The Vanguard has learned that a settlement agreement is in place for the pepper spray lawsuit that was filed in late February following the November 18, 2011 incident on the Quad at UC Davis. However, the deal will not be finalized until the UC Regents meet next week and until the federal court certifies the agreement.
“If the UC Regents approve the proposed agreement at their September meeting, the parties will return to federal court in Sacramento to seek approval of terms of the settlement,” he said.
Under the rules of mediation and court settlement, all parties are obligated to maintain strict confidentiality until the agreement has been approved and filed with the court, Mr. Montiel continued.
“The terms of any settlement reached will be available to the press with the filing, and the parties will be able to discuss the matter publicly at that time,” he said.
The lawsuit, which preceded the findings of the Kroll and Reynoso reports last spring, sought to determine why the university violated the demonstrators’ state and federal constitutional rights, and seeks to result in better policies that will prevent repetition of such response to a non-violent protest.
The lawsuit charges that administration officials and the campus police department failed to properly train and supervise officers, resulting in a series of constitutional violations against the demonstrators. The plaintiffs are represented by the ACLU of Northern California and cooperating attorneys, including Sacramento civil rights attorney Mark Merin.
“We filed a lawsuit because we want to make sure that nothing like this ever happens again,” ACLU attorney Michael Risher told the Vanguard back in February.
“We were sitting down as a symbolic gesture of protest and it was an act of solidarity with my friends who were arrested,” David Buscho told the Vanguard.
When students remained seated to continue their demonstration, a UC Davis police officer repeatedly sprayed the line of protesters with pepper spray at point-blank range, while scores of other officers looked on.
“I was pepper sprayed repeatedly in the face,” described Mr. Buscho, a Mechanical Engineering student.
Another officer sprayed the demonstrators from behind. The seated students posed no physical threat to the officers. Pepper spray has excruciating effects that can last for days.
“It’s really the most noxious and painful substance,” Mr. Buscho said as he described the agonizing moments following being bathed in pepper spray.
“My face was totally coated because I couldn’t cover my face,” he continued. “I kept inhaling pepper spray which is really bad. When you inhale pepper spray it’s so painful that your entire chest contracts so it actually feels like you’re suffocating because I couldn’t force myself to breathe.”
He described repeatedly vomiting. Those who tried to help by pouring water on him made it worse because it simply spread the agent throughout his body.
“I was just covered in pepper spray,” he said.
According to the lawsuit, “The 19 plaintiffs in this action were protesting university privatization, distribution of resources, tuition hikes, police brutality and other onerous public policies adopted by the University administration and the Board of Regents. Their protest was an integral part of continuing, vigorous assembly and free speech activities which had been conducted by students for weeks at the same time the nationwide Occupy Wall Street movement mobilized thousands nationwide. Seventeen of the plaintiffs were U.C. Davis students at the time; the other two are recent graduates.”
It seeks relief in the form of “a declaration from the Court that campus policies and practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs violated their state and federal constitutional rights; an injunction to prevent repetition of such a response to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct.”
“We’re looking at violations not just of Fourth Amendment Rights to be free from excessive police force and being falsely arrested, but really much more fundamentally is the right to free speech,” Mr. Risher told the Vanguard. “Universities should be places where free speech is valued, where free expression is fostered and when police respond to non-violent demonstrations with riot gear, with pepper spray and with excessive force, that threatens some of the most fundamental constitutional values we have.”
“Our main concerns and our main cause of action is violations of the first amendment and the California constitutional guarantees to free speech, to assembly and to petition the government through redress of grievances,” Mr. Risher told the Vanguard.
“That’s the heart of this case,” he said, but added, “This is an excessive force case. The police used grossly excessive force; they falsely arrested people. But the real harm here is to the freedom of expression because when the people see that the police response to non-violent protests is a shot of pepper spray, they’re not going to go out and take the risk of having that happen to them.”
“People silence themselves and that’s the problem, or one of the problems, with this grossly-excessive police response to peaceful and non-violent protests,” he added.
“It was a peaceful protest,” David Buscho described. “I don’t think that police in riot gear should have been brought in. Especially, it was so premature and the whole nature of it all felt so punitive.”
“The university needs to respect students’ rights to make our voices heard, especially when we’re protesting university policies that impact our studies,” said Fatima Sbeih, another student who joined the demonstration on the Quad after returning from afternoon prayer, and was subsequently pepper sprayed.
The lawsuit was undoubtedly aided by the strong findings in the publicly-available Kroll and Reynoso Reports.
The campus conducted internal investigations that tended to exonerate the officers, however, Chief Matt Carmichael made the determination to override the recommendations of the internal affairs report, as well as his own panel of captains, and terminate the employment of Lt. John Pike and, apparently, Officer Alexander Lee – these dismissals followed the retirement of former chief, Annette Spicuzza.
We now await the terms of this agreement, as well as the decision by the District Attorney’s office as to whether to file criminal charges – a decision that has been long in the making, but most people believe will result in no criminal charges.
—David M. Greenwald reporting