ACLU Files Federal Civil Rights Lawsuit on Behalf of Pepper Sprayed Students

On Wednesday, the ACLU announced that nineteen students and alumni filed a federal lawsuit in the Eastern District against UC Davis, over the university’s treatment of protesters during a Nov. 18 demonstration, in which campus police were caught on video dousing seated protesters with pepper spray.

According to a release from the ACLU, the lawsuit seeks to determine why the university violated the demonstrators’ state and federal constitutional rights, and seeks to result in better policies that will prevent repetition of such response to a non-violent protest.

The lawsuit charges that administration officials and the campus police department failed to properly train and supervise officers, resulting in a series of constitutional violations against the demonstrators. The plaintiffs are represented by the ACLU of Northern California and cooperating attorneys, including Sacramento civil rights attorney Mark Merin.

The Vanguard spoke with ACLU Staff Attorney Michael Risher and two of the protesters who were at the scene of the November 18 event.

“We filed a lawsuit because we want to make sure that nothing like this ever happens again,” Mr. Risher told the Vanguard Wednesday afternoon.

The university released a statement from Barry Shiller, university spokesperson: “Attorneys for the university and the plaintiffs have been talking. We hope those conversations continue. In the meantime, we’ve not seen the lawsuit and therefore aren’t in a position to comment on details.”

The university declined further comment.

Enosh Baker remembers the spot well because when he was taken to the ground by the police on November 18, he hit his head on a sprinkler head as he was “thrown down to the ground,” as he described, “almost like a suplex [wrestling move].” Then he said “two officers kneeled down on top of me put flexcuffs on me and I was hauled [away] with a few others before the pepper spray incident took place.”

Mr. Baker was one of those who were linking arms around what is known as the Centennial Circle when the police approached from the southwest.   He described what happened as the police approached the blockade and gave dispersal orders.

“I stood here in silence linking arms with students whom I mentor,” said Mr. Baker, who is not currently a student, though he did graduate from UC Davis and plans to return as a graduate student. He described, “without much ado the riot police broke our arm linkages, pulled us out from the circle.”

According to the ACLU accounts, on November 18 students gathered in the quad on the UC Davis campus to demonstrate against ongoing tuition hikes, as well as against recent brutal treatment of demonstrators at UC Berkeley. UC Davis campus police arrived in riot gear, and officers threatened students, who were seated on the quad in a circle, and ordered them to disperse.

“We were sitting down as a symbolic gesture of protest and it was an act of solidarity with my friends who were arrested,” David Buscho told the Vanguard.

When students remained seated to continue their demonstration, a UC Davis police officer repeatedly sprayed the line of protesters with pepper spray at point-blank range, while scores of other officers looked on.

“I was pepper sprayed repeatedly in the face,” described Mr.  Buscho, a Mechanical Engineering student.

Another officer sprayed the demonstrators from behind. The seated students posed no physical threat to the officers. Pepper spray has excruciating effects that can last for days.

“It’s really the most noxious and painful substance,” Mr. Buscho said as he described the agonizing moments following being bathed in pepper spray.

“My face was totally coated because I couldn’t cover my face,” he continued.  “I kept inhaling pepper spray which is really bad.  When you inhale pepper spray it’s so painful that your entire chest contracts so it actually feels like you’re suffocating because I couldn’t force myself to breathe.”

He described repeatedly vomiting.  Those who tried to help by pouring water on him made it worse because it simply spread the agent throughout his body.

“I was just covered in pepper spray,” he said.

According to lawsuit, “The 19 plaintiffs in this action were protesting university privatization, distribution of resources, tuition hikes, police brutality and other onerous public policies adopted by the University administration and the Board of Regents. Their protest was an integral part of continuing, vigorous assembly and free speech activities which had been conducted by students for weeks at the same time the nationwide Occupy Wall Street movement mobilized thousands nationwide. Seventeen of the plaintiffs were U.C. Davis students at the time; the other two are recent graduates.”

It seeks relief in the form of “a declaration from the Court that campus policies and practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs violated their state and federal constitutional rights; an injunction to prevent repetition of such a response to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct.”

“We’re looking at violations not just of Fourth Amendment Rights to be free from excessive police force and being falsely arrested, but really much more fundamentally is the right to free speech,” Mr. Risher told the Vanguard.  “Universities should be places where free speech is valued, where free expression is fostered and when police respond to non-violent demonstrations with riot gear, with pepper spray and with excessive force, that threatens some of the most fundamental constitutional values we have.”

A group of students had set up tents on the quad and the “Occupation of the Quad” began.

Shortly after the first tents were erected, U.C. Davis administrative employees delivered to some of the students on the quad a notice that included a campus “no overnight camping” policy. The notice was discussed and the group concluded that they were symbolically ” ‘occupying the quad’ in support of and in solidarity with the 99% championed by the Occupy Wall Street movement,” the suit argues.

On November 18, Police Chief Annette Spicuzza delivered a letter from Chancellor Katehi that directed students to remove the tents by 3:00 p.m. “in interest of safety, respect for our campus environment and in accordance with our Principles of Community.”

“Shortly before 3:00 p.m., a large number of police in riot gear armed with long batons, pepper-ball guns and other weapons were seen massing in formation adjacent to the quad. The students moved the remaining tents to the circle on the Centennial Walk, a concrete pathway in the middle of the campus quad, and stood around them,” the suit alleges.

“The officers advanced on the students as can be seen on any number of videotapes. They began pushing students away, or throwing them to the ground. Some of the officers disassembled or destroyed the tents. As the tents were being removed, students sat down in a large circle. Classes were letting out and hundreds of additional students swarmed out of their buildings to watch what was happening,” the suit continues.

It continues: “As the group of students was being pushed by officers, students began to sit down in a line. Officers were stepping over the seated students, who did nothing to stop them. Then Defendant PIKE ordered the students to leave or stated they would be ‘shot.’ As is discernible from audio tapes of his reaction, Plaintiff WHEATLEY responded: ‘You’re going to shoot us if we don’t leave?’ “

At this point Lt. Pike “shook a canister of pepper spray like a can of aerosol paint, stepped over the line of sitting, crouching students and walked up and down the line repeatedly dousing Plaintiffs with orange colored pepper spray, mostly from a distance of one-to-two feet. Students watching the scene screamed or shouted: ‘Shame.’ “

“Our main concerns and our main cause of action is violations of the first amendment and the California constitutional guarantees to free speech, to assembly and to petition the government through redress of grievances,” Michael Risher told the Vanguard.

“That’s the heart of this case,” he said, but added, “This is an excessive force case.  The police used grossly excessive force; they falsely arrested people.  But the real harm here is to the freedom of expression because when the people see that the police response to non-violent protests is a shot of pepper spray, they’re not going to go out and take the risk of having that happen to them.”

“People silence themselves and that’s the problem, or one of the problems, with this grossly-excessive police response to peaceful and non-violent protests,” he added.

“It was a peaceful protest,” David Buscho described.  “I don’t think that police in riot gear should have been brought in.  Especially, it was so premature and the whole nature of it all felt so punitive.”

“The university needs to respect students’ rights to make our voices heard, especially when we’re protesting university policies that impact our studies,” said Fatima Sbeih, another student who joined the demonstration on the quad after returning from afternoon prayer, and was subsequently pepper sprayed.

“People were saying things that the police officers probably didn’t agree with, but if there is one [core value] of our first amendment it is that you are allowed to say things that the government doesn’t like,” Mr. Risher said.  “Did people say provocative things? Absolutely.  That is democracy, that’s free speech.  The government cannot shut that down either with strict censorship laws or by sending in police to shut people down and using excessive force against people who are speaking out for the people’s rights in this country.”

Cruz Reynoso, who is heading up the task force charged with evaluating the independent investigation performed by William Bratton and his company Kroll, declined comment at this time, noting that it would be inappropriate to comment given the pending report that he expects to be released on March 5.

That time frame is not impacting this lawsuit, according to Michael Risher.

“We will certainly be interested to see what the investigation comes up with.  We will read their reports very carefully,” he told the Vanguard.  “Our goals are to make sure nothing like this ever happens again, to get to the bottom of what did happen and we see them as complementary.”

“There have already been two extensions of the report that is coming out,” he added.  “We are not going to prejudge those.  We’ll be very interested to see what they say.  We feel there is also a need for an independent look into this and that’s part of the reason we filed this.”

David Buscho is not hopeful that the investigation will yield the kinds of findings he sees as needed, but he said, “I think now that a reputable organization like the ACLU is here [and] is involved in representing the interests of the students, I think that now we can actually say that [the university will move in the right direction to rectify the situation].”

“To date all [the university] has done is put two officers on paid administrative leave,” he noted.

Mr. Buscho questions the independence of those investigations and believes they are simply there to build a defense case for the university.

For Enosh Baker, the lawsuit is simply a matter of his right to free speech.

“I am joining the lawsuit,” he told the Vanguard, “because the law says my constitutional rights were violated.  My freedom of speech, due process and a few other things.”

“What we are asking for in the lawsuit is for the university to be held accountable for unjust actions taken against civil disobedience on campus and it’s clear that there needs to be some recourse for this and one of the possibilities is to ask the university through this lawsuit to amend their policies on how to deal with protesters,” he said.

“The university needs better policies on how it deals with protests and protesters. Students deserve to know what went wrong and how this could be allowed to happen. They want to make sure it never happens again,” said civil rights attorney Mark Merin, one of the attorneys representing the plaintiffs.

David Buscho said that after being approached by the ACLU, he decided to join the lawsuit as he sees it as “a good tool so that the public can figure out what happened and also to enact meaningful policy change looking into the future.”

“I hope it really gets to the bottom of what happened.  I really want to see meaningful policy changes with regards to police on campus,” he said later.

Enosh Baker is fearful that his involvement will make his admission as a graduate student less likely.

“Aside from the physical and psychological harm which I’m not going to say didn’t happen because it certainly did,” he said, “there’s always the fear that being a prospective graduate student, this harms my application.”

He noted that other individuals involved in activism on campus in recent months have been subjected to investigation by student judicial affairs, which he sees as another activity where the university was attempting to retaliate for those who speak out against their policies.

According to the ACLU’s press release, documents subsequently received from the University of California indicate that the pepper spray used was military grade and, based on manufacturer instructions, should be used from a minimum of six feet away – much farther than the close range at which the students were sprayed.

The suit was filed in the United States District Court, Eastern District of California. The plaintiffs are seeking a jury trial, injunctive relief and damages. In addition to Mr. Risher and Mr. Merin, attorneys working on the suit are Alan Schlosser, Linda Lye and Novella Coleman for the ACLU-NC, as well as Meredith Wallis.

—David M. Greenwald reporting