As the Kroll investigators note, “Without the legal authority to demand that the tents be removed, the police lose the legal authority for much of what subsequently transpired on November 18, including the issuance of an order to disperse and the declaration of an unlawful assembly.”
As we have noted previously, there was a long discussion of the legal authority to take police action and that underlies the discussion as to the timing of the action. An action at 3:00 pm in the afternoon was seen as more legally suspect than an action that occurred at night, when they could make a more clear point about the overnight camping.
Kroll notes, “Vice Chancellor Meyer raised the question in a Leadership Team email on October 25 wherein he discussed two possible protest scenarios, including camping on the Quad.”
He writes, “Camping is not allowed on the quad, however removal of occupants may create a scene with Police removing individuals and property that could be troublesome. We do worry that if camping persists it could attract individuals that have no affiliation with the campus which raises other security issues. We are assessing our legal options and are not inclined to allow tents or structures.”
Latter Chief Spicuzza said, “No setting up of tents or ‘camping’ will be allowed on campus. The act of ‘camping’ was discussed and it will include sleeping on campus without a tent. We have had a report of a hammock being hung between trees near Mrak.”
However, “The Chief cited no legal authority for this position.”
Kroll notes that the legal discussion continued until the moment of the police operation and that Lt. Pike and Officer P sought legal advice from the Campus Counsel over their concern about the legal basis for removing the tents.
Kroll cites and ultimately dismisses three legal bases of tent removal.
Under California Penal Code section 647(e), the charge that the arrestees were ultimately charged with upon arrest, provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.”
But this was problematic. Kroll argues the arrests were made in the middle of the afternoon and that it “is not clear that the arrestees were, in fact, connected to any of the tents or had in fact ‘lodged’ on University property.”
Kroll argues that this problem likely explains why the District Attorney’s office declined to prosecute the arrestees.
The second basis was that use of university property for overnight camping is prohibited by the UC Davis administrative code. Kroll writes, “While this administrative code was frequently cited by campus police, it appears to be simply a campus administrative rule.”
Kroll argues, “Enforcement of such a rule by the police, by way of arrest and criminal process, would seem legally suspect, as opposed to enforcement by way of campus administrative procedures.”
In other words, an administrative violation would not give police the authority to enforce the code.
Finally, they argue the California Code of Regulations “forbids non-affiliates from camping on university property.”
“This regulation has been cited in a letter by Campus Counsel to Kroll,” Kroll writes. “In the letter, Campus Counsel asserts that if non-affiliates refuse to comply (e.g., vacate the tent) they are guilty of a misdemeanor.”
This is why the non-affiliate discussion is important, but as Kroll writes, “The problem remains that none of the arrestees was tied to any specific tent, and of the ten persons arrested, eight were current UC Davis students.”
“It is clear that the UCDPD leadership was concerned about its legal authority to remove the tents, at least during the daytime. It is equally clear that the UC Davis Administration was adamant that it did not want tents on campus and that the tents were considered a threat to health and safety,” Kroll writes.
Kroll concludes by writing, “In the course of its investigation, Kroll 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.”
They continue: “It appears that the UCDPD mounted its operation absent the clarity of legal authority under pressure from the Administration to do something to get rid of the tents. The interviews conducted by Kroll indicate that Chief Spicuzza failed to challenge or question this administrative policy directive at crucial decision points.”
Moreover, it was not Chief Spicuzza but Lt. Pike and Officer P who demanded that Campus Counsel be called to obtain legal guidance.
Not only does the lack of legal authority undermine the entire legal basis for the operation, it also contributed to confusion on the Quad.
When an officer spoke to the activists, the activists asked, “Officer, what is the crime that we are committing right now?” Youtube videos show that the officer never directly answered that question. Instead he responded, “What I am trying to do here is let everybody know that they are in violation of university policy. Does everyone understand that?”
Later, Lt. Pike ordered them to disperse stating, “Section 409 of the Penal Code prohibits remaining present at an unlawful assembly. If you remain in the area which was just described, regardless of your purpose in remaining, you will be in violation of Section 409.”
But that order has no basis without the underlying violation. Members of the crowd continued to yell, “How is this unlawful?” Later they asked the officer to repeat the law, arguing that this was a peaceful protest on public university grounds during business hours.
The idea that there was no legal basis for the police operation in the first place further undermines an already shaky case for the use of pepper spray.
The sequence of events can now be understood in this light – protest on the Quad, unlawful police order to remove the tents, unlawful police order to disperse, protesters protesting the unlawful arrest and resisting the unlawful order.
It is important to note that the protesters were never charged with resisting arrest under Penal Code 148, but the instructions are helpful to understand the nature of an unlawful arrest and the California law dealing with obstruction.
If you look at Calcrim 2656, which are the jury instructions that guide jurors as to how to determine if an individual has violated PC 148, it states “If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully (resisted and/or obstructed and/or delayed) the officer if all the other requirements are met.”
But the key determination for that law is “lawful” arrest. The key element is the peace officer has to be “lawfully performing or attempting to perform (his/her) duties as a peace officer” and in this case, where there was no legal authority to arrest the individuals, they were not.
In fact, California goes further than that, as under Calcrim 2670, it says “If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/[or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself.”
Viewed in this light, it is critical that the entire operation never had legitimate legal authority and therefore everything that went wrong from the point where the order to take down the tents was given, to the application of pepper spray, flowed from that mistake which the Kroll report lays at the feet of the administrators, from the chancellor to the vice chancellor to perhaps the campus counsel itself.
—David M. Greenwald reporting
So what legal counsel WAS given by the UCD team and by whom?
And perhaps THIS is why the administration decided not to go forward with prosecution, not the empathetic way it was portrayed?
Forgive me if I am skeptical of any actions by the current higher leadership at UCD.
The legal counsel was given by the Campus Counsel and since it is attorney-client privileged information, we will never know what it was.
The article notes that Kroll believes this is why the DA’s office chose not to prosecute – there was an illegal arrest. This is also what happened in 2007 at Mrak Hall.
Ineffective management, dereliction of duty, insubordination, lack of training and complete abandonment of mission by key leaders led to this fiasco. The failed and apparently illegal Quad operation was a fortunately mild warning that no one is at the wheel of this still drifting ship.
vanguard: the protesters in essence broke no laws and without the breaking of laws the arrests were unlawful and any resistance would be permissible under the law.
not true… the chants “if you let them go, we will let you leave, if you let them go we will continute to protest peacefully” were unlawful threats and that hasn’t changed one iota since these revelations….
the vanguard, reynoso, and kroll shrug these off because they “were not credible threats” – the problem with that one is at the time a chant like that is first uttered, and picked up by others, at no point does anyone know whether another person will decide to act on those threats and make them credible – but there is still potential to become hot. and the intent to stir others into unlawful action is placed on the table. that is not legal, moral ethical, or protected under the first amendment.
Reynoso/Kroll did a disservice to the community by not addressing this.
In regards to the other point the vanguard made – that addressing student behavior in itself was not Kroll/Reynoso’s mission….. I’m not sure I’m buying that one, but let’s suppose I did…
then what the vanguard is admitting is Kroll/Reynoso set up their “fact finding mission” with biased non open ended, non open minded objectives agaisnt the police from the getgo. If this is the case, the vangard just shot the credibility of both reports.
otherwise, the reports largely failed to hold the students accountable for their behavior in any shape, manner or form.
Ultimately, student behavior contributed to this mess heavily – that hasn’t changed – unlawful behavior does not negate other unlawful behavor.
the other thing that has not changed is it is clear from the conduct of the protestors they WANTED A CONFRONTATION WITH THE POLICE, and DID ALMOST EVERYTHING IN THEIR POWER TO GET IT.
again, neither Reynoso/nor Kroll address this. instead, they gloss over it, merely uttering that the behavior did not justify the use of pepperspray. But did not address it on its own merits, whether it was wise, and should have been done, or morally just. Simply put, it made the situation hot. AND THAT IS A FACT.
basically the equation you have is a series of blunders, screwups on the part of everyone. The other talking point uttered is how the police have a “higher duty.” yes they do. but that doesn’t let the protestors off the hook for unlawful conduct. And their unlawful and malicious conduct is not made lawful or less malicious because of the legal issue with respect to removing the tents. It just means both parties need to meet justice separately. that is all it means. The police should be held accountable, the university, and the protestors themselves in separate venues.
The protestors did not do the right thing, and yet as we see from the video, they are treating this as a vindication of themselves which it clearly was not. This is how reynoso and company reveal their true political bias. they didn’t come into this situation with squeaky clean motives.
but just maybe at a later date, they would like to jump in again, and next time, check their agendas at the door.
Thank you, yall have a nice day now. 🙂
Let’s face it… the authorities made the wrong choice of “sprays”…. they should have turned the sprinklers on @ midnight, and let them run, and, if necessary, claimed it was an ‘irrigation malfunction’. A previous poster on this issue suggested the sprinklers, but cannot remember who to give the credit to.
“It just means both parties need to meet justice separately. that is all it means. The police should be held accountable, the university, and the protestors themselves in separate venues.” That is exactly what is occurring now . Sorry you don’t like the conclusions most reasonable people are likely to make from the hundreds of hours of video, audio and written accounts of the events .
Octane:
“he chants “if you let them go, we will let you leave, if you let them go we will continute to protest peacefully” were unlawful threats”
Please cite the Penal Code that this violates and explain how this constitutes an “unlawful threat”
You’ve made this assertion numerous times and not once have you backed it up with supportive evidence.
For instance, Kroll notes that when the students made the “Davis to Greece” chant, it “immediately drew a response from the gathered crowd” and several people said no and urged no violence.
Kroll writes, “After three repetitions, or about 15 seconds, the chant faded. The activists then began to chant “You use weapons, we use our voice.””
Morover, the Kroll report notes, “As the crowd chanted, “If you let them go, we will let you leave” led the arrestee out of the northwest side of the encircled crowd without incident.”
So please cite the penal code and explain how the crowd’s chant rises to the level of a criminal threat as you assert. Thanks.
hpierce-In the 1980s I worked at regional park in midtown Sacramento. We were faced with homeless campers abusing the parks facilities after dark . I programmed the sprinklers to come on for 3 minute intervals at random stations after 11:00 p.m. It worked as planned, clearing the campers, with no complaints from anyone. A senior park maintenance worker wisely observed,” As long as nobody’s watching, nobody cares .” Something Pike and cohorts would have been wise to observe . Since the civil rights marches of the early 1960s, media coverage has been the bane of abusive cops and the ally of the protesters . The Chicago police riot at the 1968 Democratic convention should have been the ultimate lesson. But the history of police response to civil disobedience is, sadly, a repetition of past mistakes, with only an occasional, usually forced, correction .
[quote]Let’s face it… the authorities made the wrong choice of “sprays”…. they should have turned the sprinklers on @ midnight, and let them run, and, if necessary, claimed it was an ‘irrigation malfunction’. A previous poster on this issue suggested the sprinklers, but cannot remember who to give the credit to.[/quote]
Yes, I suggested that a few articles ago… but I cannnot take credit for the idea. Someone else suggested it at the time of the whole fiasco. It was such a simple solution.
[quote]“Without the legal authority to remove the protesters, the protesters in essence broke no laws, and without the breaking of laws the arrests were unlawful and any resistance would be permissible under the law….the entire operation never had legitimate legal authority….”[/quote]You ain’t just kidding. If you’re correct (that these were undertaking unlawful arrests), that puts this action in an entirely different light that it’s been until now.
Lots of this issue revolves around judgment calls. If the demonstrators were not breaking any laws, authorities would be hard pressed to justify taking any action against them.
How confident are you that Kroll and the commission are correct in their evaluation of laws here? Did the university representatives who were interviewed agree or disagree? It’s been my impression that it’s not difficult for demonstrators to find themselves trespassing once they’re instructed to move from a property.
It’s just incomprehensible that UCD doesn’t [u]know[/u] applicable law backwards and forwards, as they say.
This would make two unquestionable strikes. If Pike (and others?) violated university policy in having and using an “unauthorized weapon,” that’s one clear, non-judgment-call point.
(that [s]these[/s] they were undertaking unlawful arrests)
“How confident are you that Kroll and the commission are correct in their evaluation of laws here? Did the university representatives who were interviewed agree or disagree? It’s been my impression that it’s not difficult for demonstrators to find themselves trespassing once they’re instructed to move from a property.”
The problem is the same problem you have at Mrak, public access during business hours=no trespassing.
I have to think Kroll had their own own attorney review it. The university had the opportunity to make their case and the confusion on the ground speaks volumes.
I,m the poster responsible for the suggestion that turning the sprinklers on in the middle of the night would very quickly discouraged protesting campers who’s low quality equipment was not up to the rigors of winter camping.
From the get-go I have never understood why UCD police officers, who were assigned to remove a dozen supposedly illegally pitched tents, were intent on wearing full riot gear. When the Sac. P.D. removes tents belonging to homeless folks on the parkway, many of whom are mentally ill and have violent criminal histories, they don’t seem to need riot gear.
Perhaps the UCD cops were expecting blow-back, given that they were aware that there was no legal justification for removal of the tents.
“When the Sac. P.D. removes tents belonging to homeless folks on the parkway, many of whom are mentally ill and have violent criminal histories, they don’t seem to need riot gear.”
roger-we have a couple of very good guys who started the program and mentored those who came on board afterward .( I am not sure we would have the resources to do that kind of “training” today) Most Sacramentans of all political stripes are pretty satisfied with our officers handling of crowd control situations and at least as important is the perception of accountability from command on down in the SPD .
[quote]“The problem is the same problem you have at Mrak, public access during business hours=no trespassing.”[/quote]I get that part, although blocking passage would make a difference, I’d think.
My real question is: What is the law? Are the Kroll and Reynoso groups claiming unquestionable legal findings (of which UCD officials didn’t have a clue)? Your write-up pretty well concludes this.
Or, are they just offering some rationale for the “confusion on the ground”? Confusion might speak volumes, but are they law books or comics. Would you please give some guidance in locating the parts of the report that deal with this matter?
JS:
Blocking passage only occurred after a series of events.
I pulled from the Kroll report their discussion of the law. I assume they had legal advice, it seemed well-informed. The lawyers I have talked to seem to agree this was a problem.
I’ll do some follow up on this.
Another point to consider on whether the laws applied meet the standard of a legal arrest: Did the ACLU lawsuit include wording, “unlawful arrest and detention” among its complaints to the court? I don’t recall that it did.
ACLU has a staff of attorneys to examine every aspect of the incident and construct their suit accordingly? They are not particularly known for giving the police a mulligan if they enforce the law improperly. So, IF the suit is silent on this point, it is probably for a reason, a legal reason.
I hope that as the Vanguard analyzes these events person by person we’ll learn a little more about UCD’s legal counsel and why they weren’t more involved from the beginning; Katehi seems not to have felt the need for
their serious involvement. Likewise the police chief.
You’d think campus legal counsel would have been far more proactive in
the decision making process, or called an immediate halt at 2:30 when Pike and Lt. L contacted them with questions.
[quote]“They are not particularly known for giving the police a mulligan if they enforce the law improperly. So, IF the suit is silent on this point, it is probably for a reason, a legal reason.”[/quote]Good question. To me, it’s a Big Deal for Justice Reynoso and the Kroll group to conclude the UCD police made unlawful arrests on Pepper Spray Eve. [u]Everything[/u] has to be viewed in a different light. It’s no longer an exercise about whether peoples’ judgements were bad, but why they would have acted in some obviously(?) unlawful manner.
The difference between lawful arrest and unlawful arrest rests on whether police act at 3 p.m. or 7 p.m.? This is a distinction that easily would have gotten by me, but certainly should have been a fact that everyone from the lowest ranking officer to the chancellor should have known.
There’s been a lot of weird lawyering going on around Davis lately (charges of retroactive prosecution, etc.), but they’re easy to discount considering the minimal expertise of the demonstrators making the legal claims. Even though a California supreme court justice apparently has certified the unlawfulness of the whole undertaking, I guess I need to read it myself.
According to the Report, the events leading to the eviction on Nov18 was quite chaotic, because the Police was disturbed from their usual, tried operation mode to evict at early morning to 3pm. On KQED, Reynoso highlighted these issues on legality: [Ref: ~1:40] ([url]”http://www.kqed.org/a/forum/R201204120900″[/url])
1) The flyers distributed to the students only cited the university policy prohibiting overnight camping
2) Whether sworn officers have the authority to enforce university policy
3) Whether the reply from the Campus Counsel was correct.
However, the law the Pike announced during the eviction was 409 PC, the prohibition on remaining present at an unlawful assembly. The unlawful assembly, according to the Counsel, was California Code of Regulations Title 5 Section 100005 which prohibits non-affiliates from camping on University property. This had nothing to do with overnight camping.
As Reynoso said on radio, it was “confusing”.
I don’t study laws. I read it like as follow, if you see what is wrong with my understanding please do point out the errors.
1) On Nov17, Castro was with the protesters. She asked the protesters about non-affiliate: (91/190)
[quote]I asked about non-affiliates. They said [they were] students, you know, there might be a couple of alumni, but then again I saw religious groups out there supporting them.”[/quote] This means that there was no misunderstanding on who were non-affiliates. If Castro knew names of the campers it would have been quite easy to find out how many non-affiliates were camping. An interview with the protesters would also very easier confirm (or reject) whether non-affiliates were camping there.
2) Believing that there were at least 2 non-affiliates camping. Then there was an unlawful assembly on the Quad. It was legal to send the police to arrest and take down the tents of those non-affiliates.
Question: Suppose it was lawful to disperse, did the police have the legal basis to clear any tent at the site, or just the tents owned by the non-affiliates?
3) According to 409 PC, anyone who remains at an unlawful assembly can be arrested. This includes non-affiliates (the ones who made the assembly unlawful), and student protesters and onlookers who just happened to be there.
4) Before the eviction, Pike warned the protesters about 409 PC, but did not explain why the protesters were at an unlawful assembly. Pike gave this dispersal order: (116/190)
[quote]Section 409 of the Penal Code, I hereby … as an unlawful assembly. If you remain in the area, which was just described, regardless of your purpose or … you will be in violation of Section 409 of the Penal Code. A full route of dispersal is available directly northeast. You now have two minutes to disperse.”[/quote]
People that police arrested are generally called “suspects”. Is there an argument against the suspicion that there were non-affiliates camping at 3pm on Nov18? Why did the Leadership Team need to confirm exactly that there were non-affiliates at the camp?
What was illegal about this?
Edgar Wai, we’ve just had a thorough investigation. We shouldn’t be wondering whether or not the police action upon which everything followed was unlawful. If the Reynoso report isn’t definitive on this most important of matters, the rest of the conclusions it discusses are of less value.
I’m not comfortable with the back and forth on such a critical point. Time to read Reynoso’s report from beginning to end. Where is your link supposed to go? it took me back to a general Vanguard page.[quote]“The article notes that Kroll believes this is why the DA’s office chose not to prosecute – there was an illegal arrest. This is also what happened in 2007 at Mrak Hall.”[/quote]If these arrests are a clear repeat of a 2007 illegal arrest, it’s inexcusable. If these observations are just a bunch of speculation and unsupported opinion, then it’s unhelpful to the discussion.
My link was this http://www.kqed.org/a/forum/R201204120900 [Ref] ([url]”http://www.kqed.org/a/forum/R201204120900″[/url])
I am confused about your message. It is the Reynoso’s conclusion that the legality of the arrest was unclear. According to the Reynoso Report: [quote](14/190):
[b]E. There Was Confusion as to the Legal Basis for the Police Operation[/b]
As of the writing of its report, 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.” There is a record of continuing questions and dialogue about the University’s legal authority to support tent removal with police action. At different times, various statutes and administrative regulations have been cited to support the University’s authority in this matter. Kroll notes “At the time the operation was mounted (and continuing until the present) it was not clear what legal authority existed for the campus police to remove the tents and arrest those who opposed them.”[/quote]
Could you clarify your message? Which of the following messages do you mean:
a) Reynoso should have known whether the Nov18 operation was legal. If he couldn’t figure that out and include that in the report, the release of the report should be delayed.
b) It is obvious that Reynoso knew that the operation was legal. We don’t see a definite statement by Reynoso asserting that that it was legal because ____. We shouldn’t be talking about whether the operation was legal because that would be pointless and impedes the process of moving forward.
c) (Other)… ?
For the quote you made, half of it came from page 147:
[quote](147/190)
California Penal Code Section 647 (e). The arrestees were charged with violating this section, which provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.” The arrests on the UC Davis Quad were made at 3:00 p.m. and it is not clear that the arrestees were, in fact, connected to any of the tents or had in fact “lodged” on University property. [b]This likely explains why the Yolo County District Attorney’s office opted not to proceed with the prosecutions.[/b][/quote]
The other half about Mrak Hall 2007 is not from that Report. That was David’s comment. The Report itself did not state whether the operation was illegal, but I could have read it wrong. The line that was confusing was this:
[quote](148/190)
In the course of its investigation, Kroll 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.[/quote]
For this statement, a person could read it two ways:
A) Kroll can’t find the legal basis, therefore the operation was illegal.
B) Kroll can’t find the legal basis, but there could be one.
At this point I have a question. When Kroll writes:
[quote](95/190)
Pike’s description of the subsequent discussion on the conference call was redacted, apparently due to attorney-client privilege.[/quote]
Does it mean that Kroll read the information but could not comment on it, or that Kroll did not get to read the information at all?
Edgar, sorry for the confusion. My basis for the comments was David’s story (“Unlawful Arrests at the Core of the Failed Quad Operation November 18”) and the comments that have followed.
I confess I’ve struggled with the concept that UCD and the police would engage in such an undertaking if they knew it was unlawful or that they’re so poorly informed that they didn’t know it was unlawful. Since I hadn’t yet read Reynoso’s report or the Kroll report, I was operating on the assumption that:[quote]“Viewed in this light, it is critical that the entire operation never had legitimate legal authority and therefore everything that went wrong from the point where the order to take down the tents was given, to the application of pepper spray, flowed from that mistake….”[/quote]Now, that I’ve gotten through most of it, I’m thinking that David might have gone too far in his assumptions, and that the questions you raise are ones that he should have as he was looking at the issue.
In fact, the entire Reynoso report has only a small section on the legal authorities involved, and they really didn’t take the stand that police engaged in unlawful arrests.
[quote]I confess I’ve struggled with the concept that UCD and the police would engage in such an undertaking if they knew it was unlawful or that they’re so poorly informed that they didn’t know it was unlawful.[/quote]
I suggest you start paying closer attention to the police and those in power. Katehi herself was involved in an admissions scandal at her former position in Illinois. I always wondered how she escaped unscathed, given the email documentation of her involvement. Having observed faculty and community members line up to protect her after the pepper spray incident, now I now that certain people gravitate to power and assume its infallibility. UCDPD has a history of questionable and illegal behavior. David has documented much of this. Spicuzza and Pike both have been involved in incidents of discrimination. Why is it so hard to believe these people are capable of mistakes or, worse, of knowingly illegal behavior? The Kroll report is clear about the cops knowing that they were on shaky legal ground. Yet they proceeded with the illegal eviction and used illegal pepper spray, even after the tents were down. As Reynoso commented, cops enjoy almost total impunity, created in part by the shield law. So given their history, and given the public’s unwillingness and/or inability to hold them accountable, why wouldn’t these people break the law? By not demanding her resignation, faculty have enable Katehi to continue to suppress dissent on campus, which she is doing by attempting to send the “Davis Dozen” to jail for 11 years. Some of these students were also pepper spray victims and are involved in the ACLU lawsuit against the university. Given the administration’s history, and given the findings of the Kroll report, are we now to assume that the legal basis for this prosecution is any less questionable than the Katehi administration’s previous misguided actions?
It’s laughable to assume, as many have done, that the Kroll/Reynoso report is motivated by some kind of anti-police political agenda. A former police chief, Bill Bratton, led the fact-finding team. Reynoso’s task force included a number of Katehi administration insiders. That the report was as critical as it was speaks to Reynoso’s integrity. The report places as much or more blame on the administration as it does on the police.
When calls for Katehi’s resignation were loudest, many urged us to await the findings of this report. Now that the report has shown Katehi to be incompetent at best, the same voices want to downplay the report and claim that it is biased. So who has the political agenda here?
Re: JS
According to the Report, Meyer believed that the university policy was already violated given that the Protesters stayed overnight on the night of Nov17. The objective of the operation was to remove the tents. Regardless which protester stayed in which tent, the tents were not lawfully present.
[quote](95/190)
When asked by Kroll investigators if there was any discussion about how the administration could enforce a policy regarding “overnight camping” during the daytime, Vice Chancellor Meyer said “I think by definition it would have been violated already, because they were there the night before.” When asked how the administration planned to determine who was there the night before, Meyer stated that “the argument was … anyone can assemble, but we’re going to … remove the implements of the encampment.”[/quote]
The purpose was not to make arrest. But that it doesn’t mean that they wouldn’t if anyone interferes. Someone please correct me if the following is not the actual law that the arrestees were cited:
[quote][b]California Penal Code Section 409[/b] [Ref] ([url]”http://law.onecle.com/california/penal/409.html”[/url])
Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.[/quote]
The police was there to remove the tents. Protesters resisted. Police made arrest. It was a cascade of two actions, each of them requires legal basis.
A1) Removal of the tents.
A2) Arrest of those resisted.
Since the tents were there overnight and since they were still there at 3pm Nov18, to argue against whether it was legal for the police to remove the tent, the argument has to address these points:
A1.1) If camping is unlawful, does the police have the authority to remove tents?
A1.2) Is it permissible for the police to act without proof, but only with a reasonable suspicion that a law has been broken?
A1.3) On Nov18 was it reasonable for the police to believe that non-affiliates were camping on the quad?
A1.4) Was it reasonable for the police to believe that the tents that remained on Nov18 were the same tents that stayed overnight on Nov17?
A1.5) Does the campus police have the legal authority to act on a university policy?
A1.6) Was it reasonable for the police to believe that California Code of Regulations, title 5, section 100005, which prohibits non-affiliates camping on campus anytime was violated?
A1.7) Does the campus police have the legal authority to act on California Code of Regulations?
To argue against the arrest, the argument should address these points:
A2.1) Was it legal for the police to remove the tents?
A2.2) Did the protesters do anything that would qualify as “riot”, “rout”, or “unlawful assembly” as these terms were used in the California Penal Code Section 409?
A2.3) Did the police lawfully warn the people in the vicinity to disperse?
A2.4) Was there a reasonable ambiguity as to what the vicinity was?
A2.5) Was anyone arrested a public officer, or a person assisting in the dispersal?
vanguard: “Please cite the Penal Code that this violates and explain how this constitutes an “unlawful threat”
You’ve made this assertion numerous times and not once have you backed it up with supportive evidence.”
the supportive evidence is the words that escaped their mouths.
I’ll throw it right back at you:
since when are threats legal, or constitute constitutionally protected speech?
“since when are threats legal, or constitute constitutionally protected speech? “
The problem is you have no established that they are threats under the law, so you are begging the question.
About California Code of Regulations:
I searched for the actual California Code of Regulations, title 5, section 100005 and found that apparently it only takes one non-affiliate to violate the regulation. Please note that I do not know if this is the exact code being cited or whether this is outdated. [Ref] ([url]”http://today.uci.edu/pdf/non-affiliates_conduct_policy.pdf”[/url])
According to that PDF, on Nov18 a non-affiliate could violate many of the regulations in Title 5. For instance, Section 100004 A prohibits any non-affiliate from demonstrating without permission from the university. They don’t even need to be camping to get arrested.
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To: 91 Octane
Sorry to interrupt but I don’t think the Police made any arrest based on any threat (see 140/190 in the Report). Could you confirm that it was a hypothetical question?
In the case that it was a hypothetical question, I think the relevant laws are the following, according to the statements that the police officers made:
1) Lynching: California Penal Code Section 405a, Lynching – the taking by means of a riot of any person from the lawful custody of any peace officer, a felony crime. (127/190)
2) 148 PC: Refuse to get out of the way when the police has a suspect (188/190) [Ref] ([url]”http://dmv.ca.gov/pubs/vctop/appndxa/penalco/penco148.htm”[/url])
For a felony, the police does not need to see it happen to make arrest. They only need to reasonably believe that it was going to happen.
[quote][Ref] ([url]”http://www.calbar.ca.gov/Public/Pamphlets/Arrested.aspx”[/url])
Point 7:
If they have probable cause or good reason to believe you committed a felony, they can arrest you even if they do not have an arrest warrant. (A felony is the most serious type of crime and is usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable by a fine or short jail term.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.[/quote]
Again, please note that this part of the discussion is hypothetical because the police did not make any arrest based on these grounds.
The people I have spoken to do not believe that this rises to the level of a criminal threat.
The first problem is that the chant was very short lived, the majority in the audience did not appear to believe in it, and they stopped very quickly. That really negates the impact as a threat.
But if you look at the penal code, 422 which is the statute that makes a criminal thraet a crime there are a number of elements that are probably not met:
“A “criminal threat” is when you threaten to kill or physically harm someone” – it is debatable as to whether the chant even meets this very basic element
“that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family,” – this one is possibly true, certainly that’s the view expressed by the officers that the Kroll report discounts and if you want to argue this point, then you need to also recognize that the Kroll report contrary to your assertions directly confronts this element. It is worth noting that one of the defense to this charge would be that the recipient could not have reasonably feared for his/ her safety as the result of this chant and that is something that Kroll in fact argues.
“the threat is specific and unequivocal” – the chant that you reference clearly does not meet this element. It is not specific. It is not unequivocal. At best it implies something, but it’s not clear what. The threat was not specific, but was vague and ambiguous.
The third element is probably there: “you communicate the threat verbally…” although how many were chanting it and who exactly makes it impossible to enforce.
Since I knew you would not be doing this, it is pretty clear that the elements of the threat are not met on either part one or part two.
Edgar Wai: Keep in mind, California Code of Regulations, title 5, section 100005 would be a misdemeanor which means it would have to have been committed in the presence of the police to be arrestable. Having a tent at three pm in the quad is not evidence of overnight camping. That’s why it was cited as questionable by Kroll.
Also it is questionable that this wouldn’t be recognized as free speech…
California Supreme Court held that “statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society.”
The court ruled that “a threat can be penalized only if ‘on its face and in the circumstances in which it is made [it] is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution ….'” citing United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027.
Re: David
I do not study laws, so I could be misinterpreting many things. I will update the list later.
[quote](113/190)
Senior Campus Counsel:
The law that most clearly applies is California Code of Regulations, title 5, section 100005 … which prohibits non-affiliates from camping on University property.” According to Sweeney, “this provision applies 24 hours a day, and is not limited to sleeping hours. Of course, if more than 2 individuals are violating this provision, it is an unlawful assembly and the police may lawfully issue a dispersal order.”[/quote]
The police were not there to make arrests. Was it legal for the police to order dispersal with the suspicion that a misdemeanor was committed?
But as Kroll argues: “The problem remains that none of the arrestees was tied to any specific tent, and of the ten persons arrested, eight were current UC Davis students.”
If they were using that law, they would have had to determine which people were UC Davis students and which weren’t.
The sequence was this:
1) Police saw and believed that non-affiliates were camping there. (Section 100005 A)
2) Student Affairs saw non-affiliates supporting the camp (Section 100004 B)
3) Protesters told Student Affairs there may be a couple non-affiliates camping there. (Section 100005 A)
[Ref] ([url]”http://davisvanguard.org/”http://today.uci.edu/pdf/non-affiliates_conduct_policy.pdf””[/url])
4) If more than two non-affiliates were camping, that becomes an unlawful assembly (95/190)
Note that in Section 100005 A, it does not matter if the tent belonged to the non-affiliate. And all of the tents already violated the overnight policy. All of the tents violated the regulation. Some of the tents violated Section 100005.
Then the questions are:
A1.8) Is removal of tents an Action equivalent to an Arrest?
A1.9) Does Arrest for a misdemeanor require the police to wait until the crime had occurred? (YES)
A1.10) Does Arrest for a misdemeanor require the police to wait for the exact moment when the crime is happening right before their eyes?
For A1.10, common sense tells us that the answer is no. If someone was committing a misdemeanor, and stopped when the police came. The moment the police would arrest him, the offender had already stopped. Therefore I believe it is common sense that A1.9 was sufficient basis for an Arrest. If A1.10 was true, the police would be technically impossible to arrest any misdemeanor.
A1.11) Does the police have the authority to remove the tents, that had already violated the overnight camping regulation the next day?
A1.12) Could the police legally order dispersal based on [b]suspicion[/b] of unlawful assembly?
A1.12 is related to this situation: A police officer saw a person committed a misdemeanor. The offender saw the officer and ran then turned a corner. When the officer ran around that corner, he saw a person with similar appearance just standing there, not running. At this point, can the officer arrest, without actual proof that the person he was chasing was the same person standing behind the corner? The officer decided to arrest and brought the suspect to court. at the Court, it was determined that:
Possibility a) the arrestee was not the same person. Was the arrest unlawful or simply unfortunate?
Possibility b) The arrestee was the same person. Could the arrestee sue (and with the possibility to succeed) the officer that at the point of the arrest, the officer could not have determined that he was the same person, because it would take the court to do so (by matching fingerprints to the crime), therefore at the moment of the arrest, the police had no legal basis to arrest him, and thus he should not have been in the court, the court would not have gotten his fingerprints, and thus the whole trial was unlawful?
David, do you have a reference (outside the Kroll report) to why DA dropped the charges for the 10 arrest on Nov18? I thought the Admin decided to drop the charges.
Did the DA independently decided to drop the charges because those charges were bad? Or did the DA drop them because the Admin asked them to be dropped?
I’ll have to get back to you on your first post. I don’t believe you can remove students on that basis, but I’m not a lawyer either.
The DA has sole authority on charges once an arrest occurs. Even if the university requested that they drop the charges, they have no obligation to do so (though it would be prudent). The DA never explained their reasons.
About DA dropping charges.
According to the DA let it be settled that at least they did not drop the charges based on University’s request. [Ref] ([url]http://davisvanguard.org/index.php?option=com_content&view=article&id=5018:breaking-news-no-charges-filed-against-pepper-sprayed-protesters-by-da&Itemid=100[/url])
“District Attorney Jeff Reisig announced today that there was insufficient information contained within the police reports submitted by the UC Davis Police Department to justify the filing of criminal charges against those individuals arrested during the November 18, 2011, confrontation with UC Davis Police during the ‘Occupy UC Davis’ protest.”
But exactly what information was lacking was not explained, which led to Kroll’s comment.
There is a hole in the logic of my last comment. What sort of statement would a DA normally make if they did drop the charges because someone asked them to? Would the DA normally release a statement stating “The charges are dropped because so-and-so asked us not to pursue” ?