In a now infamous incident, UC Davis police walked up and down the line of seated protesters, including Fatima and David, dousing them with military-grade pepper spray in the face at close range.
In a new video, the students speak out:
Fatima, an International Relations major, had previously been a volunteer paramedic and afterwards helped tend to other demonstrators who were in pain. She had been teargased at demonstrations in the Middle East but never imagined something like that would happen here.
“The University needs to respect students’ rights to make our voices heard, especially when we’re protesting University policies that impact our studies, Fatima has said.
David was in searing pain after being spray directly in the face, and had trouble breathing because the pepper spray had gotten into his lungs. He has said that he knows that there are good people working in law enforcement – his stepfather is a police officer.
“So many of my friends can barely make ends meet and then another tuition hike was proposed. We had no idea there would be police in riot gear or that we would be pepper-sprayed because we were making our voices heard,” says David.
Sarena Grossjan is studying Native American studies and art. She is a photographer and had worked for the campus paper. She was also pepper-sprayed, and the effects lasted for weeks. Sarena had been demonstrating because additional tuition or fee hikes will mean that she will mostly likely mean she won’t be able to afford to continue her studies. As it is, she can barely make ends meet. Her financial aid only covers tuition and books. She is taking 5 courses this semester, and sleeps on friends’ couches because she cannot afford rent.
The ACLU of Northern California is representing Fatima, David and Sarena, along with 14 other students and two alumni, in a lawsuit against UC Davis and individual police officers. That lawsuit seeks 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 series of constitutional violations against the demonstrators.
“We had no idea there would be police in riot gear or that we would be pepper-sprayed because we were making our voices heard,” says David.
No, you were pepper sprayed for blocking the police exit and refusing to move, not for making your voices heard.
And they refused to move because? Oh yeah, they were making their voices heard and the campus police decided to clear the quad.
Let’s use some more precise language here… the students were not “sprayed”… they were “hosed”… at inappropriately close range. In my opinion, the officer doing the hosing should be prosecuted criminally (assault with attempt to maim?), and sued civilly. I do not care what his “orders” were. It was flat out wrong. He should also be dismissed, and to the extent legally possible, be barred from further Peace Officer employment. I would not be opposed to his loss of retirement benefits already “earned”, but that is legally unlikely.
That being said, until we get the report, to establish what direction was given the officer by ‘higher-ups’, or whether they even could imagined that the officer would have behaved in such a ‘rogue’ fashion, I do not think, at this point, any other individual or institution should be held liable. Just my opinion.
“And they refused to move because? Oh yeah, they were making their voices heard and the campus police decided to clear the quad.”
Making your voices heard and intentionally blocking the escape route of police officers who are trying to escort arrested students away are two totally different things. I don’t think that’s too hard to comprehend.
One thing I would fault the university on… the officer has been on paid administrative leave for nearly 4 months… accruing vacation & sick leave, earning service credits, and his obligation is only to be available to report to duty, if asked. The university should either tell him his “duty” is to submit to questions (he can always evoke his 5th amendment rights), or terminate him for failure to do so. Again, just my opinion.
Rusty: The video clearly shows that their escape route was not blocked other than for a brief period of time when the students marched around them.
Hpierce: They can’t do that because of the issues raised under the POBR and PC 832
“Rusty: The video clearly shows that their escape route was not blocked other than for a brief period of time when the students marched around them.”
I beg to differ.
You can beg all you want, when I posted it, the ring of students did not surround the officers and there was a gap between those seated and those standing. Moreover, officer Pike freely moved in between the students as he was carefully as HPierce noted, hosing them down and bathing them in pepper spray. I think HPierce is right, I think Pike gets charged criminal for assault.
We’ve already covered this, the officers were escorting arrested handcuffed students and were being threatened by the protesters with chants of “set them free then you can leave”. They possibly thought it wouldn’t be safe to squeeze them between and through a hostile crowd so they asked the students who were provocatively blocking their exit to move. They refused to move full well knowing the consequences. The officers have an out, I hope the administration fights this lawsuit and doesn’t settle out of court.
You brought it up….
So again, the chants occurred 20 to 30 minutes before the pepper spraying occurred. Are you really still justifying the pepper spraying decision?
“So again, the chants occurred 20 to 30 minutes before the pepper spraying occurred.”
Like that matters, the threat was already given and the students were doing just that, not letting them leave. What, does the statute of limitations run out on a threat after 10 minutes?
I’m not justifying the pepper spraying, but the students were also in the wrong here…
It matters a tremendous amount because in order to justify a higher level use of force they have to show that there was an imminent threat and that the use of force was the only means by which to resolve the situation safely and when you have a twenty minute delay and the officer is calmly walking through the crowd, that will be next to impossible to justify. Read the case law again. There is probably no exact time, but if anything the situation had de-escalated from the time of the chant when they were marching to the point of the pepper spray when the students were seated (and they were not surrounded at that point, they could have walked out the backside.
“I’m not justifying the pepper spraying, but the students were also in the wrong here…”
That’s really not the issue we are dealing with. The question is whether the police overreacted to the situation not whether the students acted appropriately.
[quote]That’s really not the issue we are dealing with. [/quote]
Says you, but I suspect the courts will take it into account…
“Says you, but I suspect the courts will take it into account…”
As I read your statement, you believe that the pepper spraying was inappropriate despite the students not being blameless. The courts will have to determine whether the use of force was justified in the face of student actions. I believe I know where the courts will come down on this.
“Shot in the face”?
How about “Sprayed in the face”?
Let’s save the incendiary language for when it is justified.
All charges against the students have been dropped. It is the view of the campus that the students have a right to be on the Quad and had a right to protest the illegal actions by the police on that day through non-violent means. The Courts can take that into account.
I think the incendiary language is justified here. If you don’t – that is certainly your right, but I respectfully disagree.
[i]”I think the incendiary language is justified here”[/i]
So, then, what would you write if the students were actually shot in the face? How would you differentiate being shot in the face with a gun and being “shot” (actually, sprayed with a fine mist) in the face with pepper spray?
I wouldn’t describe what was sprayed on the students as a “fine mist.” It was thicker – a solid, sticky coating of a toxic substance that caused immediate blindness, excruciating pain and interfered with breathing. They were shot in the face with this substance at a distance cautioned against by the manufacturer. If the officers had followed manufacturers instructions, the amount reaching the students may have been a “fine mist,” but that’s not how it was used.
Ryan, I think you are on to something if you are writing a novel.
Do we have any names of the students made blind? I would be willing to donate something to them to help them cope with their disability.
I know you protester sympathizers want to make it sound as bad as you can but the proper vernacular is “pepper sprayed” not “pepper shot”. Sorry, but that’s the facts.
There is a fine point here. For me, when I read pieces that include unjustified incendiary language, the writer loses some credibility. It also a damn troubling habit that makes garbage out of our First Amendment rights. We manufacture indignation out of events that are not comparable to a reasonable benchmark; we cause a general desensitization and damage our ability to accurately assess good from bad.
My son had one of his friends spray him in the face with pepper spray to experience it. Guess what, other than a few hours of misery and a decision that he didn’t want to every experience it again, my son is fine. So are the students that got sprayed on the Quad. Had either been shot in the face with a gun, they would not be fine.
That’s great that your son did it, but I wonder how closely it replicated the situation that the kids on the quad faced in terms of quantity, the inability to immediate rinse it off, getting it into their lungs, vomiting, and other conditions that have been documented in this case.
Like I said, I believe this was an assault.
@JeffBoone – “Pepper spray, also known as OC spray (from “Oleoresin Capsicum”), OC gas, and capsicum spray, is a lachrymatory agent (a chemical compound that irritates the eyes to cause tears, pain, and even temporary blindness) that is used in riot control, crowd control and personal self-defense, including defense against dogs and bears.[1][2] Its inflammatory effects cause the eyes to close, taking away vision. This temporary blindness allows officers to more easily restrain subjects and permits persons using pepper spray for self-defense an opportunity to escape.”
I wouldn’t treat this lightly.
[quote]Let’s use some more precise language here… the students were not “sprayed”… they were “hosed”… at inappropriately close range. In my opinion, the officer doing the hosing should be prosecuted criminally (assault with attempt to maim?), and sued civilly. I do not care what his “orders” were. It was flat out wrong. He should also be dismissed, and to the extent legally possible, be barred from further Peace Officer employment. I would not be opposed to his loss of retirement benefits already “earned”, but that is legally unlikely…….. [/quote]
After this overreaction maybe having Cruz on board isn’t such a bad thing.
Experiencing a short burst of pepper spray in a controlled situation is not the same as receiving a sustained and repeated dose of military-grade spray and then being grabbed at and dragged by police officers, while people are shouting loudly around them. Not only was there intense pain, not being able to see (aka blindness), and difficulty breathing, but there was intense fear. Not something you can replicate. Not something that these students can easily “get over” and feel fine.
[quote]Experiencing a short burst of pepper spray in a controlled situation is not the same as receiving a sustained and repeated dose of military-grade spray [/quote]
I’m glad we finally have someone who knows exactly what type of pepper spray was used that day. Please let us know because I would like to do a bit of research. I was trying to find out because there are multiple types and concentrations even from the same manufacturer. No we will finally know exactly what was used.
Defense Technology 56895 MK-9 Stream, 1.3% Red Band/1.3% Blue Band Pepper Spray
Why would the police use a spray with such a low concentration why they could by higher concentration sprays on Amazon?
Here’s the spec sheet: http://www.defense-technology.com/pdfs/specs/MK-9_Aerosol Projector Rev 12_10.pdf #of short bursts: 14. Effective range: 18-20 feet. Minimum range: 6 feet.
DG – since you believe an assualt occurred, please make the case. List each and every, element of the crime and then support ustilizing evidence based on the known facts.
Also, once again. There is NO requirement that an officer must move up the ladder of force, one rung at at time and shall exhaust each rung, one by one, in a particular order. Officers can enter at any level, depending on the circumstances.
Hopefully you recall that the SCOTUS has previuosly ruled that the best persons to decide what level of force to use are in fact the officers on the scene.
sorry, not impressed with the self-serving video.
“That lawsuit seeks to determine why the University violated the demonstrators’ state and federal constitutional rights…”
Wow, first things first. Before we start talking about determining WHY, don’t you figure someone ought to determine IF? Talk about “jumping to conclusions”!
rusty49
“Sorry, but that’s the facts.”
I agree it is important to stick to the facts. So let’s consider the assertion that you have made that the students were “not letting the police leave.
Is this factual ? In my opinion, no. What factually occurred ? The kids chanted that they would not let the police leave. Is this a credible threat ?
To decide that, we have to consider the logistics of the quad which is a largely open space on three sides. What was blocked was a single path with single file seated protesters. Was the preferred path blocked ? Yes, that’s a fact. Was egress from the quad blocked ? No, and I think that anyone with knowledge of the campus would know that that is also a fact.
The timing matters as well. They chanted that, but then the situation settled down and the students sat down. It was twenty minutes in time between the chant and the pepper spray.
The kids chanted that they would not let the police leave. Is this a credible threat ?
its a threat, and it doesn’t allow the protestors to claim the moral high ground…. whether or not they ultimately carried out that threat doesn’t let them off the hook… and it doesn’t mean the threat doesn’t count…
The timing matters as well. They chanted that, but then the situation settled down and the students sat down. It was twenty minutes in time between the chant and the pepper spray.
bull. the situation did not settle down – they continued to escalate it….., as you can see in the video, and when you say “sat down” the location they chose was hardly at random… it was intended to cut the police off and you can clearly see that……
in short, the students largely contributed to the situation they found themselves in from start to finish…
it is also not lost on me that the aclu made sure to pick out among the most pc appearing students…. for this self-serving pity party.
simply put, you cannot threaten an officer. period.
“Was egress from the quad blocked ? No, and I think that anyone with knowledge of the campus would know that that is also a fact.”
no, it is not a fact, and you can say it a thousand times over and you are no more right than if you said it once. “if you let them go we will let you leave” – was clearly intended to paint the impression the students were prepared to do something in the event the police walked in the directions you claim
“if you let them go, we will continue to protest peacefully” was intended to paint the impression the students were prepared to become violent in the event the police continued to bring their detainees back.
[quote]DG – since you believe an assualt occurred, please make the case. List each and every, element of the crime and then support ustilizing evidence based on the known facts.
Also, once again. There is NO requirement that an officer must move up the ladder of force, one rung at at time and shall exhaust each rung, one by one, in a particular order. Officers can enter at any level, depending on the circumstances.
Hopefully you recall that the SCOTUS has previuosly ruled that the best persons to decide what level of force to use are in fact the officers on the scene.[/quote]
Finally, you have brought some sanity to this discussion…
While I’m wary that my use of time will not be respected, I go forward with this exercise…
PC 240
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
PC 245
” Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury”
I will use the elements of force without weapon in this case:
Here are the elements (this is directly from CALCRIM’s instructions on assault with a deadly weapon):
1B. The force used was likely to produce great bodily injury
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/ her) act by its nature would directly and probably result in the application of force to someone;
[AND]
4. When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person
So the only question whether he was aware that would lead the reasonable person.
So here is what we have:
“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.”
So in order to I think get to criminal you have to show not only the violation of the protocol but overt acts that demonstrate intent to commit great bodily infjury or that a reasonable people would realize that his act by its nature would directly and probably result in the application of force to someone.
That last part I think is key. So you have:
1. Students sitting and not overtly threatening and Pike calmly walking.
And then:
2. The amount of pepper spray far exceeded any potential threat
3. He was standing too close to the demonstrators and so as Ryan Kelly notes it is a stream rather than a fine mist
4. If Ryan is correct that the distance is cautioned against by the manufacturer then you get to the reasonable person argument
Put all of that together and I believe you can get to a PC 245 and certainly a PC 240
I want to point out that at the time of the spraying, officers supposedly “prevented from leaving” no longer had arrestees with them. Why? Because the arrestees were escorted to police cars by walking them through the crowd, which opened up a pathway for them to walk and never blocked them from doing this, and then I think the officers returned after…again, through the crowd. So they were not kept from leaving, not kept from taking arrestees to the cars, were not “trapped”, merely blocked from walking in one direction by a line of students sitting on the ground. But in fact, this did not even block them from leaving as demonstrated by Lt. Pike stepping over the students in order to spray the students in the face, rather than the back of their heads. There was no attempt to prevent him from stepping over them and it didn’t look like he was hestitant about doing this.
Ryan:
The protestors used threats. whether that was a bluff does not absolve them of guilt. you cannot threaten someone. period. Second, they either sat down peacefully, in a random location, or they did not. I argue they did not choose the location randomly, they chose it because they knew they would be blocking a particular direction…. it is clear from the tape that was their intention, and you even admit that. whether the police had other alternatves does not absolve the protestors of their intent to obstruct justice. it is as simple as that.
and the last thing is they were asked to step aside multiple times… and given every opportunity to do so, hence the 20 minute delay….. THEY CHOSE THE SITUATION THEY FOUND THEMSELVES IN….
btw: the fact that the officer had to step through the protestors suggests they attempted to cut him off… if they weren’t blocking him, he wouldn’t have had to step through them….
The officer could have walked away. Nothing was stopping him from leaving in three directions. Instead, the officer chose to shoot a stream of pepper spray directly into the faces of unarmed, non-violent students, then, with the help of other officers, drag them to the side, … and then walk away.
Since the police union has stopped the investigation report and prevented the campus community from reading it, we don’t know what was going through the minds of the officers. We might never know, because the officers wielded the pepper spray refused to cooperate with investigation.
RK: “The officer could have walked away..”
the protestors could have walked away…
RK: “Nothing was stopping him from leaving in three directions.”
nothing was stopping the protestors from leaving, and not being peppersprayed.
RK: “Instead, the officer chose to shoot a stream of pepper spray directly into the faces of unarmed,”
instead, the protestors chose to sit down in an area in attempt to block the way… and were warned ahead of time, multiple times…
RK: “non-violent students…”
they specifically placed the threat of violence on the table… they are not “non violent..”
“its a threat, and it doesn’t allow the protestors to claim the moral high ground…. whether or not they ultimately carried out that threat doesn’t let them off the hook… and it doesn’t mean the threat doesn’t count…
Whether or not the protestors could “claim the moral high ground” is completely irrelevant to the issue of whether excessive force was used.
Do I think that the protestors handled the situation optimally ? No. As I have posted several times from my own experience, a truly peaceful demonstration will involve no potentially threatening chants, shouts, gestures. It may however involve sitting with arms linked which represents civil disobedience, but is not a threat to anyone. So were errors made on the protestors side ? Sure. But these are kids, not trained professionals, who, I personally believe should be held to a higher standard. Finally, even if the students were completely in the wrong, that does
not justify use of excessive force on the part of the police.
As to whether assault occurred, if it is true as Ryan Kelly has posted that the manufacturer has a recommendation for a six foot minimum distance, and if objective analysis of the act of spraying demonstrated that the spray was applied from less than six feet, as I believe could be easily ascertained, then I would say that the spray was applied negligently. I do not know whether negligent use would be grounds for an assault charge or not.
@91 Octane – It was the officers who inflicted physical harm. Not the protesters. You are saying that all is equal, but it is that point where it tips against the officers.
“@91 Octane – It was the officers who inflicted physical harm. Not the protesters.”
RK, it was the protestors who instigated the conflict, not the officers.
medwoman: “Do I think that the protestors handled the situation optimally ?”
they didn’t “handle” anything. they instigated it. the officers were the ones who had to “handle” it.
As i understand it, the grade of pepper spray used, cited above, is about 10X more potent than anything available over the counter to civilians for self-defense (such as what some women carry in their purse).
So Rusty, ask how your son would like to be streamed at very close range with something 10X more potent than what he experienced!
Fortunately, as I understand it none of those sprayed breathed much of it down into their lungs and sustained any lasting health effects (correct me if I’m wrong); I think a big breath of it down into the lungs might damage the lungs (can anyone evaluate this; medwoman?)
“So Rusty, ask how your son would like to be streamed at very close range with something 10X more potent than what he experienced!”
My son?
Ryan Kelly
“I want to point out that at the time of the spraying, officers supposedly “prevented from leaving” no longer had arrestees with them.”
That is totally false. View some videos on Youtube, the students were still with the officers who were being blocked by the sitting students at the time of the spraying. Just the facts Jack.
Oops apologies Rusty; that was Jeff that commented on his son experimenting with spray.
I would assume the reason the grade of pepper spray used by the UCD police is not available to the general public is that there is risk of serious health consequences if not used properly. So if the UCD police did not administer the spray properly, they may have risked physical injury to the students (cornea and lungs would seem to be most susceptible; or risk to those with asthma or allergy problems; maybe medwoman can comment).
That said;as I understand it none of those sprayed have ongoing health problems caused by the spray; and I think the event is overblown to some extent.
Neither police or the students can be expected to be perfect at all times; I expect that there were misjudgements by some on both sides.
“the fact that the officer had to step through the protestors suggests they attempted to cut him off… if they weren’t blocking him, he wouldn’t have had to step through them…. “
The question is not whether they were or were not blocking them – you understand this right? The question is whether the use of pepper spray is a legitimate use of force and the answer is and will be that it is not.
[quote]So were errors made on the protestors side ? Sure. But these are kids, not trained professionals, who, I personally believe should be held to a higher standard. Finally, even if the students were completely in the wrong, that does not justify use of excessive force on the part of the police. [/quote]
Good summation of the situation…
[quote]The question is whether the use of pepper spray is a legitimate use of force and the answer is and will be that it is not.[/quote]
We don’t know that yet. Remember, all the statues call for a “reasonable person” standard, which is not a clear cut bright yellow line standard. The totality of the circumstances is likely to be taken into account…
jimt
I am sorry I have taken so long to reply to your question about the safety considerations with the use of pepper spray. Unfortunately, I have not been able to find much of value in the recent literature however, there does seem to be general agreement about all but the most serious consequences about which there is dispute in the literature which I will discuss.
The generally agreed upon effects are as follows:
1) Eyes – direct spray to the eyes has three immediate effects. Tearing, irritation of the cornea and involuntary closing of the eyes causing temporary blindness lasting a maximum of 25 minutes. The most definitive article in the peer reviewed opthalmology literature indicated that a single exposure to the eyes would not result in permanent damage, but that repeated spraying could results in chronic corneal irritation ( extremely painful as anyone who has ever had a corneal abrasion can attest) but not blindness.
2) Skin – intense but transient sensation of burning. Not serious
3) Vomiting – can last up to 30 minutes. Not serious unless the person is placed in a position which causes them
to aspirate. Aspiration of vomitus is a very serious, life threatening condition which is why all but the most
urgent surgeries are deferred until the patient has been without any oral intake for at least 8 – 12 hours.
4) Respiratory system – now here is where it becomes controversial.
There are some sites on line that state that there are no confirmed cases of death attributable to pepper spray.
Based on the evidence, I would say that this is a rather self serving claim.
The evidence is as follows: In 22 cases of fatalities occurring in custody after pepper spraying 18 were found to be due to asphyxiation. The remaining four cases had confounding factors such as drug or other substances abuse that were felt to be contributory. So, lets look at the interpretation of the 18 asphyxiation deaths. The police, understandably interpreted these as not being related to the pepper spraying. The ACLU also understandably from their point of view claimed that they were pepper spray related. So where is the truth ? I will freely state that there is not enough evidence to make a firm conclusion. However, as a doctor, my interpretation is the following. Since it is not disputed that one of the major effects of pepper spray is to cause a profound swelling of the mucous membranes which line the nose, mouth, pharynx and bronchial system which carries oxygen to the lungs, and that swelling is known to impair the delivery of oxygen and is one of the most common indications for intubation, it is not unreasonable to think that exposure to pepper spray could be the underlying cause behind the diagnosis of
asphyxiation. So while the use of pepper spray on a completely healthy young person with no underlying medical problem is unlikely to cause serious ongoing health problems, this would not apply to the one in fifteen Americans who have asthma for whom a direct spray could well prove lethal. The question I would have, is, was it worth it
to assume, in this low risk situation where there was clearly defiance of authority, but no credible threat to the safety of the police or others, to take the chance that one of those 17 students did not have a serious respiratory condition. From a physician point of view, no it is not reasonable and not worth the risk. From a police point of view ? Well, I don’t know. I guess we need the opinions of the other police there that day not involved in the spraying, and they don’t seem to be talking at least in a venue to which we currently have access.
As far as use of the “correct vernacular” – i.e. the use of Shot rather than Spray:
Pike: [Walks up to Case. Speaks directly to him for about 8 seconds. Nearly inaudible on video.]
Case: You’re going to shoot me? You’re going to shoot me for sitting here? Hey officer, is that what you said?
Pike: Yes.
Case: Officer, is that … [garbled audio]
Unidentified Male Protester: He just said yes.
Unidentified Female Protester: Shoot You. He’s going to shoot you.
Case: Alright. Just making sure. Just making sure.
Pike: [pats Case on the back] I’m telling you right now.
Case: You’re shooting us for sitting here?
Pike: [garbled ]… That pepper spray gun… [garbled] [pats Case on the back again and starts walking back to the rest of the police]
Case: No, that’s fine. That’s fine. You’re shooting us for sitting here.