For those of you who do not like speculation, this is your warning, this column is partly about speculation, but that is almost by design and indeed part of the problem. Last spring, as we attempted to find out the identities of UC Davis police officers involved in the November 18 clearing operation of the Quad, that ended with the pepper spraying of students, and multiple investigations, we were constantly questioned about why it was important to know the names of the officers.
The answer both was then and now is that we needed to be able to find out what happened to the officers involved, and without access to names that would prove very difficult.
Personnel and police officer confidentiality laws were put into place for good and legitimate reasons – to protect officers from harassment and to enable them to do their jobs effectively.
Unfortunately, while the law protects good police officers who are honestly going about their jobs – in our view the vast, vast majority of police on the force – it also enables police officers to escape scrutiny when they have transgressed against the public trust. It protects good officers from intimidation and bad officers from accountability.
These laws have proven to be a great hindrance in a public accountability of what happened on November 18, and, as importantly, in a public understanding of the consequence of those actions.
Following the November 18 events, the public’s anger and distrust of the handling of the tent-clearing operation led to at least three separate types investigations – we had the Kroll and Reynoso investigations which were intended to be public accountings of what happened. Their strength was that the reports would be released for the public to read but that meant they could not use personnel files or discipline reports, and the officers involved would not submit to interviews.
We had the internal report, which was conducted as any “IA” would be – internal, confidential, and the results would be off limits to the public. The strength of that is that we would have the officer’s testimony by law, but the public would not know the findings and, as such, there was no accountability.
Finally, there is the criminal investigation, which has yet to be released. The DA’s office tried to pass it off on the Attorney General’s office, but they are stuck with it.
Here is what we know. We know that back in April, the Kroll report conducted by William Bratton, and his organization comprised of retired police officers, was released. Cruz Reynoso and his task force, comprised of UC Davis administrators, professors, staff, students and community members, reviewed the Kroll report and issued their own summary.
Those two reports were largely in agreement and they were very damaging to the UC Administration and the officers.
What we have now learned this week is that around the same time, the Internal Affairs Investigation, undertaken by Deborah Allison at Van Dermyden Allison Law Corporation and Ed McErlain, an investigator with Norman Traub, cleared Lt. John Pike of wrongdoing.
A subsequent panel of police captains and others largely affirmed the findings, but believed that there were problems with Lt. Pike’s conduct and recommended a possible demotion and a short suspension.
Chief Matt Carmichael sat on these results for a few months, but it appears that he eventually decided to fire both Lt. Pike and Officer Alexander Lee. He wrote his explanation in a letter that was leaked to the Sacramento Bee and it mostly rang true.
Writes the Bee: “Carmichael concluded that Pike had assumed the role of de facto commander of the operation ‘but performed it poorly’ and that the ‘manner in which you used the pepper spray showed poor judgment’ given the direction that minimal force was to be used.”
“The Operation caused damage to the campus and the Department,” the Bee reported that Chief Carmichael wrote. “It is my judgment that you bear significant responsibility for that outcome.”
Part of the problem that Chief Carmichael recognized is that Lt. Pike had not learned from his actions. He writes, “Knowing this information, you stated when interviewed that there is nothing you would do differently. Faced with the same circumstances, you would still have deployed the pepper spray.”
Chief Carmichael understood that allowing Lt. Pike to return would be a public relations disaster for the university and he knew that couldn’t happen. He waited until the end of the year, and quietly let him go.
That is what we know – here is where we get into speculation.
None of this would have been known to the public had it not been leaked to the Sacramento Bee this week. UC Davis was best off with the public not knowing what happen transpired behind closed doors. They would have their internal report that they could use to protect themselves and still have the public know that they had terminated Lt. Pike.
Who stood to gain most by this leak? We believe Lt. Pike himself. The Kroll and Reynoso reports were very damaging to Lt. Pike. We believe that the IA report leak was seen as a way to balance the scales, add to the ambiguity, and give those inclined to give the police a benefit of the doubt at least a straw to grasp.
Moreover, with the IA at hand, Lt. Pike can now doubtlessly sue the university for wrongful termination.
At the same time, we have to wonder if the leak was not a huge blow the university’s plans. After all, we know that the intention of President Mark Yudof was to lay out something close to the truth when he brought in Cruz Reynoso, of all people, to head up the task force.
But we still do not know who made the decision to hire Van Dermyden and Traub to conduct the IA. The university news service is still looking into that answer. But we do know is that UC Davis has often used Van Dermyden to conduct internal investigations and usually they get a clean bill of health. We also know that the Traub firm is used by agencies looking to clear themselves internally from complaints.
If these reports would remain secret, and the damaging Kroll-Reynoso reports released, to what end would the university have to gain with an internal friendly report? We believe it was probably a risk management tool – and that’s really what Van Dermyden is – a risk management tool for the employers to reduce their liability.
We know that in a few weeks, as Michael Risher of the ACLU told us, that there will be a mediation session between the protesters suing the university and UC Davis’ counsel. Having the Kroll-Reynoso report un-refuted would have meant huge potential liability. With the more friendly Van Dermyden-Traub report, they at least can balance some of that.
The leak may have alerted the ACLU and other attorneys of the presence of this new report, but it also undermines the credibility of the university in claiming to want to get at the truth.
We do not believe that the district attorney’s office would file criminal charges at this point. We did speak with McGeorge Law Professor Brian Landsberg this week. Professor Landsberg told the Vanguard that a federal investigation into civil rights violations under the color of authority would have to show either that the violations were willful or that a reasonable person would recognize them as such.
He also told the Vanguard that such charges would need the finding that the pepper spray was used as a punitive tool – as Lt. Pike’s way of exacting punishment. He thought it would be a difficult case to prove, though there might be some merit to it.
This week, following the leak, the Vanguard filed a public records act request for “The Pike Report.” If Lt. Pike did indeed leak the documents to the Sacramento Bee, then he may have waived any confidentiality claim he had.
We must furthermore express our disappointment in the Sacramento Bee‘s coverage of the leaked report. We have only their selective portions of the report as a basis for any kind of understanding.
Traditionally, a major expose of this sort would have the newspaper posting the documents of the report on their website so that the public can read the full report themselves and make up their own minds rather than relying on the newspaper’s coverage. That puts all of us at a severe disadvantage.
Just as we did with the Davis Fire Report, should the Vanguard get a copy of this report, we will post it on our website.
That leads us back to where we started. Had this process simply been more transparent there would have been little need for these leaks and these sorts of games. This is a public action that occurred in full view of the public, it was implemented by a public agency, and the public should have the right to a full accounting of what happened and the consequences for those actions.
—David M. Greenwald reporting
Would be interesting to know what role the Chancellor had/has in the contracting of the IA, review, and firings.
Interesting speculation based on interpretation of indisputable events and purported facts. It is the “fact” assertion that prompts me to offer another differing speculative theory of what happened.
Pike is depicted above as having been “quietly let go.” The University said that Pike (and Lee) were no longer in their employ and refused to elaborate any further under pretense of personnel law and policy. Note that neither description says Pike was actually fired. In my view, the University could have said “terminated” without elaboration. In fact, it would have had considerable public image value to do so. They did not, because the did not.
The leak included phrases from Carmichael that was clearly taken from a “Skelly Letter” to Pike. A Skelly Hearing is a due process requirement whereby an employee has the opportunity to respond to a serious disciplinary act (e.g., termination) before it is administered. Pike gets such a letter and he could have leaked it to the press. But Pike gains no advantage in doing this.
I don’t think Pike leaked the internal investigation because he had nothing in hand to leak. It is highly irregular for an accused officer to be given a copy of the IA investigation. Instead, he is told of the charges that were sustained and the disciplinary intent. Far more likely, somebody else leaked the commissioned internal investigation. If we know who, we can determine why.
I also don’t think that Pike was terminated for cause. Instead, Pike’s attorney negotiated a deal where by Pike receives a sizable sum of money to resign, not file a lawsuit, and keep his mouth shut. As was noted above, Pike does have a case for a suit of wrongful termination. It’s not a particularly strong lawsuit, but the University’s certainly does not want another lawsuit on a matter that it really want to just go away.
The fact that Pike’s disposition was not revealed until the “dog days of August” was deliberate. Quiet, indeed.
If this alternative scenario is not valid or plausible, there is no reason why Pike should not now speak out and plead his case to the public. Pike strikes me as such a guy, someone who wants to have his say. He probably will, except if his silence has been bought by University lawyers.
I am considering boycotting the Vanguard until there are no more articles on the very old, very tired, and very, currently, irrelevant topic. From my perspective, the Vanguard’s continued coverage borders on obsession, IMO.
What is the journalistic justification and intent here? If it is to provide support for the Occupy movement or civil disobedience, it is doing much more harm than good at this point.
To illustrate this point, use the larger and much more profound example of 9-11. After the terrorist attack that resulted in over 2000 innocent Americans killed and the World Trade Center destroyed, the Pentagon and the global the air travel industry seriously damaged, global empathy (except in some Muslim nations) was very high. Then the US government became obsessed with killing terrorists and later pro-actively mitigating risks that we would suffer another attack. It did not take long for the global love fest to degrade to global disgust.
There is a similar risk here related to Pepper Spray Gate. The empathy that many felt for the protestors has degraded. It will continue to degrade with every firing. The Vanguard risks being party to that degraded empathy. In the end, the Vanguard might win their battle, but lose their war and the war of the Occupy movement.
But then, maybe I don’t understand the motives and goals of the Vanguard for continuiung to pursue this topic.
Ultimately speculation is a fun exercise, nothing more. However, I do get a sense from this article that the Vanguard is disgruntled with process, and wants more “transparency”. So my question is what laws/regulations would the Vanguard like to see put in place that would result in more “transparency”? The reason I pose this question is that there are countervailing interests here, that need to be protected. It is not an easy balancing act, to protect all those interests and at the same time have complete “transparency” as the Vanguard seems to be calling for…
Jeff Boone
[quote]What is the journalistic justification and intent here? If it is to provide support for the Occupy movement or civil disobedience, it is doing much more harm than good at this point. [/quote]
Speaking only for myself, certainly not for the Vanguard, I see this very differently.
I think that if one were to accept your postulated reason for continued coverage of this issue, you would be correct. However, I feel that your postulate is incorrect.
There are many dimensions to this issue that go far beyond support, or lack thereof , for the Occupy Movement. UCD remains a public institution, largely publicly funded. To me this gives the public a stake in ongoing decisions made by the leaders of the institution. What changes are made, not only in the police force
in terms of individual officers, but also the administrative processes that are, or are not changed have an impact on not only our students ( one of mine still in the public educations system) but on our pocket books.
I am a strong believer that public business should be conducted in the light of public awareness. There is a strong tendency for public officials to want to hide their mistakes. It is frequently up to the press to ensure that mistakes are not hidden, and as pointed out by Elaine on a different thread, not repeated. This to me is the value of continuing to report on different aspects of this situation.
And actually, if the University administration did not see the value of additional investigation, there would have been no internal investigations to report on. They could have chosen to act on the recommendations of the Kroll and Reynoso reports and call it a day. I believe it is the actions of the University that continue to make ongoing coverage of public interest.
Elaine
[quote]It is not an easy balancing act, to protect all those interests and at the same time have complete “transparency” as the Vanguard seems to be calling for…[/quote]
I think that this is probably the definitive statement about what is occurring here.
My personal belief is that the balance of protections is too heavily weighted in favor of those in power.
Police confidentiality rules, prosecutorial immunity and the like are necessary, in my opinion, in order to allow these individuals to perform their jobs without constant fear of threats and intimidation. However, to me, we have gone too far when we allow egregious excesses such as the use of unapproved weaponry, or withholding exculpatory evidence from the defense. If our public officials could always be trusted to act in a responsible,
honest and forthright manner, there would be no need for investigative reporting. Unfortunately, this is demonstrably not the case.
To medwoman: Ah, but you haven’t answered my question. What new laws/regulations would you put in place so there is somehow “greater transparency”, and still protect the ability of law enforcement and prosecutors to do their jobs? There will always be a natural tension between the two; there will always be those in power who abuse their privilege. So what new laws/regulations do you believe need to be enacted to better protect the public’s right to know; while still allowing law enforcement and the prosecution to do their job?
And from personal experience I also know legislators can enact all sorts of new rules and regulations/laws to their hearts content. But it will not necessarily stop police corruption or flouting of the laws by prosecutors. There are no easy answers here.
[quote]I am considering boycotting the Vanguard until there are no more articles on the very old, very tired, and very, currently, irrelevant topic. From my perspective, the Vanguard’s continued coverage borders on obsession, IMO. [/quote]
I think you are making an important point here Jeff. I’ve noticed that many previous commenters are falling off the Vanguard. I suspect this is a direct result of what you are pointing out – obsessive, one-sided, extremely biased coverage of a particular issue. I don’t think the Vanguard is doing itself any favors with its shrill overcoverage of certain matters. But at the end of the day, it is dmg’s blog. But I also think he would be wise to do a bit of self-assessment/soul searching…
ERM: I don’t think the DV is shrill or one sided. I think it’s too nice and coddling towards many powerful local interests. That said, maybe it’s between Boone and my views. Or, about right.
[quote]ERM: I don’t think the DV is shrill or one sided. I think it’s too nice and coddling towards many powerful local interests.[/quote]
What “powerful local interests” has the Vanguard been “too nice and coddling”?
I think if the Vanguard wants to grow, it has to grow up. More specifically, it needs to consider a target audience profile and select articles that appeal to that audience… and not just to the Vanguard. That is a choice it can make… remain more narrow-focused and wiling to drag out single issues ad nauseam… or work on expanding and flattening the topic library. Keeping the topic library narrow and deep will tend to narrow the audience and bore some of the regulars.
The Vanguard is obviously biased… and I think much more toward Harrington’s views than mine. I don’t have too much of a problem with that because I think there are plenty of smart commenters adding content that balances that bias. Also, I don’t begrudge a blog from defining itself as owning a bias. I would complain if the Vanguard tried to deny this bias, but I don’t believe it has.
What I am complaining about is this one topic – the pepper spray incident – dominating so much of the Vanguard space. I’m also not clear as to the intent of this focus. No doubt it is a topic that the Vanguard cares about; but it reminds of a certain Glenn Close movie where her character was a bit nuts with obsession.
If this is what the Vanguard wants to focus on then fine. Personally I am beyond bored with the subject and convinced there is nothing good to benefit from by a continiued head hunt. So, I will just switch off untill it stops.
I don’t read every article in the newspaper. I just read the ones that interest me. Similarly, you can just pass over blog posts on this topic. I’m not all that interested in this topic either, but I know some people [i]definitely[/i] are. I’m sure David could cite page-view stats that would surprise you about which blog topics get the most hits.
As to the general topic, I do think that transparency and how public agencies deal with information are important topics. If a city or university or public agency is not being forthcoming, that is a story in itself.
Don, if the topic is transparency in how public agencies deal with information, then, as Obama wants to do, let’s spead the wealth around. There are plenty of story opportunities. Heard the one about the CA state parks director stepping down after that agency found about $50 million in accounts previously unaccouted for?
By the way, I think the Director was/is a Davis resident.
Elaine
[quote][quote]To medwoman: Ah, but you haven’t answered my question. What new laws/regulations would you put in place so there is somehow “greater transparency”, and still protect the ability of law enforcement and prosecutors to do their jobs?[/quote][/quote]
I have not answered your question because I am keenly aware of my own limitations. I have no idea how to achieve a balance in this area. Just as I am sure that you would prefer that I use correct technique if I were doing your surgery, but I would not anticipate that you would have the expertise to tell me what steps to take.
My personal preference would be that the police, prosecutors, judges, prison officials, etc. be subject to exactly the same laws and protections, or lack thereof, as the rest of us. However, I am sure that you would be able to site reasons why that should not be the case. I am well aware that my lack of experience in this area probably limits my ability to make the specific decisions. This does not in any way preclude me from expressing my preferences, just as I would try to honor your preferences within the realm of what is possible and safe if I were doing your surgery.
Jeff, following your tendency to introduce partisan politics into posts on the DV, …”if the topic is transparency in how the public deals with information, then”…why doesn’t Romney release his tax returns… 🙂
The same reason Obama originally refused to release his birth certificate, and why he still refuses to release his education records.
[img]http://www.motifake.com/image/demotivational-poster/small/1004/off-topic-when-the-same-topic-is-started-for-the-umpeenth-ti-demotivational-poster-1271473100.jpg[/img]
I may find many uses for this image link.
By the way, I am convinced that Romney has nothing to hide other than a tax avoidance strategy. I find the left’s obsession to exploit this in their class warfare politics as reprehensible as I do the right’s obsession to exploit the legitimacy of his birth certificate in their illegal immigration warfare politics.
Hey Don, many times posters will sway off topic because the topic has already been beaten to death.
Don
[quote]I may find many uses for this image link.[/quote]
You may indeed. And …..which is the road less travelled by ?
[quote]I have not answered your question because I am keenly aware of my own limitations. I have no idea how to achieve a balance in this area. Just as I am sure that you would prefer that I use correct technique if I were doing your surgery, but I would not anticipate that you would have the expertise to tell me what steps to take.
My personal preference would be that the police, prosecutors, judges, prison officials, etc. be subject to exactly the same laws and protections, or lack thereof, as the rest of us. However, I am sure that you would be able to site reasons why that should not be the case. I am well aware that my lack of experience in this area probably limits my ability to make the specific decisions. This does not in any way preclude me from expressing my preferences, just as I would try to honor your preferences within the realm of what is possible and safe if I were doing your surgery.[/quote]
Actually, I’m not sure anyone has the answer. Life is imperfect. That is because things usually are not black and white; and there are countervailing interests that have to be balanced. Life is full of problems with no easy answers. And I’m not totally convinced that putting more laws in place will do any good, bc I can honestly tell you the laws we have in place are not enforced. So I don’t know how anyone could think that more laws that won’t be enforced will solve any problems.
What I do think is there was some value in putting public pressure on the university to do an independent investigation into the pepper spraying incident. The Kroll/Reynoso report was good enough to satisfy me it got to the root problem – no use of a command and control structure at the university. Was this report somewhat biased? Yes, bc it failed to look at the students involvement in starting this whole fiasco. Is that all that important in the scheme of things? Generally no. Because it is the response to civil disobedience that is at issue here. But the student’s misbehavior must be taken into account when deciding how much punishment to mete out to the powers that be.
Had the students not surrounded the police; had the students not chanted words that were threatening, I would probably have a whole different take on the issue. But bc the students clearly were fomenting unrest and directly engaging the police to “fight back”, then that gives law enforcement more reason to resort to reasonable force. But as we all pretty well agree, unreasonable force was used instead.
So then the question becomes is it reasonable to “punish” authorities when in fact they were egged on to overreact. You and I pretty much agree the answer is “no”. Poke a person enough times, and they are bound to fight back. If you get a fist in your mouth, you only have yourself to blame. However, when dealing w students, the university is acting in loco parentis, so they have a higher duty.
But getting back to the original issue, the ostensible need for “more transparency”, I have no idea what sort of additional “transparency” the Vanguard is calling for…
Jeff:
You are failing to take into consideration two critical things with respect to this story. This week, we had two major new developments on this story. First Pike and Lee were fired (or we found out that they were). Second, a document was leaked to the Bee.
Sunday Commentary has been my way of capturing the Vanguard’s view of one of the major stories this week.
Second, it’s AUGUST. Council will not meet for another two and a half weeks. The WAC meets on Thursday. There is not a tremendous amount of local news.
Third, this is a story that appeals to a younger audience than most of the people that comment. Different stories are meant to appeal to different demographics. Do you read every story in the newspaper?
If you have something else that you would like covered, I would suggest either you send a tip or submit it as a guest op ed.
David:
Fair enough. Those are good points.
I have been in Tuoson AZ for the last few days. Two two locals I talk to mentioned the pepper spray incident when they learned I was from Davis. I think I just want the subject to go away.
“I have been in Tuoson AZ for the last few days. Two two locals I talk to mentioned the pepper spray incident when they learned I was from Davis. I think I just want the subject to go away.”
And then there are those who want to milk it for all it is worth.
[quote]First Pike and Lee were fired (or we found out that they were).[/quote]
I think I read in the Davis Enterprise a third officer was terminated…
[quote]Was this report somewhat biased? Yes, bc it failed to look at the students involvement in starting this whole fiasco.[/quote]I don’t believe the report was ever intended to evaluate the students’ culpability. Is a report biased for not covering a subject beyond its intended scope?
I don’t mean to imply that there were no provocative actions on the part of the protestors; clearly there were. Recall that protestors were arrested. The appropriate venue for evaluating the legality of their behavior would have been trial in a court…but the charges were dropped, IIRC. Infractions of university standards of conduct could have been evaluated by the administration, with expulsion of students found in serious violation. I don’t know what the process would be for judging the actions of certain professors who encouraged civil disobedience. So far, it appears that no students or professors incurred any penalties for actions on November 18, although a number of them face charges for actions related to protests around the US Bank branch.
Student protests have been part of campus life since at least the 60s. That protests will continue to occur periodically is predictable. The campus administration and campus police – public servants all – should be both prepared to deal such events and accountable for how they do so. This, apparently, was the scope of the Reynoso report.
[quote]I don’t believe the report was ever intended to evaluate the students’ culpability. Is a report biased for not covering a subject beyond its intended scope? [/quote]
If the report is limited in scope, then it is necessarily biased if it doesn’t address both sides, no? However, you didn’t add my full quote, which was:
[quote]Was this report somewhat biased? Yes, bc it failed to look at the students involvement in starting this whole fiasco. [b]Is that all that important in the scheme of things? Generally no. Because it is the response to civil disobedience that is at issue here.[/b] But the student’s misbehavior must be taken into account when deciding how much punishment to mete out to the powers that be. [/quote]
“I don’t think Pike leaked the internal investigation because he had nothing in hand to leak. It is highly irregular for an accused officer to be given a copy of the IA investigation.”
Phil: Your information in accurate here. I talked to a source who told me that the best practice is to provide the IA upon request. I then talked with Claudia Morain who confirmed that that is UCD’s practice as well.
“If the report is limited in scope, then it is necessarily biased if it doesn’t address both sides, no? “
The Kroll report did attempt to determine where the police response was reasonable GIVEN the student actions. So I think your criticism here is misplaced.
I cannot seem to get the “add a comment window to open on the Tuesday story. So trying this avenue where the window is open.
David Thompson
[quote]The Kroll report did attempt to determine where the police response was reasonable GIVEN the student actions. [/quote]
I don’t think it delved enough into the students’ actions and how they contributed to the confrontation…
A few years ago, in Davis, a law enforcent person handcuffed me for no reason. I was not being disrectful or threatening the officer in any way. I am five foot eight inches tall and I weigh 170 pounds. The officer was larger than me, and he was armed. I was wearing light summer clothing and it was quite apparent by my clothing that I was unarmed. I wish I knew the identity of that officer. Every citizen has a right to know who law enforcement is. Ironically. I am the daughter of a wonderful police officer. We grew up in a tiny town back east. My dad was never ever afraid to show his face or tell you his name. Everyone knew my dad’s name. It was “Jimmy.” Thank you for this website.
P.S. Jeff B: I am very grateful that David G has continued to cover this story. For me, it is about the bigger issue of our civil rights slowly but surely eroding. How can this subject be irrelevant or covered too much? Dig in more, David G, please keep the info coming!
One more P.S. I don’t understand why people posting comments think it is okay for an officer to have anonymity, but every day citizens must produce a drivers’ license or ID to an officer, even when they are not being arrested? I think I can be somewhat objective because my dad was a cop for many, many years. Officers are people with names. They should provide their name to anyone that they have an interaction with. It builds trust in our community, period.
@Lydia L.: It’s not OK for officers to be anonymous. There are laws and regulations requiring them to wear a number, as I understand it. They can’t just go out there without any ID on their uniform whatsoever. If they’re in riot gear, then they are required to wear their badge numbers painted on their helmets.