Earlier this week, the police union’s attorney, John Bakhit, threw a curveball to those eagerly awaiting the release of the pepper-spray report when he told the local newspaper that Reynoso’s report was “going to surprise a lot of people.”
The reality came down quick and harsh on Lt. John Pike when the Task Force echoed the Kroll Report in finding, “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.”
It is difficult to imagine the report being much worse for Lt. Pike.
In fact, the Task Force hammers Lt. Pike, arguing: “Lt. Pike is also responsible for the specific pepper spray weapon he used, the MK-9, and the manner in which he used it. The MK-9 is not an authorized weapon under UCDPD guidelines. UCDPD officers were not trained in how to use it correctly. And Lt. Pike did not use it correctly. 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.”
However, the local paper published a full account of what can now only be reasonably viewed as “spin,” without much critical inquiry or apparent questioning.
However, having his claims completely shredded by the release of the report was not sufficient for Mr. Bakhit.
The Mercury News this morning paraphrases him, saying, “An attorney for Pike and other officers said the task force did not speak to the officers involved and thus did not have the information needed to reach conclusions. Police officers had every reason to be nervous while they were surrounded by chanting protesters, said John Bakhit.”
“All it would take is one spark for a mob mentality to happen and for those officers to be flattened,” he said.
He told the LA Times that he “completely disagreed” with the conclusions of the report that Lt. Pike lacked reason to use the pepper spray, stating, “He said the panel did not take seriously enough the threat police faced from ‘this large mob of people’ who refused police orders to disperse.”
Leaving aside the disconnect between the report and Mr. Bakhit’s statements, there is a huge amount of irony here as the union itself took active steps to preclude the Kroll investigators from talking to the subject officers.
That was their choice and their choice alone. In fact, the difficulties in dealing with the union delayed the release of this report at more than one point. First, early on when they refused to even allow the Kroll investigators to speak to the witness officers, and then when they filed suit to attempt to prevent portions of the report from becoming public.
Moreover, it was not the panel’s conclusion alone that Lt. Pike had no reason to use the pepper spray. Kroll’s investigators, led by former Police Chief William Bratton and comprised of veteran and experienced police officers, came largely to the same conclusion.
They may not have had access to interviews with the officers, but they had access to 60 different videos.
They write on page 118 of their report, “While a detailed review of the event provides some support for their position, the facts finally undermine the conclusion that the officers were trapped by the crowd of protesters.”
While it seems difficult to undermine Reynoso’s task force, comprised of administrators and other UC Officials in addition to students and community members, it is more difficult to dismiss the Kroll team as the work of inexperienced amateurs.
The Kroll team notes that on two occasions, Officer F and Officer P were able to step through lines of seated protesters without incident – in one case with arrestees in tow.
They write, “It appears that neither OFFICER P nor the DPD officers used any force to accomplish these movements through the crowd.”
Moreover, as we have noted many times, “Lieutenant Pike’s actions and body language are clearly depicted on the videos/photos. He appears calm and collected in his movements and actions. He is seen repeatedly warning the protestors and talking to various officers inside the circle. Then, before applying the pepper spray, Lieutenant Pike may be seen stepping over the seated protesters to get to their faces (the protesters, after being warned, had turned their backs to Pike), a move that a police officer would generally not perform with a hostile crowd as the ‘stepping over’ movement leaves the officer vulnerable to attack.”
The Kroll report concludes: “On balance, there does not seem to be an objective, factual basis for Lieutenant Pike to have believed that he was trapped or that his officers were prevented from leaving by the seated protesters. Furthermore, there is no objective evidence available to Kroll that depicts any attempt by the protesters to use violence.”
They add, “The deployment of pepper spray does not appear to have been an objectively reasonable use of force. 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.”
In short, there seems little evidence that there was a mob mentality and it is worth noting, as Kroll does, that most of the worst chants were actually silenced quickly, and were far apart in time from the use of force.
Earlier this week, Mr. Bakhit downplayed the possibility of criminal charges, telling the paper, “Realistically, I don’t see anything happening with the criminal investigation, but until we have something in writing I won’t even allow (Pike) to consider (speaking publicly).”
While we originally discounted the possibility of criminal charges, we now believe they are possible, given the fact that Lt. Pike had little reason to use the spray, that he used a caliber spray that was not authorized, that he was not trained to do it, and he applied it improperly. We believe that gets him pretty close to assault, and we will analyze this possibility more later.
Finally, Mr. Bakhit suggested that Lt. Pike would not get fired.
“The use of force really boils down to the state of mind of the person who used the force,” he said. “Based on that, and based on everything that occurred that day, we feel (Pike) did not do anything wrong.
“However, let’s take it a step further, for the sake of argument: Even if it were deemed that his actions were wrong it does not rise to the level of a termination or anything that severe.”
Based on the report, I see no way that he keeps his job. Some people call this a pound of flesh, but I think they are excusing misconduct under the color of authority far too easily.
—David M. Greenwald reporting
I think Lt. Pike should be terminated. If the UCD Police are smart, they will cut him loose. Otherwise, there will be even more scrutiny and criticism regarding a dysfunctional campus police department that can’t even acknowledge that such egregious behavior is unacceptable. It will be interesting to see what UCD Police do. Do the try to protect “one of their own”, or do they give him up and seek to protect themselves, as they are clearly next in line? Lt. Pike will be unable to do his job within the UC Davis Police system in many instances going forward because of this and any action involving Lt. Pike in the future will immediately be questioned because of the November 18th incident. If I’m Lt. Pike and I have any sort of story to tell, I might want to start thinking about telling it and/or finding employment elsewhere.
Pike’s attorney’s rhetoric just disgusts me. Pike carried 1) an unauthorized weapon and 2) severely assaulted people with it 3) with no real provocation. Where is any objective reasoning here? Oh I get it, like attorney like client. It will probably take the authorities forever to resolve this, if they ever do.
I don’t think it will matter to the police or their union what any independent panel says. They have their story and they are sticking to it. Chancellor Katehi is the person primarily responsible for what happened.
The UC Police are simply under-trained and badly managed. Lt. Pike doesn’t deserve to be fired, but he should probably be demoted and have to earn his way back up the ladder.
UC could show some seriousness about this report by stepping back and having a higher elevation discussion about the need for a campus police force in the first place and what the University community really needs from such a force. Assuming they can justify that, the issue of managing a proper force by appropriate guidelines needs to be developed. As it is, it appears UC Davis doesn’t have clarity around the need for a campus-based police force let alone what it might need in training.
Is that kind of discussion and strategic planning something Katehi is capable of? Nah, never mind.
If Pike and the other officers contend that they were justifiably concerned about the safety of police, the demonstrators and the observers, they made a serious error in deciding not to try to make their case for this commission. They might not have changed the conclusion, but, at least, they’d have put a better attempt on the record than their union mouthpiece has done.
If Pike took it on himself to be carrying unauthorized pepper spray into the fray, no amount of “state of mind” justification will do the job for him. Somebody’s got to pay with his/her job for this serious lapse of judgment. If not Pike, who provided it to him?
According to the Report, the MK-9 pepper spray did not just come out of the blue, but was probably a result of a good faith correspondence with fellow police department in the UC. Pike did not just take it on himself to carry the MK-9. UCD Police learned about it from UC San Francisco (113/190):
[quote]Kroll identified a reference to this product in an email sent Officer S to on December 15, 2010, Officer T of the UC San Francisco Police Department emailed Officer S the product information in an email related to a planned Regents meeting in January 2011. He also sent the product information to Officer U of the UC San Diego Police Department, saying “here are the spec’s for the OC we use.”[/quote]
To properly understand this content, I would need to know the normal procedure governing what equipment can be used. If a new type of problem erupts and the existing equipment does not suffice, is the department stuck, or could the department borrow the policy of another department? Does UC San Francisco list MK-9 as authorized weapon?