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Pop Culture Under a Microscope

Hindsight: still clearer, pepper spray or no

Brad Hicks already has an excellent post about it here, but a report has been released by the committee, led by former California Supreme Court Associate Justice Cruz Reynoso, which was charged with investigating the UC Davis pepper spray incident last November.  And it’s even worse than you think.

Not surprisingly to anyone who saw the video of the incident, the report concludes that “the pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”  More amazingly, it identifies failures on nearly every level of planning and execution–in their words, “many breaches of protocol and procedures and a considerable lack of leadership.”

What many of us didn’t realize at the time of the pepper-spray incident is that Chancellor Katehi did not call in law enforcement in a moment of desparate panic: the University had been notified in advance of the planned demonstration, and had time to devise its own careful response.  The Chancellor, however, acting from the start on a mistaken assumption about who comprised the group of protesters (outsiders vs. students and faculty), did not consider more prudent alternatives and instead initiated what the report concludes was an unecessary, unwise, and possibly illegal action by police.

The report describes how, once she had made the questionable decision to order a raid, the Chancellor failed to communicate her goals and priorities–such as the expectation that no force whatsoever should be used against the protesters–to the police chief, who then failed to communicate the concerns and reservations of the police force–for example, that the Chancellor’s insistence on clearing the tents in the afternoon rather than the middle of the night would mean a much larger crowd to clear, or that the likelihood of the escalation of force was extremely high to inevitable in procedures such as this one.  Not to mention the concern that the entire raid might not be legal, but more on that point later.

Once they had received the Administration’s “order,” the police department failed in a number of ways to follow “national or state-mandated rules regarding incident/event planning,” and then “notwithstanding the deficiencies in the operations plan, the operation was not managed according to the plan.”  In advance of the action, the Chief instructed her officers NOT to wear riot gear onto campus, an instruction they apparently openly defied, and just for good measure, the officers further prepared for the operation by ordering special military-grade pepper spray cans, which are not actually legal for law enforcement in California to use or carry (and which therefore they were not trained to use properly).

Once the operation was underway, chain of command was abandoned, conflicting orders were being given, individual officers were making decisions independent of any orders, and the Chief stood nearby “filming the police actions with her cell phone.”  Since no plan had been made to transport their arrestees back to the station, the police were forced to hang around in the center of a circle of chanting protesters–which, in the absence of an incident commander in a position to see that no actual threat existed, led to the incorrect feeling by the officers that they were “surrounded” by a “hostile crowd.”  When the pepper-spraying did occur, the officer who used it indeed failed to use it safely, since it is intended for dispersal over a large crowd, from a minimum distance of six feet–not directly into the faces of individuals, at close range.  But in any case, the report also found that the “decision to use pepper spray [at all] was not supported by objective evidence and was not authorized by policy.”

Perhaps the most frustrating part of the whole incident is this: this use of excessive force was employed to end a perfectly legal protest.  This was not a case of a justified operation going astray in the moment; since the protesters in question were students at UC Davis, there was no law which even permitted the University to order their removal by police.  Even if they hadn’t been students, it’s tough to argue that the protesters were practicing overnight camping at 3:00 in the afternoon.  The agency which conducted the initial investigation has said that “At the time the operation was mounted (and continuing until the present) it was not clear what legal authority existed for the campus police to remove the tents and arrest those who opposed them.”  Apparently the officers on the raid knew this; the report describes how “the officers in charge…were uncertain as to the legal grounds for the action they were taking and consulted with University Counsel on the issue. ”   But instead of responding to this uncertainty by resisting their orders or by treating the protesters gently once they got there, they allowed their frustration to vent through violence directed at those demonstrating–i.e., the people whose rights they believed were being infringed.

But the question of legal rightness really couldn’t be made a priority, given the University’s other important responsibilities– such as protecting the virtue of innocent undergrads.  The report quotes statements by members of the administration aimed at explaining the motivation for their decision to call in the police:

Chancellor Katehi stated, “We were worried at the time about that [nonaffiliates]
because the issues from Oakland were in the news and the use of drugs and
sex and other things, and you know here we have very young students . . . we were
worried especially about having very young girls and other students with older people
who come from the outside without any knowledge of their record . . . if anything
happens to any student while we’re in violation of policy, it’s a very tough thing to
overcome.”
Vice Chancellor Meyer expressed similar concerns in an interview conducted on Dec. 7.
He explained, “our context at the time was seeing what’s happening in the City of
Oakland, seeing what’s happening in other municipalities across the country, and not
being able to see a scenario where [a UC Davis Occupation] ends well . . . Do we lose
control and have non-affiliates become part of an encampment? So my fear is a longterm
occupation with a number of tents where we have an undergraduate student and a
non-affiliate and there’s an incident. And then I’m reporting to a parent that a nonaffiliate
has done this unthinkable act with your daughter, and how could we let that
happen?”

I guess they only felt the need to protect the undergrads from a specific type of “unthinkable act”–not, for example, from the unthinkable act of unprovoked police violence.  Apparently a *hypothetical* risk of rape is grounds for *actual* violations of individuals’ personal rights and basic physical safety…even if some of those who end up violated or injured are very same vulnerable daughter/undergrads they are trying to protect.  It’s as if the woodsman, finding Little Red Riding Hood in the woods, was worried so much about even the *possibility* of a wolf that he cut HER in half with his axe to keep her from being compromised.

In case you hadn’t already deduced from the sheer frequency of these incidents lately, what we have here is not a single bad decision but a whole structure that failed spectacularly at nearly every level.  Did you think we had a system in place that made sure our rights are protected not just in the abstract, but in actual practice?  Did you think we had a police force rigorously trained to manage high-pressure situations with objectivity and dispassion?  Did you think the whole idea of law enforcement was to “protect  and serve” individual rights and personal safety, or that the police were supposed to be the ones enforcing the laws, not breaking them?  If you took comfort in the thought of that system, then the Reynoso report will not sit well with you.   Perhaps we can still have those things, but it seems we’re going to have to insist on it.

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