The Vanguard has learned that a settlement agreement is in place for the pepper spray lawsuit that was filed in late February following the November 18, 2011 incident on the Quad at UC Davis. However, the deal will not be finalized until the UC Regents meet next week and until the federal court certifies the agreement.
“If the UC Regents approve the proposed agreement at their September meeting, the parties will return to federal court in Sacramento to seek approval of terms of the settlement,” he said.
Under the rules of mediation and court settlement, all parties are obligated to maintain strict confidentiality until the agreement has been approved and filed with the court, Mr. Montiel continued.
“The terms of any settlement reached will be available to the press with the filing, and the parties will be able to discuss the matter publicly at that time,” he said.
The lawsuit, which preceded the findings of the Kroll and Reynoso reports last spring, sought to determine why the university violated the demonstrators’ state and federal constitutional rights, and seeks to result in better policies that will prevent repetition of such response to a non-violent protest.
The lawsuit charges that administration officials and the campus police department failed to properly train and supervise officers, resulting in a series of constitutional violations against the demonstrators. The plaintiffs are represented by the ACLU of Northern California and cooperating attorneys, including Sacramento civil rights attorney Mark Merin.
“We filed a lawsuit because we want to make sure that nothing like this ever happens again,” ACLU attorney Michael Risher told the Vanguard back in February.
“We were sitting down as a symbolic gesture of protest and it was an act of solidarity with my friends who were arrested,” David Buscho told the Vanguard.
When students remained seated to continue their demonstration, a UC Davis police officer repeatedly sprayed the line of protesters with pepper spray at point-blank range, while scores of other officers looked on.
“I was pepper sprayed repeatedly in the face,” described Mr. Buscho, a Mechanical Engineering student.
Another officer sprayed the demonstrators from behind. The seated students posed no physical threat to the officers. Pepper spray has excruciating effects that can last for days.
“It’s really the most noxious and painful substance,” Mr. Buscho said as he described the agonizing moments following being bathed in pepper spray.
“My face was totally coated because I couldn’t cover my face,” he continued. “I kept inhaling pepper spray which is really bad. When you inhale pepper spray it’s so painful that your entire chest contracts so it actually feels like you’re suffocating because I couldn’t force myself to breathe.”
He described repeatedly vomiting. Those who tried to help by pouring water on him made it worse because it simply spread the agent throughout his body.
“I was just covered in pepper spray,” he said.
According to the lawsuit, “The 19 plaintiffs in this action were protesting university privatization, distribution of resources, tuition hikes, police brutality and other onerous public policies adopted by the University administration and the Board of Regents. Their protest was an integral part of continuing, vigorous assembly and free speech activities which had been conducted by students for weeks at the same time the nationwide Occupy Wall Street movement mobilized thousands nationwide. Seventeen of the plaintiffs were U.C. Davis students at the time; the other two are recent graduates.”
It seeks relief in the form of “a declaration from the Court that campus policies and practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs violated their state and federal constitutional rights; an injunction to prevent repetition of such a response to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct.”
“We’re looking at violations not just of Fourth Amendment Rights to be free from excessive police force and being falsely arrested, but really much more fundamentally is the right to free speech,” Mr. Risher told the Vanguard. “Universities should be places where free speech is valued, where free expression is fostered and when police respond to non-violent demonstrations with riot gear, with pepper spray and with excessive force, that threatens some of the most fundamental constitutional values we have.”
“Our main concerns and our main cause of action is violations of the first amendment and the California constitutional guarantees to free speech, to assembly and to petition the government through redress of grievances,” Mr. Risher told the Vanguard.
“That’s the heart of this case,” he said, but added, “This is an excessive force case. The police used grossly excessive force; they falsely arrested people. But the real harm here is to the freedom of expression because when the people see that the police response to non-violent protests is a shot of pepper spray, they’re not going to go out and take the risk of having that happen to them.”
“People silence themselves and that’s the problem, or one of the problems, with this grossly-excessive police response to peaceful and non-violent protests,” he added.
“It was a peaceful protest,” David Buscho described. “I don’t think that police in riot gear should have been brought in. Especially, it was so premature and the whole nature of it all felt so punitive.”
“The university needs to respect students’ rights to make our voices heard, especially when we’re protesting university policies that impact our studies,” said Fatima Sbeih, another student who joined the demonstration on the Quad after returning from afternoon prayer, and was subsequently pepper sprayed.
The lawsuit was undoubtedly aided by the strong findings in the publicly-available Kroll and Reynoso Reports.
The campus conducted internal investigations that tended to exonerate the officers, however, Chief Matt Carmichael made the determination to override the recommendations of the internal affairs report, as well as his own panel of captains, and terminate the employment of Lt. John Pike and, apparently, Officer Alexander Lee – these dismissals followed the retirement of former chief, Annette Spicuzza.
We now await the terms of this agreement, as well as the decision by the District Attorney’s office as to whether to file criminal charges – a decision that has been long in the making, but most people believe will result in no criminal charges.
—David M. Greenwald reporting
Good scoop, David. How did you get Steve Montiel to blab so much when “all parties are obligated to maintain strict confidentiality until the agreement has been approved and filed with the court”?
Please provide a link to the lawsuit if there is a copy online.
It’ll be fascinating to see whether the university acknowledges any of the suit’s incredibly serious charges. In any case, even a confidential settlement will reopen all of the conflicting official reports and opinions.
I wonder what UCD sees as an advantage to paying out cash only to have the action seen by pretty much everyone as capitulation and admission of guilt throughout the school’s structure. “Guilty as charged” will be the history books’ account.
I’ll check to see if the ACLU has a copy of the suit on their site.
Basically that must be their formalized response that provides details of the process but no details of the settlement which they are precluded from mentioning.
“I wonder what UCD sees as an advantage to paying out cash only to have the action seen by pretty much everyone as capitulation and admission of guilt throughout the school’s structure. “Guilty as charged” will be the history books’ account. “
I’ll be very disappointed if this is strictly a cash settlement.
BTW, Just got almost the identical wording from Michael Risher of the ACLU:
[quote]Lawyers for the University of California and the 21 plaintiffs in a case related to the pepper spray incident at UC Davis in November 2011 are involved in a confidential mediation and settlement process, which includes obtaining approval from the individual plaintiffs, the Board of Regents, and the federal court.
If the UC Regents approve the proposed agreement at their September meeting, the parties will return to federal court in Sacramento to seek approval of terms of the settlement.
Under mediation and court settlement rules, all of the parties are obligated to maintain strict confidentiality until the proposed agreement has been filed with the court. The terms of any settlement reached will be available to the press with the filing and the parties will be able to discuss the matter publicly at that time.[/quote]
I post this since it lets us know that there must have been agreed upon language by all parties for disclosure.
Health Costs: The immediate focus seems to be free speech and excessive force, but virtually nothing is ever said about possible future health problems due to the pepper spray in the lungs.
“I’ll be very disappointed if this is strictly a cash settlement.”
Excellent point. Better that there would be no cash changing hands, just agreed to changes in the way the university handles this business in the future “to make sure that nothing like this ever happens again.” Of course, we never get out of these without attorney’s costs getting paid, and medical costs need to be covered.
It’s going to be tough if the ALCU insists that the university admit guilt for all that you’ve listed and if UCD insists the students accept some responsibility. It’ll be bad for any part of a settlement to end up confidential, only to perpetuate all of the charges and counter charges. Both sides must be agonizing over how magnamous they’ll be settling.
Or, magnanimous.
[quote]Health Costs: The immediate focus seems to be free speech and excessive force, but virtually nothing is ever said about possible future health problems due to the pepper spray in the lungs.[/quote]
Since just about every police officer is exposed to pepper spray during their training we would know if there any long term effects.
“Better that there would be no cash changing hands, just agreed to changes in the way the university handles this business in the future “to make sure that nothing like this ever happens again.” Of course, we never get out of these without attorney’s costs getting paid, and medical costs need to be covered.”
Please, do you honestly think that the protesters aren’t going for the cash?
Early settlement probably means no depositions and document productions by the university. Which means that the record as it exists will stand, and senior management are getting off (unless part of the settlement is that certain involved senior managers are fired, which seems highly unlikely).
There might be an agreed draft of a proposed order where the university agrees to follow certain procedures in the future. This would be a good thing.
However, without the document production and the depositions, it probably means that senior management skate on this one.
“Please, do you honestly think that the protesters aren’t going for the cash?”
I would be very surprised if they are. I guess we’ll see what the agreement is.
Obviously, it’s important to note that law enforcement is NOT exposed to
pepper spray – crowd control extra strength variety – sprayed directly into mouths and noses, as happened with these students.
Very doubtful any studies have been done on this. Lung/asthma problems
are life changing, whether they appear now, or years from now, in any of
the students.
MH – very interesting analysis. Thanks.
Eagle Eye, thanks for showing again that you do not know what you are talking about.
Settling after nine months? This is entirely too fast, and is therefore probably lawyer-driven.
The University does not want this dragged out in the courts, and they do not want to be exposing six-figure administrators to trial and/or termination, and so are willing to make a quick statement and cash settlement. The defendants and their lawyers may not have the resources for a prolonged trial, nor fighting an unlimited, state-funded legal team. Settling now without [i]rolling administrative heads[/i] would be an unfortunate conclusion.
If there is one thing many on both sides of that day–the police and the student protestors–agree on, it is that the police were scapegoated (three dismissals) for events set in motion by a comically out-of-touch administrative ‘leadership team’ headed by Katehi. Yet so far, only police have lost their jobs over the events of November 18th.
One of our grave problems as a society is that we continue to accept the Worker Bees getting fired for carrying out the tasks ordered by the Queen Bee and Leadership Bees, even in rare cases like this where the trail of failed leadership and decision-making is laid out for all to see by respected teams of Investigative Bees.
The idea that the person who breaks into your apartment and takes your TV should be jailed, but the person who orders teams of loan officers to give out thousands of home loans to unqualified applicants and sets in motion the collapse of the world economy gets to keep their job — that way of thinking and operating as a society needs to end. We can start that here in Davis by making sure the bungling administrators go the way of the bungling–and fired–police chief and cops.
In the new era of A.K. (After Katehi, that era started 11/18/11 — she may still draw a salary, but she is [i]’already gone'[/i]), Yudof needs to embrace those that are IN TOUCH. Katehi and her leadership team clearly had little idea what was really going on with the protestors/campers on the Quad. They made their decisions based on fear, guesses and incompetence, sitting around a table in their ivory Mrak tower.
Yudof could set in motion a new era where the competent become the leaders, and those the students respect sit on the top floor of Mrak, and visit the Quad more than they visit distant lands with high-dollar donors. “Griselda Castro, as the only person on former-and-shamed Chancellor Katehi’s leadership team who had a clue what was real, and to bring forward a new era of student-administrator cooperation in the UC system, I proclaim you the new Chancellor of the University of California at Davis.”
THAT would be refreshing.
I just checked Pacer Federal COurt Docket for the lawsuit filings. Plaintiffs filed their First Amended Complaint in July, then there was a mediation. A Joint Status Report was filed in late August, telling the Court that there was a mediation, and settlement outcome was likely, and asking the Court to push back deadlines.
There was a confidentiality stipulation and order regarding certain discovery documents.
Defense counsel were from the Porter Scott firm (I used to work there before founding my solo practice 20 yrs ago).
Unless discovery was done immediately, and confidentialy, Plaintiffs never took any depositions of senior UCD personnel or got the documents that have most likely been hidden to date from the public and media.
This means to me that senior UCD staff have most likely skated, and we remain stuck with Chancellor Katehi.
In my opinion the reason this is being done so fast with an out of court settlement is because the protesters were offered a big sum that they couldn’t refuse by UCD to keep it from blowing up in the university’s face and causing lots of embarrassment to the administration. Why else would they settle out of court and so quickly? They know they have UCD by the short hairs.