One of the points that defenders of the police here have failed to address is whether or not the actions of the police here are legal, or if they have clearly violated community standards. In so doing, regardless of legality, it means that the community is not willing to accept this type of response from their police and therefore political pressure will force the agency to have to change policies and even dismiss officials.
UC Davis’ “use of force” guidelines are necessarily vague. However, they do recognize that the use of force “is a matter of critical concern both to the public and to the law enforcement community” and that “officers must have an understanding of, and true appreciation for, the limitations of their authority. This is especially true with respect to officers overcoming resistance while engaged in the performance of their duties.”
Based on that, “It is the policy of this Department that officers will use only that amount of force that reasonably appears necessary, given the facts and circumstances perceived by the officer at the time of the event, to effectively bring an incident under control.”
The question in this situation, however, is admittedly subjective. Was the incident under control? From the video, you have a group of people who are basically sitting down, arms linked, not actively resisting the police.
The question, as the protocol suggests, is what would a reasonable officer do:
” ‘Reasonableness’ of the force used must be judged from the perspective of a reasonable officer on the scene at the time of the incident. Any interpretation of ‘reasonableness’ must allow for the fact that police officers are often forced to make split-second decisions – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.”
In this case, you are dealing with an experienced lieutenant and a situation in which the police had a good amount of time to discuss exactly how to approach the situation.
The use of chemical agents is also described in detail by the UC Davis Police requirements and specifications.
They state: “Chemical agents are authorized for use when, based upon the circumstances perceived by the officer, lesser force would not reasonably appear to result in the safe control of the suspect.”
Again, in this case, the suspects were simply sitting down and not complying with orders. Does such a situation call for the use of chemical weapons?
The protocols add: “Chemical agents are used to minimize the potential for injury to officers, citizens, or offenders. They should be used in situations where such force reasonably appears justified and necessary.”
The accounts that the students presented on Monday describe their horrific ordeal. Pepper spray was applied in huge quantities to the faces of many. The risk of serious injury was huge and, at least to many, the use of such force did not appear either justified or necessary.
This was not a case where the protesters were violently attacking the officers. The officers had time to take other measures, but instead escalated to the use of force.
The courts have classified pepper spray as “intermediate force,” where there the standards for use are the same as that for Tasers. The case law in some similar cases demonstrates that the courts have recently ruled similar uses of force to be excessive and unconstitutional.
In Young v. the County of Los Angeles, handed down by the Ninth Circuit Court of Appeals on August 26, 2011, the court ruled, in a case of a traffic stop for a seatbelt violation in which Los Angeles County Sheriff’s Deputy Richard Wells pepper sprayed Mark Anthony Young and struck him with a baton, after Young exited his vehicle and disobeyed Wells’s order to reenter it.
“Young contends that shortly afterwards, while he was still sitting on the sidewalk curb, Wells approached him from behind and pepper sprayed him,” the court writes, noting that the audio of the transcript suggests Mr. Young was unaware he was about to be pepper sprayed (something that seems to have occurred, at least until the last seconds, in the UC Davis case).
The court cites a Humboldt case: “Pepper spray ‘is designed to cause intense pain,’ and inflicts ‘a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx,’ as well as ‘disorientation, anxiety, and panic.’ Headwaters Forest Defense v. County of Humboldt, 240 F. 3d 1185, 1199-1200 (9th Cir. 2000), vacated and remanded on other grounds, 534 U.S. 801 (2001); see also United States v. Neill, 166 F.3d 943, 949-50 (9th Cir. 1999) (affirming district court finding that pepper spray is a “dangerous weapon” under the U.S. Sentencing Guidelines and describing trial evidence that pepper spray causes “extreme pain” and is “capable of causing ‘protracted impairment of a function of a bodily organ’ ” as well as lifelong health problems such as asthma).”
Importantly, as well, the court notes, “The amount of force used in this case was significant as well. Young alleges that Wells began pepper spraying him as he sat on the sidewalk curb and continued doing so as he stood up and backed away from him, suggesting that his exposure to pepper spray lasted for at least several seconds and involved more than just a minimal burst designed to startle him and alert him to the seriousness of the situation and the potential for use of greater force. Similarly, Young alleges that in addition to landing two baton blows to his legs (including one while he was restrained on the ground), Wells swung the baton at Young’s head multiple times.”
This is again a similar parallel to the UC Davis case where Lt. Pike clearly unloaded the entire can on the protesters.
Writes the court here, “Whatever such force is ultimately labeled, there is no question that its use against an individual is a sufficiently serious intrusion upon liberty that it must be justified by a commensurately serious state interest.”
There are three factors that determine the reasonableness of the use of pepper spray. First is the severity of the crime. Second is whether the individual is evading or resisting arrest. And third is whether there is an immediate threat to the officer or others.
Moreover, the court makes it clear that officers must consider alternative means and give a fair warning.
In the Young case, they found that the threat to the officer’s safety was “negligible” and that the crimes were “non-violent misdemeanors committed in a manner that gave no indication of dangerousness to Wells or others…”
In the UC Davis case, the severity of the crime is minor, they were passively resisting arrest, but also there is no clear immediate threat to anyone. The one difference is that in the case of Young, he was ruled not to be actively resisting arrest or attempting to flee. In the case of the protesters, they were at least passively resisting arrest, though not attempting to flee.
The court rules, “Having determined that the force allegedly used against Young was significant and that the governmental interest in the use of that force minimal, we conclude that, taking the facts in the light most favorable to Young, the force used by Wells was excessive in violation of the Fourth Amendment.”
On October 17, 2011 the Ninth Circuit Court of Appeals issued a ruling in two cases, Mattos v. Agarano and Brooks v. City of Seattle, in which the court concluded that under the circumstances in those cases, the use of the Taser was both excessive and unconstitutional.
In the case of Brooks, the person was driving her son to school and she was cited for drving 32 mph in a 20 mph zone, and she refused to sign the traffic citations, which meant she was taken into custody.
The court ruled that both offenses were non-serious, and that Ms. Brooks did not pose any kind of immediate threat to the safety of the officers (she pulled over when signaled to do so, gave her license, and waited for the officer to check her information).
When she refused to get out of the car, they showed her a Taser and then tased her multiple times. This is actually a very similar situation to the protesters refusing to unlock their arms and comply with the police. The court ruled that the use of force given her level of threat was unjustified.
In the Mattos case, there was a domestic dispute between two individuals. The male was 6-3, 200 pounds and smelled of alcohol. The male went inside the house to get his wife, but before he could do so, the officer announced that he was under arrest. The wife was talking to one of the officers trying to calm the situation down when suddenly she was shot with the Taser.
Writes the court: “Jayzel agreed to go outside, but before she could comply with Agarano’s request, Aikala entered the residence and stood in the middle of the living room. When Aikala announced that Troy was under arrest, Jayzel was already standing in front of Troy. She did not immediately move out of the way. As Aikala moved in to arrest Troy, he pushed up against Jayzel’s chest, at which point she ‘extended [her] arm to stop [her] breasts from being smashed against Aikala’s body.’ Aikala then asked Jayzel, ‘Are you touching an officer?’ At the same time, Jayzel was speaking to Agarano, asking why Troy was being arrested, attempting to defuse the situation by saying that everyone should calm down and go outside, and expressing concern that the commotion not disturb her sleeping children who were in the residence.”
The court then writes, “Then, without warning, Aikala shot his Taser at Jayzel in dart-mode.”
We will focus mainly on Brooks here because of the relative similarity in the cases. Here the court ruled that her offenses were minor and “she did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time.”
The court added, “A reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers’ use of force was unreasonable and therefore constitutionally excessive.”
In conclusion, based on recent case law in the Ninth Circuit and the university’s own use of force guidelines, we believe a strong case can be made that this was unconstitutional excessive force.
There are some who have argued that this actually reaches the level of a felony assault, especially when you consider the amount of pepper spray applied to non-violent protesters.
The case has been turned over to the District Attorney. No one expects there to be criminal charges filed in this case, and it is particularly disturbing to note that Lt. Pike is purportedly good friends with investigators at the DA’s office and that their investigation may represent a conflict of interest. The Attorney General needs to examine this matter and make her own determination. At the very least, this appears to be a case in which the students could litigate against the university and, based on recent Ninth Circuit rulings, prevail.
—David M. Greenwald reporting
David
Thanks for providing some examples of potentially relevant case law.
There seems to be even more than usual amount of the poorly thought out finger pointing and hyperbole from both sides in this case.
It is refreshing to see some actual information.
Does anyone know of an example where the DA investigated a police or sheriff incident and decided to charge them for using too much force?
I know they did not in the shooting of Luis Gutierrez, the beating of the Galvan Brothers or the man that was found dead after shooting a police officer (can’t remember his name).
If you know of a time, please share.
[quote]’a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx,’ as well as ‘disorientation, anxiety, and panic.'[/quote]
The pepper-sprayed students certainly experienced all of this, but I would add one more effect – terror. In pain and blind, the students were extremely vulnerable and didn’t know from what direction the next attack would be. Maybe the officers were “following protocol” but in creating these rules, they did consider one thing – if you are in pain and blinded and your attacker is the police, who do you call for help?
I meant to say “did not consider one thing..”
http://www.guardian.co.uk/books/2011/nov/21/melvyn-bragg-on-john-steinbeck
A powerful discussion of Steinbeck’s life and work and its relevance to our world today.
davisite2-Thanks for the attempt to bring context to this matter, the depth of which seems to elude so many posters .
DMG,
“It is the policy of this Department that officers will use only that amount of force that reasonably appears necessary, given the facts and circumstances perceived by the officer at the time of the event, to effectively bring an incident under control.”
“Was the incident under control? From the video, you have a group of people who are basically sitting down, arms linked, not actively resisting the police.”
As I mentioned previously, after reading case law, to be included among the “facts and circumstances” is the crowd, not only the seated and arms-linked protestors. This element is absent in the case law references listed here and should be assessed as well in determining the “reasonableness” of the officer(s) use of force that afternoon.
I will note that in one of the videos I watched (re: officers were encircled by protestors/onlookers) that officers can be seen dragging protestors off in restraints through and out the south end of the walkway. From what I can tell, no one was impeding their path and few (if any) onlookers/protestors appeared to be actually on that portion of the walkway. Of course, this was post-pepper spraying, so the circumstances may have been different prior to it.
David;
I think everyone wants reassurance that something much more punitive than “paid administrative leave” will be Lt Pike’s reward for his appalling behavior. He has sneered in the face of the cameras and the University. There must be some legal action that can be taken against this guy, the other officers involved, and the supervisors that condoned their actions. Thanks to the UCD Police Department’s inept handling of what would otherwise have been a relatively non-violent student protest, Davis CA has been internationally vilified.
We all want to know that Lt Pike will receive the same punishment that you or I would receive if we broke the law so openly and egregiously (and it were to be viewed by millions all over the world!).
For me, the crucial point is the video footage that shows a UCD police officer (or two) beginning to reach over and take a protester by the arm to carry the protester away. The UCD police officer that performed the pepper spraying seemed to give some instruction to the other one or two UCD police officers reaching for the protesters to back off from carrying the protesters away. It appears that at least two UCD police officers felt the reasonable thing to do was to merely carry off the protesters, a much less severe method of dealing with the situation. And eventually it is exactly what the UCD police did anyway. That would be my legal analysis, boiled down to its essence…
ERM,
“It appears that at least two UCD police officers felt the reasonable thing to do was to merely carry off the protesters, a much less severe method of dealing with the situation.”
Right, that was one of the first things I noticed too. But just because these (presumably lower -ranking officers) thought one course of action was appropriate and another (presumably higher-ranking officer) did not, does that mean the latter was in the wrong (ie unreasonable)? I think it’s safe to conclude, based on the footage of Lt. Pike clearly ordering his officers at various points in time, that he was making the decisions as to how to proceed.
winelady,
“Thanks to the UCD Police Department’s inept handling of what would otherwise have been a relatively non-violent student protest, Davis CA has been internationally vilified.”
I don’t think the City of Davis is being vilified, rather the Chancellor and UCDPD, mainly.
[quote]Right, that was one of the first things I noticed too. But just because these (presumably lower -ranking officers) thought one course of action was appropriate and another (presumably higher-ranking officer) did not, does that mean the latter was in the wrong (ie unreasonable)? I think it’s safe to conclude, based on the footage of Lt. Pike clearly ordering his officers at various points in time, that he was making the decisions as to how to proceed. [/quote]
Since it appeared clearly that removing the students was entirely possible/easy enough to accomplish, because two UCD officers began the process without a problem, the pepper spraying will not appear necessary nor reasonable by anyone’s standards. Sorry I wasn’t more explicit in my explanation. It will be interesting to see what the DA’s conclusion is and the reasoning.
FYI
From SJ Mercury-
“At Stanford University, police officers can carry pepper spray, according to spokeswoman Lisa Lapin, but the university follows protocol of the Santa Clara County Sheriff’s Office, which states that use of chemical agents on nonviolent protesters is not authorized.
UC Santa Cruz policy states that “an officer, given the circumstances perceived by him or her at the time of the incident, is permitted to use only that amount of force that reasonably appears necessary to bring an incident under control.”
Reaction to the UC police actions has been harsh across the country, including at Duke University, where students traditionally set up tents for weeks and camp outside for coveted basketball tickets.
“Our students face a difficult future,” said Duke professor Cathy N. Davidson, who has written extensively about the future of education. “This should not be a time to beat them up.””
Pat of the problem is Yolo County
ERM,
“Since it appeared clearly that removing the students was entirely possible/easy enough to accomplish, because two UCD officers began the process without a problem, the pepper spraying will not appear necessary nor reasonable by anyone’s standards. Sorry I wasn’t more explicit in my explanation. It will be interesting to see what the DA’s conclusion is and the reasoning.”
I believe just one officer actually placed a hand on the seated protestors pre-pepper spraying. As soon as he did, it appears Lt. Pike ordered him to release her and step back. So, it’s difficult to conclude, based on this portion of this incident, that “removing the students was entirely possible/easy enough to accomplish.” It doesn’t seem this route was attempted.
That said, there’s apparently footage (I have not viewed it) and witness accounts of officers placing protestors/onlookers not seated in restraints and removing them through and past the crowd w/out a problem. This occurred pre-pepper spraying.
I have a difficult time finding the Lt’s actions reasonable, FWIW.
Ironically, the same police officer was awarded for bravery and specifically commended for *not* using pepper spray on a scissor wielding person scuffling with other police.
From the Sacramento Bee:
______________
In a 2006 incident, Pike saved two fellow officers from a hospital patient threatening them with surgical scissors, according to a 2007 university news release.
“He decided against using pepper spray, a baton or sidearm, not wanting to hit either of his partners as they struggled with the patient,” the release stated.
“You’ve got all these tools on your belt,” Pike said in the news release, “but sometimes they’re not the best tools.”
____________________
The Scoville unit is the standard measure of the “heat” of a food or substance containing capsaicin, the active ingredient peppers and pepper spray. For comparison, biting into a jalapeno pepper subjects one to around 3500 to 8,000units. Opting for a habanero ups that ante to 250,000-300,000 units. Pepper spray weighs in at 2,000,000 to 5,300,000 units. [Source:http://www.msnbc.msn.com/id/26315908/vp/45410896#45410896%5D
So in judging the reasonableness of the officers’ conduct it should be totally clear that we are not talking about some Tapitio sauce — we are talking about the officers’ use of a chemical weapon designed to incapacitate an attacker with intense burning and blinding pain. Granted, the UCD police standards allow for the use of pepper spray to subdue an attacker, but any fool looking at that now infamous video can plainly see that there was not even a pretense of using the pepper spray as a defensive weapon, or using it to control a crowd. (The police chief’s description of the demonstrators surrounding the police is obviously a lie, as the officers sashay back and forth among the sitting protesters, and ignore the surrounding onlookers.)
What galls me the most about Lt.Pike’s actions is that he was using the pepper spray not for any legitimate control, but purely and simply to gratuitiously inflict pain on the sitting protesters. This becomes disgustingly sadistic as he ambles up and down the line until his pepper spray can is emptied onto the faces of the seated protesters. This was no different, and no more reasonable than had he used his nightstick to beat the demonstrators’ heads in. I don’t know what his motives were, whether anger, or resentment, or just the pure joy of inflicting pain on defenseless students; but under no view of the world could these actions in this context be described as “reasonably necessary.” As one of the sprayed students said, in return for his non-violent, passive civil disobedience to the commands to move, “I expected to be arrested, not assaulted.”
I may be showing my age, but the video of Lt.Pike’s actions reminded me of the crowd behind the Woolworth’s Counter trashing passive freedom riders, and of the Birmingham Police at the bridge at Selma on horseback or downtown using dogs and firehoses on non-violent civil rights demonstrators. I think the video is so stark it has the potential to become an equally iconic symbol of raw police brutality. Davis and UCD deserve better than to have that hung on us.
Something about Pike’s demeanor/body language in this incident suggests to me that he was having a bad hair day and was getting a bit bored and fed-up with the protestors; so went ahead and pepper-sprayed, dragged them off, and finish up the day and go home and put the feet up.
I think that for many police officers, particularly some of those with a military background like Pike, it must rankle to see such open defiance of authority (university admin authorities in this case; as well as the whole corporate/government complex criticized by the occupy movement) by what may appear to them as punks and hippies; since these officers backgrounds and temperaments are attuned to obedience to authority. Makes it an extra challenge to figure out the complex fluid situation of how to deal with the protestors; such officers may be prone to errors in judgement. However, good judgement is what is expected with the 6-figure pay salary of this officer; part of his high pay is not submitting to the luxury of handling the protestors according to how he feels about them; instead it must be purely professional.
[quote]However, good judgement is what is expected with the 6-figure pay salary of this officer; part of his high pay is not submitting to the luxury of handling the protestors according to how he feels about them; instead it must be purely professional.[/quote]
Excellent point!
Al, when multitudes of universities exist you supply but a handful. Well it’s the thought of being conclusory that counts…
D-fens & jimt: you ought to offer your awesome mind reading/motive detecting talents the POTUS…
Question: In a country, where multiple on-going peaceful protests have already escalated into violence [some of which involved colleges/universities — coupled with the fact — that simultaneously — globally other protests have already culminated in very violent conduct i,e., the loss of many lives (using DMG’s definition)], in reference to the continuum of force, how long are officers required to wait before s/he can move to the next higher level, when the officers are drastically outnumbered?
[b][u][i]Should Use-of-Force Policies Include Force Continuums? [/i][/u][/b]
[quote]Some say that including a force continuum in an agency’s use-of-force policy is like mixing oil with water. “Fourth Amendment reasonableness does not require that an officer use the least intrusive means,” says attorney Robert Thomas, who managed the Graham v. Connor case as it went to the U.S. Supreme Court. Graham holds that all claims of excessive force in making an arrest or stop will be analyzed under the Fourth Amendment and will be judged under its objective reasonableness standard. Since this is the federal constitutional legal standard that governs an officer’s use of force, unless state law is more restrictive, this is the only standard that need appear in an agency’s use-of-force policy regarding seizures of free people. Force continuums often give the perception that officers must use minimum force, but that is not the constitutional standard.[/quote]
[b]Randy Means, a longtime police legal advisor and trainer stated:[/b]
[quote]”The federal constitutional standard does not require an inquiry into whether the force or incident could have been avoided or minimized if the officer had somehow done better or differently. It only requires that the officer’s actions be reasonable under then-prevailing circumstances.” [/quote]
DG: [quote]The question in this situation, however, is admittedly subjective. [/quote]
Glad you appear to recognize what the SCOTUS opined in re: the matter.
As noted above:
[b][i][u][quote]It only requires that the officer’s actions be reasonable under then-prevailing circumstances.” [/quote] [/u][/i][/b]
Unfortunatly, the Vanguard is less than qualified to make the below determination, with any legal authority or weight.
[quote]The Vanguard has examined both the UC Davis Use of Force policy, as well as case law, and come to the determination that these actions violate both.[/quote]
Brooks Case: ‘Our review is limited to the question of
whether, assuming all conflicts in the evidence are resolved
in Brooks’s favor, the Officers would be entitled to qualified
immunity as a matter of law.’
And: ‘The fact that a suspect does not threaten the officer does not shield him from the use of force. See Forrester, 25 F.3d at 807-09 (finding no Fourth Amendment violation when officers used injury-causing pain compliance techniques on passively resisting demonstrators).’
DG: you may wan to review this excerpt from Brooks citing Mattos:
[quote]In two recent decisions, we addressed excessive force
claims involving the use of Tasers. See Mattos v. Agarano,
590 F.3d 1082 (9th Cir. 2010) (per curiam) (holding that the
use of a Taser stun on a suspected domestic violence victim
while attempting to arrest her husband did not amount to
excessive force);[/quote]
Above you wrote: [quote]On October 17, 2011 the Ninth Circuit Court of Appeals issued a ruling in two cases, Mattos v. Agarano and Brooks v. City of Seattle, in which the court concluded that under the circumstances [b][i][u]in those cases, the use of the Taser was both excessive and unconstitutional.[/u][/i][/b][/quote]
[quoteThere are some who have argued that this actually reaches the level of a felony assault, especially when you consider the amount of pepper spray applied to non-violent protesters.][/quote]
You need to flesh-out this assertion.
AdRemmer,
Point conceded, my thoughts about Pike’s possible motives are pure speculation; though I couldn’t help but wonder about it because his action of pepper-spraying did not appear to be necessary, and I can’t help but wonder about his possible slip from professional behavour in this instance. In general, I am sympathetic to cops, which often have to put up with a lot of crap from perps, each and every day of every week of every year, and if they slip-up just once they may land in a s**tstorm of trouble. It appears this was one of the worst possible times and places for a slip-up; and he wasn’t extra vigilant about maintaining professionalism in this difficult situation.
jimt – Ah, split second decisions involving potential liabilty or life/death…on a planet where peaceful protests, with large crowds, can/have rapidly morph(ed) into?????
From your perspective (you weren’t there were you?) his actions didn’t “seem” necessary. One little thought: consider his 5 senses at the scene.
What to do….
UC Berkeley Chancellor Birgeneau uses his campus police to brutilize his students protesting increases in tuition.Campus UCPD report to chancellors and take direction from their chancellor. University of California campus chancellors vet their campus police protocols. Chancellors knowledgeable that pepper spray and use of batons included in their campus police protocols.
UC Berkeley Chancellor Birgeneau and UC Davis Chancellor are in dereliction
of their duties.
UC Berkeley Chancellor Birgeneau and UC Davis Chancellor need to quit or be
fired for permitting the brutal outrages on students protesting tuition increases
and student debt
Opinions? Email the UC Board of Regents marsha.kelman@ucop.edu