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