Attorneys Defend UC Davis Pepper Spray Suit Settlement

On Wednesday, the terms of the settlement of the lawsuit filed by students pepper sprayed on the UC Davis Quad, November 18, 2011, was announced.  Among other things, the students would receive around one million dollars, amounting to 30 thousand dollars each.

In addition, Chancellor Katehi would be required to write a written apology to each student and the ACLU would play a role in the development of new practices.

On the other hand, the defendants admit no wrongdoing.  They deny and “continue to deny each and all of the claims alleged by Plaintiffs in the Litigation. Defendants contend that they acted reasonably and in good faith.”

This has led many to question whether this suit has been settled and wonder whether money did not become the primary motivating factor – this despite the relatively small settlement of $30,000 per student.

Some reports have suggested that the settlement will come from student fees and tuitions.  However, Steve Montiel, the Media Relations Director of the UC Office of the President, confirmed to the Vanguard, “Any money paid as a result of the proposed settlement will from the university’s General Liability Risk Program, a self-insurance fund.”

Like most public entities, UC Davis has a risk management fund that insures against big settlements.

Mr. Montiel explained, “UC collects premiums internally to fund its insurance programs. The rates are determined by external, independent actuaries, and they vary, depending on losses. Basically, the premiums cover costs.”

ACLU Staff Attorney Michael Risher, one of the entities backing the lawsuit, defended the terms of the agreement.

“We think it’s a good settlement,” he told the Vanguard on Wednesday.  “No settlement gets you everything you want, otherwise it wouldn’t be a settlement.”

“It gives our clients some measure of compensation for the pain, the nightmares, the panic attacks,” he said adding, “It sends a message not just to the University of California but all universities that if they do anything like this again, they will be held accountable.”

“We have apologies from the chancellor, which is unheard of,” he added.

And one of the biggest factors for the ACLU and others is the ability to help shape policy reforms in the future.

Nevertheless, the apology by the chancellor seems mitigated to some extent by provisions in the lawsuit that allow the defendants to avoid admitting wrongdoing.

Mr. Risher granted this point, noting, “That’s language that unfortunately gets inserted into every settlement.  If you cancel that out against the Chancellor’s apology that still leaves the settling for $1 million and the agreement to work with the ACLU to produce better policies.”

Clearly, one of the big parts of this settlement for attorneys is the ability to shape policies.

Sacramento Civil Rights Attorney Mark Merin, in fact, argued, “We got something that we wouldn’t have gotten from a jury verdict.”

“What we gained and we couldn’t have been able to get had we gone to a jury verdict,” Mr. Merin said, “was the participation in the drafting of policy that relates to use of law enforcement on campus, crowd control, response to demonstration, and weapons and all of that kind of stuff.”

“That’s something that we wouldn’t have been able to get,” he said.  “We now are able to influence and comment on, and possibility shape the policies that will determine how they will respond in the future.”

Michael Risher said that while they have looked at the recommendations of the Reynoso and Kroll Reports, they are not completely clear what policies the university is actually contemplating.

“Both of those reports make some good recommendations, but they are not nearly concrete enough,” he told the Vanguard.  “There’s one thing that we know, vague policies, vague statements of policy, sure they’re better than nothing at all, but they are completely insufficient to prevent the violation of people’s free speech and other constitutional rights.”

“What we’re going to push for is very specific policies so that officers aren’t left to make things up on the ground,” he said.  “When that happens, you can see what the results can be, particularly when they are getting mixed messages from above.”

In terms of the specific policies, Mr. Risher said at this time they do not know.

However, what he favors is a policy which would move away from police responses as the first response to non-violent demonstration, and avoiding the use of riot gear by police, except when truly necessary.

“Those are the types of policies that are needed here,” he said.  “Those are just broad outlines, the details will need to get filled in when we work with the university.”

Another concern expressed by some critics is that we did not get public access to communications by the chancellor and other information about what went wrong.

Michael Risher argued that we did learn additional information from the lawsuit over and above what the Kroll and Reynoso reports established.

“We were able to examine thousands of pages of records and we learned quite a lot more in terms of details,” he said.

But the specifics of those details are protected by confidentiality provisions contained within the settlement agreement.

“What we learned is that Kroll and Reynoso’s conclusions were based on very solid evidence,” he said.  They did not go into as much detail as some might have wanted, but Mr. Risher said, “They went into enough” about the entire chain events that led to the pepper spraying.

Mark Merin argued that they got a lot of information through the process.

“The only thing we didn’t get or establish was how this decision to shut down this demonstration was choreographed by some higher power,” he said.  “There’s a lot of suspicion that Homeland Security was involved some way or another by calling the shots and having conference calls.”

“We didn’t get that, we didn’t see any evidence of that, and that probably means that we wouldn’t, even had we tried harder,” he said.

Mark Merin explained the reason for this suspicion was based on “the way that the authorities started to act against the occupation in Philadelphia, New York and elsewhere…”  He added, “It looked like there was some kind of central agreement.  So there was some talk that there was possibly some choreography or some central plan.  But nobody has come up with that.”

“It’s unlikely that we would have come up with anything here,” he added.  “Especially since we had as alternative, a pretty good picture of what did happen and how they did make this call.”

He referenced the string of emails and communications that the attorneys received internally and Kroll and Reynoso reported on.

In short, he said, there did not seem to be a great benefit that they would get from continuing to litigate the case.

The biggest criticism has been that this settlement really just amounted to money.  The students received one million dollars and the attorneys got $250,000 just in attorney fees.

Michael Risher disputes this, arguing, “It is clearly not” just about the money.

“Yes it’s important that our clients receive some form of compensation,” he said, noting that “no settlement can undo what happened last November.”

“It is also important because a monetary settlement sends a message to the university and to other government [entities] that no other type of settlement can, that they will pay a cost if they violate the constitutional rights of people,” Mr. Risher added.

“It’s also important to remember that, first of all, that $30,000 is not even a full year of tuition and expenses at Davis,” he said.  “The university’s own website said that [it’s] around $32,000 per year.”

He argued that the policy changes are not something that you can get through a jury verdict.

“This was a particularly egregious case and it was important that our clients get some form of compensation for the harms that they suffered,” he said.  “But equally important is that we get policy changes.”

“Equally important to some of our clients is that we got an apology from the chancellor of the university,” he said.

Mark Merin went a step further and made the argument that money is pretty much the only realistic outcome one can achieve in a lawsuit.

Mark Merin noted that in our legal system, “there’s not a lot that you can get in litigation.  In fact the only thing you can get in the end is money.”

“The discovery that you do is generally focused on establishing liability so that you can get money,” he said.  “You can’t force the university to fire people or discipline them.  That just doesn’t happen.”

“When it’s a one-time incident you rarely can get an injunction, any injunctive relief is very difficult because you have to show that it’s likely to happen again,” he added.

So for him the question was simply how much money they would be able to get in a settlement versus moving forward with the lawsuit and taking it to trial.

He argued, “The fact is that the damages that were suffered [in this particular case] don’t change as time goes on.”

The damages, he argued, with pepper spray is short-term but very intense pain, but it dissipates quickly.  The emotional pain from being a victim also dissipates.

He noted, “It may change your life…  But in many cases these experiences shape people in a positive way.  What we found is that people who were uncertain now have become more certain.  People are now becoming more adamant about protecting their rights.”

In short, he felt that in terms of actual damages, the monetary value was probably never going to be a whole lot more than the $1 million that the university agreed to.

“Putting $30,000 apiece into the hands of people who were arrested or pepper sprayed is a good result,” he said.

Overall, Michael Risher said that they are pleased with the settlement and pleased somewhat with the way things have moved forward, though he regrets the delay in the release of the Reynoso and Kroll reports.

“We haven’t seen the stark violations of constitutional rights since November that occurred not just at Davis but other campuses leading up to that,” he said.  “We’re confident that while things are moving more slowly than we hoped, we’ll get the policies in place in time to prevent a reoccurrence.”

—David M. Greenwald reporting

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