Sunday Commentary: Pike and Swartwood Should Face Criminal Charges

Pepper-spray

At this point, two dominoes have fallen:  Chief Annette Spicuzza was likely forced to retire in order to keep her pension; and Vice Chancellor Meyer, Spicuzza’s immediate supervisor, was removed administratively from the position of direct oversight over the police department and replaced by Provost Hexter in that role.

The Vanguard has now completed its individual-by-individual account of the key actors at UC Davis.  We are, of course, awaiting the official word – if we ever get it – on the plight of people such as Lt. John Pike, Lt. Barry Swartwood and Officer Alexander Lee.

While we called early on for Chancellor Katehi to resign, it seems quite evident that she will not be fired.  We will make an argument shortly where our analysis leads to a conclusion that she should be fired.

Chief Spicuzza

We start the analysis with a look at Chief Spicuzza.  One thing we do not know from the  Kroll report is the relationship between Chief Spicuzza and both John Meyer and Chancellor Katehi.  That would be important to be able to assess, because on the surface of it, it seems that the upper brass made a decision on when to remove the tents based on questionable intelligence and even more questionable legal authority.  In addition, while Chief Spicuzza said afterward that she had reservations, she did not clearly express them to upper management.

That is a problem from the perspective that she is the highest ranking police officer, who chooses to ignore her tactical knowledge and experience, and instead basically allows the civilians to make a critical tactical call.  She fails to exercise her own judgment and ignores officers with tactical experience and knowledge under her.  We do not know, however, if that is a political decision to let the civilians choose the course of action rather than exercise her own independent judgment, leading to the grave error described by Kroll.

What we do know is enough.  She did not have the support of the people over which she had command authority: they ignored her with impunity, and during critical times she was absent from key meetings where decisions were made.  Moreover, we have the embarrassing account of her conduct on the day in question – instead of making command decisions and expressing them directly to her personnel, she was taking photos, videotaping the events, and using the cell phone to call dispatch.

Based on this and this alone, we can certainly conclude that her sudden, and likely forced, retirement was the proper move by the UCD officials and Spicuzza, knowing that this was not a first-time problem with her. There were all sorts of problems with the leadership of that department, and going back at least five years only bolsters that notion.

We fully believe that it was not her decision to retire, but her best option.  We support the decision here to change leadership as quickly and cleanly as possible.

Alexander Lee

If Chief Spicuzza was the easiest call on forced retirement, Officer Alexander Lee would seem at least to be the easiest call on choosing retainment – though some will argue that as a police officer he has the duty to resist unlawful orders – rookie or not.

As we wrote previously, we know that Officer Alexander Lee was a rookie officer in November 2011, having recently been promoted to Officer from Security Guard sometime between June 2011 and November 2011.  We don’t have the specific date because the university withheld that record, however we know it was so recent that even on November 29, the change was not reflected in the university’s payroll system.

We also know, from the report, that Officer O is Officer Alexander Lee.  According to the task force report, Officer Alexander Lee was “acting at Lieutenant Pike’s direction” when he pepper-sprayed a “smaller portion” of the protesters who were in a seated line.

The Kroll report writes, “The actual deployment of pepper spray by Lieutenant Pike and by [Alexander Lee] at Pike’s direction was flawed and unnecessary.”

The report continues, “Lieutenant Pike appeared to have exhausted the contents of the canister and [Officer Alexander Lee] began to spray some of the students seated on the west portion of the group.”

According to Alexander Lee, “Lt. Pike issued an order to me to use police pepper spray on the crowd. I sprayed the crowd directly in front of the police skirmish line using a department issued pepper spray fogger Defense Tech MK-9.”

That is pretty much the extent of Officer Lee’s role here.  He was a rookie officer taking direction from Lt. Pike a longtime veteran Lieutenant.  Given the circumstances, it is reasonable to understand that the officer was hardly in a position to question the orders and therefore it is difficult to find much cause for his termination.

In addition, it is possible that Officer Lee was still assigned to a Field Training Officer who should have been responsible for making sure that Office Lee followed lawful orders.

In this case, both the FTO and Lt. Pike would have failed in their duties to train a rookie officer.

Other the other hand, it is possible that Officer Lee would have been on probation as a police officer and therefore a mistake of this sort could be grounds for firing him without any right of appeal on his part and no job protection at all.

In short, there is much we do not know about Officer Lee’s position.

Lieutenants  Pike and Swartwood

We tied the two together here because, in a very real way, they both bear about the same responsibility for the decision to use pepper spray.  Lt. Swartwood was the scene commander but Lt. Pike was the most senior officer on the Quad.

The only difference between the two was that Lt. Pike ended up using the pepper spray and Lt. Swartwood did not.

However, it seems likely that they both approved its use.  Kroll reports that, according to Lieutenant Pike’s Supplemental Narrative Report, he discussed the use of pepper spray with Lt. Swartwood and “considered other force options.”

However, “In the Supplement Narrative Report” written by Lt. Swartwood, “he does not say that he discussed the use of pepper spray or any other less-than-lethal force with Pike.”  The “first mention of pepper spray” by Lt. Swartwood “in his Supplemental Narrative Report is when ‘Lieutenant Pike displayed a can of police pepper spray’ to the crowd while Lt. Swartwood was outside of the circle.”

It is possible that Lt. Pike mentions this in his report to reduce his burden of responsibility.  On the other hand, Lt. Swartwood attempts to distance himself from the decision in his report.

We cannot reconcile these two accounts.  Only one can possibly be telling the truth here.  Though we speculate that, as scene commander, Lt. Swartwood should and would have been consulted by Lt. Pike before he used the pepper spray.

Moreover, in his narrative, Lt. Swartwood justified the use of pepper spray, stating, “It was my belief that to step over the protesting occupiers with prisoners and weapons would be hazardous. The occupiers had collectively surrounded us and it was possible, if we did step over them, that they could attempt to free our prisoners (they chanted that they wanted them released) or attempt to grab us or our equipment.”

We are supposed to believe that he supported its use after the fact, but did not know that Lt. Pike intended to use the pepper spray?  That seems unlikely.  We believe it is enough that Lt. Swartwood knew or should have known that Lt. Pike intended to use the pepper spray and was not opposed to its use even after the fact.

That establishes joint culpability, even though Kroll flags Lt. Pike more heavily.

The major finding of the two reports is: “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”

Kroll writes: “The actual deployment of pepper spray by Lieutenant Pike and by [Officer Alexander Lee] at Pike’s direction was flawed and unnecessary.”

The task force finds, along with Kroll, “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.

The task force finds, “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 inconceivable that Lt. Pike should be retained and we believe Lt. Swartwood is equally culpable and should likewise be relieved of duty.

The question comes to mind whether or not criminal charges should be brought against the lieutenant(s).

The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances.  That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents.  Not only did they probably lack legal authority according to Kroll, they knew it.  It was Lts. Pike and Swartwood who demanded the Campus Counsel give them a legal opinion.

We do not know what was in the legal opinion expressed by Campus Counsel, but we know it was clear enough that the police carried out the tent clearing operation.

Not only was the use of pepper spray not reasonable according to Kroll, and not only was the legal authority at least questionable, but these errors were compounded by the ultimate fact that the police used non-authorized pepper spray.

The military grade weapon is unauthorized under UCDPD General Order No.559 which “provides that pepper spray can be used, but specifically refers to the MK-4 (a smaller canister).”

The task force adds, “Furthermore, the investigation found no evidence that any UCDPD officer had been trained in the use of the larger MK-9.”

Kroll supported their conclusion that use of pepper spray was not reasonable use of force by stating, “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.”

The task force notes that  UCDPD officers were not trained on how to use this pepper spray correctly and that they “did not use it correctly.”  Writes the task force: “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.”

It remains an unsolved puzzle as to how UCDPD acquired and used an unauthorized chemical agent, and the facts here are rather appalling.

We have Kroll determining that the use was unreasonable.  We have questionable legal authority to clear the tents anyway.  We have an unauthorized military grade chemical weapon, a weapon that UCDPD are not trained on, and a weapon that they do not use properly.

The major question is whether this rises to the level of criminal activity.  We stress that we are not attorneys, however, attorneys were consulted for the writing of this section.

There are two primary criminal charges that might apply.

One possible charge is battery which, under Penal Code section 242, is “any willful and unlawful use of force or violence upon the person of another.”

The battery charge would be pretty much a straightforward determination that the use of force was unlawful.  We think there is ample evidence of that. as we have already laid out.

The questionable legal authority may be a key element in the determination, but if the DA were to determine that the use of force was not objectively reasonable, that coupled with the three-fold problem of (A) unauthorized type of pepper spray, (B) lack of training, and (C) improper application, would seem to present a strong case.

A question is whether this is merely a simple battery which only requires “the slightest touching” if “it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.”

On the other hand, it could be considered battery causing serious bodily injury.

Under the jury instructions, Calcrim section 925, serious bodily injury “means a serious impairment of physical condition.”  It describes possibilities including but not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function on any bodily member or organ, wound requiring suturing, or disfigurement.

Those pepper sprayed described prolonged vision loss, nausea and lung problems, which might be deemed by a jury to be a serious bodily injury.

Lt. Pike is the most obvious figure to be charged criminally, however, the other officers, and in particularly Lt. Swartwood as scene commander, could be viewed as “acting in concert” with the one who actually did the deed could be considered “co-conspirators.”

In order to prove aiding and abetting, the prosecution must be able to prove that the perpetrator in this case, Lt. Pike, committed the crime and that other officers like Lt. Swartwood know that the perpetrator intended to commit the crime – in this case their conversation about the use would be sufficient if proven that such occurred.

Furthermore, before or during the commission of the crime, Lt. Swartwood intended to aid and abet the perpetrator in committing the crime.  Finally, the lieutenant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.

That element would be met if the lieutenant as the scene commander gave Lt. Pike the go ahead to use the pepper spray in an illegal manner or did not prevent him from doing so.

Based on this analysis, we believe that Chief Spicuzza’s forced retirement was appropriate.  We believe that Lt. Pike and Lt. Swartwood should face criminal charges in addition to termination.  And we are unclear as to whether Officer Lee should incur no further discipline, given that we do not know his previous status.

Next we will look at Chancellor Katehi’s ultimate outcome.

—David M. Greenwald reporting

Author

  • David Greenwald

    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.

    View all posts

Categories:

Law Enforcement

71 comments

  1. [quote]We believe that Lt. Pike and Lt. Swartwood should face criminal charges [/quote]

    I am not sure about Lee but it seems to me that Pike should face criminal charges as I have blogged before.

    I am not an attorney though and I’d like to know what people with a better background than I have think.

    It does occur to me that it would be hard to get a unanimous jury conviction here though if Lt. Pike engaged in criminal activity–which I agree he did–he should be prosecuted.

  2. 91 Octane

    “…
    Their punishment should not be anymore severe than the weasels that started the whole mess in the first place.”

    Such as the top decision makers at the university who keep increasing student costs while approving ever increasing salaries for questionably competent administrators ?

  3. “We believe that Lt. Pike and Lt. Swartwood should face criminal charges”

    I believe that people who are demonstrated to be unable to perform their duties in an appropriate manner should be offered a position in which their capabilities and experience can be used without the potential for harm to others. Potentially this could mean a desk job for these officers, perhaps with loss of rank and or compensation. I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
    Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ?

  4. We don’t know to what extent Spicuzza was hamstrung by the administration. Because she chose to retire, we will probably never know.

    As far as Pike and Smartwood, it would be hard to guess whether criminal charges can be brought against them and whether they would stick. After all, you had a colossal breakdown in command; the police were tactically ordered by the Chancellor to take the tents down at 3 am against the better judgment of the police; Pike actually questioned the legality of what they were about to do; and the students did in fact surround the police and chant they would not let the police go. It also would depend on the personnel backgrounds of Pike and Smartwood. I suspect if they both had unblemished records, it will be much more difficult to prosecute them. It could go the other way if they don’t have unblemished records…

  5. “Chief Annette Spicuzza was likely forced to retire in order to keep her pension….If Chief Spicuzza was the easiest call on  forced retirement….Based on this analysis, we believe that Chief Spicuzza’s forced retirement was appropriate”

    And how you know this? There’s nothing here to indicate why you think this rather than someone’s earlier, more honorable speculation that “she fell on her sword.” How was her pension at risk if she didn’t retire immediately? Public employees “earn” their pensions by virtue of their age and years of service. How could the chief’s situation be different?

    With respect to your call for criminal charges, are you sure that California police officers don’t enjoy some kind of immunity that keeps them from being charged every time they engage in “the slightest touching” of people they’re arresting or that police “act in concert” or “act and abet” to make arrests?

    Everything you quote from the Reynoso/Kroll report raises matters of judgement and policy (inadequate policy and failure to follow existing policy). I don’t see the investigation claiming any violations of law on the part of police or UCD administrators. What is the status of any investigations that would have anything to do with whether these people broke any laws?

  6. [quote]I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
    Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ? [/quote]

    Well said!

  7. medwoman – Suppose that you’re an obstetrician. Suppose that in the old cost model for a C-section, the health network pays $17,000 and the patient pays $3,000. Suppose that in the new cost model, the health network pays $7,000, and the patient pays $8,000. Then did you raise costs or lower them?

    Suppose that in the new-new cost model, the health network pays $5,000. Suppose that, to lessen the out-of-pocket increase for local patients, you accept some international patients who pay $30,000 in cash for the same service. Then are you guilty of privatization? Or are the international patients doing what the health network isn’t doing?

    Suppose that as an obstetrician, you are paid $200,000. Suppose that a health network spokesman says that that is a richy-rich salary and that you ought to get by with $150,000 — and where did you get the nerve given what you’ve done to patient costs. Suppose that you point out that yes, $200,000 is a high salary, but it’s also below median, and you can’t really expect OBs to stay in California if below median is blasted as a luxury salary. Then should the health network cap your salary?

    Because that’s the way that the discussion has gone lately at UC and CSU. With the difference that at UC, populist criticism is correctly received as hot air in the long run, while at CSU, the demagogues can do major damage.

  8. Medwoman: I direct you to the Kroll report on that:

    “In a democratic society, police are controlled by the law. It is the law, primarily Constitutional and criminal law, which gives police the authority and power to take action.”

    To me the most serious crimes that are committed in this country are crimes committed under the color authority.

  9. “With respect to your call for criminal charges, are you sure that California police officers don’t enjoy some kind of immunity that keeps them from being charged every time they engage in “the slightest touching” of people they’re arresting or that police “act in concert” or “act and abet” to make arrests?”

    The police have the authority to use force under specified conditions. The first portion of this column demonstrated why they exceeded that authority.

  10. “What is the status of any investigations that would have anything to do with whether these people broke any laws?”

    Alexis Briggs told me she had a conversation with DA Cabral and he had no comment about where they stand. I meet with Barry Shiller tomorrow from the University, I don’t know if he’ll have information about a time frame for this investigation. I have heard that a couple of other investigations will come forward.

  11. 91 Octane

    “the weasels that started the whole mess in the first place”
    ” nice way to deflect blame, while changing the subject”

    Not at all. I genuinely do not believe that the protesters “started the whole mess”. I am quite sure that none of them just woke up the preceding day and said” let’s go see how much trouble we can cause on campus today for the fun of it. ” They were not acting in a vacuum but rather in response to years of ( in the opinion of many), unfair and unwise policing making at high levels of the UC administration that have remained unchanged despite many student actions in the form of discussions, forums, petitions, letter campaigns in the past.

  12. Octane: Here’s the problem. The weasels that started this were the campus administrators unless you want to argue that the protesters had no right to protest. What started this was (A) the false assumptions and hysterical fears that somehow the local protest was going to draw hardcore anarchist elements from Oakland and (B) the failure to act under proper and clear legal authority. THAT IS WHAT STARTED THIS.

  13. David

    “To me the most serious crimes that are committed in this country are crimes committed under the color authority.”

    I am in complete agreement with your statement. I will always hold the authorities to a higher standard of behavior than the private citizens precisely because we entrust them with, and compensate them for acting for the common good.
    I is ply do not believe in the value of a retribution/revenge model of justice. I believe that the purpose of imposing any kind of sanction should be limited to protecting individuals and society, restoration and compensation for damages, and redirection and education to improve destructive or dangerous behaviors where that is possible.

    In this case, I would not oppose financial compensation for any injuries sustained through excess use of force, but would oppose incarceration
    ( for example) as a penalty.

  14. 91 Octane

    Please forgive my perhaps telling typo in last post.

    I meant to write “unfair and unwise policy making” although I would also stand by the statement as it appears.

  15. medwoman: In general I agree with you. In this case, I would just argue that criminal sanctions against law enforcement for violent acts of misconduct is rarely if ever applied and I think that’s a huge mistake. It contributes to the general lack of accountability. And people are really at the mercy of law enforcement because of their color of authority that gives them deference even when operating illegally. I don’t see this as a matter of retribution or revenge, but part of what needs to be done to hold law enforcement personally accountable for their actions when on active duty.

  16. “they put up the tents with the intention of causing a conflict between themselves and the police/campus authority. “

    Had UC Davis responded the way that the City of Davis did to the tents in Central Park, it would have been a non-issue and they would have had them down by Thanksgiving a week later anyway.

  17. “they must ultmately bear the higher blame for that. “

    No. The higher blame is the misuse of power under the color of authority.

  18. 91 Octane

    I don’t believe that either of us is privy to the motivations of all the protesters. Some were probably interested in “causing trouble” .
    Others probably had no interest in causing trouble, but saw this as an entirely peaceful means of calling attention to these longstanding issues.
    And indeed, this particular protest was completely peaceful until the police arrived.
    It was the police action, not the physical presence of the tents, that caused the large upsurge in the crowd as can clearly be seen by watching the footage taken before the advance of the police. To me, this makes the administration and the police with the ultimate bearers of higher blame for converting a small, peaceful protest into a debacle of mismanagement..

  19. MEDS: [i]”Such as the top decision makers at the university who keep increasing student costs while approving ever increasing salaries for questionably competent administrators?”[/i]

    Most of the increasingly high costs of tuition at the UC is the result of a change in priorities in the state budget: The percentage of the state’s general fund going to higher education has roughly been cut in half since the late 1980s; and the percentage going to incarceration and criminal justice has roughly doubled over the same period.

    My general take on the pay to UC administrators and other UC execs is probably not too different from yours: That a great number of top admins are being paid far too much. I am unconvinced that there is a great paucity in administrative talent. I doubt that by cutting out some of these people (there are now twice as many provosts in the UC system per enrolled undergraduate as there were in 1984) and cutting back the rate of pay on most others would mkae for a worse education for UC students at large. But I am also not convinced that saving money on executive compensation (which in inflation adjusted dollars is 3 times what it was 30 years ago) will do much to reduce student fees. To solve that, we need to fix the prison-industrial complex, starting by divorcing the Democratic Party from the public employee unions which run that party.

  20. [quote]I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
    Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ?[/quote]

    Why prosecute anyone?

    First, we hope it deters future similar criminal activity. I am quite sure that police officers will take note of what happens to Lt. Pike.

    Second, it send a message.

    Pepper spraying students engaged in peaceful protest on campus with riot gear is unacceptable and criminal.

  21. medwoman: I don’t believe that either of us is privy to the motivations of all the protesters.

    we saw their motives play out live.

    vanguard: Had UC Davis responded the way that the City of Davis did to the tents in Central Park, it would have been a non-issue and they would have had them down by Thanksgiving a week later anyway.

    that is largely speculation, and didn’t address my point. Those little ……s intended to goad the police into a fight.

    vanguard: No. The higher blame is the misuse of power under the color of authority.

    No.

    put another way, they set a fire, poured gasoline on it, but you blame the police for how they tried to put it out. Whom do I hold ultimately responsible? no brainer.

  22. “The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances.  That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents.  Not only did they probably lack legal authority according to Kroll, they knew it.”

    is this the basis, that using the spray was “objectively unreasonable” in the legal sense of the term? This seems like a very high standard for you to meet. The Reynoso/Kroll report does not come close, in fact, specifically avoided looking at criminal culpability of those you say should be charged.

    Did you weigh your opinions against any California laws that protect police from prosecution for decisions made in the field while arresting people, however poor their judgement turns out to be?

    Operating under inadequate, poor policy and planning or failing to follow policy might be stupid or even be a firing offense without being criminal offense. Nothing in the Reynoso/Kroll report says that those they investigated broke any laws, correct? Yet you use their report to make a leap they don’t suggest.

  23. medwoman – It is indeed the opinion of many, to varying degrees, that student tuition is high because of years of mismanagement at the top at UC. But the thing is, those opinions are wrong; they’re simply blaming the wrong people. There has been a lot of weird logical relativism in this discussion, which on the other hand is typical of the Fox News school of journalism, by which the truth is only one side of a debate.

    Fortunately financial accounting at UC — unlike some of the budget accounting in the state government — is reality-based and not opinion-based. So these protests have no real chance to “succeed”. If they did “succeed”, as they have to some extent at CSU and the community colleges, it would make things worse rather than better. Worst of all is what has happened at the University of Puerto Rico, where instead of making the best of a bad situation caused by budget cuts, student protests did major further damage to the university.

  24. “is this the basis, that using the spray was “objectively unreasonable” in the legal sense of the term? This seems like a very high standard for you to meet. The Reynoso/Kroll report does not come close, in fact, specifically avoided looking at criminal culpability of those you say should be charged.”

    The reports were not supposed to look into those issues. I think finding criminal penalties for police have to meet a high standard. As I said in the piece, I consulted with some attorneys on the legal opinion.

    “Did you weigh your opinions against any California laws that protect police from prosecution for decisions made in the field while arresting people, however poor their judgement turns out to be?”

    Yeah that’s in part why I think the legal basis issue is critical.

    “Operating under inadequate, poor policy and planning or failing to follow policy might be stupid or even be a firing offense without being criminal offense. Nothing in the Reynoso/Kroll report says that those they investigated broke any laws, correct? Yet you use their report to make a leap they don’t suggest. “

    At that this point I’m using their report for supportive evidence. There is a parallel DA investigation that will determine from their standpoint whether to file charges. My guess is that they won’t but as I argue here, they should

  25. “So these protests have no real chance to “succeed”.”

    I find your reasoning flawed. There are still decisions made as to how to allocate resources and there is no reason that those allocations cannot be changed.

  26. “Pepper spraying students engaged in peaceful protest on campus with riot gear is unacceptable and criminal.”

    I agree with your first conclusion. It is not a criminal act to use pepper spray in dealing with people who resist lawful police orders. it’s done all over, all the time. it is a lesser force than many other lawful methods used by police. Wearing protective gear, of course, is not criminal either, whether alone or in conjunction with use of force.

    If bad judgment and stupidity were crimes, the prisions would be full. Oh, yeah, they already are–with people convicted of crimes that already are in the law.

    it’s fascinating that we have concurrent discussions underway here–one suggesting we need to convict police of laws that probably don’t apply and another suggesting we should drop charges against blockaders for whom authorities probably have open-and-shut cases with overwhelming evidence. One significant difference is that the blockaders purposely and knowingly broke laws.

  27. It is certainly true that there are decisions to make about allocations of resources. The fact is that Vanderhoef made many of those decisions pretty badly, or he left them twisting in the wind, while Katehi has been no genius but at least pretty good. Every time Katehi (or anyone else) finds a rational way to reallocate resources, it’s a sacred cow of some faction that then agrees with the protesters that the administration is terrible. That’s what happened with the athletic cuts, for example. So the relation between any reality-based discussion and the protests truly is that the protests make things worse. Vaccination is blamed for the epidemic.

    In any case, what really gets the goat of the protesters is simply the increase in systemwide fees. The logical story is that that money goes to Oakland and that UC Davis gets less money per student than before the fee increases. But the protesters don’t understand that and they also don’t want to understand that.

    As for the right to protest, yes, the administration and the police screwed up. But the fact is that many these protesters dared the administration to make them victims as the perfect method to protest. Okay, they aren’t hardcore (although some of them would like to think they are) and they aren’t from Oakland. But they certainly are anarchists: there is no other way to read a demand like “cops off campus!” Once the administration figures out deft handling of fair-weather anarchists, then they are no longer victims and their message disappears.

    Which will hopefully allow more stage time for people who have something rational to say.

  28. [quote]”At that this point I’m using their report for supportive evidence. There is a parallel DA investigation that will determine from their standpoint whether to file charges. My guess is that they won’t but as I argue here, they should.”[/quote]I guess you’ve found a point on which we agree–that there likely will not be charges brought against the police or administrators. We’ll have to wait until the DA investigation is finished, then we’ll [u]know[/u] if any laws were broken. I wonder if we’ll still be in agreement when the DA reports?!

    In the meantime, we shouldn’t (or can’t) make much of the “supportive evidence” of criminal activity cited in the Reynoso/Kroll report since they didn’t include any.

    In the meantime, I’m still interested in whether your report is accurate on Chief Spicuzza’s “forced retirement in order to keep her pension.” It’s so unlike anything I’ve heard about in the realm of civil service law and regulations that it doesn’t seem to be even a possibility.

    Did you find something unique about the Chief’s status and situation? Do you mean that she was given some special early-out authority that she hadn’t earned on the basis of her age and service?

  29. [quote]I agree with your first conclusion. It is not a criminal act to use pepper spray in dealing with people who resist lawful police orders. it’s done all over, all the time. it is a lesser force than many other lawful methods used by police. Wearing protective gear, of course, is not criminal either, whether alone or in conjunction with use of force. [/quote]

    JustSaying I should have made myself clearer–I have blogged in more detail in the past. I agree that there are circumstances where pepper spraying may make sense. I think one of the key findings here is that the type of canister and spray here was not meant for close contact and hence was not “reasonable force.”

    I am also not convinced that pepper spray was necessary in this particular circumstance though this would be a tough call in court–second guessing a police officer’s actions in this type of circumstance is hard and should be done very sparingly.

    But the fact that an inappropriate type of canister was used:

    [quote] “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.[/quote]

    is the key piece of evidence imho (non-lawyer that I am).