On Wednesday, a federal judge gave final approval to the settlement that UC Davis students and recent alumni reached with the university in late September.
Ten months after the November 18, 2011, pepper-spray incident, on September 26, 2012, attorneys for 21 UC Davis students and recent alumni announced the details of their settlement with the university over a federal class-action lawsuit.
The lawsuit charged that the police violated state and federal constitutional protections, including the First Amendment to the U.S. Constitution, when they arrested and used excessive force against these non-violent demonstrators.
The federal class-action lawsuit was the result of an incident that captured nationwide attention when images and video surfaced showing campus police repeatedly dousing seated, non-violent student demonstrators with military-grade pepper spray at close range during demonstrations on November 18, 2011.
“If the First Amendment means anything, it’s that students should be able to exercise their free speech rights on their college campus without being afraid of police violence. What happened on November 18 was among the worst examples of police violence against student demonstrators that we’ve seen in a generation,” said Michael Risher, staff attorney with the ACLU of Northern California.
He added, “The early resolution to this lawsuit means that the students can begin the process of moving on and we can work with the University to ensure that nothing like this ever happens again at the University of California.”
“Police should never have been called out to disperse the lawful protest against steep tuition increases, police brutality against UC Berkeley protesters, and privatization of the university,” said Mark E. Merin, one of the attorneys for the plaintiffs.
“The University never should have used police against peaceful protesters. Perhaps the economic costs of violating students’ First Amendment rights to free speech and free assembly will discourage similar abuse in the future,” Mr. Merin added.
“I want to make sure that nothing like this happens again. That’s the best thing that could come from this. Since November 18 students have been afraid of the police. The University still needs to work to rebuild students’ trust and this settlement is a step in the right direction,” said Fatima Sbeih, who just graduated with an International Studies degree. Sbeih was pepper sprayed on the Quad. She had panic attacks and frequent nightmares for months after the incident, and often woke up screaming.
“I want the University and the police to understand what they did wrong. Police should be accountable to students,” said Ian Lee, who will be a sophomore this year. Lee was less than two months into college when he was pepper sprayed. “I was demonstrating because of rising tuition hikes and privatization of the University. Then we faced police brutality in response. I felt like the University silenced me.” After the incident, Lee experienced panic attacks and was afraid to participate in protests.
The student plaintiffs who were pepper sprayed experienced excruciating effects. In some cases, the pain lasted for days. Like Fatima and Ian, many have experienced trauma since the incident. As a result, many students’ grades suffered.
The university’s response to seated student, non-violent protesters has been widely deemed unacceptable. A task force that the university created to investigate and analyze the response to the protestors concluded in an extensive report that “the pepper spraying incident that took place on November 18, 2011 should and could have been prevented,” and found culpability at all levels of the university administration and police force.
The terms of the settlement included:
“UC Davis Chancellor Linda Katehi will issue a formal written apology to each of the students and recent alumni who was pepper sprayed or arrested.
“The University will pay $1 million as part of the settlement. This includes a total of $730,000 to the named plaintiffs and others who were arrested or pepper-sprayed on November 18. It will also include up to $250,000 in costs and attorney fees.
“The University will work with the ACLU as it develops new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again. $20,000 of the settlement will go to the ACLU for its future work with the University on these policies to protect free speech and free expression on campus.”
“The case has been expanded to a class action lawsuit to make sure that anyone who was pepper-sprayed or arrested that day can be part of the settlement, even if they are not a named plaintiff. $100,000 of the total award will be set aside to compensate other individuals who were pepper-sprayed or wrongfully arrested on November 18, 2011.”
“The University will also assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment.”
“We think it’s a good settlement,” Attorney Michael Risher told the Vanguard in September. “No settlement gets you everything you want, otherwise it wouldn’t be a settlement.”
“It gives our clients some measure of compensation for the pain, the nightmares, the panic attacks,” he said adding, “It sends a message not just to the University of California but all universities that if they do anything like this again, they will be held accountable.”
“We have apologies from the chancellor, which is unheard of,” he added.
Sacramento Civil Rights Attorney Mark Merin, in fact, 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.”
One of the protesters who was pepper sprayed, Ian Lee, told the Vanguard, “The days that followed November 18th, I suffered major panic attacks. And so, to me, the pepper-spray incident told me that I had no right to speak out against the University’s unreasonable tuition hikes.”
He said, “In fact, for weeks following the incident, I was afraid to protest at all. The University silenced me. The University squashed my First Amendment Rights, and hopefully this lawsuit tells them that students should not have to be afraid to speak out or to dissent.”
He told the Vanguard he was reasonably pleased with the settlement.
“But,” he said, “we still have to continue fighting privatization of the university, increasing tuition costs and, of course, make sure that events like November 18 never happen again.”
Mr. Lee told the Vanguard that he felt that the lawsuit could have gone on for years, with uncertainty of the outcome.
“I think that the settlement is a step in the right direction,” he said.
Ian Lee learned some cynical lessons from this episode.
“It seems to me that the university values its property more than the health and well-being of its own students,” Mr. Lee said. “I think through the Kroll and Reynoso reports we’ve really been shown that.”
He pointed out that in response to the student protests, the university sent in “riot cops.”
He told the Vanguard that since the incident, he is very anxious around police officers.
“Now I’ve learned that the police are not accountable to the students and students cannot trust police to solve any problems I might face,” he said.
As a freshman at the time of the incident, Mr. Lee still has several years left at the university, but he said he’s not sure that the university will ever be able to rebuild that trust.
“Practically, I’m not sure the university can ever rebuild that trust,” he said, though he suggested that if the university gives the students some measure of control over the police and police policies, in addition to stopping its movement toward privatization and stopping its attempts to supplement its shortfalls with tuition hikes, “then I suppose I can begin trusting the university.”
But he said it is hard for him to conceive of those things happening.
“I think that the current developments are steps in the right direction but I won’t be completely satisfied until police are entirely accountable to the students and I’m not satisfied until the message of our protests against the privatization of the university and the austerity measures that the university’s imposing – I won’t be satisfied until all of that gets addressed,” Ian Lee added.
As for the money, as he noted in his speech, “To the repeated question ‘what are you doing with the money?’ – the University of California is going to take it all back as tuition/fees. And then it’ll take some more.”
—David M. Greenwald reporting