Ten months and a day after the November 18, 2011, incident that brought world-wide scrutiny, the Yolo County District Attorney’s office did what everyone figured they would do and declined to file charges against Lt. John Pike and other officers who pepper sprayed seated protesters on the UC Davis Quad.
In a letter to UC Davis Police Chief Matt Carmichael, Assistant Chief Deputy DA Michael Cabral wrote, “Civil liability, tactics, and departmental policies and procedures were not considered. We address only whether or not there is sufficient evidence to support the filing of criminal charges in connection with the use of pepper spray by police personnel on November 18, 2011.”
The DA’s office, he writes, concludes “that the use of force in this case was not unlawful.”
In their conclusion, the DA writes, “Lieutenant Pike’s pepper spraying of the seated protesters has been seen by and has outraged millions of viewers throughout the world. Based on the thirty seconds of video that most people have seen the pepper spraying may look like unreasonable force.”
The DA instead argues, “Whether or not the force was unreasonable and criminal cannot be judged solely on that brief moment in time. The conflict that resulted in the pepper spraying had been evolving for several days before November 18, 2011, and must be examined in the light of the totality of the circumstances.”
“In evaluating the totality of the circumstances under a reasonable doubt standard, we have considered and given substantial weight to the opinions and conclusions set forth in the Kroll Report,” the DA writes. “In light of this additional evidence, and viewing the incident through the totality of the circumstances, there is insufficient evidence to establish proof beyond a reasonable doubt that the use of force involved in the November 18, 2011, pepper spraying was unlawful and therefore warrants the filing of criminal charges.”
UC Davis’ spokesperson Barry Shiller indicated that the university would not be commenting on this report.
Attorney Alexis Briggs, who is representing some of the protesters in a subsequent criminal matter, told the Vanguard that she had reviewed the lengthy statement from the DA.
Ms. Briggs told the Vanguard, “As a former resident of Yolo County, I am deeply disappointed that the people of that county can no longer rely on their public officials to protect their civil liberties.”
In her analysis she argued, “While the legal analysis identifies the critical issue, whether there is admissible evidence which proves it was reasonable for Lt. John Pike or other officers to use force, it fails to justify or conclude that the specific force used was reasonable.”
“The decision contains only cursory mention of the fact that the officers were not trained to properly use [this type of] pepper spray and contains absolutely no analysis of the method pepper spray was used in this case,” she added. “The images that have led the world to condemn the actions of UC Davis on November 18 did so because they depicted the application of a type and kind of force that is objectively unreasonable and therefore criminal.”
The Review
Unlike with most other cases, the DA in the release includes a fifteen page report as to why this decision is made.
The review “included all of the interviews conducted by the Kroll investigators, the interviews conducted by the Internal Affairs investigators, and all of the documents, e-mails, and videos reviewed during their investigations.”
While the DA did not have access to statements or opinions of the protesters, except those in the public realm, their investigation was probably most inclusive. Unlike the Kroll report, they did have access to “the interviews of all officers central to the incident, including Lieutenant John Pike, and Chief Annette Spicuzza.” However, neither the Kroll nor the internal report included interviews with City of Davis Police officers called to the scene.
The DA also addressed the question about legal authority, arguing for “the purposes of our analysis the issue is legal in nature.”
The question they argue is “Whether the officers had probable cause to arrest individuals for illegal activity at the time they entered the Quad on November 18, 20ll?”
They cite UC Davis Policy and Procedures Manual Chapter 270, Section 20 and California Penal Code Section 602(e) as their authority.
Mr. Cabral writes: “In light of the administration’s invocation of the UC policy prohibiting overnight camping on University property and the information concerning the conduct of the protesters, there was probable cause to believe that individuals who were “Occupying the Quad” were in violation of University policy and California Penal Code [section] 602(e).”
While the DA applied a different standard than the Kroll investigators, they also appear to reach different conclusions as to the level of threat that the protesters represented to the police.
“As the officers waited for additional patrol cars to arrive to transport the arrestees, the crowd of protesters began to grow very quickly. At this time the protesters began inviting the spectators, who were on the other side of the officers, to join them. As the protesting crowd grew, they began to chant ‘set them free,’ and the officers formed a circle around the arrestees to provide a barrier between the arrestees and the protesters,” the DA writes.
The DA continues: “As the crowd closed in around the officers they continued to chant ‘Set them Free,’ and Lieutenant Pike announced ‘Officers, draw batons,’ and an urgent request for Davis PD assistance was broadcast.”
The DA adds: “As the protesters continued to chant ‘Set them Free’ they announced to the officers that ‘if you let them go, we will let you leave.’ California Penal Code S 405a states, that ‘[t]he taking by means of a riot of any person from the lawful custody of any peace officer’ is a crime.”
The DA writes: “By watching the various videos of the incident, one could conclude that the protesters were attempting to free the arrestees from the lawful custody of the police when they enveloped the officers while chanting ‘Set them Free’ and ‘Set them Free Now.’ “
The DA found that police were now faced with a crowd who was engaged in criminal behavior, and “one could infer that officers believed that their only viable option was the application of some level of force to clear a path so that they could exit the area with their arrestees.”
Lt. Pike, they wrote, warned the protesters that “if they refused to move so that the officers could pass, officers would need to use some level of force, specifically the application of pepper spray.”
“The protesters blocking the pathway began to cover their heads and faces. Lieutenant Pike prepared to apply pepper spray to those individuals blocking the officers’ path,” the DA writes. “He did so in an exaggerated manner, which at least one use of force expert, who was on scene, identified as a tactic used to clearly communicate that he [Lt. Pike] was about to spray the protesters.”
The DA notes that “All the assaultive crimes potentially applicable to the November 18, 2011, pepper spray incident require proof of two basic elements. The conduct must be both willful and unlawful.”
The fact that officers’ actions were willful is not in dispute.
The question is whether it was unreasonable and therefore unlawful. They argue that reasonableness must be established at the scene through the perspective of a reasonable officer and not by hindsight.
Writes the DA, “Although the Kroll Report concluded that the conduct of Lieutenant Pike was not objectively reasonable, the Kroll Report did not address the question of whether the conduct was criminal. The report acknowledges that the officers in general, ‘and Lieutenant Pike specifically, believed that they and their prisoners were surrounded by a hostile “mob,” and that the pepper spraying was necessary to clear the pathway so that the officers and their prisoners could leave the Quad safely.’ “
The DA adds, “While concluding that ‘the deployment of pepper spray does not appear to have been an objectively reasonable use of force,’ the report does acknowledge that ‘a detailed review of the events provides some support for their [the officers] position.’ “
The DA notes the lack of use of force policy for UC Davis, the lack of national continuum or standards for the use of force, and the fact that most local jurisdictions allow for the use of pepper spray in response to active resistance and that linked arms indicates active resistance.
The DA interviewed retired Deputy Chief Michael Hillman, who was part of the Kroll Team.
They report, “Retired Deputy Chief Hillman stated that his opinion is that while in hindsight the facts do not support the force application by Lieutenant Pike, when viewed at the moment of the application, and considering Pike’s state of mind, the force was reasonable.”
They add, “In addition, Retired Deputy Chief Hillman stated that in his opinion Lieutenant Pike believed he was faced with active resistance as the protesters were sitting with locked arms and refused to move. Lieutenant Pike believed that the crowd would not allow officers to move the prisoners, would attempt to take the prisoners back, and were chanting for their release.”
They add most critically: “While Retired Deputy Chief Hillman believed that Lieutenant Pike made a faulty decision, which was then badly executed, and also used pepper spray that the department had not been trained on, upon examination of the use of force under the applicable legal standards, he believes the conduct does not rise to the level of criminal behavior.”
—David M. Greenwald reporting
One of the characteristics I would most like to see in a DA is at least a modicum of consistency. This would appear to be sorely lacking in the setting of priorities, thought processes and decision making of our DA.
What came to mind for me when reading about this decision, was the disparity between choosing not to make any charges at all in this incident vs the charging decision over the theft of a bag of cheese.
Now, least everyone jump me, I fully realize that I have no expertise in legal matters. However,in the juxtaposition of these two cases, the discrepancy in perception of intent and the degree of leniency allotted to the actions of the police where far greater harm was inflicted on those affected in the spraying incident than in the theft incident seems to me beyond any reasonable assessment of the two situations.
How about this one, last year the DA actually fought to keep felony charges for a candy bar theft:
Man Charged With Felony For Stealing Candy Bar ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=4317:man-charged-with-felony-for-stealing-candy-bar-&catid=74:court-watch&Itemid=100[/url])
The judge looked at the DA and said, “it’s a candy bar.”
David — Can you tell me what California Penal Code [section] 602(e) says and how they are using it here? You say they “applied a different standard” than Kroll. Can you break this down for me a bit? Sorry if I am being a bit dense. I want to make sure I understand.
Thanks
[quote]How about this one, last year the DA actually fought to keep felony charges for a candy bar theft:
Man Charged With Felony For Stealing Candy Bar
The judge looked at the DA and said, “it’s a candy bar.”[/quote]
Lets not pretend that this crime wasn’t actually a felony. It was. Was a plea deal offered in the candy bar case? I understand it was a candy bar and I might have handled it differently but lets not pretend that it isn’t a felony. THe law increases minor thefts to felonies only haver someone has served jail or prison time for theft. It’s not like it was the first time the candy bar thief was arrested.
I’m not saying the DA was right in handling the case but simply giving a little balance.
“Lets not pretend that this crime wasn’t actually a felony. It was.”
Actually it wasn’t the judge reduced it to a misdo after the preliminary hearing. I assume they then plead at that point.
“We address only whether or not there is sufficient evidence to support the filing of criminal charges in connection with the use of pepper spray by police personnel on November 18, 2011.”
The DA’s office, he writes, concludes “that the use of force in this case was not unlawful.”
So a video clearly showing what is happening and who is responsible is not as a good of evidence as the blurry video taken by a security camera where no one was clearly identified?
The problem with the law from an activists view is that they will be contrained by it… even as they attempt to exploit it for their cause.
If only we can find a way to have our cake and eat it too.
Robb:
Sorry I thought I had sent an answer to your questions from home.
The different standard is the criminal standard of probable cause and the necessity to prove beyond a reasonable doubt versus the preponderance of the evidence standard of a civil court which is what Kroll used.
California Penal Code ~602( e) states, in pertinent part, that” … every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: … (e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.”
Certainly no surprise.
[quote]Actually it wasn’t the judge reduced it to a misdo after the preliminary hearing. I assume they then plead at that point.[/quote]
Are you saying the charge could not be charged as a felony. I have no issue with the judge using his discretion but you act as if the DA was wrong in the filing.
I’m not claiming that the DA could legally not have filed it as a felony, I’m arguing that they used poor judgment in exercising their discretion to file that case as a felony.
Ms. Briggs hits the nail on the head:
“The decision contains only cursory mention of the fact that the officers were not trained to properly use [this type of] pepper spray and contains absolutely no analysis of the method pepper spray was used in this case…The images that have led the world to condemn the actions of UC Davis on November 18 did so because they depicted the application of a type and kind of force that is objectively unreasonable and therefore criminal.”
I think Ms Briggs interpretation is interesting and I wonder how often she says other people are guilty of crimes. I doubt it’s very often.
I suspect most of us view the case differently than they would other criminal or potentially criminal cases
Surprise, surprise, surprise Gomer. Andy is not going to prosecute Barney. Couldn’t get a conviction against a cop for spraying college kids. Not in this county.
Law enforcement professional (aka “Cop”) facing a decision for dealing with crowd of protestors known for destroying property and endangering themselves and others…
“Hold tight people… just pause for a whie… I need to contact an attorney to provide me a nuanced legal opinon for what my might be used against me in a court of law. I’ll be right back with my decisions and then we can proceed on based on what the attorney says.
But, please, please, don’t destroy any property or hurt anyone while I am working on this decision, because my attorney has already determined that IT can be used against me in a court of law.”
Attorney Pat Lenzi: I still regret that you lost that election. It was a much bigger deal than just about the candidate. I knew once Resig got in, that we would have a generation of charging decisions such as the one to try for three strikes for theft of a candy bar, and for the failure to charge the officers who pepper sprayed those seated, non-violent protesters.
That spray was military grade, and sprayed at a higher pressure and much closer than what the label said was safe. Spraying the protesters was the same thing as hitting them with a night stick.
Pat, we miss you.
Jeff: I find it interesting that you have not talked to any of the DPD officers who were there. If you carefully read the DPD’s description in the report, you will see that the crowd was much more mixed than a typical crowd, with a large number simply there to video the scene rather than active participants.
David,
I hear that the S.F. 49ers are looking for armchair quarterbacks. No experience required.
Seriously though… I understand your point, but it is one developed after many, many hours, days and weeks of reviewing the situation after the fact and drawing conclusions. You don’t do very well putting yourself in the position of a cop having to do this job, IMO.
I suggest moving toward some equal opportunity empathy for ALL people, not just for the groups you feel warrant protection. Last I checked, humans and just humans and people are just people. All are capable of lapses in judgment. Most of those lapses will occur in times of heightened emotions (for example, stress). The protestors caused the environment that increased the risks that mistakes would be made. For you and others to sit here is such absolute judgment demanding criminal punishment is a bit disgusting in my opinion… and frankly indicative of someone wanting retribution beyond what would be warranted even in the most objective situational analysis.
Forgive me, but I think this is exactly the same thing that happened when the City disbanded the Human Relations Commission. Some of you get a bone and are unwilling to let go even though the thing had long ago lost any flavor or nutritional benefits.
The “steak” if you will is the act of working with law enforcement to ensure lessons learned… and then move on.
“You don’t do very well putting yourself in the position of a cop having to do this job, IMO.”
That’s why I’m a bit surprised you haven’t talked to the cops that you know who were there.
There was never any chance that Reisig would prosecute Lt. Pike or the other officers involved. Reisig absolutely NEEDS the endorsement of all of the police agencies in the county if he is ever challenged, and if he were to prosecute “one of his own” in such a highly visible case, he could kiss those valuable endorsements goodbye.
[quote]There was never any chance that Reisig would prosecute Lt. Pike or the other officers involved. Reisig absolutely NEEDS the endorsement of all of the police agencies in the county if he is ever challenged, and if he were to prosecute “one of his own” in such a highly visible case, he could kiss those valuable endorsements goodbye. [/quote]
You are right, Reisig would lose support if he prosecuted a cop who didn’t commit a crime. There have been other law enforcement officers prosecuted in Yolo County and I haven’t heard of Reisig losing support.
For instance?
[quote]Surprise, surprise, surprise Gomer. Andy is not going to prosecute Barney. Couldn’t get a conviction against a cop for spraying college kids. Not in this county.[/quote]
ROFL! Well said.
[quote]For instance?[/quote]
The Woodland LT for embezzlement, and the cop who shot his dog, and the cop who got arrested for DUI.
What is the big difference between those three and this case? This case involved an onduty officer.
Reisig did the right thing, he nipped it in the bud. I threw that last part out there for you David and the attack dogs. (;
[i]That’s why I’m a bit surprised you haven’t talked to the cops that you know who were there.[/i]
How do you know?
Lt. Pike was fired.
Shouldn’t you and your group of cop chasers just kick back with a cool one and congratulate yourself on a job well done?
I realize that this was the news of the day, but you are making a new anti-cop, anti-DA story out of it.
I suspect you would not have made some of the comments you did.
“you are making a new anti-cop, anti-DA story out of it. “
Can you cite the comment you believe is anti-cop and anti-DA here?
David, It was in your commentary:
[quote]While the DA did not have access to statements or opinions of the protesters, except those in the public realm, their investigation was probably most inclusive. Unlike the Kroll report, they did have access to “the interviews of all officers central to the incident, including Lieutenant John Pike, and Chief Annette Spicuzza.” However, neither the Kroll nor the internal report included interviews with City of Davis Police officers called to the scene.[/quote]
Indicating a division within the UCD PD exists (e.g., didn’t talk to those other police in agreement with your views).
[quote]How about this one, last year the DA actually fought to keep felony charges for a candy bar theft:[/quote]
Snarky anti-DA. I think the law does not differentiate over the types of products stolen.
[quote]I’m not claiming that the DA could legally not have filed it as a felony, I’m arguing that they used poor judgment in exercising their discretion to file that case as a felony.[/quote]
Again, back to a template of disagreement/disappointment that more punishment could not be handed to these cops.
I’m hyper sensitive to attacks against law enforcement. They are too easy a punching bag for those demanding some social narvana that does not exist. Cops deal with the bottom-end-behaving shit of our society on a regular basis, and yes sometimes they pick up patterns of response that do not fit the requires level of nuanced decision-making that we would hope the have.
If that response is bad enough to cause unneccessary material harm, then then we should go after it using the full extent of the law. However, in this case… the kids are fine. Nobody died or was seriously harmed by the mistakes in judgement (at least not for more than a few hours at most). Everyone was/is safe. Life goes on. Get over it. Move on.
Jeff:
Your first quote – is actually a summary of the DA’s report, not commentary by me. The rest are comments by me in the comment section. I don’t see anything that is anti-cop in them.
I disagree with the DA – probably more their analysis than their decision itself – I’ll explain that separately, but you didn’t identify anything in the piece that was either anti-cop or anti-DA.
Your sensitivity makes you less than objective here and it harms you ability to scrutinize both my writing and what happened.
In my view someone who is sensitive to attacks on law enforcement ought to be far more critical than you are of their conduct. Mistakes made by people like Pike make it much harder for the good police officers – in my view the overwhelming majority – to their jobs.
[i]Your sensitivity makes you less than objective here and it harms you ability to scrutinize both my writing and what happened.[/i]
Well maybe, but then you have a history that I am trying to recover from.
I will try to keep my sensitivity in check. But, it is hard for me… you know that I am the extreme sensitive type.
In my view someone who is sensitive to attacks on law enforcement ought to be far more critical than you are of their conduct. Mistakes made by people like Pike make it much harder for the good police officers – in my view the overwhelming majority – to their jobs.
Fair enough. No argument with this last statement. However, Pike was fired.
That is true. So there question here is what is the appropriate level of punishment for his mistakes.
If I’m a bankteller and I take one dollar from each transaction for myself – is it sufficient that I be fired? I think most people would argument no.
[quote]If I’m a bankteller and I take one dollar from each transaction for myself – is it sufficient that I be fired? I think most people would argument no.[/quote]
Thanks for the non sequitur. How is someone who commits a crime every day compared to Pike’s one incident, even if you think it’s a crime.
Not only was Pike fired. He was maligned. His personal information was spread around. I bet that he would be prevented from ever working as a cop again (and probably for any organization again) by the rage of the continuously raging machine.
Maybe one day he will write a book and we can all scream at the injustice of it.
But for now, I think he has received all of the punishment necessary to satisfy the law and all those that seek retribution for his one unfortunate day of bad judgment.
You guys are inventing points of difference in a hypothetical that are peripheral to the main point here (and you know it). Find the most parallel non-police example and I doubt either one of you would be willing to let them get off with a firing, humiliation and blacklisting and no criminal punishment.
Um, you invented the bank teller as a comparison to Pike. A bank teller who repeatedly steals from every transaction is MUCH different that a bank teller that takes a dollar once. Just like the candy bar thief, if it had been a one time deal there would have been no felony charge, it’s the repeated disregard for the laws of society that will get you in trouble.
David, you are making two disjoined arguments here. One is this idea that we need to go after Pike to set an example so all the good police are prevented from being tarnished. That is covered by Pike being fired… right after he was drug around from the bumper of a truck for all to spit on and insult him (in a virtual sense). The police are employees of the PD. The PD fired the employee that did not perform to expectations. End of story.
Your second track seems to be one demanding punishment commensurate to the magnitude of his mistake.
So, what was/is the magnitude?
Here is where I think you have lost your sense of objectivity. I think you have played this thing so many times in your head, and have frankly become quite smitten with the social justice activist story line, that you cannot get to a place of reason.
Did anyone die?
Was anyone afflicted with lasting material harm?
Did the activists win in their original goal of drawing media attention to their protests?
Also, the protestors shared some culpability here. So do Pike’s managers. It is not like he went seeking some conflict so he could unload his can of grade-X burrito seasoning on some people. That would certainly be a different situation warranting some criminal prosecution. He was ordered to keep the peace and remove the protestors. He made mistakes following his orders and doing his job.
What is the professional equivalency? Well that is basically impossible to come up with unless it is another law enforcement scenario. Cops have a unique job. There is nothing else like it. The closest comparable profession is the military.
We don’t need to “go after Pike.” We need the laws to be applied consistently to police and non-police. And we need a determination by a court of law as to whether Pike’s actions were legal, so that future cases can be prevented or prosecuted. Riesig’s failure to charge the crime — when Pike’s lack of guilt is so obviously under dispute — and let the courts evaluate the evidence short-circuits the legitimate operation of the criminal and legal systems.
[i]We need the laws to be applied consistently to police and non-police.[/i]
No we don’t. That is a silly statement.
Non-police do not carry the same level of responsibility and personal professional risk as do the police. Police can legally carry weapons, and can use force that the rest of us cannot use because of their responsibility.
We need to stop harassing the police for doing the job that they are required to do.
If you want to limit the risk of harm the police do, then go talk to the law-breakers and convince them to stop. If you have a problem with the law, then agitate to your lawmaker and not the cops for enforcing the laws.
[quote]We need the laws to be applied consistently to police and non-police.
No we don’t. That is a silly statement.
Non-police do not carry the same level of responsibility and personal professional risk as do the police. Police can legally carry weapons, and can use force that the rest of us cannot use because of their responsibility.
We need to stop harassing the police for doing the job that they are required to do. [/quote]
I agree with you that the police and non – police should not be held to the same standard. What I believe is that because of their unique position of power over others, the police should be held to a higher standard of behavior, not given more latitude. We entrust our safety and in many cases, our lives, to the police.
We should have a strong guarantee that they will have to pay a severe price if they abuse that power.
I agree that the police should not be harassed for doing the job that they are required to do. However, they should most certainly be held culpable when they abuse the trust and power that is a part of their job.