My View: Should the Use of Force Be Justified in the Picnic Day Incident?

It has been just two weeks under a year since the Picnic Day 2017 incident occurred.  During that time, the incident has galvanized and, indeed, polarized the community.  From the Vanguard’s perspective, reading the press release immediately raised suspicion about the incident.  Upon the release of video, it became very clear that what took place was not what was described in that initial press release.

The auditor’s report, while not the same thing as the investigative report by McGregor Scott while he was with Orrick, Herrington & Sutcliffe, does shed light on what took place and largely validates the belief that the officers inappropriately approached the situation, their aggressive approach to clearing the street in plainclothes was in violation of department policy, the use of rude language was confirmed, and, most interestingly, Mike Gennaco’s report hammers the DPD on their release of inaccurate or unconfirmed information in the press release.

However, they do not sustain the use of force violation.  Unfortunately, Mr. Gennaco really doesn’t explain that finding in his audit report.  He instead focuses on the three sustained findings, and also spends a good deal of time evaluating both the initial investigation as well as the OH&S report.

In a lot of ways, this is a bit of nitpicking on my part to take issue with the lack of a finding on the use of force, but I also believe it illustrates a problem with how police agencies view use of force in general.

Too often, as we watch police incidents that end with fatalities – even ones where the officers end up being cleared of wrongdoing either by the department, by the lack of prosecution, or by a jury verdict – they often will take a situation, mishandle and escalate, and then basically be forced to use deadly force.

In the final instant moment, the use of force may well be justified, but that missed everything that led up to that decision to use the force.

I want to be clear – based on Mr. Gennaco’s report, I think this is a strong finding.  The officers on the scene and the department itself made a series of critical errors that they will now have to answer to publicly.

But I do worry that the decision to clear the officers on their use of force – even though I do think they made a solid decision to restrain themselves from the use of deadly force here – is in error.

There is an understanding developing that the ability to use force by the police needs to be revised.  I find it interesting to view the nexus between the finding here in Davis and the legislation proposed this week by Assemblymember Shirley Weber that would establish “that a homicide by a peace officer is not justified if the officer’s gross negligence contributed to making the force ‘necessary.’”

That is really what we see here – a mishandled situation that led to the use of force by officers, when proper handling might well have avoided that.

Here Mike Gennaco really hammers the officers, writing that “the ‘plan” the involved officers had initially devised to clear the crowd was inherently problematic, and it largely set the stage for what happened next.”

What is particularly frightening is that apparently, according to Mr. Gennaco, “[t]he involved officers initially decided to clear the roadway the way they did because they were driving a recently acquired undercover van and did not want to ‘burn’ it.”

That decision, perhaps even more than the uncertainty caused by the identity confusion, illustrates why plainclothes officers should not be involved in this sort of activity.  It also demonstrates once and for all that they were trying to conceal their identities at the initial point.

He argues that “while it is fair to say that the aggressive response of some members of the crowd towards the van occupants was also problematic – and formed the basis for subsequent criminal charges – a more thoughtful approach by the involved officers in addressing the blockage of the roadway would likely have limited averted the resulting clash.”

It is important to understand that Mr. Gennaco is not attempting to evaluate the conduct of the crowd members, but rather that of the officers, and he is arguing that the involved officers created a bigger problem with their approach.

He adds that “the poorly devised strategy only served to antagonize. It caused a hostile initial reaction by some crowd members that was both unfortunate and unsurprising: instead of officers, the van’s occupants were as or more likely to be perceived as obnoxious civilians interrupting a festive event without justification. The use of profanity by one of the involved officers would only have escalated this impression and response.”

And the officers made a number of other mistakes here.

He notes, “As the van approached the crowd spilling over into the number two lane, one of the involved officers appropriately radioed to dispatch to have marked cars respond to assist in clearing the roadway. However, instead of waiting until the patrol units could respond, the involved officers decided to take action.”

A point that we noted previously was that “the decision by officers to position the van so close to the crowd left them with no good tactical options.”

And then there is the use of profanity.  He writes that “the (use of profanity) unnecessarily caused potential confusion to crowd members about whether the occupants of the van were police and unnecessarily escalated the situation contrary to DPD’s training emphasis on de-escalation.”

This is a good observation because it illustrates two problems with the profanity.  The first and obvious one is that it inflamed and escalated the situation.  The second and less obvious one is that, because profanity is unprofessional, it led to further confusion as to who these guys were.

It becomes clear that the officers are trying to hide their identity, the crowd had reason to believe these were “obnoxious civilians” rather than law enforcement officers, and that led to the melee that would take place.

So how do you take issue with the officers escalating and perhaps instigating the situation, and then say their use of force was appropriate?  It was appropriate in that they didn’t use excessive or deadly force in the situation.  But the fact that they had to use any force at all represents a profound failure on their part to manage the situation.

Mr. Gennaco opines that a better and more thoughtful approach would “likely have limited (or) averted the resulting clash.”

From the report: “Better approaches are easy enough to envision. Either the involved officers could have waited for responding uniformed officers to arrive or they all could have donned their tactical gear which would have more identified themselves as police officers, parked the van a near distance, alighted from the van, clearly announced themselves as police officers, and requested the crowd to move up onto the sidewalk.”

From there, he argues that the strategy “only served to antagonize” and it “caused a hostile initial reaction by some crowd members that was both unfortunate and unsurprising.”

That being the case, in the totality of the situation, how do you justify the use of force?

While I understand the finding – even if Mr. Gennaco doesn’t go into that part of the report – I think, based on the approach to the situation, force was used in a situation in which it should have never been necessary.

—David M. Greenwald reporting


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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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38 thoughts on “My View: Should the Use of Force Be Justified in the Picnic Day Incident?”

  1. Tia Will

    that force was used in a situation that it should have never been necessary.”

    This is the crux of the issue for me. Many men are still raised to believe that it is their responsibility to protect the women they are with. After reviewing the tape, I asked my partner what his response would have been had I been the woman in this scenario. His response was “I would have tried to protect you.”

    Is this really the best way for police to clear a street of partiers?

     

          1. David Greenwald Post author

            It was out of character, so it would be interesting to know what took place.

      1. Joseph Wisgirda

        Maybe if the cops had acted appropriately, as in PROFESSIONALLY, AS IN, LIKE COPS SHOULD ACT, it never would have happened. This is all on the DPD.

    1. David Greenwald Post author

      “Is this really the best way for police to clear a street of partiers?”

      No one evaluating this matter believes that it was.

    2. John Hobbs

      “I would have tried to protect you.”

      Hardwired into the amygdala, I’m afraid. (pun intended)

      I find those men who can allow such indignity to a lady generally to be of low quality in all aspects of character.

    3. Alan Miller

      Many men are still raised to believe that it is their responsibility to protect the women they are with.

      Sure be nice when that BS is over and modernly-raised men let the women they are with take a few blows and fend for themselves.   Then Chivalry will truly be dead.  I’ll attend the funeral, and engrave the tombstone “Chivalry:  The beginning of humankind – 2018”.

    1. John Hobbs

      “The article states the police were interested in maintaining their undercover status. Why?”

      Perhaps because they were engaged in extra-curricular activities. Watch the big guy coming out of the driver’s side stumbling and swinging wildly. If a cop saw you do that, you’d be arrested for being drunk and disorderly. I gather these cops weren’t even drug tested after the incident.

      1. Joseph Wisgirda

        They didn’t want to give away to the public that their brand-spanking new undercover van was really a cop car, then they would need a new van.

        Hardly justifies what went on.

  2. Robert Canning

    The use of force may have been justified – but the whole business would not have gotten to the point where use of force was necessary if the officers had not displayed bad judgment in the first place. They put themselves and others at risk by their actions (sometimes that’s called reckless behavior). Maybe the question should have been whether the officers used unreasonable force?

    1. Ken A

      If the cop on the ground crawled away he may not have “unreasonably” hurt the poor girl foot who was kicking him while on the ground.  Not defend the cops since it was stupid for a few “undercover” cops to spin in to a big group like that (and I wish they would spend time looking for “real” criminals not walking around “undercover” sneaking up on guys that graduated from UCD in the 70’s with an “open container” and writing expensive tickets)…

  3. Tia Will

    Kieth

    Yeah, it’s not her fault that she got angry and hit and kicked the officer, she must of been provoked, right?”

    So let’s compare her response with the response of the officer who beat the jay-walker. It would seem that you justify his actions which involved the use of far more force than needed to make an arrest, but abhor her actions which were essentially the same after some unknown provocation. It would seem that the fact of having a badge for you justifies any amount of force its owner chooses to use. Or do I misunderstand your position?

  4. Tia Will

    A word about the type of force used. First as a pacifist, I do not believe in the use of force except for defense. If attacked or reasonably “in fear for my life” to use a phrase used to justify lethal force on the part of police, such as when a van has driven up very close to striking me followed by men leaping out shouting obscenities, I might react with a violent defensive series of acts. Now even at my absolute strongest when in my 20’s, I would not have been able to defend myself with my fists, but at that point in time, having been a dancer and climber, my feet and legs might have served to fend someone off for a brief interval, perhaps enough to let me get away. But I would have had to ensure they were truly down, as they would have been able to out run me.

    So which is it guys? Does a woman have a right to defend herself from attack, or is that right reserved for police officers who are free to kill if “in fear of their life”?

    1. Keith O

      I suggest that you watch the video again.  Concentrate on the girl.  She looks like the aggressor to me.

      Heck, even David doesn’t know why she was so angry.

      1. David Greenwald

        That’s not quite what I said.  If you watch the video, it appears that the video nearly hit her as it approached.  But I would like to hear from her.

        1. Keith O

          We all saw the video, I didn’t see anything that would cause her to go off like that.  The van was travelling at like a half mile per hour.  I didn’t see anyone “nearly” get hit.

        2. David Greenwald

          Yes Keith, I wanted to hear from her why she was so angry.  However, we do know that she jumped back from the vehicle as it was pulling into the crowd.  We also know that both McGregor Scott and Mike Gennaco believe that was inappropriate as a crowd control measure.

          Remember they didn’t know who these people were driving the van (we now know that was by design) and what their intention was.

        3. Keith O

          This is all in response to Tia’s comment “After reviewing the tape, I asked my partner what his response would have been had I been the woman in this scenario.”

          Well to me the woman in that scenario looked very aggressive and appeared to deliver the first blow to the officer and later kicked him while he was being held down.

        1. Keith O

          Sorry, that’s not how it works.  For instance, if you were riding your bike on the sidewalk and almost hit a pedestrian would that pedestrian have the right to start beating on you?  I mean you were acting unprofessionally riding your bike on the sidewalk.  Whoever starts the physical aggression is usually the one who is at fault even though you encited it by riding your bike on the sidewalk and almost hitting them.

          1. David Greenwald Post author

            And yet that’s not what the professional investigators said. They bracketed the conduct of the crowd and focused on the conduct of the officers and faulted it.

      2. Tia Will

        If a van nearly struck me and then someone not clearly identified as police jumped out shouting, that might very well trigger me to strike back as hard as I could for my own safety. Too bad we don’t have full video and audio of the whole event.

    2. Howard P

      So which is it guys? Does a woman have a right to defend herself from attack, or is that right reserved for police officers who are free to kill if “in fear of their life”?

      Kinda’ remember someone who abhored dichotomous  thinking… must be an ‘epiphany’ somewhere… “pacifist”? Not hardly… just veiled as “words”/in the form ofquestions that are ‘loaded’…

  5. Howard P

    Another possible alternative for a headline/story…

    Should the Use of Force  Actions that Disregard Personal/Public Safety, Impede Use of a Public Street Be Justified in the Picnic Day Incident in Order to “Party-Hardy”?

    IMO, neither PD personnel involved, nor the proximate “causers” were justified in their behaviors.  Shylock/Sherlock both seemed to feel entitled to their “pound of flesh”… recall which pound was sought in the “Merchant of Venice”…

    With the reports, Pytel’s statement on behalf of PD/City, proposed next steps, am thinking it’s time to move on, move forward… picking scabs generally cause scars… maybe some folk want to see more “blood”… if that is the case, let’s build a Colliseum and let the ‘games’ begin/continue…

    [and yes, fully expect to be excoriated for daring to express an opinion]

  6. Robert Canning

    I agree with Howard P’s re-write of the headline.  But I think David is using the reports more technical term “Use of Force” which has a very specific meaning in regard to law enforcement.

    One of the things that struck me when I read the report was the description of the “the crowd member mak[ing] a physical motion suggesting he might be armed.” Can you imagine what might have happened if this was a concealed carry state? Ugh!

    1. Ken A

      Since they found handgun ammo on one of the guys there is a 98% chance that one of the guys was armed at the time the van pulled in to the crowd.  Fortunately the guy was able to make a run for it and ditch the gun after he realized that the guys in the van were cops and knowing what happens to guys that point a gun (or cell phone) at cops.

    2. Howard P

      Robert… hardly anyone was an innocent… yet, I fully agree that PD officers present over-reacted, big time. That was wrong.

      The proximate event leading up to it were wrong (and arguably, ‘stupid’), as well…

      1. David Greenwald

        As a general point I do think it is important to understand that the criminal justice process was meant to deal with the conduct of the crowd, while this process was meant to deal with the conduct of the police

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