If you believe UC Davis, the US Bank fiasco is the fault of everyone but them. Twelve of the protesters will get their second shot at arraignment this week, on a series of misdemeanor charges stemming from their role in the bank-blocking protests that went from January 13 until February 28.
And on Friday, UC Davis filed a lawsuit against US Bank who, after they had to close the bank 27 times early and not open at all three additional times, finally gave up and closed their doors.
Perhaps a telling statement was what UC Davis spokesperson Claudia Morain told the Vanguard, that basically the bank was going to file suit and so they reluctantly decided to file it themselves.
And I asked her if that meant they were attempting to do this preemptively, sue the bank before the bank could sue them. And she responded that those were my words, not theirs. But it seems pretty clear that this is what the university is doing.
And the Vanguard fully believes that the decision to forward the names of protesters to the DA’s office was a preemptive strike to avoid liability.
The question I think we must all ask ourselves is whether it was reasonable that the bank would close its doors after protesters caused them to have to close early 27 times and and fail to open 3 times, over a six and a half week period.
I think one of the key legal questions is who is responsible for the space immediately outside of the doors of the bank – in the Memorial Union but, technically speaking, not inside the branch.
The university is claiming that the Bank neither requested nor received assurances that the university would exercise government power at their behest.
“The Bank agreed that the Regents have ” ‘no obligation whatsoever to provide’ security measures.”
Moreover, “The Bank ‘assumes all responsibility for the protection of the Bank, its agents and invitees from acts of third parties.’ The Lease does not obligate the Regents to indemnify the Bank for the costs of providing security.”
I would take that to mean that the Bank would have to provide its own private security inside the bank. However, are you telling me that if a person entered the bank, drew their gun, and stole money from the bank, that the police would not get involved? I find that very difficult to even imagine that’s what the clause meant.
Moreover, in this case, since it is actions just outside of the bank that are ostensibly preventing the use of the bank, the bank would have to rely on the university and the university police to enforce state laws.
We agree that the university does not have the power to “to control the behavior of individuals who are not its agents or who are not acting within the course and scope of their employment with the Regents. Students are not employees or agents of the Regents, and conducting a ‘sit-down’ at a bank is not within the course and scope of any faculty member’s employment at UC Davis.”
In other words, the university has no control over the conduct of student protesters or professors who are not acting in the course of their duties of employment.
At the same time, and I’m sure the bank will argue this, the university is responsible for ensuring that no laws are broken in areas under their jurisdiction, and it is reasonable to presume that the Memorial Union is one of those areas.
The university then presents us with this view: “Although the police tried to dissuade the protesters from continuing their ‘sit-down’ at the Bank, the protesters refused to comply,” they continue, noting that following the events in November 2011, “the police were especially careful to avoid escalating conflict.”
They contend that “the police formed the opinion that trying to physically remove protesters posed an unacceptable risk of emboldening the protesters and others to act violently, or to cause the situation to deteriorate in other ways that would be more difficult for the police to manage.”
The Regents charge: “The Bank asked the Regents to ignore the professional judgment of the police and to order the physical removal of the protesters, no matter the consequences.”
The Vanguard had a lengthy conversation with UC Davis Spokesperson Barry Shiller on this very subject, and he said that they had consulted outside agencies and all of them believed that using the police to clear the area would be a mistake.
So here, as we reported on Tuesday, we have the bank basically screaming that they can’t do business, and asking the university to enforce state laws to allow them to open their doors. And we have the university claiming that they do not want to escalate things.
I think this is where the timeline really comes into play. We see, on January 11, there was a teach-in in the lobby of the bank branch.
The Regents draw a legal distinction between the teach-in that occurred inside the bank branch and the protests outside, arguing, “Although the Regents [are] not responsible for the acts of third parties, after the week of January 13, 2012, there were no more ‘sit-down’ protests inside the Branch, and the alleged default was cured.”
But two days later on January 13, began the blockade of the bank as described on UC Davis’ timeline.
From January 13 to February 2, there are 12 days of blockage, each of which resulted in the bank closing early. It is on February 3, day 13, that UC Davis reports, “Dialogue team discussed time, place, and manner laws and policies with demonstrators.”
Now you are going to tell me that there is nothing that the university could have done in those 13 days to ensure that the bank, their partner, is able to perform their business?
Barry Shiller, of course, defended the university’s response.
“We hoped the situation could be resolved through engagement and education, as occurred earlier in January when the brief occupation of the former Cross Cultural Center ended peacefully and congenially,” Mr. Shiller told the Vanguard. “Based on that, we had reason to hope bank protesters might realize that they could expressively demonstrate their displeasure with the bank’s presence without denying others the ability to enter and exit safely.”
But how long did it take the university to realize that this was not going to work?
Barry Shiller stands by the university’s decision not to use the police to clear the way.
“Yes, we do believe it was appropriate,” he said. “Demonstrators were afforded weeks to modify their behavior. When they elected to continue the blockade, they were warned — verbally or in writing, on 11 occasions between February 3 and 27 — that they were subject to possible criminal and campus sanctions.”
He does however, concede that the university should have, at the very least, moved more quickly to take the steps that were taken.
“Perhaps [we should have] accelerated the steps outlined [previously], moving somewhat more quickly to the above steps,” he conceded.
He continued: “But we believe that focusing first on engagement, and relying on police to intervene when it is clear there are no other options for safeguarding the rights of all members of the campus community, is a very viable long-term approach for resolving campus conflict while preserving the rights of all community members to engage in expressive, protected free speech.”
We stated that we felt the police needed to be brought in far sooner – that the university had the obligation to ensure that the bank could do its lawful business.
On the other hand, I think the university believes it did the right thing by not arresting protesters.
As math professor Greg Kuperberg noted, “[The] university was right not to arrest protesters in a hallway choked with smartphones and thus risk another YouTube-driven fiasco.”
The university likes the way it did this because, from their perspective, it is clean. The DA investigated, filed charges and sent the notices to appear in the mail. Now the DA and not the university gets to be the heavy.
The problem is that it took too darned long to achieve this. 27 days the bank had to close early. Three days they did not open at all.
The UC report on the “Response to Protests on UC Campuses” they tellingly write: “Civil disobedience by definition involves violating laws or regulations, and that civil disobedience will generally have consequences for those engaging in it because of the impact it can have on the rest of the campus community.”
Moreover, “The First Amendment does not guarantee any right to engage in civil disobedience – which, by its very definition, involves the violation of laws or regulations to communicate a political message – without incurring consequences.”
In fact, it requires for the protester to in fact be arrested “as a sacrifice to the political cause in question.”
The bottom line here is that there needs to be an understanding that these kinds of actions require the university police to intervene. And if the reason we do not have them intervene is fear, then we have a problem.
The reason we have police is that they are the first responders to an emergency crisis. They need to be trained as to how to peacefully effect arrests in what is understandably a tricky situation involving civil disobedience.
But the reason the police need to respond is that the DA’s office is not equipped to make quick investigative decisions. Instead, they are equipped to conduct lengthy investigations so that they can not only gain a conviction but have reasonable assurances that evidence can support the charges that they file so that they don’t unduly put an innocent person through the legal system.
That due diligence means that it might take a few months for them to complete their investigation. As we saw, those few months were enough to force the bank, frustrated understandably at what they saw the lack of will by the university to make the tough choices, to close their door.
We cannot possibly believe that the university will prevail on their action. What reasonable person could believe that it was the bank and not the university who breached the contract following six and a half weeks of inaction on the bank-blocking front, after 27 early closures and 3 more days of never opening?
It is inconceivable that a group of students sitting in front of a bank could close a bank branch down. Inconceivable, I say. And the only possible way to have conceived it is massive errors, in this case falling squarely on the shoulders of the university.
As UC reviews its policies, we need clear guidance on how to respond to civil disobedience, because more and more it seems that UC police are in the business of figuring out how to properly handle protests and protesters, and attempting to avoid repeats of November 9 in Berkeley and November 18 at UC Davis.
—David M. Greenwald reporting