At this point, two dominoes have fallen: Chief Annette Spicuzza was likely forced to retire in order to keep her pension; and Vice Chancellor Meyer, Spicuzza’s immediate supervisor, was removed administratively from the position of direct oversight over the police department and replaced by Provost Hexter in that role.
The Vanguard has now completed its individual-by-individual account of the key actors at UC Davis. We are, of course, awaiting the official word – if we ever get it – on the plight of people such as Lt. John Pike, Lt. Barry Swartwood and Officer Alexander Lee.
While we called early on for Chancellor Katehi to resign, it seems quite evident that she will not be fired. We will make an argument shortly where our analysis leads to a conclusion that she should be fired.
Chief Spicuzza
We start the analysis with a look at Chief Spicuzza. One thing we do not know from the Kroll report is the relationship between Chief Spicuzza and both John Meyer and Chancellor Katehi. That would be important to be able to assess, because on the surface of it, it seems that the upper brass made a decision on when to remove the tents based on questionable intelligence and even more questionable legal authority. In addition, while Chief Spicuzza said afterward that she had reservations, she did not clearly express them to upper management.
That is a problem from the perspective that she is the highest ranking police officer, who chooses to ignore her tactical knowledge and experience, and instead basically allows the civilians to make a critical tactical call. She fails to exercise her own judgment and ignores officers with tactical experience and knowledge under her. We do not know, however, if that is a political decision to let the civilians choose the course of action rather than exercise her own independent judgment, leading to the grave error described by Kroll.
What we do know is enough. She did not have the support of the people over which she had command authority: they ignored her with impunity, and during critical times she was absent from key meetings where decisions were made. Moreover, we have the embarrassing account of her conduct on the day in question – instead of making command decisions and expressing them directly to her personnel, she was taking photos, videotaping the events, and using the cell phone to call dispatch.
Based on this and this alone, we can certainly conclude that her sudden, and likely forced, retirement was the proper move by the UCD officials and Spicuzza, knowing that this was not a first-time problem with her. There were all sorts of problems with the leadership of that department, and going back at least five years only bolsters that notion.
We fully believe that it was not her decision to retire, but her best option. We support the decision here to change leadership as quickly and cleanly as possible.
Alexander Lee
If Chief Spicuzza was the easiest call on forced retirement, Officer Alexander Lee would seem at least to be the easiest call on choosing retainment – though some will argue that as a police officer he has the duty to resist unlawful orders – rookie or not.
As we wrote previously, we know that Officer Alexander Lee was a rookie officer in November 2011, having recently been promoted to Officer from Security Guard sometime between June 2011 and November 2011. We don’t have the specific date because the university withheld that record, however we know it was so recent that even on November 29, the change was not reflected in the university’s payroll system.
We also know, from the report, that Officer O is Officer Alexander Lee. According to the task force report, Officer Alexander Lee was “acting at Lieutenant Pike’s direction” when he pepper-sprayed a “smaller portion” of the protesters who were in a seated line.
The Kroll report writes, “The actual deployment of pepper spray by Lieutenant Pike and by [Alexander Lee] at Pike’s direction was flawed and unnecessary.”
The report continues, “Lieutenant Pike appeared to have exhausted the contents of the canister and [Officer Alexander Lee] began to spray some of the students seated on the west portion of the group.”
According to Alexander Lee, “Lt. Pike issued an order to me to use police pepper spray on the crowd. I sprayed the crowd directly in front of the police skirmish line using a department issued pepper spray fogger Defense Tech MK-9.”
That is pretty much the extent of Officer Lee’s role here. He was a rookie officer taking direction from Lt. Pike a longtime veteran Lieutenant. Given the circumstances, it is reasonable to understand that the officer was hardly in a position to question the orders and therefore it is difficult to find much cause for his termination.
In addition, it is possible that Officer Lee was still assigned to a Field Training Officer who should have been responsible for making sure that Office Lee followed lawful orders.
In this case, both the FTO and Lt. Pike would have failed in their duties to train a rookie officer.
Other the other hand, it is possible that Officer Lee would have been on probation as a police officer and therefore a mistake of this sort could be grounds for firing him without any right of appeal on his part and no job protection at all.
In short, there is much we do not know about Officer Lee’s position.
Lieutenants Pike and Swartwood
We tied the two together here because, in a very real way, they both bear about the same responsibility for the decision to use pepper spray. Lt. Swartwood was the scene commander but Lt. Pike was the most senior officer on the Quad.
The only difference between the two was that Lt. Pike ended up using the pepper spray and Lt. Swartwood did not.
However, it seems likely that they both approved its use. Kroll reports that, according to Lieutenant Pike’s Supplemental Narrative Report, he discussed the use of pepper spray with Lt. Swartwood and “considered other force options.”
However, “In the Supplement Narrative Report” written by Lt. Swartwood, “he does not say that he discussed the use of pepper spray or any other less-than-lethal force with Pike.” The “first mention of pepper spray” by Lt. Swartwood “in his Supplemental Narrative Report is when ‘Lieutenant Pike displayed a can of police pepper spray’ to the crowd while Lt. Swartwood was outside of the circle.”
It is possible that Lt. Pike mentions this in his report to reduce his burden of responsibility. On the other hand, Lt. Swartwood attempts to distance himself from the decision in his report.
We cannot reconcile these two accounts. Only one can possibly be telling the truth here. Though we speculate that, as scene commander, Lt. Swartwood should and would have been consulted by Lt. Pike before he used the pepper spray.
Moreover, in his narrative, Lt. Swartwood justified the use of pepper spray, stating, “It was my belief that to step over the protesting occupiers with prisoners and weapons would be hazardous. The occupiers had collectively surrounded us and it was possible, if we did step over them, that they could attempt to free our prisoners (they chanted that they wanted them released) or attempt to grab us or our equipment.”
We are supposed to believe that he supported its use after the fact, but did not know that Lt. Pike intended to use the pepper spray? That seems unlikely. We believe it is enough that Lt. Swartwood knew or should have known that Lt. Pike intended to use the pepper spray and was not opposed to its use even after the fact.
That establishes joint culpability, even though Kroll flags Lt. Pike more heavily.
The major finding of the two reports is: “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”
Kroll writes: “The actual deployment of pepper spray by Lieutenant Pike and by [Officer Alexander Lee] at Pike’s direction was flawed and unnecessary.”
The task force finds, along with Kroll, “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.
The task force finds, “Lt. Pike bears primary responsibility for the objectively unreasonable decision to use pepper spray on the students sitting in a line and for the manner in which the pepper spray was used.”
It is inconceivable that Lt. Pike should be retained and we believe Lt. Swartwood is equally culpable and should likewise be relieved of duty.
The question comes to mind whether or not criminal charges should be brought against the lieutenant(s).
The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances. That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents. Not only did they probably lack legal authority according to Kroll, they knew it. It was Lts. Pike and Swartwood who demanded the Campus Counsel give them a legal opinion.
We do not know what was in the legal opinion expressed by Campus Counsel, but we know it was clear enough that the police carried out the tent clearing operation.
Not only was the use of pepper spray not reasonable according to Kroll, and not only was the legal authority at least questionable, but these errors were compounded by the ultimate fact that the police used non-authorized pepper spray.
The military grade weapon is unauthorized under UCDPD General Order No.559 which “provides that pepper spray can be used, but specifically refers to the MK-4 (a smaller canister).”
The task force adds, “Furthermore, the investigation found no evidence that any UCDPD officer had been trained in the use of the larger MK-9.”
Kroll supported their conclusion that use of pepper spray was not reasonable use of force by stating, “This conclusion is buttressed by the facts that the MK-9 was not an authorized weapon under UCDPD guidelines and that UCDPD officers were not trained in its use.”
The task force notes that UCDPD officers were not trained on how to use this pepper spray correctly and that they “did not use it correctly.” Writes the task force: “The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.”
It remains an unsolved puzzle as to how UCDPD acquired and used an unauthorized chemical agent, and the facts here are rather appalling.
We have Kroll determining that the use was unreasonable. We have questionable legal authority to clear the tents anyway. We have an unauthorized military grade chemical weapon, a weapon that UCDPD are not trained on, and a weapon that they do not use properly.
The major question is whether this rises to the level of criminal activity. We stress that we are not attorneys, however, attorneys were consulted for the writing of this section.
There are two primary criminal charges that might apply.
One possible charge is battery which, under Penal Code section 242, is “any willful and unlawful use of force or violence upon the person of another.”
The battery charge would be pretty much a straightforward determination that the use of force was unlawful. We think there is ample evidence of that. as we have already laid out.
The questionable legal authority may be a key element in the determination, but if the DA were to determine that the use of force was not objectively reasonable, that coupled with the three-fold problem of (A) unauthorized type of pepper spray, (B) lack of training, and (C) improper application, would seem to present a strong case.
A question is whether this is merely a simple battery which only requires “the slightest touching” if “it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.”
On the other hand, it could be considered battery causing serious bodily injury.
Under the jury instructions, Calcrim section 925, serious bodily injury “means a serious impairment of physical condition.” It describes possibilities including but not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function on any bodily member or organ, wound requiring suturing, or disfigurement.
Those pepper sprayed described prolonged vision loss, nausea and lung problems, which might be deemed by a jury to be a serious bodily injury.
Lt. Pike is the most obvious figure to be charged criminally, however, the other officers, and in particularly Lt. Swartwood as scene commander, could be viewed as “acting in concert” with the one who actually did the deed could be considered “co-conspirators.”
In order to prove aiding and abetting, the prosecution must be able to prove that the perpetrator in this case, Lt. Pike, committed the crime and that other officers like Lt. Swartwood know that the perpetrator intended to commit the crime – in this case their conversation about the use would be sufficient if proven that such occurred.
Furthermore, before or during the commission of the crime, Lt. Swartwood intended to aid and abet the perpetrator in committing the crime. Finally, the lieutenant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
That element would be met if the lieutenant as the scene commander gave Lt. Pike the go ahead to use the pepper spray in an illegal manner or did not prevent him from doing so.
Based on this analysis, we believe that Chief Spicuzza’s forced retirement was appropriate. We believe that Lt. Pike and Lt. Swartwood should face criminal charges in addition to termination. And we are unclear as to whether Officer Lee should incur no further discipline, given that we do not know his previous status.
Next we will look at Chancellor Katehi’s ultimate outcome.
—David M. Greenwald reporting
[quote]We believe that Lt. Pike and Lt. Swartwood should face criminal charges [/quote]
I am not sure about Lee but it seems to me that Pike should face criminal charges as I have blogged before.
I am not an attorney though and I’d like to know what people with a better background than I have think.
It does occur to me that it would be hard to get a unanimous jury conviction here though if Lt. Pike engaged in criminal activity–which I agree he did–he should be prosecuted.
Their punishment should not be anymore severe than the weasels that started the whole mess in the first place.
91 Octane
“…
Their punishment should not be anymore severe than the weasels that started the whole mess in the first place.”
Such as the top decision makers at the university who keep increasing student costs while approving ever increasing salaries for questionably competent administrators ?
“We believe that Lt. Pike and Lt. Swartwood should face criminal charges”
I believe that people who are demonstrated to be unable to perform their duties in an appropriate manner should be offered a position in which their capabilities and experience can be used without the potential for harm to others. Potentially this could mean a desk job for these officers, perhaps with loss of rank and or compensation. I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ?
We don’t know to what extent Spicuzza was hamstrung by the administration. Because she chose to retire, we will probably never know.
As far as Pike and Smartwood, it would be hard to guess whether criminal charges can be brought against them and whether they would stick. After all, you had a colossal breakdown in command; the police were tactically ordered by the Chancellor to take the tents down at 3 am against the better judgment of the police; Pike actually questioned the legality of what they were about to do; and the students did in fact surround the police and chant they would not let the police go. It also would depend on the personnel backgrounds of Pike and Smartwood. I suspect if they both had unblemished records, it will be much more difficult to prosecute them. It could go the other way if they don’t have unblemished records…
“Chief Annette Spicuzza was likely forced to retire in order to keep her pension….If Chief Spicuzza was the easiest call on forced retirement….Based on this analysis, we believe that Chief Spicuzza’s forced retirement was appropriate”
And how you know this? There’s nothing here to indicate why you think this rather than someone’s earlier, more honorable speculation that “she fell on her sword.” How was her pension at risk if she didn’t retire immediately? Public employees “earn” their pensions by virtue of their age and years of service. How could the chief’s situation be different?
With respect to your call for criminal charges, are you sure that California police officers don’t enjoy some kind of immunity that keeps them from being charged every time they engage in “the slightest touching” of people they’re arresting or that police “act in concert” or “act and abet” to make arrests?
Everything you quote from the Reynoso/Kroll report raises matters of judgement and policy (inadequate policy and failure to follow existing policy). I don’t see the investigation claiming any violations of law on the part of police or UCD administrators. What is the status of any investigations that would have anything to do with whether these people broke any laws?
[quote]I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ? [/quote]
Well said!
medwoman – Suppose that you’re an obstetrician. Suppose that in the old cost model for a C-section, the health network pays $17,000 and the patient pays $3,000. Suppose that in the new cost model, the health network pays $7,000, and the patient pays $8,000. Then did you raise costs or lower them?
Suppose that in the new-new cost model, the health network pays $5,000. Suppose that, to lessen the out-of-pocket increase for local patients, you accept some international patients who pay $30,000 in cash for the same service. Then are you guilty of privatization? Or are the international patients doing what the health network isn’t doing?
Suppose that as an obstetrician, you are paid $200,000. Suppose that a health network spokesman says that that is a richy-rich salary and that you ought to get by with $150,000 — and where did you get the nerve given what you’ve done to patient costs. Suppose that you point out that yes, $200,000 is a high salary, but it’s also below median, and you can’t really expect OBs to stay in California if below median is blasted as a luxury salary. Then should the health network cap your salary?
Because that’s the way that the discussion has gone lately at UC and CSU. With the difference that at UC, populist criticism is correctly received as hot air in the long run, while at CSU, the demagogues can do major damage.
medwoman: nice way to deflect blame, while changing the subject.
Medwoman: I direct you to the Kroll report on that:
“In a democratic society, police are controlled by the law. It is the law, primarily Constitutional and criminal law, which gives police the authority and power to take action.”
To me the most serious crimes that are committed in this country are crimes committed under the color authority.
“With respect to your call for criminal charges, are you sure that California police officers don’t enjoy some kind of immunity that keeps them from being charged every time they engage in “the slightest touching” of people they’re arresting or that police “act in concert” or “act and abet” to make arrests?”
The police have the authority to use force under specified conditions. The first portion of this column demonstrated why they exceeded that authority.
“What is the status of any investigations that would have anything to do with whether these people broke any laws?”
Alexis Briggs told me she had a conversation with DA Cabral and he had no comment about where they stand. I meet with Barry Shiller tomorrow from the University, I don’t know if he’ll have information about a time frame for this investigation. I have heard that a couple of other investigations will come forward.
91 Octane
“the weasels that started the whole mess in the first place”
” nice way to deflect blame, while changing the subject”
Not at all. I genuinely do not believe that the protesters “started the whole mess”. I am quite sure that none of them just woke up the preceding day and said” let’s go see how much trouble we can cause on campus today for the fun of it. ” They were not acting in a vacuum but rather in response to years of ( in the opinion of many), unfair and unwise policing making at high levels of the UC administration that have remained unchanged despite many student actions in the form of discussions, forums, petitions, letter campaigns in the past.
Octane: Here’s the problem. The weasels that started this were the campus administrators unless you want to argue that the protesters had no right to protest. What started this was (A) the false assumptions and hysterical fears that somehow the local protest was going to draw hardcore anarchist elements from Oakland and (B) the failure to act under proper and clear legal authority. THAT IS WHAT STARTED THIS.
David
“To me the most serious crimes that are committed in this country are crimes committed under the color authority.”
I am in complete agreement with your statement. I will always hold the authorities to a higher standard of behavior than the private citizens precisely because we entrust them with, and compensate them for acting for the common good.
I is ply do not believe in the value of a retribution/revenge model of justice. I believe that the purpose of imposing any kind of sanction should be limited to protecting individuals and society, restoration and compensation for damages, and redirection and education to improve destructive or dangerous behaviors where that is possible.
In this case, I would not oppose financial compensation for any injuries sustained through excess use of force, but would oppose incarceration
( for example) as a penalty.
91 Octane
Please forgive my perhaps telling typo in last post.
I meant to write “unfair and unwise policy making” although I would also stand by the statement as it appears.
medwoman: In general I agree with you. In this case, I would just argue that criminal sanctions against law enforcement for violent acts of misconduct is rarely if ever applied and I think that’s a huge mistake. It contributes to the general lack of accountability. And people are really at the mercy of law enforcement because of their color of authority that gives them deference even when operating illegally. I don’t see this as a matter of retribution or revenge, but part of what needs to be done to hold law enforcement personally accountable for their actions when on active duty.
the protestors put up the tents both with the intention, and indeed the expectation that it would cause trouble.
they must ultmately bear the higher blame for that.
let me rephrase: they put up the tents with the intention of causing a conflict between themselves and the police/campus authority.
David
I definitely understand your point and am quite conflicted on this issue as it applies to those who wield authority.
“they put up the tents with the intention of causing a conflict between themselves and the police/campus authority. “
Had UC Davis responded the way that the City of Davis did to the tents in Central Park, it would have been a non-issue and they would have had them down by Thanksgiving a week later anyway.
“they must ultmately bear the higher blame for that. “
No. The higher blame is the misuse of power under the color of authority.
91 Octane
I don’t believe that either of us is privy to the motivations of all the protesters. Some were probably interested in “causing trouble” .
Others probably had no interest in causing trouble, but saw this as an entirely peaceful means of calling attention to these longstanding issues.
And indeed, this particular protest was completely peaceful until the police arrived.
It was the police action, not the physical presence of the tents, that caused the large upsurge in the crowd as can clearly be seen by watching the footage taken before the advance of the police. To me, this makes the administration and the police with the ultimate bearers of higher blame for converting a small, peaceful protest into a debacle of mismanagement..
MEDS: [i]”Such as the top decision makers at the university who keep increasing student costs while approving ever increasing salaries for questionably competent administrators?”[/i]
Most of the increasingly high costs of tuition at the UC is the result of a change in priorities in the state budget: The percentage of the state’s general fund going to higher education has roughly been cut in half since the late 1980s; and the percentage going to incarceration and criminal justice has roughly doubled over the same period.
My general take on the pay to UC administrators and other UC execs is probably not too different from yours: That a great number of top admins are being paid far too much. I am unconvinced that there is a great paucity in administrative talent. I doubt that by cutting out some of these people (there are now twice as many provosts in the UC system per enrolled undergraduate as there were in 1984) and cutting back the rate of pay on most others would mkae for a worse education for UC students at large. But I am also not convinced that saving money on executive compensation (which in inflation adjusted dollars is 3 times what it was 30 years ago) will do much to reduce student fees. To solve that, we need to fix the prison-industrial complex, starting by divorcing the Democratic Party from the public employee unions which run that party.
[quote]I fail to see how pressing criminal charges on either the police or the protesters serves the good for anyone.
Can anyone explain to me what “benefit” other than revenge or retribution, pressing criminal charges in this situation would serve ?[/quote]
Why prosecute anyone?
First, we hope it deters future similar criminal activity. I am quite sure that police officers will take note of what happens to Lt. Pike.
Second, it send a message.
Pepper spraying students engaged in peaceful protest on campus with riot gear is unacceptable and criminal.
medwoman: I don’t believe that either of us is privy to the motivations of all the protesters.
we saw their motives play out live.
vanguard: Had UC Davis responded the way that the City of Davis did to the tents in Central Park, it would have been a non-issue and they would have had them down by Thanksgiving a week later anyway.
that is largely speculation, and didn’t address my point. Those little ……s intended to goad the police into a fight.
vanguard: No. The higher blame is the misuse of power under the color of authority.
No.
put another way, they set a fire, poured gasoline on it, but you blame the police for how they tried to put it out. Whom do I hold ultimately responsible? no brainer.
“The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances. That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents. Not only did they probably lack legal authority according to Kroll, they knew it.”
is this the basis, that using the spray was “objectively unreasonable” in the legal sense of the term? This seems like a very high standard for you to meet. The Reynoso/Kroll report does not come close, in fact, specifically avoided looking at criminal culpability of those you say should be charged.
Did you weigh your opinions against any California laws that protect police from prosecution for decisions made in the field while arresting people, however poor their judgement turns out to be?
Operating under inadequate, poor policy and planning or failing to follow policy might be stupid or even be a firing offense without being criminal offense. Nothing in the Reynoso/Kroll report says that those they investigated broke any laws, correct? Yet you use their report to make a leap they don’t suggest.
medwoman – It is indeed the opinion of many, to varying degrees, that student tuition is high because of years of mismanagement at the top at UC. But the thing is, those opinions are wrong; they’re simply blaming the wrong people. There has been a lot of weird logical relativism in this discussion, which on the other hand is typical of the Fox News school of journalism, by which the truth is only one side of a debate.
Fortunately financial accounting at UC — unlike some of the budget accounting in the state government — is reality-based and not opinion-based. So these protests have no real chance to “succeed”. If they did “succeed”, as they have to some extent at CSU and the community colleges, it would make things worse rather than better. Worst of all is what has happened at the University of Puerto Rico, where instead of making the best of a bad situation caused by budget cuts, student protests did major further damage to the university.
“is this the basis, that using the spray was “objectively unreasonable” in the legal sense of the term? This seems like a very high standard for you to meet. The Reynoso/Kroll report does not come close, in fact, specifically avoided looking at criminal culpability of those you say should be charged.”
The reports were not supposed to look into those issues. I think finding criminal penalties for police have to meet a high standard. As I said in the piece, I consulted with some attorneys on the legal opinion.
“Did you weigh your opinions against any California laws that protect police from prosecution for decisions made in the field while arresting people, however poor their judgement turns out to be?”
Yeah that’s in part why I think the legal basis issue is critical.
“Operating under inadequate, poor policy and planning or failing to follow policy might be stupid or even be a firing offense without being criminal offense. Nothing in the Reynoso/Kroll report says that those they investigated broke any laws, correct? Yet you use their report to make a leap they don’t suggest. “
At that this point I’m using their report for supportive evidence. There is a parallel DA investigation that will determine from their standpoint whether to file charges. My guess is that they won’t but as I argue here, they should
“So these protests have no real chance to “succeed”.”
I find your reasoning flawed. There are still decisions made as to how to allocate resources and there is no reason that those allocations cannot be changed.
“Pepper spraying students engaged in peaceful protest on campus with riot gear is unacceptable and criminal.”
I agree with your first conclusion. It is not a criminal act to use pepper spray in dealing with people who resist lawful police orders. it’s done all over, all the time. it is a lesser force than many other lawful methods used by police. Wearing protective gear, of course, is not criminal either, whether alone or in conjunction with use of force.
If bad judgment and stupidity were crimes, the prisions would be full. Oh, yeah, they already are–with people convicted of crimes that already are in the law.
it’s fascinating that we have concurrent discussions underway here–one suggesting we need to convict police of laws that probably don’t apply and another suggesting we should drop charges against blockaders for whom authorities probably have open-and-shut cases with overwhelming evidence. One significant difference is that the blockaders purposely and knowingly broke laws.
It is certainly true that there are decisions to make about allocations of resources. The fact is that Vanderhoef made many of those decisions pretty badly, or he left them twisting in the wind, while Katehi has been no genius but at least pretty good. Every time Katehi (or anyone else) finds a rational way to reallocate resources, it’s a sacred cow of some faction that then agrees with the protesters that the administration is terrible. That’s what happened with the athletic cuts, for example. So the relation between any reality-based discussion and the protests truly is that the protests make things worse. Vaccination is blamed for the epidemic.
In any case, what really gets the goat of the protesters is simply the increase in systemwide fees. The logical story is that that money goes to Oakland and that UC Davis gets less money per student than before the fee increases. But the protesters don’t understand that and they also don’t want to understand that.
As for the right to protest, yes, the administration and the police screwed up. But the fact is that many these protesters dared the administration to make them victims as the perfect method to protest. Okay, they aren’t hardcore (although some of them would like to think they are) and they aren’t from Oakland. But they certainly are anarchists: there is no other way to read a demand like “cops off campus!” Once the administration figures out deft handling of fair-weather anarchists, then they are no longer victims and their message disappears.
Which will hopefully allow more stage time for people who have something rational to say.
[quote]”At that this point I’m using their report for supportive evidence. There is a parallel DA investigation that will determine from their standpoint whether to file charges. My guess is that they won’t but as I argue here, they should.”[/quote]I guess you’ve found a point on which we agree–that there likely will not be charges brought against the police or administrators. We’ll have to wait until the DA investigation is finished, then we’ll [u]know[/u] if any laws were broken. I wonder if we’ll still be in agreement when the DA reports?!
In the meantime, we shouldn’t (or can’t) make much of the “supportive evidence” of criminal activity cited in the Reynoso/Kroll report since they didn’t include any.
In the meantime, I’m still interested in whether your report is accurate on Chief Spicuzza’s “forced retirement in order to keep her pension.” It’s so unlike anything I’ve heard about in the realm of civil service law and regulations that it doesn’t seem to be even a possibility.
Did you find something unique about the Chief’s status and situation? Do you mean that she was given some special early-out authority that she hadn’t earned on the basis of her age and service?
[quote]I agree with your first conclusion. It is not a criminal act to use pepper spray in dealing with people who resist lawful police orders. it’s done all over, all the time. it is a lesser force than many other lawful methods used by police. Wearing protective gear, of course, is not criminal either, whether alone or in conjunction with use of force. [/quote]
JustSaying I should have made myself clearer–I have blogged in more detail in the past. I agree that there are circumstances where pepper spraying may make sense. I think one of the key findings here is that the type of canister and spray here was not meant for close contact and hence was not “reasonable force.”
I am also not convinced that pepper spray was necessary in this particular circumstance though this would be a tough call in court–second guessing a police officer’s actions in this type of circumstance is hard and should be done very sparingly.
But the fact that an inappropriate type of canister was used:
[quote] “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.[/quote]
is the key piece of evidence imho (non-lawyer that I am).
“In the meantime, we shouldn’t (or can’t) make much of the “supportive evidence” of criminal activity cited in the Reynoso/Kroll report since they didn’t include any.”
No, what they didn’t include was a statement that this was criminal activity. The facts as established and as laid out in this piece I think do support criminal charges.
Dr. Wu, perhaps [u]I[/u] should have made [u]myself[/u] more clear. We agree on pretty much everything except your conclusion that using the pepper spray was “criminal.” Maybe it will turn out that Pike and others committed criminal acts. I don’t see it now, but the DA’s investigation will give us some legal bases for making our own evaluations when it’s completed.
I don’t think you are going to get a legal basis from the DA investigation. At best you will get a “yes” or “no”
What seems most amazing about all this is Pike
and the other officers in the “skirmish line”
involved in pepper-spraying in broad daylight
didn’t realize the power of all those mobile
phone cameras pointed at them!
“But I am also not convinced that saving money on executive compensation (which in inflation adjusted dollars is 3 times what it was 30 years ago) will do much to reduce student fees. To solve that, we need to fix the prison-industrial complex, starting by divorcing the Democratic Party from the public employee unions which run that party.”
Don’t forget that the whole Republican soft on crime attack on Jerry Brown, during his first time as Governor in the 70’s, resulted in the creation of the so called Prison-Industrial Complex. When Ccpoa rose in importance was when it backed Deukmajian and later Wilson, both Republicans. My point is that the rise of the prison guards union has been bipartisan with both sides threatening to use soft on crime charges against the other side for political gain. This is why the Federal courts had to make the call to reduce prison populations. If the prison guards are now currying favor with the Democrats it is because the Dems hold all the political power in this state. They hold that power because of the unpopular positions of the Republicans and the poor quality of the Republican candidates for high office in California. The Republicans have spent all their political capital holding the line on taxes. Therefore they have nothing to offer the guards.
Good article Vanguard. I must say that 91 octane seems a bit misinformed to say that the protesters put up the tents with the intent to start trouble. They have stated several times that they were concerned about the rising cost of tuition while UC administrators took a pay increase. Other concerns were raised however this seemed to be their biggest concern.
Rich
We are mostly in agreement . I would make an addition to your following comment.
“To solve that, we need to fix the prison-industrial complex, starting by divorcing the Democratic Party from the public employee unions which run that party.”.
And we must also start divorcing primarily the Republican Party, but also the “me too” Democrats from their “tough on crime” ,
“lock them up and throw away the key” mentality.
Dr. Wu
“Why prosecute anyone?
First, we hope it deters future similar criminal activity. I am quite sure that police officers will take note of what happens to Lt. Pike.
I disagree that the deterrent value has ever been rigorously demonstrated for any one other than the perpetrator himself since he is locked up.
My feeling is that not allowing him access to weapons or the public would deter a future abuse of power such as pepper spraying by Lt. Pike just as effectively and at much less expense to the taxpayer .
As for the concept of “sending a message”. Losing one’s job is a fairly strong message. Again, I don’t think I prisonment is necessarily a stronger message than loss of compensation, respect and authority.
91 Octane
“we saw their motives play out live. “
Using this flawed reasoning, it must have been the sole motive of the police to physically harm the protesters since, after all, we “saw their motive
play out live”. This reasoning is fallacious whether applied to the protesters or to the police. It completely ignores the fact that our actions frequently have unintended consequences.
JustSaying
“Operating under inadequate, poor policy and planning or failing to follow policy might be stupid or even be a firing offense without being criminal offense. Nothing in the Reynoso/Kroll report says that those they investigated broke any laws, correct? Yet you use their report to make a leap they don’t suggest.”
I am not sure that this statement is correct. Maybe a lawyer can help clarify.
1) if they used an object not specifically approved for individual or crowd control, as in the unauthorized form of pepper spray, would this constitute an unprotected criminal act. If not, what would ? How about if out of fear, or lack of control an officer picked up a rock and bashed someone in the head with it. Would that not be use of an unauthorized weapon and criminal ? And if so, how would tht differ from using unauthorized pepper spray, legally speaking ?
2) If the arrests themselves were not legal, would not physical enforcement of them also be illegal ?
I was hoping that David reviewed these questions re. the protections for police and would help enlighten this since one would have to get past this issue to get to any conclusion of criminality. I assume there are laws that directly apply (just as it turned out that internal investigations are kept secret by law).
My thought is that the “unauthorized” form of pepper spray is a policy matter, not a issue of some law–or someone would have cited the law by now. The remedy, depending on the magnitude of the violation, will be determined by the university, IMO. We don’t yet know whether the specific pepper spray had some approval by the chief or others or whether its use is anything more than a technical violation. Certainly the larger container has almost nothing to do with the incident itself–we’d be as outraged if the spray came from a smaller container.
Your “what if he hit her in the head with a rock grabbed for self defense out of fear” takes the hypotheticals too far for me to imagine what laws could apply.
It seems logical that physical enforcement compounds the wrong done by an illegal arrest. We’ll see whether it’s determined that either one occurred at this event. The Reynoso/Kroll report pointed out the confusion and questions amongst the participants at the time.
It’s troubling that the university counsel pleaded attorney/client privilege (rather than explaining the legal case for the university’s decision) while the justice’s investigation was underway. Just another dopey decision from the top, worse than just a missed opportunity because it encourages reasonable people to assume that the arrests were illegal and that UCD officials knew or know that to be true. It’s not easy to support open-mindedness when folks keep pulling stupid tricks.
anne: “Good article Vanguard. I must say that 91 octane seems a bit misinformed to say that the protesters put up the tents with the intent to start trouble. They have stated several times that they were concerned about the rising cost of tuition while UC administrators took a pay increase. Other concerns were raised however this seemed to be their biggest concern.”
not misinformed at all. its very clear thats exactly what they intended to do. They knew the tents were going to be a source of friction, that is why they put them up.
medwoman – it is clear from start to finish, they intended to cause problems starting with the tents. dance around that all you’d like.
How is it very clear when a very similar population under similar conditions but a different response from authority caused no problem at all?
91 Octane
“They knew the tents were going to be a source of friction, that is why they put them up.”
And using the same logic: The police knew the pepper spray would inflict harm, that is why they used it. Both sides clearly played a role here.
To assign degrees of culpability, or to pretend to know another’s motives are pure speculation based on one’s world view.
it is simple – police didn’t cause the problem – their failure is how they went about trying to solve a problem caused by the creeps who put up the tents.
“it is simple – police didn’t cause the problem”
Yes they did cause the problem. Evidence? After the pepper spray the tents went up and remained without issue. They caused the problem. They had help from incompetence of the admin.
And using the same logic: The police knew the pepper spray would inflict harm, that is why they used it.
and using that logic basically sidestepped the issue.
Yes they did cause the problem. Evidence? After the pepper spray the tents went up and remained without issue. They caused the problem. They had help from incompetence of the admin.
You think the problem is the pepperspray. It wasn’t the problem. it was one of the end products of the main problem – the tents which triggered the chain of events. btw:
your statement is false. The tents moved into Mrak hall afterward, which begain trouble there – including property damage.
Does “Criminal Charge” require the intention to act illegally?
Although the Kroll Report stated that MK-9 was ‘unauthorized’ in UCDPD, for it to be legal, it only needs to be certified by DOJ, and have the approval of the Police Chief. Since UCSF also uses MK-9, if it is not certified, UCSF also has a problem. The Kroll report did not say whether Spicuzza gave approval. Kroll report did not mention how the process works. [My comment] ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=5284:first-domino-falls-ucd-police-chief-steps-down&catid=63:law-enforcement&Itemid=114[/url])
There are two main questions that should be treated separately.
1) Was it a criminal act to use pepper spray at all. If yes, it should not have mattered whether MK-4 or MK-9 was used.
2) Was it a criminal act that MK-9 was used if the use of pepper spray was justified.
—-
About the part of their reports where Pike mentioned talking to Officer P, but Officer P did not mention:
When an event is mentioned in one account but not in another, the normal assumption is that the event happened, but was simply omitted in the second report.
In the Kroll Report, Pike said that he discussed with Officer P. Kroll did not mention when Pike said such a discussion happened. As far I could interpret from the Kroll Report, Pike could have discussed the use of pepper spray on Nov18 during the eviction, or anytime before that when Pike and Officer P were still planning. Officer P could have simply not mention it because they discussed about that [i]before Nov18[/i].
In this interpretation, there is no contradiction between the two accounts. No one was lying.
David, do you understand my question about how Chief Spicuzza could have been forced to quit in order to save her pension? You said that four or five times, yet it doesn’t seem logical to me.
The timing of Spicuzza’s resignation and the need to have someone in charge for Picnic Day can not simply be coincidental. What ever the process something caused her to act when she did.
Continued from [The trail to discover the second officer’s name] ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=5306:the-trail-to-discovering-the-name-of-officer-alexander-lee-as-the-second-pepper-sprayer&catid=63:law-enforcement&Itemid=114[/url])
I want to clarify that I would still not support the decision to disclose the officer’s name even if it was known 100%. The reason was that it disregarded the concern of FUPOA.
In the Reynoso Report, the three people from UCDPD who held the most responsibilities were Spicuzza, Pike, and Officer P. Officer P is not A.Lee. According to the information known to the public before the Reynoso Report, Officer P was never mentioned.
On the week or days just before the Reynoso Report was released, “A.Lee”, was being blamed for delaying the report. According his involvement reported by the Reynoso Report, the animosity toward him had reduced. Before the Report was released, there was never an analysis or disclosure by the Vanguard that he was a rookie, that he was just following orders, and did not deserve much blame. That consideration was overlooked or withheld.
According to the footage, we could already see that A.Lee was most likely just following order, so he couldn’t have as gathered as much animosity as Pike did. The animosity on him was mainly the fact that his name was not disclosed. Vanguard’s disclosing of his name did not help the situation but worsen it. The event that removed animosity on A.Lee was the fact that the report didn’t mention him (suggesting that his action was not a significant decision point), and the fact that Officer P was disclosed as the Incident Commander on the operation plan that Kroll collected.
The Report saved A.Lee, but now Officer P is taking his place.
The problem I have on blaming Officer P is that Pike was not even on the Operation Plan that Kroll collected. To me, that meant that either UCDPD disregarded the official plan, or that the Operation Plan Kroll collected was out-dated.
It is difficult for me to refer to Officer P as the Incident Commander because Kroll did not say whether Officer P mentioned himself as the Incident Commander. If the Operation Plan was never mentioned, no one would be blaming Officer P because his only link to the blame was that his name was on that paper and he didn’t do what his role on that paper should.
This begs the question:
If the Operation Plan that Kroll collected was outdated, that Pike was the Incident Commander, then is Officer P relieved of the blame to the same degree as A.Lee, who was just following the commands?
[i]”To me the most serious crimes that are committed in this country are crimes committed under the color authority.”[/i]
David: I would add that you seem a bit obsessed with this point. I can’t help but see you as a bit desperate for a story that validates your views on this. As evidence, count the number of your Vanguard articles on the pepper-spray event.
I certainly agree that people can abuse their power, and some citizen oversight is warranted and beneficial. However, you seem to periodically ignore or forget the actual role of a police officer. They are responsible for keeping the peace, ensuring safety from harm and restoring order. It is not the kind of job that can ever be perfect given the unpredictability of people they must deal with.
Lt. Pike and others made mistakes. Fine. Can we move on now? How long are you going to milk this story?
[i]”Don’t forget that the whole Republican soft on crime attack on Jerry Brown, during his first time as Governor in the 70’s, resulted in the creation of the so called Prison-Industrial Complex.”[/i]
Toad, you are a crackup. Deflect decades of Democrat-PEU-controlled state government draining the state coffers and putting us into a Greek-like deficit hole, by blaming powerless state Republicans.
You are a PEU member, right? I think it is time to look in the mirror for the culprit.
By the way, last I checked tough on crime laws were based on general public demand during the high crime 80s and 90s… both Dem and GOP voters. In fact, a lot of Dems were crying that police were not policing the tough low-income neighborhoods. That was a cry of racism from the left was it not? Now we are tough on crime, and it is a cry of racism again. You people are never happy, are you?
“You think the problem is the pepperspray. It wasn’t the problem. it was one of the end products of the main problem – the tents which triggered the chain of events. btw:
your statement is false. The tents moved into Mrak hall afterward, which begain trouble there – including property damage.”
The entire handling of the tents was a problem from the first decision to clear them, to the timing, the planning, to the operation itself.
That’s not an accurate statement. The tents did not move into Mrak Hall. The students briefly occupied Mrak earlier that week but left before the pepper spray incident.
“Does “Criminal Charge” require the intention to act illegally?”
No, the elements of the charge in fact say it does not matter if they intend to break the law.
This is from Calcrim on battery: “Someone commits an act willfully when he or she does it willingly or on purpose. [b][u]It is not required that he or she intend to break the law[/u][/b], hurt someone else, or gain any advantage.”
“There are two main questions that should be treated separately.”
I disagree with you. The type of pepper spray was one piece of evidence among many that leads one to believe this was more than just misconduct.
“In this interpretation, there is no contradiction between the two accounts. No one was lying.”
It doesn’t matter if anyone is lying, what matters is if Swartwood as the incident commander had discussed with Pike in advance and knew or approved, if he did, he’s liable for the same battery charge under an aiding and abetting theory.
The entire handling of the tents was a problem from the first decision to clear them, to the timing, the planning, to the operation itself.
The entire handling of the tents was a problem from the first decision to put them up.
now a bit of side commentary: I understand that I don’t come off as unbiased. The main issue I have, is the vanguard, throughout its commentary on the situation, will not even make an attempt at balanced commentary – so if the police side will not be presented, someone has to provide the balance – let it be me, if no-one else will.
Vanguard story: “Chief Annette Spicuzza was likely forced to retire in order to keep her pension….If Chief Spicuzza was the easiest call on forced retirement….Based on this analysis, we believe that Chief Spicuzza’s forced retirement was appropriate”
JS comment: “And how you know this? There’s nothing here to indicate why you think this rather than someone’s earlier, more honorable speculation that ‘she fell on her sword’. How was her pension at risk if she didn’t retire immediately? Public employees “earn” their pensions by virtue of their age and years of service. How could the chief’s situation be different? “
Because you’ve made 16 separate comments since I raised this–and I’ve just reviewed them to be sure I didn’t over look your answer–I’m starting to wonder what’s happening.
At first, I thought you overlooked my question, then I thought I might not have made a clear point, then I thought I might have raised an issue you for which you didn’t know the answer, then I figured you think it’s a point not worth comment, then I wondered if you’re just pissed off ’cause I reworded the question another time or two, and, now, I’ve just run out of guesses.
This likely is the Vanguard’s definitive piece on Annette Spicuzza’s role in the incident and the aftermath. Unless she’s charged criminally–which we’ve agreed she won’t be–or is the subject of a civil suit, she’s moved on to historical footnote status.
Whether the chief was punished by the university could say a lot about how UCD authorities view individual responsibility for the event. If the university really has authority to punish employees by giving them this “retire or lose your pension” option, could there be more such resolutions?
How should we view Chief Spinuzza’s final UCD act? A humiliating tar-and-feather episode in which her employer ran her off the campus by threatening to withhold her pension somehow if she didn’t immediately retire instead of fighting for her job. Or, a selfless act of humility to help limit the unfair attacks being leveled at the university she loves and to keep her presence from hindering the chancellor’s efforts to make needed changes in a timely way?
“The entire handling of the tents was a problem from the first decision to put them up.”
You are entitled to your opinion. But the breakdown occurred on the part of the university’s response to the tent going on, not the tents themselves.
[quote]Rich Rifkin:Most of the increasingly high costs of tuition at the UC is the result of a change in priorities in the state budget: The percentage of the state’s general fund going to higher education has roughly been cut in half since the late 1980s; and the percentage going to incarceration and criminal justice has roughly doubled over the same period.
My general take on the pay to UC administrators and other UC execs is probably not too different from yours: That a great number of top admins are being paid far too much. I am unconvinced that there is a great paucity in administrative talent. I doubt that by cutting out some of these people (there are now twice as many provosts in the UC system per enrolled undergraduate as there were in 1984) and cutting back the rate of pay on most others would mkae for a worse education for UC students at large. But I am also not convinced that saving money on executive compensation (which in inflation adjusted dollars is 3 times what it was 30 years ago) will do much to reduce student fees. To solve that, we need to fix the prison-industrial complex, starting by divorcing the Democratic Party from the public employee unions which run that party.
[/quote]
Nicely said!
[quote]JustSaying:it’s fascinating that we have concurrent discussions underway here–one suggesting we need to convict police of laws that probably don’t apply and another suggesting we should drop charges against blockaders for whom authorities probably have open-and-shut cases with overwhelming evidence. One significant difference is that the blockaders purposely and knowingly broke laws.[/quote]
Bingo!
[quote]dmg: You are entitled to your opinion. But the breakdown occurred on the part of the university’s response to the tent going on, not the tents themselves.[/quote]
And that is YOUR OPINION. That doesn’t necessarily make it a better one than anyone else’s…
Elaine: That’s pretty much a fact is it not? As established by Kroll and the Task Force, no?
” How should we view Chief Spinuzza’s final UCD act? A humiliating tar-and-feather episode in which her employer ran her off the campus by threatening to withhold her pension somehow if she didn’t immediately retire instead of fighting for her job. Or, a selfless act of humility to help limit the unfair attacks being leveled at the university she loves and to keep her presence from hindering the chancellor’s efforts to make needed changes in a timely way? “
Perhaps, after reflection on all of the scenarios and their perceivable outcomes, Chief Spicuzza chose what was best for her and the University .
To dmg: I stand by my statement…
Elaine: That’s pretty much a fact is it not? As established by Kroll and the Task Force, no?
No. The Kroll task force didn’t address the issue at all. They steered clear of it. they didn’t want to have to criticize the students.
dmg: You are entitled to your opinion. But the breakdown occurred on the part of the university’s response to the tent going on, not the tents themselves.
No, the problem started when the tents went up.