Commentary: Leaps to Conclusion About Pepper Spray Suit Unwise

Pepper-sprayAfter the Vanguard broke the story about the pepper-spray suit’s settlement on Tuesday, we were taken aback by some of comments, and not just on the Vanguard, that assumed that this suit was just about money.

The comment that surprised me the most was made by Supervisor Matt Rexroad, who said that the protesters “do not deserve a dime” even though he admitted that he had not spoken with or met any of the protesters, nor was it likely that he read the complaint itself.

In fact, a string of derogatory comments ensued on Facebook, many of them directed toward the impacts of the act of pepper spraying itself on the students.

Given what I know about the student protesters involved on November 18 who were either arrested or pepper sprayed, I would be both very surprised and disappointed to learn in a few weeks when the settlement is made public that this was about money.

These are people very deeply devoted and committed to a cause for social justice.  They are not operating to line their pocket books.  When I spoke to them in February they were far more concerned with the university admitting to what happened, what went wrong, and taking steps to prevent a repeat, than they were about money.

Attorney fees are another matter, of course.

Much of the rest of the conversation centered around the impact of pepper spray.  The claim from many of the commenters was that, while being pepper sprayed is not a pleasant experience, it is not one that causes long-term health impacts.  Unlike apparently some of these commenters, I do not have first-hand experience being pepper sprayed.

On the other hand, I think many of them are missing the boat.  This is not a personal injury suit, this is a civil rights lawsuit.  The suit is not one for injuries inflicted – though that is a component of it – but rather about the violation of civil rights.

Toward that end, the Kroll Report would be most damaging to the university’s case when it argued that the use of pepper spray was objectively unnecessary and even questioned whether the university had legal authority to clear the Quad.

And while the internal report might have muddied the clarity of the Kroll report, the university was in a very weak position with regard to this case.

The lawsuit charges that “certain plaintiffs were targeted by the police for forcible arrests based on their past political activism and associations at the University,” and that the action of the defendants “had a chilling effect on the willingness of Plaintiffs to exercise their free-speech rights in areas under Defendants’ control, causing Plaintiffs continuing injury that cannot be redressed by damages.”

In their cause of action, the plaintiffs alleged a violation of the First Amendment right to free speech, noting “In prior years, Defendants and each of them, as well as their predecessors in their positions, permitted assemblies, demonstrations and protests on campus which included the erection of structures such as tents and domes, when the message and speakers were less controversial. In contrast, Defendants and each of them took the actions to disperse the lawful assembly on November 18, and to pepper spray and arrest students because of the demonstration’s message and who was delivering it.”

Here they allege: “By interfering, including through the use of excessive force, Plaintiffs’ peaceful protest, the actions of defendants and each of them violated the rights of Plaintiffs and each of them guaranteed to them by the First Amendment to the United States Constitution and caused them on-going irreparable injury and damage.”

They also allege a violation of the Fourth Amendment through the “ordering, directing, approving, condoning, and executing the pepper spraying of Plaintiffs, the arrest of Plaintiffs, the physical removal of Plaintiffs, and/or the use of excessive force against Plaintiffs.”

The causes of action also include the violation of the 14th Amendment’s due process clause, violations of California’s constitutional protections of free speech, petition and assembly, unlawful seizure and false imprisonment, and violations of California’s Bane Act.

The point here is that that the allegations in this suit are not simply excessive force, but rather the deprival of the civil rights of the protesters.  The excessive force and the use of pepper spray are important components to the violation of those rights, but they are not the core of the case.

As the suit notes, “By dispersing the student assembly on the U.C. Davis quad on November 18, and by pepper spraying and/or falsely arresting” the protesters, the defendants, “each of them through coercive force, violated federal and state constitutional and statutory rights guaranteed to” the protesters.

One of the critical questions raised by the Kroll Report and the subsequent Reynoso/Task Force Review is the legal authority for the police to remove the tents and therefore arrest the protesters.

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.”

Because the university has refused to release the Campus Counsel’s legal directive, we do not know under what legal authority the police even operated under in removing the tents.

That is now the genesis of the false arrest/unlawful seizure charge.

Moreover, Kroll reports, “The decision to use pepper spray was not supported by objective evidence and was not authorized by policy.”  They would add, “Lieutenant Pike’s use of force in pepper spraying seated protesters was objectively unreasonable.”

Now, the internal report apparently contradicts this core finding, but the university is in a tough position here.

As Michael Risher, one of the attorneys for the ACLU involved in the lawsuit, noted in his summary of the Kroll findings in April, “Taken as a whole, the report also makes clear that: The University acted based on fear and assumptions about the Occupy movement, not on evidence or the law. The University’s response to the demonstration reflects a fundamental lack of respect for the right to protest.”

This is, in fact, the core of the lawsuit against the university.  As he wrote in April, “The ACLU of Northern California is representing students and alumni in a lawsuit against UC Davis and individual police officers, over a series of constitutional violations against the demonstrators on November 18, and we hope to obtain more answers over the course of this litigation.”

He adds, “When the cost of speech is a shot of blinding, burning pepper spray in the face, speech is not free.”

Within that rhetoric, however, is a core to a better understanding of the suit.  It is not merely that the police used pepper spray which caused physical harm to the students, it is that they used pepper spray to, in their view, improperly stifle the students’ right to free speech.

In our view this marks a crucial distinction between the comments by an elected county supervisor and the reality of the lawsuit.  It does not matter, for purposes of this lawsuit, whether the students suffered physical injury or not.  What matters is that the police used excessive force to quell the right to dissent, and thus free speech.

A focus on the injuries, therefore, is a distraction from a core issue: did the university police act with legal authority and under the law to take down and the tents and was their use of force reasonable to accomplish those ends?

The answer on legal authority is unclear at best, the answer on the use of excessive force is very clearly spelled out in Kroll, but muddied by the campus’ self-selected internal investigators.  Regardless, the Kroll investigation, conducted by retired police officers, would seem to be a very strong indication of how a court might have ruled in this case once the facts were presented.

In a way, we may be shortchanged by the failure of this suit to go to trial so that the truth could be heard without the protections of the police officer’s bills of rights to protect the release of information.

On the other hand, perhaps that was part of the basis of the settlement – the release of information so that the public can finally know the truth once and for all.

The final question of terms will be answered in the next few weeks and, as we said at the onset, we would be stunned if this turned out to be about money.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Robb Davis

    David – I think you have done a good job in teasing out what the suit was/is about. One thing that has not received much press is that the students involved had extensively prepared their actions with the aid of legal advisors to assure that they were NOT breaking relevant laws (the camping restriction is a campus policy not an ordinance). Thus to refer to their actions as “civil disobedience” is not accurate because they prepared in such a way so they would not be breaking enforceable legal statutes. As they understood it, they were not disobeying and asked both the Police and University officials at the scene to tell them “which laws are we breaking here?”

    It is therefore critical for any final resolution that the University come forward with the legal justification they used to send police to disperse the crowd. It is my hope that the settlement will include an agreement that the University reveal this justification. I also hope (beyond hope) that the settlement will call for a face to face meeting between the students and senior University leadership so that the participants (all participants) can name the harms and effects of that day and begin a process of true healing (the University’s call for healing having little meaning to date).

  2. Mr.Toad

    That Supervisor Rexroad thinks the protesters shouldn’t get a dime should be no surprise. He has a history of publicly opposing pay outs for damages in cases involving law enforcement. If you remember he wrote an Op-Ed denouncing the settlement for the guy who died when he was tasered by the Woodland P.D. a few years ago. The more interesting question is if he has ever supported a monetary claim against law enforcement or if his support for cops in the heat of operations is universal?

    In the interest of not seeming too argumentative I generally support the cops. Where I differ is that I recognize that when mistakes are made civil damages are almost always paid in dollars. If I was the one appropriating the public expenditures to pay insurance premiums to cover law enforcement, as Rexroad has, I might feel differently. Of course with the million dollars those two cans of pepper spray have already cost UCD, a few more thrown at a bunch of college kids won’t really move the needle, will probably save UC from much higher litigation fees and help move UCD past this sorry event.

    Personally I hope a commemorative plaque on the quad is part of the settlement.

  3. Practical

    A commemorative as part of the settlement makes a lot of sense. Penn State has a retired statue that could be melted down and used as the metal for the plaque.

  4. SouthofDavis

    David wrote:

    > I would be both very surprised and disappointed
    > to learn in a few weeks when the settlement is
    > made public that this was about money.

    More often than not when people ask for money, it is about money…

    > These are people very deeply devoted and committed
    > to a cause for social justice. They are not operating
    > to line their pocket books.

    It will be interesting to see if they keep the money (or as David says “line their pocket books”) or donate it all to a social justice cause.

    I think that there was a major screw up and they do deserve money (I would have liked to see officer Pike personally pay them all out of his pension every month until he dies) but unlike David I will be surprised if they don’t keep most (or all) of the money (like most people that get money)…

  5. hpierce

    [quote]I would have liked to see officer Pike personally pay them all out of his pension every month until he dies[/quote]Gotta nominate you for “Humanitarian of the Year”. You’ve never f’d up? If you did, should your SS, pension, 401k be dinged in proportion to your offense?

    I think what Mr Pike did was heinous..his admin. leave should be ‘revoked’… if someone wants to sue him for damages, fine… let that play out…

    But southofdavis is “over the top” in the quoted statement.

  6. Mr.Toad

    They probably need money to pay their tuition. Tuition increases were the underlying cause of the demonstrations in the first place so its fair to assume that these people could not afford to go to class one way or another. Certainly they are getting an education at UCD although it might not be the one described in the catalogue. So if the university wants to pay them off with a little tuition money what is the big deal. The way UC has been throwing money around to investigators, lawyers and PR firms a little more scrilla, as the kids call it, to get this behind Katehi and Meyer and save on more attorney fees is money well spent.

  7. SouthofDavis

    After I wrote:

    > I would have liked to see officer Pike personally pay
    > them all out of his pension every month until he dies

    hpierce wrote:

    > Gotta nominate you for “Humanitarian of the Year”. You’ve
    > never f’d up? If you did, should your SS, pension, 401k be
    > dinged in proportion to your offense?

    I have f’d up, and I have personally paid for the f’ups (just last year I cut a check to a friend after I backed in to his car by mistake). I have never had others pay for my f’ups (even as a kid I had to pay my Dad back from lawn mowing money when he fronted the money to pay for a neighbors window I broke with a wrist rocket).

    What I think is wrong is for officer Pike to get off with out paying for his f’up and in the end have the people that he sprayed (and their fellow students pay for his f’up). I don’t want to take the guys entire pension and make him live under a bridge, but I think that making him pay $500 a month will send a real message to other cops that you can’t just torture people because they are a pain in the ass and don’t do everything you say…

  8. Mr Obvious

    [quote]So you think that a bunch of committed activists are in it for the money?[/quote]

    I don’t think the protesters were in it for the money from the beginning. But now there’s a chance for a payday. If they get money and donate it all back to the school I would say it’s not for the money. Ooooh, they could put in to a scholarship fund for for people who can’t afford the increasing costs of college.

    If they keep the money I will lose more respect for them especially since there are no damages.

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