Vanguard Analysis: DA’s Political Masterstroke on Pepper Spray Charges

It was obvious from the start that the police – no matter what the other investigations found – would not be prosecuted criminally in this case.  The question was how to do so in a politically expedient matter.  They got their first break when the internal investigation was significantly divergent from the public Kroll Report.

The path forward became clear – follow the findings of the internal report without completely throwing the Kroll report under the bus.  The analysis of Kroll employee and former Deputy Chief Michael Hillman becomes the perfect vehicle to complete the masterpiece.

The problem is that, while this was in many ways a perfect political document, the assumptions and conclusions appear inconsistent with the facts on the ground.

Reasonableness of Use of Force

The core issue at stake here is whether the actions by Lt. John Pike on November 18, 2011 were objectively unreasonable.

Here they present evidence in the chanting and descriptions to show that Lt. Pike reasonably believed he was facing a hostile situation.

The DA here raises the bar, arguing, “The reasonableness of a particular use of force is examined from the perspective of a reasonable officer on scene and not by the 20/20 vision of hindsight.”

The 20/20 hindsight is important to their justification, because the review by both Kroll and Reynoso found that Lt. Pike misdiagnosed the threat.

The DA appears to justify the response by presenting three options: “Faced with a crowd of protesters, who were believed to be engaged in criminal conduct, the officers were faced with three options: (1) try to take the arrestees in a different direction and hope that the crowd did not follow; (2) release the arrestees and hope that the crowd would allow the officers to leave; or (3) use force to move the arrestees in the direction that the  officers had planned on traveling.”

The DA here justifies the use of force by arguing: “Therefore, 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.”

It is an interesting rhetorical sleight of hand.  First the DA fails to consider a fourth option, wait and allow things to calm down.  Second, the DA fails to even mention that had the police had better communication, they would have known that the arrestees were simply walked through the crowd without incident.

The DA still has a problem in their efforts to exonerate Lt. Pike.  Kroll found the use of force objectively unreasonable.

Here they explain away Kroll by arguing the different standard of proof: “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 DA essentially argues that from Lt. Pike’s vantage point and at that time, the situation appeared to warrant the use of force.

However, we believe otherwise and believe there is substantial evidence that was either ignored or not discussed in the DA’s report that shows that Lt. Pike should have known the situation was far different from the one described by the DA and by himself.

First of all, the DA notes the various chants but fails to note that the chanting had largely died down by the time that Lt. Pike doused the protesters in pepper spray.  In fact, on the video, it appears the worst and most threatening chants proceeded the spraying by well over ten minutes.

Things had actually calmed down considerably at the point when the use of force was applied.

Moreover, the DA reports that Davis police officers described a scene of total chaos, and that they were initially unable to locate the UC Davis police officers upon arrival.  However, Davis police officers also quickly realized that the crowd was not uniform and that, while there were some hostile protesters, the bulk of the students “looked like they were trying to record the events.”

That is critical, because along with the ability of the UCD police officers to escort the arrestees through the crowd, the Davis police officers quickly recognized that they, too, moved through the crowd with no resistance.

Lt. Pike apparently never properly diagnosed this situation.  The question is whether he should have and whether his critical mistake rises to the level of criminal conduct – unfortunately, at least in their report, the DA never assesses this critical question.

Nor do they assess another critical problem – the fact that on the video, Lt. Pike hardly looks like a man panicking and believing he is in a dangerous situation.  Instead, he very calmly walks through the protesters, warns them, and douses them with pepper spray.

Even if one believes some force is necessary, the DA never assesses whether the amount of force applied is disproportionate.  The Vanguard has spoken with a number of people, some of them police officers who simply believe that the use of pepper spray is the lowest on the continuum of force.  They argue that, while pepper spray produces a good deal of pain, the impact is over in a relatively brief time.

What we do not see analyzed anywhere is the quantity of spray used.  Because Lt. Pike used an unapproved variant that he was not trained on, and improperly applied it, the protesters came in contact with probably ten times more spray than one might normally expect.

They were bathed in it to the point where their skin was slimy and orange.  A large amount of that got into their lungs and they were not quickly rinsed of the substance.

There is no analysis by Kroll or the DA as to the quantity and whether that was disproportionate to the threat.

Moreover, while the DA cites chanting and the surrounding of the police by the crowd, there is no clear discussion as to why seated protesters, rather than the surrounding crowd, were the targets here.

In short, these questions would seem to undermine the basic contention here that Lt. Pike reasonably felt threatened and that the use of force was therefore justified.

Deputy Chief Michael Hillman

The first twelve pages of the DA’s report would seem to largely undermine the key finding of the Kroll report that the use of pepper spray was unreasonable.  But the DA, for many reasons, does not want to throw Kroll completely under the bus.

So they bring in retired Chief Deputy Michael Hillman, part of the Kroll team but not an author of the report.  He is also considered a use of force expert, he has trained other officers in POST (Peace Officers Standards and Training), and has testified as an expert on SWAT, Use of Force, Tactics, and Crowd Management.

Deputy Chief Hillman’s 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.”

Deputy Chief Hillman ultimately has a nuanced position: “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.”

But just who is Michael Hillman?  Some swear by him as an expert on crowd management, but a review of his record reveals some disconcerting facts about him.

His reputation was as a “cop’s cop.”  As a Chief Deputy to William Bratton who now runs Kroll, Mr. Hillman drew media attention and criticism in the LA Times, acting more as a street cop than a deputy chief.

Mr. Hillman drew attention at the 2003 Academy Awards as he handled demonstrations outside.  Wrote LA Times columnist Steve Lopez, “A snapshot of LAPD Deputy Chief Mike Hillman has been making the rounds among brass at Parker Center. In the photograph, taken at the demonstrations on the evening of the Academy Awards, Hillman has a bullhorn in one hand and a citizen’s neck in the other.”

The title of the article was “Iron Mike Needs to Forge a New Image as Part of LAPD’s Brass.”

In 2008, he would retire from LAPD and was hired as Orange County’s new assistant sheriff, where he earned the wrath of the Orange County Register: “Ex-LAPD official runs into trouble as O.C. assistant sheriff: ‘Hurricane Hillmann’ hits Orange County.”

“During a November hearing, Hillmann was caught sending text messages mocking county supervisors and opponents of the sheriff’s plan to reduce concealed weapons permits,” the OC Register reports.  “Two months later, Hillmann dispatched uniformed, plainclothes and undercover deputies to control the crowd at another hearing, a move later criticized as heavy-handed.  Activists said Hillmann tried to intimidate them, in violation of their right to free speech.”

The Register reports that he is known, as noted, as “a cop’s cop.”

As another columnist wrote: “This Register article from the weekend gives a good sense of Assistant Sheriff Mike Hillmann, the type of sheriff’s official who has been outspoken in his disdain for the public, especially those who dare to show up at the Board of Supervisors meeting to speak out against the sheriff’s gun policies. Hillmann is a police-state type of guy, someone who is almost paranoid in his fear of terrorist attacks.”

While Mr. Hillman, recently hired as chief of security for the Los Angeles Dodgers in the wake of the attack on the Giants’ fan, is more complicated than that, as a Santa Monica-based ACLU attorney, Carol Sobel noted in the OC Register article, “He’s a true believer. No question about it.”

They add, “But Sobel said there’s a key difference between dealing with Hillmann and other top brass at LAPD.  If he’s wrong, Hillmann will admit it, she said.”

However, he can be very wrong: “Sobel said there have been other events, such as a Century City protest by Justice for Janitors, where security headed by Hillmann was overbearing, trying to take away from protesters the sticks that held their signs.”

We have to ask, of course, if the “cop’s cop” is going to call for criminal charges against a police officer that he seems to defend in one breath, but in the next he admits the situation was mishandled.

We note that this is the linchpin, the key expert in the DA’s argument.  This is a DA’s office, who in the case of the Galvan brothers’ beating by West Sacramento PD did not hesitate to use Don Cameron, who has critics that say he has never “seen a shooting or a use of force he didn’t like.”

Legal Authority

We have discussed the issue of legal authority quite a bit.  The DA addresses this by writing: “While concerns have been raised about the legal authority for the police actions on November 18, 2011, for the purposes of our analysis the issue is legal in nature. The question is: Whether the officers had probable cause to arrest individuals for illegal activity at the time they entered the Quad on November 18, 20ll?”

The DA justifies the legal authority in California Penal Code Section 602 which they cite, 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.”

This would appear to be what Kroll cites as Penal Code Section 647(e) but regardless, the problem that Kroll cites here still remains unanswered: “The arrests on the UC Davis Quad were made at 3:00 p.m. and it is not clear that the arrestees were, in fact, connected to any of the tents or had in fact ‘lodged’ on University property.”

Kroll goes on to report, “This likely explains why the Yolo County District Attorney’s Office opted not to proceed with the prosecutions.”

We also know from the leaked emails that Yolo County Chief Deputy DA Jonathan Raven was not “impressed” by the crime, though agreed with the county counsel’s legal analysis that has continued to be hidden behind claims of attorney-client privilege.

In short, because they chose to clear the tents at 3 pm rather than in the middle of the night, it is not at all clear that they had probable cause to believe that a law had been broken the night before.  Misdemeanors generally require the officers to actually witness the law breaking – there were no laws being broken at 3 pm.

In short, we question the DA’s legal analysis here.

Justification and Conclusions

We argue here that this is more a political effort by the DA to assuage the public that they have done a thorough investigation than any type of legal analysis that is compelling.

The DA basically makes the argument that they have more information than the Kroll Investigators and the same information as the internal investigators, seemingly to argue that they have the most comprehensive and thorough report.

They also explain differences between the Kroll report as they describe it was “designed to be an independent fact-finding investigation and was not intended to be used for administrative sanctions or an Internal Affairs investigation.”

And they argue, “Based on the language used in the report it appears that a preponderance of the evidence standard was used when evaluating conflicting evidence concerning the incident.”

Finally, as they did with the Gutierrez report, they forwarded their report and materials to the Attorney General’s office.

In a letter attached, the AG’s Senior Assistant Attorney General Michael Farrell writes: “Upon such review of your Office’s determination that there is insufficient evidence to warrant a criminal prosecution, no basis appears to place this matter in the category of unusual circumstances in which the decision of the elected local law enforcement official should be set aside as an abuse of discretion.”

At first glance, he seems to be verifying their findings, but that is not what occurred here.  The key phrase is the last three words, “abuse of discretion.”

As we have previously discussed during the Gutierrez investigation, abuse of discretion is one of the highest standards one can create.

The notion of abuse of discretion is a legal term that means “A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom.”

This is generally used in appellant law.  “Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.”

But all that really occurs here is a review of the investigation itself, to determine if the ruling is reasonable based on the facts presented.

Thus, in reviewing for abuse of discretion, there would be a problem if “the rendering of a decision by a court… is so unreasonable in light of the facts of the case or is such an unreasonable deviation from legal precedent that it must be reversed.”

So the DA’s office did not abuse their discretion, but we do not know that the AG’s office, which refused to take on the investigation, would have concluded similarly.

To this point the Vanguard has avoided the question as to whether this rises to the level of criminal conduct.  We have previously discussed ways in which we believe it does and we have not changed our view in light of the DA’s release.

We will be curious to see if the federal government is willing to investigate this as a deprivation of civil rights under the color of legal authority.

In closing, the DA did a masterful job of splitting the baby here and rendering an opinion that everyone knew they would render and justify it within the scope of the known investigations.

—David M. Greenwald reporting

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