Commentary: Leaps to Conclusion About Pepper Spray Suit Unwise

After the Vanguard broke the story about the pepper-spray suit’s settlement on Tuesday, we were taken aback by some of comments, and not just on the Vanguard, that assumed that this suit was just about money.

The comment that surprised me the most was made by Supervisor Matt Rexroad, who said that the protesters “do not deserve a dime” even though he admitted that he had not spoken with or met any of the protesters, nor was it likely that he read the complaint itself.

In fact, a string of derogatory comments ensued on Facebook, many of them directed toward the impacts of the act of pepper spraying itself on the students.

Given what I know about the student protesters involved on November 18 who were either arrested or pepper sprayed, I would be both very surprised and disappointed to learn in a few weeks when the settlement is made public that this was about money.

These are people very deeply devoted and committed to a cause for social justice.  They are not operating to line their pocket books.  When I spoke to them in February they were far more concerned with the university admitting to what happened, what went wrong, and taking steps to prevent a repeat, than they were about money.

Attorney fees are another matter, of course.

Much of the rest of the conversation centered around the impact of pepper spray.  The claim from many of the commenters was that, while being pepper sprayed is not a pleasant experience, it is not one that causes long-term health impacts.  Unlike apparently some of these commenters, I do not have first-hand experience being pepper sprayed.

On the other hand, I think many of them are missing the boat.  This is not a personal injury suit, this is a civil rights lawsuit.  The suit is not one for injuries inflicted – though that is a component of it – but rather about the violation of civil rights.

Toward that end, the Kroll Report would be most damaging to the university’s case when it argued that the use of pepper spray was objectively unnecessary and even questioned whether the university had legal authority to clear the Quad.

And while the internal report might have muddied the clarity of the Kroll report, the university was in a very weak position with regard to this case.

The lawsuit charges that “certain plaintiffs were targeted by the police for forcible arrests based on their past political activism and associations at the University,” and that the action of the defendants “had a chilling effect on the willingness of Plaintiffs to exercise their free-speech rights in areas under Defendants’ control, causing Plaintiffs continuing injury that cannot be redressed by damages.”

In their cause of action, the plaintiffs alleged a violation of the First Amendment right to free speech, noting “In prior years, Defendants and each of them, as well as their predecessors in their positions, permitted assemblies, demonstrations and protests on campus which included the erection of structures such as tents and domes, when the message and speakers were less controversial. In contrast, Defendants and each of them took the actions to disperse the lawful assembly on November 18, and to pepper spray and arrest students because of the demonstration’s message and who was delivering it.”

Here they allege: “By interfering, including through the use of excessive force, Plaintiffs’ peaceful protest, the actions of defendants and each of them violated the rights of Plaintiffs and each of them guaranteed to them by the First Amendment to the United States Constitution and caused them on-going irreparable injury and damage.”

They also allege a violation of the Fourth Amendment through the “ordering, directing, approving, condoning, and executing the pepper spraying of Plaintiffs, the arrest of Plaintiffs, the physical removal of Plaintiffs, and/or the use of excessive force against Plaintiffs.”

The causes of action also include the violation of the 14^th Amendment’s due process clause, violations of California’s constitutional protections of free speech, petition and assembly, unlawful seizure and false imprisonment, and violations of California’s Bane Act.

The point here is that that the allegations in this suit are not simply excessive force, but rather the deprival of the civil rights of the protesters.  The excessive force and the use of pepper spray are important components to the violation of those rights, but they are not the core of the case.

As the suit notes, “By dispersing the student assembly on the U.C. Davis quad on November 18, and by pepper spraying and/or falsely arresting” the protesters, the defendants, “each of them through coercive force, violated federal and state constitutional and statutory rights guaranteed to” the protesters.

One of the critical questions raised by the Kroll Report and the subsequent Reynoso/Task Force Review is the legal authority for the police to remove the tents and therefore arrest the protesters.

As the Kroll investigators note, “Without the legal authority to demand that the tents be removed, the police lose the legal authority for much of what subsequently transpired on November 18, including the issuance of an order to disperse and the declaration of an unlawful assembly.”

Because the university has refused to release the Campus Counsel’s legal directive, we do not know under what legal authority the police even operated under in removing the tents.

That is now the genesis of the false arrest/unlawful seizure charge.

Moreover, Kroll reports, “The decision to use pepper spray was not supported by objective evidence and was not authorized by policy.”  They would add, “Lieutenant Pike’s use of force in pepper spraying seated protesters was objectively unreasonable.”

Now, the internal report apparently contradicts this core finding, but the university is in a tough position here.

As Michael Risher, one of the attorneys for the ACLU involved in the lawsuit, noted in his summary of the Kroll findings in April, “Taken as a whole, the report also makes clear that: The University acted based on fear and assumptions about the Occupy movement, not on evidence or the law. The University’s response to the demonstration reflects a fundamental lack of respect for the right to protest.”

This is, in fact, the core of the lawsuit against the university.  As he wrote in April, “The ACLU of Northern California is representing students and alumni in a lawsuit against UC Davis and individual police officers, over a series of constitutional violations against the demonstrators on November 18, and we hope to obtain more answers over the course of this litigation.”

He adds, “When the cost of speech is a shot of blinding, burning pepper spray in the face, speech is not free.”

Within that rhetoric, however, is a core to a better understanding of the suit.  It is not merely that the police used pepper spray which caused physical harm to the students, it is that they used pepper spray to, in their view, improperly stifle the students’ right to free speech.

In our view this marks a crucial distinction between the comments by an elected county supervisor and the reality of the lawsuit.  It does not matter, for purposes of this lawsuit, whether the students suffered physical injury or not.  What matters is that the police used excessive force to quell the right to dissent, and thus free speech.

A focus on the injuries, therefore, is a distraction from a core issue: did the university police act with legal authority and under the law to take down and the tents and was their use of force reasonable to accomplish those ends?

The answer on legal authority is unclear at best, the answer on the use of excessive force is very clearly spelled out in Kroll, but muddied by the campus’ self-selected internal investigators.  Regardless, the Kroll investigation, conducted by retired police officers, would seem to be a very strong indication of how a court might have ruled in this case once the facts were presented.

In a way, we may be shortchanged by the failure of this suit to go to trial so that the truth could be heard without the protections of the police officer’s bills of rights to protect the release of information.

On the other hand, perhaps that was part of the basis of the settlement – the release of information so that the public can finally know the truth once and for all.

The final question of terms will be answered in the next few weeks and, as we said at the onset, we would be stunned if this turned out to be about money.

—David M. Greenwald reporting

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