 and ordered the Oakland police officers and FBI agents who investigated the bombing to pay $4.4 million to the plaintiffs.
"The bulk of the verdict was for interference with their First Amendment rights,'' Wheaton said.
Sher argued in court papers that the verdict was improper and filed a motion seeking a new trial.
The city of Oakland also agreed last year to pay the plaintiffs $2 million. But the settlement was not completed because the federal government refused to settle until Tuesday, Wheaton said.
Oakland Deputy City Attorney Maria Bee said the [city's share of the] settlement would be paid out in four annual installments of $500,000. She said the settlement was a good deal for Oakland because the city would not have to pay for 14 years of legal fees — an estimated $4.5 million — owed to attorneys for Bari and Cherney under federal law.
"From our perspective, it's a good deal,'' Bee said. "The legal fees were as large as the judgment.''
(c)2004 San Francisco Chronicle
PRESS DEMOCRAT Friday, April 23, 2004 Page B-3
Around The Empire North Coast
The U.S. Justice Department and the city of Oakland this week agreed to a $4 million settlement with two North Coast environmentalists injured in a 1990 car bombing in Oakland.
Earth First activists Judi Bari and Darryl Cherney were injured when a bomb blew up in their car while they were on a speaking tour to promote Redwood Summer, a campaign to save old-growth redwood trees.
They were arrested shortly after the bombing on suspicion of transporting the bomb, but released for lack of evidence.
They sued in 1991, claiming the FBI and Oakland police violated their civil rights.
Bari died of breast cancer in 1997, but her estate [and Cherney] continued the suit.
In 2000 [actually 2002], a jury awarded Bari's estate and Cherney $4.4 million. The plaintiffs and defendants have, since then, been working on a settlement agreement.
Attorneys will get nearly 40 percent of the $4 million settlement — around 1.4 million — according to court documents. Bari's estate will get $1.7 million, which will be split between the Redwood Justice Fund and her two daughters, who are expected to end up with between $350,000 and $400,000 each after estate taxes. Cherney will get $850,000. [before taxes, if the figure is accurate.]
— Glenda Anderson
LONDON GUARDIAN (UK) http://www.guardian.co.uk/uslatest/story/0,1282,-4013818,00.html Saturday April 24, 2004 12:31 AM
U.S. to Pay Environmental Activists $2M
OAKLAND, Calif. (AP) - The federal government has agreed to pay $2 million to settle a lawsuit filed by two environmental activists who were arrested and branded eco-terrorists by the FBI 14 years ago.
Darryl Cherney and the estate of the late Judi Bari, who died of cancer in 1997, will divide the settlement and a separate $2 million settlement from the Oakland City Council last year.
The two activists from Earth First! were arrested by the FBI when a pipe bomb exploded in their car in Oakland on May 24, 1990. Bari, who was driving, suffered a crushed pelvis and Cherney was cut.
The two were arrested within hours and their homes and vehicles were searched. Authorities at the time said they believed that Bari and Cherney had been carrying the bomb in her car and that it had detonated accidentally.
The two activists later sued the FBI and Oakland police investigators, alleging false arrest, illegal search, slanderous statements and conspiracy. They claimed officials lied to try to make a case and ignored evidence that would have cleared them.
Attorneys for Bari and Cherney said investigators didn't try to probe an anonymous letter sent to The Press Democrat in Santa Rosa shortly after the bombing. The letter detailed the construction and placement of the bomb and included information about a different bombing that damaged a Cloverdale lumber mill the same month.
The writer, claiming to be "the Lord's avenger," said the bomb was retribution for Bari's participation in an abortion rights demonstration.
At the time of the bombing, Bari and Cherney were organizing a series of protests against the logging of old-growth forests.
Attorneys representing the officers and agents tried to show that at the time of the bombing Earth First! had a reputation for sabotage - including "tree-spiking," the dangerous practice of driving nails into trees that can shatter a chain saw.
[Correction: spikes can not shatter a chain saw. They can shatter a tempered band saw blade in a sawmill, but so can naturally occurring debris, and that happens frequently. A safely set up sawmill does not place workers in danger. Moreover, the strategy of tree spiking is not to shatter a saw or cause damage but to prevent the trees from being cut down in the first place by giving ample notice to timber companies that the area has been randomly spiked so that they will not risk the financial losses that replacing expensive sawmill blades would entail. Tree spiking is an old labor tactic pioneered by the IWW (Wobblies) during the 19th century.
Spiking is much talked about but almost never carried out, and Judi Bari deserves much of the credit for that. In 1990 she led EF! in her region to publicly disavow using the tactic, or any other sabotage tactic that might put workers in danger. The Humboldt County sheriff testified during the Bari vs. FBI trial that tree spiking has never occurred in his county despite nearly twenty years of very active EF! activism.
Despite these facts, timber industry PR campaigns have spent millions to portray EF!ers to the public as dangerous, violence-prone extremists. In reality, they are mostly pacifist young people who risk their own safety and liberty by chaining themselves across logging road gates or living in trees for months or years to prevent them from being logged. The lawyers for the FBI and OPD attempted to capitalize on this false corporate PR image of EF!, but they did not succeed in pulling the wool over the jurors eyes.]