Task Force and Kroll Find Pepper Spray Not a Reasonable Use of Force; Hammers Chancellor and Lt. Pike –
The findings of the long-awaited Pepper-Spray Report are basic and succinctly summarized in the introduction: “The pepper-spraying incident that took place on November 18, 2011 should and could have been prevented.” They find that “the decision to use pepper spray was not supported by objective evidence and was not authorized by policy.”
The report paints a damning picture of the university’s response to the protests from the top to the bottom, including indecisiveness by Chancellor Katehi and an unreasonable use of force by Lt. John Pike.
Kroll supported their conclusion that use of pepper spray was not a reasonable use of force by stating, “This conclusion is buttressed by the facts that the MK-9 was not an authorized weapon under UCDPD guidelines and that UCDPD officers were not trained in its use.”
The blame is placed primarily on Lt. Pike for the manner in which the decision was made: “Lt. Pike bears primary responsibility for the objectively unreasonable decision to use pepper spray on the students sitting in a line and for the manner in which the pepper spray was used.”
Huge amount of blame was placed on the chancellor, both for indecisiveness and for countermanding tactical decisions that should have been reserved for police authorities, such as the decision to deploy police to clear the Quad at 3 pm rather than in the middle of the night.
However, at least initially it seems that President Mark Yudof has issued a vote of confidence.
He indicated that, while he has not given the report a full reading, “Even a cursory reading of the report confirms what we have known from the start: Friday, Nov. 18 was a bad day for the UC Davis community and for the entire UC system.”
In what seems like a vote of confidence, he continued: “We can and must do better. I look forward to working with Chancellor Katehi to repair the damage caused by this incident and to move this great campus forward.”
Moreover, the report finds, “The Chancellor bears primary responsibility for the failure to communicate her position that the police operation should avoid physical force.”
The report would hammer the administration for making assumptions about the presence of outsiders, or “non-affiliates” without properly investigating whether this was in fact true, and as it turns out, the report finds that it was not.
The Task Force reports, “Kroll indicates that it has been ‘unable to identify the legal basis for the decision of the Leadership Team to act against the protesters and for the operation mounted by the UCDPD.’ “
The Kroll report states, “The video that went viral and sparked the international concern about this event was the pepper spraying of the seated line of protesters by Lieutenant Pike and then of a smaller portion of them acting at Lieutenant Pike’s direction. This leads to the obvious question: Why did Lieutenant Pike deploy pepper spray?”
The report discounts the defense used by many that they were surrounded by a hostile mob and the use of pepper spray was necessary to clear the path for the officers and the arrestees to leave the Quad.
They write, “While there is some support for this conclusion, a detailed review of the objective evidence undermines this conclusion.”
In fact, they report an officer whose name was redacted was able to walk arrestees through the crowd to a waiting squad car and Officer P “was able to step over the line of seated protesters and walk through the crowd to meet with the Davis PD who arrived to provide mutual aid.”
Moreover, “Lt. Pike’s actions and body language include stepping over the seated protesters to get to their faces, a move that would not generally be undertaken with a hostile crowd.”
The Task Force writes: “On balance, there is little factual basis supporting Lt. Pike’s belief that he was trapped by the protesters or that his officers were prevented from leaving the Quad. Further, there is little evidence that any protesters attempted to use violence against the police.”
Kroll concludes, “Considering all the available evidence – while recognizing that Kroll investigators were not able to interview Lieutenant Pike to learn and report on his state of mind at the moment he used the pepper spray – the deployment of pepper spray does not appear to have been an objectively reasonable use of force.” The Task Force agreed with taht assessment.
The blame is primarily put on Pike, and this is the conclusion both of Kroll and the Task Force, who write, “We agree with Kroll’s conclusion that Lieutenant Pike’s use of force in pepper spraying seated protesters was objectively unreasonable.”
Again they note that, while the crowd chanted that they would not let them go, they largely lacked the cohesion and capacity to carry out those chants.
The Task Force writes: “However, a more careful review reveals several facts that conflict with that belief and which the commanders should have known. For instance, there were breaks in the circle around the officers. Where the circle was unbroken, the line was often still only one- or two-people deep, some of whom were seated, and many of whom may have been observers – crowding around to see what would happen – not protesters.”
The more hostile chants were shouted down by the majority of the crowd.
Moreover, as we have argued: “Nor did they appear to reflect an actual intent by the crowd to prevent police from leaving with their prisoners. In fact, it was during one of the ‘If you let them go, we will let you leave’ chants that [an officer] was able to leave, escorting an arrestee to an awaiting police car by simply walking him straight through the crowd, without incident or force escalation.”
They conclude: “On balance, the evidence does not provide an objective, factual basis for Lt. Pike’s purported belief that he was trapped, that any of his officers were trapped, or that the safety of their arrestees was at issue.”
In fact, the Task Force hammers Lt. Pike arguing: “Lt. Pike is also responsible for the specific pepper spray weapon he used, the MK-9, and the manner in which he used it. The MK-9 is not an authorized weapon under UCDPD guidelines. UCDPD officers were not trained in how to use it correctly. And Lt. Pike did not use it correctly. The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.”
The report begins with the notion that was expressed by Chancellor Linda Katehi – that her concerns revolved around the involvement of “non-affiliates.”
Chancellor Katehi stated, “We were worried at the time about that [nonaffiliates] because the issues from Oakland were in the news and the use of drugs and sex and other things, and you know here we have very young students . . . we were worried especially about having very young girls and other students with older people who come from the outside without any knowledge of their record . . . if anything happens to any student while we’re in violation of policy, it’s a very tough thing to overcome.”
But the report hammers the administration for failure to properly investigate this assumption: “The Task Force concludes that the failure to conduct any additional investigation into the presence of non-affiliates in the encampment was a significant error in the Leadership Team’s decision-making process.”
And indeed, though the information was at the time directly challenged by Student Affairs staff and volunteers, the assertion was unsubstantiated and ultimately proven to be largely untrue.
Writes the Task Force, “Still, one might reasonably decide that even when confronted with uncertainty as to the existence or extent of risks to students, the prudent course would be to intervene immediately to ensure student safety. That decision presupposes that there were no reasonable alternative means available to the administration other than ordering the tents to be removed immediately to adequately ameliorate the risk to students.”
They continue: “The Task Force has received no information describing the extent to which the Leadership Team considered alternatives to the immediate deployment of the police. It is difficult to avoid the conclusion that the Leadership Team’s analysis of alternatives seems inconsistent and incomplete.”
The use of force directive is unclear. Vice Chancellor Meyer told the Task Force, “He did not understand that Chancellor Katehi believed that no force at all would be employed in taking down the tents until her comments following the November 18 police action.”
On the other hand, it appears that, at least initially, Chief Spicuzza argued against the use of force and against the wearing of riot gear, but the Police Department’s pre-event November 15 operations plan, however, stated that “the use of force is highly likely in this type of situation based on past events,” and it forecast the potential use of pepper ball guns and pepper spray (although not the MK 9 canister that they actually used in the event). Senior officers in the Department also believed that the use of physical force might well be required to conduct the operation.”
The Vanguard will have much more on this in the coming hours.
—David M. Greenwald reporting