When I went to the courthouse for the first part of the Picnic Day preliminary hearing two weeks ago, some of the defense attorneys present in the courthouse, not involved in the case, asked me what “that was about” – referring to the protesters.
Like many, they figured that the protesters were naïve and their pleas would fall on deaf ears. The protests, quite frankly, were considered a bit of a joke around the courthouse, and when the protesters weren’t there on Wednesday, many asked me where they were. The truth is that, while I knew the protesters, I really had nothing to do with the protests and was as surprised as they were that the protesters weren’t there on Wednesday.
On the Vanguard, with the story on Tuesday’s court hearing, we ran a photo of the protesters, leading some of our commenters to focus on the number of protesters there. The number of protesters was fairly small. But if you focus on numerical numbers only, you miss some of the key points here.
First of all, there was a fairly large organizing group. There were probably 40 people or so during the course of the last four months heavily involved in this issue. As these things go, that is a fairly large organizing group.
Second, it was a coalition of a number of different groups. You have the People Power Group, organized as a local activist off-shoot of the ACLU. You have the Phoenix Coalition, which has a large core group in Davis. You have Indivisible YOLO, which is a fairly large group. You have Yolo County Progressives, another group that has emerged in the last year. And then you have kind of a more loosely affiliated group of people who have all coalesced around the issue of police oversight and, in particular, the Picnic Day group.
I only go through that exercise to illustrate that the number of people involved in these organizations numbers in the hundreds, if not the thousands. But there is a relatively small number of committed activists, and an even smaller group available during the middle of a business day to actually hold up a sign and protest.
Nevertheless, I can tell you that size often does not matter. I remember in my younger days, my most effective counter-protest involved four people in the middle of an anti-abortion rally, with signs stating “honk if you’re pro-choice” – to which hundreds of ongoing cars obliged, much to the chagrin of the protesters.
Scoff at the notion that protest and direct action makes a difference? On August 19, William Kelly wrote the piece, “Do We Care About the Picnic Day 5?” In it he urged people to contact District Attorney Jeff Reisig to urge him to drop the charges.
In the Enterprise, David Stubbins responded to Mr. Kelly and argued that we ought to let justice run its course. He wrote that Mr. Kelly “seems to be arguing that charges should be dropped” because the defendants, who are “young people,” could, presumably as a result of conviction, be “separated from their families, their communities (and) their careers.”
Mr. Stubbins scoffs at this notion, arguing with “why not let the prosecution run its course?” He added, “Dropping charges for ideological reasons would leave a cloud over the defendants and the judicial process. If the defendants, as individuals, are not guilty, they should be acquitted; if they are guilty, they should be convicted.”
The reality is that the naïve protesters who asked the DA to drop the charges prevailed in the end. Oh yes, I’m well aware of the fact that the defendants in this case have admitted to felony crimes. That’s how the system works.
The reality is that all sides came away from this unhappy – and that, Defense Attorney Mark Reichel told me, is the definition of a plea agreement.
But the reality is that on September 5, 2018 – assuming that the defendants in this case keep a clean record – they will have no criminal record. The felony resisting arrest was plead to as a 
deferred entry of judgment, meaning after a year it goes away, as long as the defendants do not commit a new crime and they complete their restorative justice program.
The misdemeanor battery carries with it a year of informal probation – that is the lowest level, they are not required to check in to the probation department, they are not searchable, and all they have to do is not commit a new crime.
So the reality is that, while the DA did not outright drop the charges, they in fact put forward a path to make the charges go away.
Without community pressure, would that have happened in this case? While that’s at least a debatable point, I will argue here that it played a strong role in the decision.
What is the upside for the DA to continue to pursue charges in a high profile case? They can argue that they are protecting the community, the public follows the case and believes that the bad guys represent a danger to the community, and the public therefore supports the efforts of the DA to put the “bad guys” away.
So let us quickly look at the Picnic Day case.
First, the public was divided on the issue of whether to even prosecute these guys. Some people clearly believe that the defendants were in the wrong and assaulted the police. Others thought that the police were in the wrong and assaulted the defendants and the defendants were defending themselves. Some believe that the police actions were racially motivated.
So, from the start, the community was divided – which meant that whichever way this went, someone was going to be mad and if the DA prosecuted and earned conviction, they would have to deal with angry activists who would continue to press their case.
So the upside that the DA would normally get from a high profile investigation simply wasn’t there.
Added to that, this was by no means a sure thing for the prosecution – far from it. I’ve said this before – this case could realistically have gone either way. That played a huge role in both sides being willing to reach agreement. The reality is that the defendants were risking potential prison time and the DA was risking an acquittal.
Third, I think Ryan Couzens was fairly honest when he laid out that the defendants were young, they lacked criminal records, and they agreed to this fairly early in the process.
The youth factor is important because, even if the police were overly aggressive and less than transparent about their handling of this matter, I think the defendants probably overreacted to the circumstances. In my view, it is an open question about whether that rose to criminal conduct, but both sides should have handled this better.
Given their youth and lack of criminal record, the DA was willing to give them more of a benefit of the doubt that this was a result of poor judgment in the heat of the moment rather than criminal malice.
And finally, the DA hadn’t expended a huge amount of resources – yet – in the proceeding and that played a role as well.
Add it all up – the DA’s office had to face the fact that they had a fairly weak case that could go either way and could end up in a hung jury, there were defendants who were probably not extreme dangers to the community, and there was no real upside in terms of public support for them to continue the prosecution.
The protests then acted as a signal to the DA – a reminder that the public was not fully behind their effort, along with a nuisance that had the ability to continue to raise difficult questions in the media. Add that all up, and making this case go away was in the best interest of the DA.
My view is, without the protests and public pushback, the DA might have pressed on because it was a case where police officers were involved and injured. So the protesters, in my view, played a key role in the decision to end the prosecution of this case.
The DA’s office got to save some face here, as they were able to get them to plead to felonies. But they plead to felony resisting arrest rather than felony battery on a police officer. And those felonies will go away after a year.
In the end, I would consider this a win for the defendants and the protesters. Once again, the police went from the sensational press release on April 24 to no record for the defendants on September 5, 2018, a pretty remarkable turn of events.
—David M. Greenwald reporting
“The reality is that the naïve protesters who asked the DA to drop their charges prevailed in the end.”
Some may be naive, while others are delusional.
It still quacks like a duck. The twice predicted long PX, long trial, the analysis of the People’s case as being weak (and not knowing any part of their case and evidence). And then saying that had this case gone to trial the the prosecution’s best hope was a hung jury. Go to the next county bar association gathering with that story and see what the reaction is.
With a one-sided narrative like that, one must suppose the Picnic Day 5, who are really good kids and need to get on with their lives, decided to plead to a felony as a favor to the DA, and save him the grief that surely awaited the prosecutor.
Let’s go back to the beginning. Yes, we now know that there was the screaming of obscenities, there was a guy who immediately inflamed what could have been a peaceful resolve. His behavior was revealed in a statement (“getting big”), getting in the face of peaceful people, that needless exacerbated the situation. He admitted it, and it’s in the court transcript!
Then there was the flat denial of one participant, (I didn’t touch anybody) followed by a videotape indisputably showing a physical assault of a person prostrate on the ground. Oh, well, it was pretty hectic out there.
Problem was, it turns out–barely into the court process–that the protestors, supporters, their sign boards, and defense attorneys were describing the defendant’s behavior, not the police.
If the reality is that these defendants”prevailed in the end,” I’m running for the dictionary to get the re-defined version of “prevail” and “reality.”
Phil:
“one must suppose the Picnic Day 5, who are really good kids and need to get on with their lives, decided to plead to a felony as a favor to the DA, and save him the grief that surely awaited the prosecutor.”
Not exactly sure your point – they pleaded to a felony that goes away in a year and gives them a chance to move on with their lives with no record.
The case in my view could have gone either way and the most likely outcome was probably a split verdict by the jury. If you’re the defense, and you get an offer to make the charges go away, you take it. I can tell you talking to the attorneys, they were not really that happy to do it. They all felt the kids got the raw deal. One of them said that this doesn’t happen to people who like (the attorney).
So, “no harm, no foul”? Free pass if they do what is expected of everyone else, for a year…
Contrast that outcome to a young white male, age 20, pulled over for an equipment violation (one brake light bulb burned out), no aberrant driving, on Picnic Day, so an ‘over-zealous’ officer decides to have them submit to breath/urine test and it was 0.07… no contest plea… day in jail, fines, suspension of license, mandatory classes at an additional cost…
Perhaps if he had been female or non-white, he could have had protesters calling for dismissal of all charges, and have the same ‘consequences’ that these four (soon to be 5) experienced…
Will be interesting to see how the ‘other shoe drops’ (consequences police officers may or may not face), and how you and others feel about that… putting the “pattern” thing aside for the moment… for the purposes of discussion… the pattern thing is troubling, and if substantiated, that would be different, big time, as at least from the record presented, from the history of the ‘Picnic Day 5″…
We’ll see how that plays out and folk’s reaction…
When you write, “free pass” – what point are you arguing? The plea agreement gives them a path to cleaning their record, what is the point in question here?
We can revisit ‘consequences’ when the ‘other shoe drops’…
Will others be given a path to “cleaning their record”? For same/similar circumstances?
Oh… and if you think “free pass” was the only ‘point’, you may want to research ‘reading comprehension’…
Think you ‘cherry-picked’… you are not alone in that… understandable, so folk don’t have to deal with the primary gist…
One thing that is important is the difference between a citizen and a police officer, we have to, imo, hold the police to a higher standard.
“I would consider this a win for the defendants and the protesters.”
I would like us to move away from the concept of “winners and losers” in our judicial system. If the idea of our police and judicial system is the protection of individuals and our communities, surely what we should be addressing is what will be providing the safest and most just outcome, not who can claim “victory”. I tend to feel that the result reasonably fulfills those outcomes.
There is another process, that has not yet played out… don’t be real sure that the ‘results’ will reasonably fulfill “those outcomes”…
As for the results in, to date, I agree with your assessments… if those charged follow through with their side of the bargain…
I don’t know if the protests had anything to do with influencing the judicial process. (If so, that’s probably not “good” news.)
The bottom line for me is that we don’t know if the defendants knew they were dealing with police officers. If not, then it’s also not easy to determine “who started it”.
Due to those circumstances, a conviction seemed doubtful. Seems like an appropriate outcome, overall.
The entire incident remains disturbing. Without commenting on the actions of the police officers, it seems pretty clear that the defendants were breaking the law by blocking the street for an extended period, and also could have avoided the subsequent “fight”. I don’t understand the point of view which states that the defendants had no responsibility for what occurred, and that it was just a few “racist cops” who targeted people because of their skin color.
I hope this doesn’t discourage the Davis Police Department from enforcing laws, in the future.
“I hope this doesn’t discourage the Davis Police Department from enforcing laws, in the future.”
I hope it discourages the DPD from turning an incident that was not a problem into a problem.
The “problem” began when the group blocked traffic, causing motorists to merge into a single lane and creating a significant backup. (For no legitimate reason.) The group then failed to yield to the vehicle (for the most part), and at least one person appeared to confront the passenger in the vehicle. It escalated so quickly, after that.
Not sure if U-turns are allowed, there.
If you’re arguing that the police could have handled it better (perhaps even a lot better), then I wouldn’t disagree.
My point is your last line. I’m hoping that is the lesson. It’s interesting, Darren Pytel tells the story of a party at the I-House a few years ago, cops were outnumbered so they pulled out of there rather than engaging. These guys came in hot and escalated the problem.
So, if you’re stating that the group wasn’t creating an unnecessary “problem” for the public in the first place, I’d strongly disagree. I believe that you would also be in “disagreement” with California traffic laws.
Just saw your other post. Yes, I’ve seen examples where police escalate (or even create) a problem. However, I hope this doesn’t reach a point where if the police don’t always say “please”, then no one has to follow laws.
By the way, I recall a woman in the video who pulled someone out of the path of the vehicle, and perhaps also restrained someone (another woman) from further attacking the officers.
Am I remembering this correctly? (I haven’t seen the video for awhile.) If so, I admire those actions.
Ron: The question isn’t whether the group was in the street, the question is how the police should have handled it.
David: The topic of your article has to do with protests (regarding the charges that the defendants were facing).
I’m sure you’ll be covering the investigation of the police, as well. (Probably not a lot of protestors on that side of the equation.) However, I’m baffled by those who blindly support the defendants OR the police in this case. (Seems like some with strong views arrive with pre-determined “baggage”.)
If you want to see a very recent video in which a police officer was clearly “wrong” (and without provocation), the incident involving a nurse who wouldn’t draw blood (per hospital policy) provides a pretty clear example. (As a side note, the nurse appeared to be Caucasian, as was the officer.) In that case, the nurse was not committing a crime (and didn’t even appear to have any negative attitude, prior to the incident). A one-sided “mistake”.
One thing that may stick with the defendants for a long time, that question you often see on applications:
The thing about a deferred entry of judgment is they can answer – no. The deferred entry means it never gets entered as a conviction and it gets dismissed a year later.
In general, it’s kind of ironic that the people who might most need a job (e.g., those convicted of a crime) can be effectively blocked from getting a job for the remainder of their lives. (Thereby facilitating a return to crime, which benefits no one.)
And yet, it’s understandable that employers would want to know.
Bottom line – I have no easy “solution” for that dilemma. Wondering if there’s been much school of thought, regarding this.
There is the “ban the box” movement which at least allows some previously convicted felons to apply and get into the interview process before the potential employer can do the background check.
What happens when the employer completes the background check?
I’ve never understood why there isn’t more effort to ensure that prisoners (who will eventually be released) aren’t provided with more tools/incentives to succeed. (Seems that doing so could also help offset the costs of incarceration and restitution, while in prison and afterward.) In other words, a “win-win”. (A successful system might even help overcome reluctance to hire convicts.)
What a waste the current system is. (Unless one thinks that developing intimidating muscles while in custody is a worthwhile activity to succeed, upon release from prison.)
There is another “box”… ‘have you been terminated, or resigned to avoid termination from a previous job’… think that one is also “still in play”…
It’s not perfect Ron, but the thinking is that if they can at least get people to the interview room they may be given benefit of the doubt.
Ron
“I’ve never understood why there isn’t more effort to ensure that prisoners (who will eventually be released) aren’t provided with more tools/incentives to succeed. “
You may not be aware of all the “in prison” training programs that exist. Prisoners can train as mechanics, HVAC, cosmeticians, landscaping/horticulture, welders, underwater welding, firefighting, dairy technicians, medical housekeeping and maintenance to name the ones that come readily to mind. While I think that we should do much, much more in terms of post prison integration, we certainly do more than just encourage muscle development.
“Will others be given a path to “cleaning their record”? For same/similar circumstances?”
I would certainly hope so in all such cases. Should not the point in such instances be to ensure the safety of both the individual and the community ? What exactly is achieved by a “punitive” approach in such a low level cases ?
You’re right – I wasn’t aware of them. (In fact, I thought that such programs had been reduced/eliminated, in recent years.)
“The “problem” began when the group blocked traffic”
You have made a shift from group behavior to individual behavior that I am not sure is warranted on the basis of the scanty, soundless video.
Yes, it began with the behavior of “the group”. We do not know and cannot tell from the video how long each individual had actually been in the street. We don’t even know exactly how long the individuals who were ultimately arrested had been in the street. We don’t know why the police van ended up in proximity to any of these specific individuals. For example, could the driver have specifically targeted a cluster of dark skinned youth as opposed to adjacent whites ? (No claim being made, just an example). In any event, it is clear that the police approach exacerbated the problem.
Ron
Nope. Still up and running per my inside prison source. He says there has recently been a resurgence in such programs due to increased funding in part from propositions that have increased incentives for prisoners to engage in programs in the division of rehabilitative programs which includes job training but also skills such as anger management, cognitive-behavioral classes, and programs to reduce criminogenic thinking.
Tia: Point noted, regarding “group” vs. “individual” behavior.
The individual(s) who apparently chose to confront the individuals in the vehicle (who turned out to be the police) certainly could have made some different choices (as some in that crowd apparently did). Starting with moving out of the way, followed by not confronting the individuals in the vehicle.
If the individuals in the vehicle were not police, I would view this as a “street fight” (e.g., road rage), with responsibility on both sides. (Starting with blocking the street, for an extended period.)
That’s great, but I also think prisoners need to contribute some of the funds that they earn (while in prison, and/or beyond) to help offset the costs of their incarceration and make restitution, as needed.
I also think the prison system could be better set-up to provide opportunities for prisoners to “earn” benefits, while in prison.
I don’t see a lot of reasons to help those who don’t want to help themselves. Also – to help offset some of the costs they’re creating, and to take responsibility for the pain and costs they’ve inflicted upon others.
Not unless that “cluster” of dark-skinned youth was concentrated on the corner, with “whites” somewhere “adjacent” (but still blocking the street).
If you’re arguing that because the group contained some “dark-skinned” youth, the officers observed that and decided to clear the street, I think that’s reaching. (And yet, some seem to believe this.)
If you’re arguing that if the group had been “all-white”, the officers might have approached and reacted somewhat differently. (There’s really no way to know.) However, I suspect that the officers would have taken steps to clear that street, regardless.
I do think the officers approached/drove up to the group “too aggressively”, especially since it was an unmarked car. If police are going to use unmarked cars, then it probably requires a different approach – especially for a low-level infraction.
“But if you focus on numerical numbers only,”
I’m afraid that I need to whip out my grammar police badge on this one. Numerical numbers? What other number are there? This fits right in with “rate of speed.”
“If you’re arguing that because the group contained some “dark-skinned” youth, the officers observed that and decided to clear the street, I think that’s reaching. (And yet, some seem to believe this.)”
I thought that I made it very clear that I was not “arguing” this but merely presenting it as a possibility. Do you deny that it is one possibility out of many motives the driver might have had?
“If you’re arguing that if the group had been “all-white”, the officers might have approached and reacted somewhat differently. (There’s really no way to know.)”
There really is a way to know that officers respond differently to groups of different compositions as I made clear on another thread. I, as a white, senior woman have been a part of groups that have been very gently and politely cleared at public events such as the bicycle races downtown, and the Christmas parade. Clearing a crowd can be done humanely, or it can be done aggressively as the pepper spray incident on campus also showed. While Sgt. Pike was using pepper spray intended for crowd control on a seated group of protesters, a few yards away, then Officer Pytel was moving people by tapping them on the shoulder and asking them to move back. Two very different strategies for clearing an area.
I agree with your final paragraph.
Yes – I realize that you made that clear. Is it possible? Of course. I just don’t think it’s likely that the police decided to clear the street based upon skin color. (However, it seems that some people have already arrived at this conclusion – not necessarily you.)
I disagree that one can (exactly) compare two different situations in the manner you’re describing, above. I’d have to know more about the situation to make a judgement (e.g., regarding location – side street, vs. busy street, were you blocking an entire lane, how many people were doing so, whether you were there to watch the race or parade – and therefore had an obvious reason why you were blocking the street, etc.). (Actually, your statement does not indicate whether or not you were blocking a street.)
It’s possible that you encountered different officers than the ones on Picnic Day (and therefore had a different outcome than you otherwise would have had). It’s also possible that the officers on Picnic Day were already having a “challenging day” before they even happened upon the street blockers. (Picnic Day is probably no “picnic”, for the police.)
I do believe that officers (and people in general) react differently to different groups (and individuals), depending upon the situation, the perceived threat, etc. (Factors can include race, gender, age, and number of people that they’re confronting.) In general, I believe I’m treated differently as a middle-aged person, than I was when I was younger. (Some of that also probably has to do with a maturing process, on my part.) People call me “sir” quite often, now!
Actually, on the Vanguard, I’m not always referred to as “sir”! 🙂
Soon after this incident first occurred, another commenter on the Vanguard said that he was inclined to essentially give both sides (individuals) a “pass”, regarding this particular incident. Based upon what’s on (and not on) the video, I tend to agree.
However, it does seem prudent to review police protocols, to help reduce the likelihood of such events occurring in the future.
Seems like there’s work to be done (around the country), to provide training in de-escalation techniques, and to ensure that officers are “on board” with these goals.
Final thought:
Since some are speculating that race was a factor (on the part of the police), is it also possible that the defendants reacted based upon race and/or gender, as well? (A vehicle containing white men – who may not have been adequately identified as police officers, aggressively driving up to, and perhaps yelling at some African-Americans to get out of the street? Might the skin color and gender of the officers have contributed to an angry and aggressive response?)
Does a “white privilege” card work very well in parts of Oakland, for example? (And/or, in a lot of inner-city public schools?)
White “privilege” works a lot better in white areas (Davis generally being one such area). (“Privilege” isn’t really the right word, regardless.)
Your questions show a fundamental misunderstanding of what white privilege means.
This is a decent essay on it: https://www.washingtonpost.com/blogs/post-partisan/wp/2016/01/16/white-privilege-explained/?utm_term=.7b915b6a1b60
From a different essay I think this is important as well: “white privilege isn’t about me individually. It’s not a personal attack. White privilege is a systemic cultural reality that I can either choose to ignore, or choose to acknowledge and attempt to change. It has nothing to do with my worth as a person or my own personal struggle.” (http://www.huffingtonpost.com/kristen-howerton/white-privilege-doesnt-me_b_5296914.html)
Much better to focus on text, symbolic or artsy numbers. When you focus on numbers are numerical, key points are so cloudy, so misty, so foggy, so hazy, so meteorological.