It has been over 8 months since the November 18 incident at the UC Davis Quad made national news when seated protesters were pepper sprayed by the UC Davis police. The officers at the center of the controversy are no longer with the university.
The Vanguard confirmed that Lt. John Pike and Officer Alexander Lee are no longer with the police force. What we do not know, and probably never will know, is whether they resigned, were fired, or simply did not have their contracts renewed.
UC Davis Spokesperson Barry Shiller confirmed that John Pike is no longer an employee of the university.
He told the Vanguard in a statement, “Consistent with privacy guidelines established in state law and University policy, I can confirm that John Pike’s employment with the University ended on July 31, 2012. I’m unable to comment further.”
However, he was unwilling to confirm whether Lt. Barry Swartwood, who was the incident commander, or Officer Alexander Lee remain university employees.
He told the Vanguard: “As you know, the courts have only permitted the identities of two officers — John Pike and Annette Spicuzza – to be revealed while an appeal filed by the police union is litigated.”
However, Claudia Morain told the Davis Enterprise that the employment of Alexander Lee ended on July 11.
The determination of the employment status of John Pike and Alexander Lee appears to indicate that the university has completed its internal investigation. The Yolo County DA’s office has yet to determine whether or not to file criminal charges against the officers.
In April, the independent investigations led by the Kroll Team and the Reynoso task force concluded: “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”
Kroll wrote: “The actual deployment of pepper spray by Lieutenant Pike and by [Officer Alexander Lee] at Pike’s direction was flawed and unnecessary.”
The task force found, along with Kroll, “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.
The task force found, “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.”
They found that the pepper spray used was unauthorized under UCDPD General Order No.559, which “provides that pepper spray can be used, but specifically refers to the MK-4 (a smaller canister).”
The task force added, “Furthermore, the investigation found no evidence that any UCDPD officer had been trained in the use of the larger MK-9.”
Kroll supported their conclusion that use of pepper spray was not 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 task force noted that UCDPD officers were not trained on how to use this pepper spray correctly and that they “did not use it correctly.” Writes the task force: “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.”
Deanna Johnson was one of those pepper sprayed. She spoke with News 10 last night.
“I was sitting near the front. I had burns on my hands after the event,” said Ms. Johnson. “It’s nice to know that a little bit of my tuition is no longer going to his salary. But in reality, it doesn’t change much at all. Police still have access to these military grade weapons. The chancellor and assistant chancellor, who ordered this event, are still running this university. They haven’t had any backlash toward them whatsoever. This really isn’t enough. “
Student Sarena Grossjan was also pepper sprayed.
“It’s frustrating that people are only focusing on the pepper spray (incident) and not on the students who were involved in the bank protests and have to go through those trials,” said Ms. Grossjan.
The students have a pending civil suit against the university.
Vanguard’s View – Police Lose Their Jobs, Administrators Keep Theirs
The three officers involved in the incident are now gone. John Pike and Alexander Lee’s departure follows the retirement of Annette Spicuzza immediately following the release of the report in April. It would appear that the incident commander Barry Swartwood will at the very least retain his job, despite approving the use of pepper spray.
Frankly, the termination of Alexander Lee is surprising. The Vanguard determined his identity through his photo, combined with a number of records requests. These records requests show that he was a recent student at UC Davis where he served as a Cal Aggie Host.
Upon graduation he got a job as a police security officer – a non-sworn position, a position he held as recently as June 2011. Somewhere between June 2011 and November 18, 2011, he became a sworn police officer.
His involvement was limited to carrying out the orders of his superior officer. Police and legal experts have told the Vanguard that officers are trained to uphold the law and resist illegal orders.
The Vanguard remains concerned at the length of time that the District Attorney’s office has taken in determining whether to file criminal charges in this matter.
The Vanguard now believes that a federal investigation may be warranted to determine whether the officers violated Title 18, USC Section 242, “Deprivation of Rights Under Color of Law.”
According to that federal law: “This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.”
The key question is the determination of “willfully,” but the fact that the officers acted without clear legal authority, as well as used unauthorized pepper spray against protesters who were seated, passive and posing no clear or immediate threat bolsters that case.
The statute notes, “Acts under ‘color of any law’ include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under ‘color of any law,’ the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties.”
Finally, the Vanguard notes that, while the police were convenient targets for dismissal, the report made it clear that the November 18, 2011 incident was the result of systematic failure.
As Kroll noted, “It was the systemic and repeated failures in the civilian, UC Davis Administration decision-making process that put the officers in the unfortunate situation in which they found themselves shortly after 3 p.m.”
Indeed, it was Katehi who chose the time of day to clear the Quad against the advice of the police, and it was Katehi and her subordinates such as John Meyer who worried about non-affiliates.
As the task force wrote, “No one can know for certain what would have happened if the police operation had been conducted in the early morning on Saturday, or a day or two later on Sunday or Monday night. What is clear is that the timing of a police operation is a tactical decision that should be determined by police officers rather than civilian administrators.”
Added Kroll, “By insisting that the tents not be allowed to stay up on Friday night, Chancellor Katehi did in fact make a tactical decision: that the tents would be removed during the day.”
The chancellor and her team did not know the true extent of the non-affiliates, and ignored the warnings of those such as Vice Chancellor Griselda Castro, who believed the number of non-affiliates to be overstated and unsupported by on-the-ground intelligence.
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.”
However, as Kroll noted, and the task force concurs, “These concerns were not supported by any evidence obtained by Kroll.”
The task force reported, “Assistant Vice Chancellor Castro explicitly challenged Chief Spicuzza’s report that a substantial number of the protesters at the encampment were non-affiliates and the Police Chief conceded that Castro’s information was more credible than the reports of her officers.”
However, the chancellor challenged the report of Ms. Castro, asking if she could “prove” that the protesters were mostly students. Castro replied, “I didn’t ask for IDs. It’s just from my sense of what I know.” The Leadership Team did not discuss the matter further.
“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,” the Task Force concluded.
The bottom line is the police involved in this incident have lost their jobs, and the administration who clearly made the policy that led to the incident are still employed. The Vanguard must question the fairness of this outcome – if indeed this is the final arrangement.
—David M. Greenwald reporting