My View: Unsatisfying Outcome

Pepper-spray

On Wednesday, we finally learned the terms of the pepper-spray settlement.  I was covering the federal civil rights trial of Luis Gutierréz so I missed the press conference.  However, I was quickly able to speak with two attorneys and a protester, and the articles appeared on Thursday and Friday.

I will not mince words about my initial reaction –  I actually felt physically ill.  They did not get much and we the community did not get much.  $1 million spread out turned out to be about $30,000 per student.  They got an apology that was rendered useless by the fact that the officers did not admit wrongdoing.  Finally, the ACLU gets to help shape policy – which is probably the only real redeeming aspect of this settlement.

While I hinted at some of these thoughts in comments, the stories did not contain commentary.  Thursday’s story was largely the views of the attorneys and yesterday’s was the view of the student.

Some people have suggested that $30,000 is more than enough, given the limited duration of the pain and suffering.  They have even gone so far – I think disparagingly – to suggest that students would probably volunteer to be pepper sprayed for $30,000.

There is, of course, a huge difference between agreeing to voluntarily be pepper sprayed for compensation, and to be protesting, exercising free speech rights to dissent, and have the police use force, many believe excessive force, to compel citizens to stop.

This issue has become the point of divide, but it shouldn’t be.

In the days that have passed since this settlement, I have had a chance to speak to a lot of people on this matter and the most influential person to me is still Mark Merin, one of the attorneys.

It is easy to be cynical about attorneys, but many attorneys are not in it primarily for the money.  A lot of civil rights attorneys live very odd existences.  I remember a few years ago, Stewart Katz, who often represents people in cases of police use of force including Brienna Holmes and a few of the bank blockers, was awarded over $300,000 in attorney fees for his work in a case.

For a guy like Stewart Katz, that’s years worth of work.  Much of the time, he is taking people either pro bono or with hope of getting attorney fees at the end.

Mark Merin is one of my heroes.  When we began giving out Vanguard Awards, he was the easy first choice for attorney of the year.

A few years back, Mark Merin and some of his friends decided to fight the gang injunction.  They attempted to be paid attorney fees through the state, much as a public defender or contracted defense attorney would.  But Judge White argued that since it was a civil case, the defendants were not entitled to a defense, as they would in a criminal matter and there would be no attorney fees.

So Mark Merin and seven other attorneys agreed to spend six months in trial, every other week, defending the named defendants in the gang injunction.  They got nothing for this.  In fact, several of them ended up having to move to smaller offices because this took up the bulk of their time.

Mark Merin has made a career out of defending the underdog, often for no pay at all.

So when Mark Merin says, “There’s not a lot that you can get in litigation.  In fact the only thing you can get in the end is money,” I have to listen.

He argued, “We got something that we wouldn’t have gotten from a jury verdict.”

“What we gained and we couldn’t have been able to get had we gone to a jury verdict,” Mr. Merin said, “was the participation in the drafting of policy that relates to use of law enforcement on campus, crowd control, response to demonstration, and weapons and all of that kind of stuff.”

“That’s something that we wouldn’t have been able to get,” he said.  “We now are able to influence and comment on, and possibility shape the policies that will determine how they will respond in the future.”

Talking to Mark Merin, Michael Risher and several other attorneys who did not get a dime, this part was a big deal and will likely help prevent what was a series of police overreactions that culminated in the pepper-spray incident.

So, after talking to Mark Merin, I believe that the attorneys reasonably believe they got as much as they could have.  The university could have dragged this out for years in court, crippling the attorneys in this case.  One need look no further than the Buzayan case, seven years and running with fees well over $1 million, to realize that outcome is going to help few people.

And yet at the end of the day, while I believe the settlement probably was as good as it could be, I am unsatisfied with this outcome and this process.

The defendants in this case can walk away without taking any responsibility.  They continue to deny wrongdoing, continue to maintain that they acted appropriately.

The police in this case – three of them lose their jobs but face no criminal sanctions.  At the same time, the administrators who messed up the planning for this event – they keep their highly lucrative jobs.

This is the end.  This community gets no reconciliation.  No final acknowledgement.  No accounting.

There are vague promises to change policies that have been given more teeth by including the ACLU in the process, but I fully expect that, while officials will be more cautious next time, there will be another major incident in the next five years.

I spoke to a student last week who lamented the fact that the focus has shifted from the issues of privatization and tuition hikes to police practices.

That is one of the reasons I decided to run Ian Lee’s article as a stand-alone, because you can see in the eyes of a young protester that this point is not lost on him either.

For me, as a citizen of this community, my primary concern is how the university conducts itself and how the police treat protesters and citizens exercising their primary rights in society.

What separates a democratic society from all others is the absolute right to free speech.  We have chipped away at that absolute right (Congress shall make no law…) over the years, adding time and place restrictions, but that right remains paramount.

However, Ian Lee made a critical point in my mind when he argued that the university was using the police to, in effect, enforce their tuition hikes.

I think that is the point that we have lost in all of this.  Of all of the horrible things that have happened during this great recession, one of the worst is that the state has started to lose its commitment to investment in our future.

And because the state no longer is a consistent and reliable source for funding to the university, the university has had to look at other models, including hybrid and privatized models, in order to survive.

We are producing a generation of young people whose educations have been cut to the bone.  They will be burdened with debt and loans.  They will have had the quality of that education reduced.

I am not just talking about higher education.  I am talking all levels.  We are running the real risk of a lost generation.  And most sadly of all for me, this is the world my kids are living in.

So yes, back in July, the Vanguard honored all of these students for their dedication in exposing corruption and incompetence from the chancellor all the way down to Officers Pike and Lee, but we also honored them for their commitment to the fundamentals of the American Dream – the right to education and its democratization of upward mobility.

That is what we have lost and need to regain.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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30 thoughts on “My View: Unsatisfying Outcome”

  1. Mr.Toad

    “So when Mark Merin says, “there’s not a lot that you can get in litigation. In fact the only thing you can get in the end is money,” I have to listen.”

    I said the same thing in a previous thread but you and the usual suspects went on and on.

    “And yet at the end of the day, while I believe the settlement probably was as good as it could be, I am unsatisfied with this outcome and this process.”

    Yeah but you aren’t an attorney of record or the plaintiff.

    “This is the end. This community gets no reconciliation. No final acknowledgement. No accounting.”

    An apology is an acknowledgement. The accounting is about 2 million dollars and counting, three fired cops and one administrator freezing in Minnesota.

  2. David M. Greenwald

    “I said the same thing”

    You’re not Mark Merin, now are you?

    “Yeah but you aren’t an attorney of record or the plaintiff. “

    It’s easy for me to say, isn’t it.

    “An apology is an acknowledgement.”

    Even Michael Risher acknowledged that the weight of the apology was nullified by the disclaimer in the agreement that they did not admit wrongdoing and believe that they acted reasonably.

  3. Matt Williams

    David Greenwald said . . .

    [i]”This is the end. This community gets no reconciliation. No final acknowledgement. No accounting.

    There are vague promises to change policies that have been given more teeth by including the ACLU in the process, but I fully expect that while officials will be more cautious next time, that there will be another major incident in the next five years.

    I spoke to a student last week who lamented the fact that the focus has shifted from the issues of privatization and tuition hikes to police practices.”[/i]

    David, there is an eerie parallel between what you have asked for in your two articles today. In each case you are asking for an idealistic solution when the practical realities clearly say that your expressed idealism simply doesn’t compute.

    You ask for community reconciliation? Reconciliation of what? Final acknowledgement? For every person who wants the UCD Administration to acknowledge that pepper spray was the wrong choice, there is a person who wants the students involved to acknowledge that they should have gotten up and dispersed when they were asked to do so. For every person who believes that the students were continuing to make a valid civil rights point, there is a person like myself who believes that they had made their point as successfully as they possibly could have and had entered a period of overkill.

    No accounting? Heck it is accounting that has precipitated this whole situation. The state’s accountants have determined that we have less income than we have expenditures in California, and that 1) some programs are going to have their funds cut, and 2) some programs are going to have to increase their revenues to cover their costs. California’s education system has been told it has to do both. I realize that that is an unpopular message, but it is the accounting that currently drives the day. Do you see any viable alternative to that accounting?

  4. David M. Greenwald

    It’s a fair comment Matt, but one of my chief complaints is that the axe has fallen extra heavily on education and the costs have fallen extra heavily on middle class families trying to put their kids through school while the wealthy have been protected from these revenue increases and some state programs have hardly been touched.

  5. David M. Greenwald

    As for community reconciliation, I got to know Robb Davis because he came to the HRC to propose a restorative justice process through the university. Unfortunately the timing was not right for it, but now that the lawsuit has been settled, I want to revisit at least the possibility.

  6. Matt Williams

    David Greenwald said . . .

    [i]”I think some of this is not going to be resolved with objective data anyway. It is a matter of worldview and philosophy. As we spoke earlier this week, there is also the lack of longitudinal data here. The council is better equipped to arrive at a consensus on this issue. And ultimately that’s their call anyway.”[/i]

    This pair of comments confuses me. Why is the Council any less captive of the worldview conundrum than the WAC is? Are they as individuals all that different from the 15 WAC members?

    And ultimately its the WAC’s responsibility to give a recommendation to the Council, not to hang them out to dry.

  7. SouthofDavis

    David wrote:

    > My View: Unsatisfying Outcome

    What could have been done that would have made the outcome “satisfying” to you (an extra million for each of the kids, tar and feather officer Pike)?

    > What separates a democratic society from all
    > others is the absolute right to free speech.
    > We have chipped away at that absolute right
    > (Congress shall make no law…) over the years,
    > adding time and place restrictions, but that
    > right remains paramount.

    A free society cannot have the “absolute” right to free speech and free assembly since if I can play Romney speeches in your living room (listening to Romney is torture for even most conservatives and libertarians) or of a bunch of cops can sit silently on the sidewalk in front of your house blocking your driveway you are not free. In America despite the restrictions you are “free” to get whatever message you want to others in a legal way without blocking roads and driveways, trespassing on private property or living in a tree…

  8. medwoman

    Matt

    [quote]Final acknowledgement? For every person who wants the UCD Administration to acknowledge that pepper spray was the wrong choice, there is a person who wants the students involved to acknowledge that they should have gotten up and dispersed when they were asked to do so. For every person who believes that the students were continuing to make a valid civil rights point, there is a person like myself who believes that they had made their point as successfully as they possibly could have and had entered a period of overkill.
    [/quote]

    I would largely agree with your statement except for one important factor. That factor is responsibility. It is the responsibility of those in authority to lead not only in the ethical nature of our actions, but in the acceptance of their responsibility. The police and the university administrators are in positions of authority and leadership
    and as such have the duty to lead by example. If these folks in authority will not accept full responsibility for their actions, how can possibly expect their students to do so ? If the university leadership and police were to offer a complete accounting of their actions, and an expression of clear regret with acceptance of full responsibility, then I would expect no less from the students. But it is a leaders responsibility to do exactly that …..lead. If they are unwilling to do so, do not expect better behavior from those that we have entrusted ot them to learn.

  9. Matt Williams

    Very reasonable thoughts medwoman. Unfortunately I believe the events that happened on the Quad ever had even a smidgen of chance of being resolved in a reasonable way. It is a scorpion-frog situation driven by theatrical imperatives rather than responsibility and logic. I say that with a very clear element of self-indictment, because I personally spent three days in 1969 occupying Barton Hall, a National Guard Armory on the Cornell University campus, with a vast cadre of my fellow Cornell students. In simple terms we thought of our selves as both righteous and invincible, sentiments that I am quite sure the UCD Quad students also felt. Both sets of events share the element of “being on the world stage.” They are separated by over 40 years, but the human nature of the participants is unchanged. Implied in your comment is the very real assessment that the students are incapable of being responsible and ethical unless and until “those in authority and leadership” lead in an ethical and responsible manner.

    Are you really that pessimistic about each individual’s ability to detach him/herself from the group actions and make an individual decision? I am not, but I do believe that this group of students got caught up in the theater of what was unfolding and they lost contact with whether they were actually still making the point that they started out to make.

    Of course it is possible that each of the students were simply actors on a stage and that SAG will be getting a cut from each student’s $30,000 appearance fee.

  10. Matt Williams

    Oops The second sentence should read

    Unfortunately I believe the events that happened on the Quad never had even a smidgen of chance of being resolved in a reasonable way.

  11. medwoman

    Matt

    [quote]Are you really that pessimistic about each individual’s ability to detach him/herself from the group actions and make an individual decision? I am not, but I do believe that this group of students got caught up in the theater of what was unfolding and they lost contact with whether they were actually still making the point that they started out to make.
    [/quote]

    I do not see my position as one of pessimism about the individual’s ability to detach from the group, but rather as one of realism about the mixture of motives that probably drove each individual in his or her decision making, both on the protestor side and on the administrative/enforcement side.

    I truly believe that each individual is 100% responsible for their own actions that were taken as a result of the unique set of motivators driving each. So for some of the protestors, the original cause ( fees and privatization) probably remained the driving motivator while others may have been caught up in “theater” or truly concerned about preservation of their civil rights or about police brutality. On the enforcement side, I see it as possible that some of the police remained mostly concerned about providing for the safety of the students and other members of the public, while others may have gotten caught up in anger or disgust over what they saw as a challenge to their authority, and therefore gave in to the desire to “teach a lesson”. I continue to remain adamant about each being responsible for his own actions. The police did not make the protesters sit down in defiance, and the protesters did not make the police use pepper spray.
    Here there is individual, not group, responsibility.

    Another point that we have not addressed is that of relative power. In this setting, all of the power is concentrated in the hands of the administration and enforcement side. The full power of the state with funds, weapons, riot gear, ability to readily call in reinforcements, and the legal authority to wield power is all vested in one side. This leaves the protesters with nothing but their voices and bodies with which to protest, initially what they saw as a simple protest regarding fees, but which the administration/enforcement single handled turned in to another issue completely, that of the use of excessive force. The demonstrators are in no way responsible for the decisions which led to the introduction of this second aspect of the situation. This is on the police alone.

    This becomes very clear if you go back to a tape which I think has been infrequently viewed, but is very telling.
    I am speaking of a video which was taken prior to any physical contact between protesters and police. This tape shows the advance of the riot geared police across a wide open quad towards the virtually silent group of protesters in the vicinity of the tents. If you have not seen it, I would encourage you to watch it and tell me what you think since I realize that two entirely reasonable people can watch the same event and form entirely different impressions.

  12. Matt Williams

    medwoman said . . .

    [i]”So for some of the protestors, the original cause (fees and privatization) probably remained the driving motivator while others may have been caught up in “theater” or truly concerned about preservation of their civil rights or about police brutality.” [/i]

    Understood medwoman. Any situation like this one is always complex. One of the major problems I have with the protesters is that anyone who can balance a checkbook is capable of understanding exactly why the fees and tuition of all universities and colleges everywhere in the whole United States are going up. This isn’t a UC Davis-specific issue. Further, the what the protesters refer to as privatization is simply an effort by educational administrators everywhere across the United States to increase revenues and thereby reduce the amount of costs that have to be covered by tuition and fees. Further, even with the recent steep rises in tuition and fees in California, the cost of a public college education is still no worse than the national average.

    So with all the above, I find myself wondering about the objectivity of the protesters . . . and if they were indeed not objective, the logical follow-on question appears to be to ask why they weren’t objective.

  13. Matt Williams

    medwoman said . . .

    “This becomes very clear if you go back to a tape which I think has been infrequently viewed, but is very telling.

    I am speaking of a video which was taken prior to any physical contact between protesters and police. This tape shows the advance of the riot geared police across a wide open quad towards the virtually silent group of protesters in the vicinity of the tents. If you have not seen it, I would encourage you to watch it and tell me what you think since I realize that two entirely reasonable people can watch the same event and form entirely different impressions.”

    I have indeed seen it several times, and each time I find myself asking why the protesters didn’t say to themselves, “We have made our point. Now would be a good time to end this chapter of our protest and get up and leave.” The fact that they chose not to do that tells me that their intent all along was to provoke a physical altercation.

  14. David M. Greenwald

    Matt: I don’t think that’s a good assessment…

    I think there are two things that happen in a protest.

    First, I think things tend to take on their own life but second, it became a matter of their right to protest itself that subsumed the original purpose of the protest. As Ian Lee told me, the University was using force to enforce the tuition increases. And I’m sure that’s how it felt at that time to them. I don’t think you can read intent into that.

  15. Matt Williams

    David, when Ian told you that he felt the University was using force to enforce the tuition increases, what was your response to him? Dis you ask him if that feeling on his part was rational? Did you ask him whether that feeling on his part was supported by the Microeconomics of the UCD budget? Did you ask him whether that feeling on his part was supported by the Macroeconomics of the entire United States economy . . . both public sector and private sector?

    If you had been part of the group when Ian and his fellow protesters sat down and mapped out their strategic and tactical objectives when planning their protest, what would your objectives have been?

  16. David M. Greenwald

    My purpose was not to debate him on the point, I was trying to read how he felt at the time.

    “If you had been part of the group when Ian and his fellow protesters sat down and mapped out their strategic and tactical objectives when planning their protest, what would your objectives have been? “

    It’s been a long time since I’ve been a participant in the protest, but I’m not sure I really would have believed that erecting a tent was the way to get attention for tuition increases.

  17. Matt Williams

    David M. Greenwald said . . .

    [i]”My purpose was not to debate him on the point, I was trying to read how he felt at the time.”[/i]

    Understood, and given your role as a journalist that makes sense, but when you put on your critical thinking cap, does the fact that he felt that way carry any real weight?

    [i]”It’s been a long time since I’ve been a participant in the protest, but I’m not sure I really would have believed that erecting a tent was the way to get attention for tuition increases.”[/i]

    I agree, and if you can see that, why couldn’t the protesters? Or is it possible that the protest really wasn’t about tuition at all?

  18. medwoman

    Matt

    [quote]I agree, and if you can see that, why couldn’t the protesters? Or is it possible that the protest really wasn’t about tuition at all?[/quote]

    Do you really not see anything differently today than you did when you were eighteen or twenty ?
    Perhaps I am delusional, but I would at least like to think that I have gained some experience through the years that allows me to see things with perhaps at least a little more insight than I brought to bear at that age.
    Is that not exactly what those in authority are supposed to be promoting in the students ? And what better way to accomplish that than by forbearance and example ? Two attributes which were sorely absent on the quad that day.

  19. Matt Williams

    Lets engage your point a bit medwoman. Where do you draw the “enough forbearance” line? Do you think the protesters had a preconceived point where they would feel that they had made their point? Or do you think they would have stayed on the Quad until they were old and grey like me?

    Setting aside the eighteen and twenty year olds, do you think that the two professors should be held to the same level of adult behavior that you are holding the “authorities” to? For that matter, aren’t those two professors the authority figures within the protester group?

    Further, if the goal of the protest truly was a statement about the rise of tuition and fees, isn’t the end result of between $1 and $2 million added costs for the University going in the wrong direction? Spreading that $1 to $2 million over 30,000 students, didn’t the protesters increase each student’s tuition and fees by an additional $50 or so in the 2013 academic year?

    Bottom-line, I agree with you that there were lots of attributes sorely absent, but I don’t see any reason why one side should be held accountable while the other side is rewarded for their theatrics.

  20. Matt Williams

    One more thought. One of the key principals of societal behavior and societal law is that when and if a person or organization realizes that its behavior is either illegal or damaging, the person/organization must mitigate the behavior so that the illegality/damage ceases. By awarding the protesters $1 million, UCD has not only not mitigated future similar protester behavior, it has overtly stated that such behavior is likely to be financially rewarded. It is like shouting out for all to hear, “Bring on the clones!!!”

  21. David M. Greenwald

    Not really Matt, because you are now taking things out of sequence. The model for how they will respond is the bank protest – no arrests, use the DA to prosecute.

  22. Matt Williams

    I’m not sure how that makes the $1 million payment any less of a reward. If they were going to get up off some money I’d much rather have seen it put into the general scholarship funds.

  23. rusty49

    “I’m not sure how that makes the $1 million payment any less of a reward. If they were going to get up off some money I’d much rather have seen it put into the general scholarship funds.”

    Matt, it’s good for the local economy. Any students that might already be on a full scholarships can use the money to buy new cars and things. Only in America.

  24. medwoman

    Matt

    I continue to see this differently from you on a number of points.

    1) I agree with David that you are making points based on an erroneous ordering of events, but for a different
    reason. The students could not have been expected to know that their protest would end up in a million
    dollar law suit and therefore their actions can certainly not be judged on that basis.
    2) As to the question of at what point would they have “given up”, I suspected that would have varied from
    individual to individual.
    3) I agree that the professors should be held to the same level of adult accountability. However, I think it
    needs to be pointed out that their role as defined by their job description is very different from that of the
    either the police or the administration. They were acting in this case as private citizens, who have a right
    to publicly protest as they see fit nonviolently. So unless these university employees were inciting to riot
    which I see as highly unlikely, or could have been demonstrated to have been in violation of a campus policy
    of overnight camping on the quad, whether or not you agree with their politics, I think one would have to
    defend their right to assemble and protest.
    4) “I don’t see any reason why one side should be held accountable while the other side is rewarded for their
    theatrics. “
    On this I would probably agree with you if I believed that is what happened. However, that is not how I see
    it. I strongly believe that the police and administration should have been held accountable. I also think that
    their statement should have included a full accounting of their missteps in handling the situation.
    As for the protesters, one would first have to know that they did anything wrong. If in fact, the police had justification for requesting these particular protesters to move, which seems to be in some question, then I think that they should acknowledge the incorrectness of their action in not complying. However, the legal situation does not appear to be clear. If the police did not in fact have legal justification for requesting these particular protesters to move, then they were blameless and should not have to acknowledge a fault that did not exist. You will note that I am not saying anything one way or the other about whether one favors or does not favor public protest. I am only addressing the legal justification for requesting them to disperse. In either event, I see the settlement not as a reward to the protesters, but rather as a compensation due by the university officials for their mishandling of the situation. I see this as a flaw of our adversarial system that someone has to bring charges, and therefore be “rewarded” for anything of substance to occur. Personally, I would much prefer some sort of restorative process as has been outlined by Rob, but the adversarial system in which we seem to be locked does not favor this approach. This is not the fault of the protesters, the police, or the administration, but rather a short sighted desire to clinic to an antiquated system rather than being willing to work collaboratively to build a more just system for all concerned.

  25. Matt Williams

    medwoman said . . .

    [i]”Matt

    I continue to see this differently from you on a number of points.

    1) I agree with David that you are making points based on an erroneous ordering of events, but for a different reason. The students could not have been expected to know that their protest would end up in a million dollar law suit and therefore their actions can certainly not be judged on that basis.”[/i]

    Ahhhhhhh now I understand the point David was trying to make. I obviously wasn’t clear in that final point I was making. I was not criticizing the protesters in that comment. I was criticizing, 1) the University for not putting forward the money in a way that its beneficiaries were less personal, 2) the lawyers for the protesters for not proposing that the money be put into a scholarship fund that eliminated the direct cause-effect linkage between the protesters’ actions and the reward, and 3) for all the copycat would-be protester clones out there who are thinking about how to create their own personal payday.

    None of those three criticisms had any intervening events to the best of my knowledge.

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