The Occupation of Wall Street Spreads

[Terralthra]

The protesters in all three protests were utilizing devices called black bears which are designed to lock protesters in place until the protester decides he/she is done.

Could you explain these devices for us? Wikipedia has nothing and my google-fu is failing me.

KS already re-linked this from my post, but these are explained in the Appeals Court finding for Headwaters Forest Defense v. Humboldt County, 240 F.3d 1185 (2000), along with a description of each of the protest incidents.

[Losonti Tokash]

Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.

http://bicyclebarricade.wordpress.com/2 ... -b-katehi/

[Kamakazie Sith]

Way to address one out of three cases. Want to take a shot at the other ones? Or better yet, how about you actually provide an example of a Court of Appeals upholding the use of pepper spray directly in the face of a passively or verbally non-compliant (rather than actively resisting or violent) subject? I've provided three clear examples, from three different Circuits, all holding the same general principle: it's excessive force and unreasonable.

I'll see what I can find.

The other two cases aren't relevant to protesters. They both deal with individuals. In the 10th Circuit example it involves the use of pepper spray on a handcuffed individual. In the 11th Circuit example is the same deal the use of pepper spray on an already handcuffed individual. In both cases the officer was male and significantly larger than the females in both incidents.

Instead of providing any evidence, you try to nitpick mine: so they had a device instead of linking arms directly. Your argument is that because their means of linking arms was MORE advanced than just linking arms, OC isn't ok, but when it's just people sitting with linked arms, OC directly in the face (violating guidelines for the safe use of OC spray, let's not forget) is totally appropriate? I'd love to see you argue that one in front of the 9th Circuit.

Are you fucking retarded? No, my argument isn't because their method was more advanced. It was because the police had tools at their disposal that would defeat the resistance without resorting to pain compliance. I can tell you haven't read your cited material because spraying OC directly to the face is not a violation. What is a violation is that in those incidents they were spraying closer than 3ft.

Also, to clarify I'm not saying that the use of OC at UC Davis or any other incident is reasonable. I'm saying that it can be depending on the situation.

Yes, most importantly, they had the option of not arresting them, just as the UCDPD did in this case. I notice you snipped the reference to California Penal Code 856.3...Headwaters specifically notes that in addition to the Makita grinder and the use of physical force, they also had the option of negotiating and waiting them out.

No. That was not a finding of the court. Read it more carefully. That was the argument presented by the plaintiffs.

Under the 9th Circuit case there are sections titled "The Nature and Quality of the Intrusion", "Governmental Interests at Stake", "Speedy Arrests", "Organized Lawlessness", "Safety of Others", "Split-Second Judgment", "Severity of the Crime", "Alternatives Available". Each of these was examined by the court to determine if a cause existed for the use of pepper spray. In that instance cause was not found. However, no conclusion was reached that pepper spray can not be used against non-violent protesters.

Under the Fourth Amendment, using such a “pain compliance technique” to effect the arrests of nonviolent protesters can only be deemed reasonable force if the countervailing governmental interests at stake were particularly strong.   Our analysis of those interests here, however, reveals just the opposite.   The protesters posed no safety threat to anyone.   Their crime was trespass.  The “black bear” lock-down devices they used meant that they could not “evade arrest by flight.”  Graham, 490 U.S. at 396, 109 S.Ct. 1865.   They were not “menacing” demonstrators seeking to intimidate the police or the public:  most were young women;  two were minors.   Although the “black bear” devices posed an impediment to arrest, they did not render arrest impossible. Alternatives were available.   And the use of pepper spray did not hasten the removal of the protesters from the premises, but prolonged the incidents.  

Also, in section 8 of the footnotes "We are not asked to decide whether the use of pepper spray in this case constituted excessive force or not. "
I bolded the sentence that supports my argument.

Some additionally relevant quotes:
Under our Fourth Amendment jurisprudence, "the most important single element" in the Graham analysis is "whether the suspect pose[d] an immediate threat to the safety of the officers or others." Chew, 27 F.3d at 1441. Here, the protesters were nonviolent and unarmed. Most were young women, two of whom were minors; none were physically menacing. They posed no safety threat to themselves, the officers, or the public at large.

Although the commission of a misdemeanor offense is "not to be taken lightly," it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and "posed no threat to the safety of the officers or others." Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.1991)[/quote]

See above. It wasn't reasonable because alternatives were available.

The adjective "peaceful" modifying "protests" is, despite your ignoring it, a limiting word. Additionally, I could specify that it has no business disrupting peaceful protests which do not block access to any public service or private residence (another Supreme Court limitation on protests which may be disrupted, cf. Forrester v. City of San Diego 25 F.3d 804 (1994))

Again, an alternative means existed in the form of the OPNs. However, it does bring up the question why all law enforcement agencies aren't equipped with these devices so that tools such as pepper spray won't need to be used. That's certainly something that could give a potential civil suit a lot of weight.

Do you want to argue that 11 tents pitched in the middle of that blocked access to anything other than the space the tents were pitched on? What significant government interest was served by disrupting it? (I see you answered this below, having made three posts all replying to me. In the interest of not triple-posting, I've combined them into one, and will reply to this point when you answer it in your third post)

No. Why would I argue that?

"Leave open alternative channels of communication," is yet another plank violated by this action, as in Headwaters, where the Court found that disrupting the protest in the manner done was a violation of the 4th Amendment as a combination of factors including that no attempt was made to negotiate:

Did the police or University administration fail to notify these protesters? Nope. They were told to take down their tents by 3pm. Now, if the police did fail to communicate then they're in the wrong.

Hm, sure doesn't look like any attempt was made to negotiate!

You're quoting the narrative section. There's no ruling by the court that the police must engage in negotations.

If by "encircle" you mean "sat on the sidewalk around them." If pepper spray and batons are the response to people sitting with linked arms, I hope the UCDPD has a couple of A-10s and Shermans to respond to the next fistfight, since escalation seems to be the only thing they know how to do. See above regarding "negotiation" and "wait them out" and "not arrest them" cf. Headwaters.

By encircling I mean encircling.
Here's the definition - Please note that the position of a persons body is not included
en·cir·cle
1. to form a circle around; surround; encompass: to encircle an enemy.
2. to make a circling movement around; make the circuit of.

See above for negotation and wait them out. Again, not the court ruling but the argument presented by the plantiffs in the Headwater case.

Please provide evidence that camping on the UCD quad is illegal. Please provide evidence there was disease or waste disposal problems on the UCD campus quad. I'm guessing there wasn't, and none was reported, but hey, it might exist, or have been fabricated by now. If camping anywhere other than a designated campsite is illegal, please provide evidence of OC spray and baton-fueled raids on Black Friday shoppers camped out for over a week in front of Best Buy:

From an article you posted "The confrontation took place after UCD held off on enforcing a camping ban overnight Thursday." In addition the the Chancellor told the protesters to take down their tents by 3pm.

I didn't say there was disease or waste disposal problems at the UCD campus. My argument is that a signficant government interest is served by preventing such things which have taken place at other OWS locations. Your Best Buy example is retarded. That's private property and therefore they can allow people to be there.

I'm aware of arrest by citation, that's the entire point of CA PC 853.6. The point I was making is that the UCD PD had the option of citing the protesters there (repeatedly, if necessary) until they cleared of their own accord, just as the UCD PD had the option of negotiation, waiting them out, or doing nothing at all. They chose ultimata and OC spray in the face over any of those options.

Serving someone with a summons does not fix a problem. That's the administrative aspect of law enforcement. That's like me giving someone a case number for a burglary and saying "problem fixed!"

See my responses. My argument is well-founded in case law, and your rebuttal has largely ignored the substance of these findings in favor of apologism and nitpicks.

Your argument is well founded in your limited and frankly incorrect understanding of case law.

[Einhander Sn0m4n]

Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.

http://bicyclebarricade.wordpress.com/2 ... -b-katehi/

There's zero need for this brutality. Nothing is ever served by doing this to students and faculty other than securing their undying hatred of the police, the system, and the country they serve. This is nothing other than torture for the sake of rank sadism and pure evil. And for what? Defending the indefensible armed robbery of the People of their liberty and property so the ultra rich can afford a 101-foot yacht instead of a 98-foot one?

People who commit a crime with the power we entrust them should be punished to a degree not less than ten times worse than the equivalent crime committed by the common person who has no lawmaking or enforcement authority. Get rid of Club Fed conditions, too. If one prison is a Third World shithole on the level of Orleans Parish Prison, they all should be. Or reform them so they're all Club Feds to the last, but that wouldn't slake the bloodthirsty SoCons in our midst

[Terralthra]

Way to address one out of three cases. Want to take a shot at the other ones? Or better yet, how about you actually provide an example of a Court of Appeals upholding the use of pepper spray directly in the face of a passively or verbally non-compliant (rather than actively resisting or violent) subject? I've provided three clear examples, from three different Circuits, all holding the same general principle: it's excessive force and unreasonable.

I'll see what I can find.

The other two cases aren't relevant to protesters. They both deal with individuals. In the 10th Circuit example it involves the use of pepper spray on a handcuffed individual. In the 11th Circuit example is the same deal the use of pepper spray on an already handcuffed individual. In both cases the officer was male and significantly larger than the females in both incidents.

And in both cases, it was held that passive non-compliance and verbal non-compliance were not sufficient grounds for the use of OC.

Instead of providing any evidence, you try to nitpick mine: so they had a device instead of linking arms directly. Your argument is that because their means of linking arms was MORE advanced than just linking arms, OC isn't ok, but when it's just people sitting with linked arms, OC directly in the face (violating guidelines for the safe use of OC spray, let's not forget) is totally appropriate? I'd love to see you argue that one in front of the 9th Circuit.

Are you fucking retarded? No, my argument isn't because their method was more advanced. It was because the police had tools at their disposal that would defeat the resistance without resorting to pain compliance. I can tell you haven't read your cited material because spraying OC directly to the face is not a violation. What is a violation is that in those incidents they were spraying closer than 3ft.

Also, to clarify I'm not saying that the use of OC at UC Davis or any other incident is reasonable. I'm saying that it can be depending on the situation.

You're correct, that it is spraying in the face from closer than 3 feet. There are pictures of the UCDPD doing the same with protesters with OC from closer than 3 feet.

Yes, most importantly, they had the option of not arresting them, just as the UCDPD did in this case. I notice you snipped the reference to California Penal Code 856.3...Headwaters specifically notes that in addition to the Makita grinder and the use of physical force, they also had the option of negotiating and waiting them out.

No. That was not a finding of the court. Read it more carefully. That was the argument presented by the plaintiffs.

Under the 9th Circuit case there are sections titled "The Nature and Quality of the Intrusion", "Governmental Interests at Stake", "Speedy Arrests", "Organized Lawlessness", "Safety of Others", "Split-Second Judgment", "Severity of the Crime", "Alternatives Available". Each of these was examined by the court to determine if a cause existed for the use of pepper spray. In that instance cause was not found. However, no conclusion was reached that pepper spray can not be used against non-violent protesters.

I'm aware, and in reading those 8 sections and the cited cases used as precedent for their decision, I've found no test or criterion which was failed by Headwaters that wasn't also utterly failed by the UCDPD's actions. The plaintiffs presented evidence that negotiating and waiting them out were viable alternatives, and the Appeals Court said as much.

Under the Fourth Amendment, using such a “pain compliance technique” to effect the arrests of nonviolent protesters can only be deemed reasonable force if the countervailing governmental interests at stake were particularly strong.   Our analysis of those interests here, however, reveals just the opposite.   The protesters posed no safety threat to anyone.   Their crime was trespass.  The “black bear” lock-down devices they used meant that they could not “evade arrest by flight.”  Graham, 490 U.S. at 396, 109 S.Ct. 1865.   They were not “menacing” demonstrators seeking to intimidate the police or the public:  most were young women;  two were minors.   Although the “black bear” devices posed an impediment to arrest, they did not render arrest impossible. Alternatives were available.   And the use of pepper spray did not hasten the removal of the protesters from the premises, but prolonged the incidents.  

Also, in section 8 of the footnotes "We are not asked to decide whether the use of pepper spray in this case constituted excessive force or not. "
I bolded the sentence that supports my argument.

When remanded to the lower court for retrial, the jury found unanimously that the use of pepper spray was excessive force.

Some additionally relevant quotes:

Under our Fourth Amendment jurisprudence, "the most important single element" in the Graham analysis is "whether the suspect pose[d] an immediate threat to the safety of the officers or others." Chew, 27 F.3d at 1441. Here, the protesters were nonviolent and unarmed. Most were young women, two of whom were minors; none were physically menacing. They posed no safety threat to themselves, the officers, or the public at large.

Although the commission of a misdemeanor offense is "not to be taken lightly," it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and "posed no threat to the safety of the officers or others." Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.1991)

See above. It wasn't reasonable because alternatives were available.

Including citation, negotiation, waiting them out, and no action!

The adjective "peaceful" modifying "protests" is, despite your ignoring it, a limiting word. Additionally, I could specify that it has no business disrupting peaceful protests which do not block access to any public service or private residence (another Supreme Court limitation on protests which may be disrupted, cf. Forrester v. City of San Diego 25 F.3d 804 (1994))

Again, an alternative means existed in the form of the OPNs. However, it does bring up the question why all law enforcement agencies aren't equipped with these devices so that tools such as pepper spray won't need to be used. That's certainly something that could give a potential civil suit a lot of weight.

Cynically, because OPNs offer gradual and effective pain compliance, where OC lets officers spray those young punks in the face with an hour of liquid fiery pain like they deserve.

Realistically, because OPNs require proper training to use at all, while OC only requires training to use safely, and the police state developed in the past 10 years has negated any realistic hope of excessive force charges sticking with protesters as the plaintiffs.

Do you want to argue that 11 tents pitched in the middle of that blocked access to anything other than the space the tents were pitched on? What significant government interest was served by disrupting it? (I see you answered this below, having made three posts all replying to me. In the interest of not triple-posting, I've combined them into one, and will reply to this point when you answer it in your third post)

No. Why would I argue that?

Because Graham v. Conner, as well as Forrester v. City of San Diego make it quite clear that there must be a significant government interest in order to use certain levels of force. Since they were not a danger to themselves or others, there was no more severe a crime than misdemeanor, there was no resistance to seizure, there was no tense circumstances necessitating quick action, and there was no attempt to evade arrest by flight, there has to be a fairly significant government interest to justify escalating to OC spray, and there isn't.

"Leave open alternative channels of communication," is yet another plank violated by this action, as in Headwaters, where the Court found that disrupting the protest in the manner done was a violation of the 4th Amendment as a combination of factors including that no attempt was made to negotiate:

Did the police or University administration fail to notify these protesters? Nope. They were told to take down their tents by 3pm. Now, if the police did fail to communicate then they're in the wrong.

Failure to communicate and failure to negotiate are not the same. "We can use pepper spray on you because you didn't do exactly what you were told to do (regardless of the questionable legality or first amendment issues inherent in obeying our orders)" is not a legal argument in a free society, it's a legal argument in 1984.

Hm, sure doesn't look like any attempt was made to negotiate!

You're quoting the narrative section. There's no ruling by the court that the police must engage in negotations.

The ruling by the court was that if alternatives exist and the circumstances do not justify the use of force, using force is unreasonable (criminally so).

If by "encircle" you mean "sat on the sidewalk around them." If pepper spray and batons are the response to people sitting with linked arms, I hope the UCDPD has a couple of A-10s and Shermans to respond to the next fistfight, since escalation seems to be the only thing they know how to do. See above regarding "negotiation" and "wait them out" and "not arrest them" cf. Headwaters.

By encircling I mean encircling.
Here's the definition - Please note that the position of a persons body is not included
en·cir·cle
1. to form a circle around; surround; encompass: to encircle an enemy.
2. to make a circling movement around; make the circuit of.

See above for negotation and wait them out. Again, not the court ruling but the argument presented by the plantiffs in the Headwater case.

An argument with which the Court agreed, remanding the case to the District Court, where the plaintiffs also won.

Please provide evidence that camping on the UCD quad is illegal. Please provide evidence there was disease or waste disposal problems on the UCD campus quad. I'm guessing there wasn't, and none was reported, but hey, it might exist, or have been fabricated by now. If camping anywhere other than a designated campsite is illegal, please provide evidence of OC spray and baton-fueled raids on Black Friday shoppers camped out for over a week in front of Best Buy:

From an article you posted "The confrontation took place after UCD held off on enforcing a camping ban overnight Thursday." In addition the the Chancellor told the protesters to take down their tents by 3pm.

I didn't say there was disease or waste disposal problems at the UCD campus. My argument is that a signficant government interest is served by preventing such things which have taken place at other OWS locations. Your Best Buy example is retarded. That's private property and therefore they can allow people to be there.

"It happened at other protests, it might happen here," is not a valid argument on either UCDPD's behalf or yours. If it was happening, it could be shown easily, and if it wasn't, it's utter bullshit.

I'm aware of arrest by citation, that's the entire point of CA PC 853.6. The point I was making is that the UCD PD had the option of citing the protesters there (repeatedly, if necessary) until they cleared of their own accord, just as the UCD PD had the option of negotiation, waiting them out, or doing nothing at all. They chose ultimata and OC spray in the face over any of those options.

Serving someone with a summons does not fix a problem. That's the administrative aspect of law enforcement. That's like me giving someone a case number for a burglary and saying "problem fixed!"

Yes, except there's no fucking burglary, there's some people in tents protesting! Cite them for disorderly conduct or lodging without permission, and give them their day in fucking court, like misdemeanors seem to work everywhere else in the planet. If they don't show up for court, then you can get a warrant issued for failure to appear, but it'd be pretty easy to serve that warrant considering you know where the fucking tent is. This is how hundreds of thousands of petty misdemeanors are handled across the country weekly. Why are these misdemeanors any different?

[Kamakazie Sith]

And in both cases, it was held that passive non-compliance and verbal non-compliance were not sufficient grounds for the use of OC.

And the suspect had already been handcuffed thus the arrest was already effected.

You're correct, that it is spraying in the face from closer than 3 feet. There are pictures of the UCDPD doing the same with protesters with OC from closer than 3 feet.

If it is being sprayed on the eyes then it is improper use.

I'm aware, and in reading those 8 sections and the cited cases used as precedent for their decision, I've found no test or criterion which was failed by Headwaters that wasn't also utterly failed by the UCDPD's actions. The plaintiffs presented evidence that negotiating and waiting them out were viable alternatives, and the Appeals Court said as much.

You must know more about UCDPD's actions then I do then. What other methods did they have available for effecting the arrest on arm linked protesters?

Can you quote the section where the Appeals Court said as much.

When remanded to the lower court for retrial, the jury found unanimously that the use of pepper spray was excessive force.

Yeah, so what? I agree that it would be excessive when other less instrusive methods were available to effect an arrest.

Including citation, negotiation, waiting them out, and no action!

Citation, waiting them out when they're prepared to camp, and no action doesn't solve the problem. I do think more negotation should be attempted though instead of three verbal warnings.

Because Graham v. Conner, as well as Forrester v. City of San Diego make it quite clear that there must be a significant government interest in order to use certain levels of force. Since they were not a danger to themselves or others, there was no more severe a crime than misdemeanor, there was no resistance to seizure, there was no tense circumstances necessitating quick action, and there was no attempt to evade arrest by flight, there has to be a fairly significant government interest to justify escalating to OC spray, and there isn't.

There was an attempt to prevent arrest by encircling the officers and arrestees. It would prove unsafe to try and carrying arrested persons over sitting people. What alternative methods were available to effect the arrest?

Failure to communicate and failure to negotiate are not the same. "We can use pepper spray on you because you didn't do exactly what you were told to do (regardless of the questionable legality or first amendment issues inherent in obeying our orders)" is not a legal argument in a free society, it's a legal argument in 1984.

Fair enough. At UCD did they fail to negotiate?

The ruling by the court was that if alternatives exist and the circumstances do not justify the use of force, using force is unreasonable (criminally so).

Agreed. What alternatives exist at UCD that would have effected an arrest with less intrusion?

An argument with which the Court agreed, remanding the case to the District Court, where the plaintiffs also won.

Where does it say they agreed? The alternative section specifically mentions alternatives to effect arrest...not alternatives to arrest.

"It happened at other protests, it might happen here," is not a valid argument on either UCDPD's behalf or yours. If it was happening, it could be shown easily, and if it wasn't, it's utter bullshit.

Why isn't it a valid argument to take steps to prevent damage to property and injury to people? Even if you do disregard the government argument for property, safety, etc you still have the issue with the camps. I'll ask you again how is not being able to camp preventing them from protesting?

Yes, except there's no fucking burglary, there's some people in tents protesting! Cite them for disorderly conduct or lodging without permission, and give them their day in fucking court, like misdemeanors seem to work everywhere else in the planet.

Misdemeanor citations are used when there isn't a need for jail. However, jail can be used if the misdemeanor offense continues to persist.

If they don't show up for court, then you can get a warrant issued for failure to appear, but it'd be pretty easy to serve that warrant considering you know where the fucking tent is. This is how hundreds of thousands of petty misdemeanors are handled across the country weekly. Why are these misdemeanors any different?

Actually, petty misdemeanors are handled this way because after being served with the misdemeanor that person goes home or leaves or whatever. I can't think of one single misdemeanor case where someone was served with a citation and was allowed to continue doing what got them that citation. So, no. It isn't handled that way across the country.

[PainRack]

WTF.... Kamikaze, you seem to be using the tack that evicting protesters from their campsites is a legitimate order that allows the escalation of force as seen in pepper spray.


Seriously. Its a consitutional right in the US for freedom of assembly and free spech. Where is the justice, or even right for policemen to utilise force to deny non violent protesters from using their rights? Or are you using some form of the Nuremberg defence here..............


Maybe I'm wrong, but it seems to me that you're arguing that the order to arrest these protesters is a valid order, and since these protesters resisted arrest by linking their arms, escalation of force to tasers/pepper spray is a valid tool to enforce arrest..... all the while ignoring the legality of the arrest order.

[Terralthra]

His argument is that the arrest order in question is for lodging without permission, meaning they can be there protesting, but they can't erect tents. I will respond shortly, but I need to research a few cases before I can respond to the argument effectively, including the two recent hearings in LA and NY about the use of tents as a part of a free speech activity.

[PainRack]

His argument is that the arrest order in question is for lodging without permission, meaning they can be there protesting, but they can't erect tents. I will respond shortly, but I need to research a few cases before I can respond to the argument effectively, including the two recent hearings in LA and NY about the use of tents as a part of a free speech activity.

I know that. I'm questioning how its legal to escalate to the use of violent force, via the use of pepper spray to enforce an arrest.

My training was that you can only use force like pushing/etc to enforce an arrest, tasers and pepper spray isn't used to subdue someone for arrest unless the person is violent and poses a threat to others or themselves.

It is a bit contradictory, since the training also states that the use of teargas, riot drill is allowed to disperse a mob but hey....

I'm not a policeman but was a military policeman, but I would had thought that means I had MORE leeway to use force than a regular policeman damn it.

[Terralthra]

His argument is that the arrest order in question is for lodging without permission, meaning they can be there protesting, but they can't erect tents. I will respond shortly, but I need to research a few cases before I can respond to the argument effectively, including the two recent hearings in LA and NY about the use of tents as a part of a free speech activity.

I know that. I'm questioning how its legal to escalate to the use of violent force, via the use of pepper spray to enforce an arrest.

My training was that you can only use force like pushing/etc to enforce an arrest, tasers and pepper spray isn't used to subdue someone for arrest unless the person is violent and poses a threat to others or themselves.

It is a bit contradictory, since the training also states that the use of teargas, riot drill is allowed to disperse a mob but hey....

As I said, I'm researching. Headwaters, Martinez, Graham, and Forrester are the main cites you bring up for pepper spray and excessive force, but KS is correct in that Headwaters and Martinez don't answer exactly the same question as UCDPD's use of OC spray raises. I'll be back with a response tomorrow or Monday.

[Simon_Jester]

Traditionally, the police are allowed to use violence to enforce arrests, without a lot of questions about which arrests they're allowed to do it for. By definition, if you're arresting someone it isn't voluntary; they're not allowed to just refuse to be arrested- which means you have to be able to take them into custody by force if they don't want to go.

Whether it's good tactics or a just action to arrest them in the first place, is another question, but I don't think it's really wise to try and claim that police shouldn't be able to use force to carry out arrests for minor crimes. If you put that into place, no one can be arrested for minor crimes at all, because all I have to do is stand there and say "you and what army?"

[Stark]

Since the whole point of passive resistance is to trick the other guys into escalating force unreasonably, doesn't this just mean its working? Even if cops aren't spraying pepper spray down people's throats or choking submissive people, they're showing up at non-violent protests equipped and trained for a riot. I'd love to hear the briefings these cops get from their superiors before they're sent out, and how that affects their mindset in the field.

[PainRack]

Traditionally, the police are allowed to use violence to enforce arrests, without a lot of questions about which arrests they're allowed to do it for. By definition, if you're arresting someone it isn't voluntary; they're not allowed to just refuse to be arrested- which means you have to be able to take them into custody by force if they don't want to go.

Whether it's good tactics or a just action to arrest them in the first place, is another question, but I don't think it's really wise to try and claim that police shouldn't be able to use force to carry out arrests for minor crimes. If you put that into place, no one can be arrested for minor crimes at all, because all I have to do is stand there and say "you and what army?"

Wrong Jester. There are different categories of force.
One does not utilise lethal force to enforce an arrest for example.

Pepper Spray and tasers were new tools in the arsenal that bridged the difference between force such as pushing, grabbing, tackling and more violent forms like nightsticks and guns. There is a force spectrum where each tool is appropiate and I'm asking how Kamikaze Sith can justify the escalation of force to semi-violent force merely to enforce arrest and compliance amongst peaceful protesters.

What IS wrong with simply using physical force like pulling apart protesters, the display of force from riot drill, sirens and shouting? Why was there a need to escalate force? Simply because you were "surrounded"? Hey, people always gather around police officers when enforcing an arrest here, is that somehow a valid threat now?

[CaptainChewbacca]

I expect that if nothing else, these protests will cause states to examine and clarify when and where alternative uses of force are acceptible when dealing with the public.

[Simon_Jester]

True, PainRack it's a matter of degree- but it's not entirely clear to me whether pepper spray is an escalation from things like tackling people. You can get badly injured from being tackled too, you know.

Also, there's normally an escalator clause in police violence when it comes to enforcing arrests. The amount of violence they use to enforce an arrest isn't limited by outside forces normally- it's "as much as you need." If someone comes along peacefully, you don't use violence at all. If they stand there and refuse to move, you're allowed to physically pull or push them. If they resist being pulled or pushed, you're allowed to strike at them in some way to stop their resistance, and so on.

The reasoning here being that you shouldn't create a situation where lawbreakers can fend off the police by threatening to escalate the situation to higher levels of resistance/defiance/violence. And I think that reasoning makes sense in general, because I'd like my police force to function after all this is over.


So I think the real question is "should the police be arresting them at all?" Not "should the police be using violence to back up the arrests?" The question of whether this is a First Amendment issue is more important, and I think offers the movement a better place to hang its arguments. And there, even if you argue that police closing up tents is a "time place and manner" restriction on First Amendment rights that's permitted, that doesn't justify some of the other things they're doing like confiscating and destroying cameras, forcing news coverage out of the areas where they're carrying out raids or arrests, and the like.

If you argue that the police shouldn't be allowed to use pepper spray to compel someone to come along when they don't want to be arrested, then you're on shakier ground.

[Terralthra]

Simon, have you read through Headwaters Forest Defense v. Humboldt County, 276 F.3d 1125 (2002)? There are some findings in there specific to the question at hand. Specifically, the question is not whether police may use force to compel arrests, but whether or not OC spray is an appropriate means of force.

First, it quotes the Humboldt County policy on OC spray:

The department issues non-lethal aerosol chemical agents to each sworn member of the Department.   This aerosol is furnished as a defensive weapon for the protection of department members and as a possible alternative to the additional use of force․  The chemical agent is intended for use in those cases wherein a member of the Department is attempting to subdue an attacker or a violently resisting suspect, or under other circumstances which under the law permit the lawful and necessary use of force, which is best accomplished by the use of a chemical agent.

Similarly, the Eureka Police Department use-of-force policy statement “classified the use of OC-based products as a compliance technique directly below intermediate force on the use-of-force continuum.”

According to that policy statement, even intermediate force may not be used on nonviolent suspects who are passively resisting arrest.   The policy stated in pertinent part that:

“[OC] shall be used instead of baton strikes whenever practical and when the failure to use it would result in the need to apply more force which holds the greater potential for injury.   OC shall not be used to harass or punish a prisoner.   Chemical agents are nonlethal devices designed to temporarily subdue or overcome [an arrestee] by spraying the agent into the face. ․”

In the descriptive findings of fact, while discussing the nature and quality of the intrusion (relevant to its reasonability), the Court reports:

Here, the videotape evidence reveals that the application of the pepper spray with a Q-tip and then by short full blasts created “immediate and searing pain” that could not be moderated by the officers at their discretion or terminated by them the moment the protesters complied with their demands.

This is one of the Court's main points, I think: OPN, chokes, joint holds, pressure points, etc., can all be terminated once compliance is achieved. OC spray is 45-60 minutes of pain, and the very best that can be done is to flush it out with large amounts of water, which does not significantly reduce the pain. Once it has been applied, it doesn't matter if the protesters comply, submit to arrest, whatever: they get the same amount of pain as if they did not comply. This casts doubt on how reasonable or appropriate it can be as a pain compliance tool.

As I said, I'm still doing further research. Headwaters cites Chew v. Gates, 27 F. 3d 1432 (1994), which I have not read before, as a guideline on excessive force v. crime severity.

[Simon_Jester]

OK, yeah.

I'll pull back on this one- I'm not really sure how to explain what I'm getting at.

[PainRack]

True, PainRack it's a matter of degree- but it's not entirely clear to me whether pepper spray is an escalation from things like tackling people. You can get badly injured from being tackled too, you know.

Also, there's normally an escalator clause in police violence when it comes to enforcing arrests. The amount of violence they use to enforce an arrest isn't limited by outside forces normally- it's "as much as you need." If someone comes along peacefully, you don't use violence at all. If they stand there and refuse to move, you're allowed to physically pull or push them. If they resist being pulled or pushed, you're allowed to strike at them in some way to stop their resistance, and so on.

The reasoning here being that you shouldn't create a situation where lawbreakers can fend off the police by threatening to escalate the situation to higher levels of resistance/defiance/violence. And I think that reasoning makes sense in general, because I'd like my police force to function after all this is over.

I think Terralthra as well as Kamikaze Sith has already commented on this here
"The chemical agent is intended for use in those cases wherein a member of the Department is attempting to subdue an attacker or a violently resisting suspect
If KS is right that this is in the police officer manual as opposed to a court finding, it reinforces my point that pepper spray is an escalation of force above laying of hands and probably ranks uneasily beside the use of striking force with nightsticks etc.

While Terralthra is looking into the legal aspect of this, I'm questioning the justification of it. Why was there a need to escalate to such a level of force for peaceful, non violent protesters? Just because you were surrounded?

I simply cannot understand how the importance of removing protesters and their tents off campus can justify this escalation of force. I'm not challenging the legality of the order or the First Ammendent rights here, although I do believe this is a valid issue.

There was simply no urgent need to justify the escalation. Was there any imminent threat? Potential harm to others or the suspect? The only reasoning I can think of is harm to property, but even here, I fail to see any imininent harm that could justify the escalation of force and I'm quite sure that the use of chemical agents and tasers rank above laying of hands.

This is different from the normal use of pepper spray in enforcing an arrest, where failure to use such an agent could cause harm to either the suspect or others.

[Mr. Coffee]

[Zinegata]

Holding hands and sitting down counts as violence, you dangerous leftist liberal communist shitpiece piece of shit of peace. These are cannibals we're dealing with, cannibals on cannabis. You think our brave boys in blue are just doing routine arrests on peaceful assholes in the streets of New York? Fuck you. Kamikaze Sith and SVPD are operating in fucking Papua New Guinea, and as intelligence officer Zinegata so accurately reported, the natives are feasting on human flesh and long pigs with long dicks, and I'll be damned if you'll McNamara them with your fucking complacency and limp-dickedness. Cannibals can chew on limp dicks easier than hard ones, and by god we're gonna give these fucking local domestic insurgents a whole lot of fucking jaw breakers. Balls blurted Bart Blade indeed.

No you fucking moron. For the last time, I'm talking specifically about Gandhi-style non-violence. Which is very specific that you do not do anything to resist the authorities.

If you actually had half of a fucking brain you'd realize that there are many different levels of non-violent protest. Just because you're resisting to some extent doesn't mean it's automatically a violent protest.

But nooo. You're so fucking retarded that your only counter-argument to this to date is "NAZIS!".

But hey, this thread apparently operates on black and white principles. If you think the OWS is wasting their time because they're not influencing the ballot box - despite being sympathetic to the overall idea that wealth inequality is bad - you're a dirty redneck Republican who advocate murder and genocide.

Really, this thread is getting reduced to ad-hominem shit like this. Disguising it at satire doesn't make it clever. It just goes to show what a bunch of retarded single-minded shits are now populating this board.

[Terralthra]

But hey, this thread apparently operates on black and white principles. If you think the OWS is wasting their time because they're not influencing the ballot box - despite being sympathetic to the overall idea that wealth inequality is bad - you're a dirty redneck Republican who advocate murder and genocide.

So...all the protesters should just go home until election day? I'm trying to figure out what exactly you advocate they do. They're trying to bring the issues of wealth inequality and crony capitalism into the public foreground by being highly visible in cities across the country (and world). I don't see how you can criticize them for not "influencing the ballot box" when elections aren't held until a year from now. This isn't a parliamentary system; they can't call for a general election.

[Zinegata]

But hey, this thread apparently operates on black and white principles. If you think the OWS is wasting their time because they're not influencing the ballot box - despite being sympathetic to the overall idea that wealth inequality is bad - you're a dirty redneck Republican who advocate murder and genocide.

So...all the protesters should just go home until election day? I'm trying to figure out what exactly you advocate they do. They're trying to bring the issues of wealth inequality and crony capitalism into the public foreground by being highly visible in cities across the country (and world). I don't see how you can criticize them for not "influencing the ballot box" when elections aren't held until a year from now. This isn't a parliamentary system; they can't call for a general election.

Elections are not merely limited to the election day. There are things called "campaigning" and "primaries" - and you're gonna influence the vote much more by participating in these than by rallies that have had very little clear direction (or are you going to start saying they have a clear message?).

The fact that you think elections are limited just to the election day is yet another demonstration of the slavish adherence to black-and-white principles I'm talking about. You cannot even consider that there are third options or middle grounds. This is little different from the single-minded shit that Shroom is trying to pull by pretending that there are no varying levels of non-violent protest - there's only "violent" and "non-violent". There's no campaigns, lobbying, or primaries. There's apparently only "Go home and wait for election day!" or "Support OWS BECAUSE IT'S SO AWESOME!"

[Zinegata]

Okay, Zinegata, you see, your posts are vomit. Straight-up puke on the screen. That is what they are. If you really want honest debates or communication (hahahaha no you don't, and you never did), then you probably shouldn't post godawful shit. But I'll do my best to respond to this without turning this post into "Opus 31: Variations on a Middle Finger, Standing Alone". However, I am going to break this down into a point-by-point, because I can.

I ignore your feeble attempts at intmidation, and instead will dissect your pathetic attempt at counter-argument.

This is why I made a post that consisted of nothing but yelling at you. You're so fucking far from "reasonable" that I fail to see how I can frame things beyond saying "You're wrong" only with more swears and feeble jokes. Your tone is not the problem. What is the problem is that you're either absolutely fucking insane, or you're deliberately playing dumb in order to call me vaguely nasty names. And since you could be calling me a fucking Nazi pedophile coprophiliac and making as much sense at this point, I could only conclude insanity.

You have still yet to actually disprove that your "end state" has any alternative that is not stupid or not a revolution. Therefore, ad-hominem.

What the fuck? What the fuck? You think that power is all hard power. This is exactly what you are fucking saying here- that the only way to direct power (which is what "seizing the reins" means, as a figure of speech, have you never read a book with horse-riding in?) is through control, aka hard power. You can also make use of soft power. Mass letter-writing campaigns, protests, and so on are all means of using soft power, aka influence, to convince politicians to do what you want. So are campaign contributions. E.g., in daily life, you can either threaten people, or ask them nicely. Threatening is hard power, asking them nicely is soft power. So are other non-coercive attempts to convince people. Revolutions are exertions of hard power. There are some clear differences between the two.

Okay, some attempt to address it now. Except you never presented any actual evidence.

So cite one instance wherein "debate" or "asking nicely" resulted in a change of government without ultimately having to go through either the ballot box OR extra-judicial methods like a revolution.

I'm waiting.

No need to address the rest of your shit until you can actually prove that my position is wrong. I'm not saying "all power is hard power". I'm saying that debate, in itself, is not the end state. Never was. Never will be. And if you deny that the end state is a vote, the alternative is invariably extra-judicial.

So again, seriously. Cite an instance wherein debate changed an entire national government policy WITHOUT needing a vote or revolution of sorts to back it up afterwards.

[Simon_Jester]

Elections are not merely limited to the election day. There are things called "campaigning" and "primaries" - and you're gonna influence the vote much more by participating in these than by rallies that have had very little clear direction (or are you going to start saying they have a clear message?).

So... why are these the only things you're allowed to do if you have a political opinion? What happened to "the right of the people peaceably to assemble?" Can I get together with a bunch of friends to walk around waving signs, rather than, or in addition to campaigning and trying to tip the primary election in my state? Is that somehow wrong or dumb of me to do?

Because I really have a hard time grasping the political theory you're using to say that this is bad, that protests shouldn't happen in a society that holds elections. It seems to me that this contradicts the underlying idea of an open society, and without that openness and freedom of expression, elections are useless because they just act as a rubber-stamp for the establishment.


But perhaps I'm misunderstanding. Is your criticism of the Occupy movement that it is ineffective? Or that it is somehow wrong? Is it ineffective for them to gather in public places to speak and chant and hand out literature about crony capitalism and the government's lack of interest in bailing out Main Street like it did Wall Street? Or is it wrong for them to do so, on account of it not being part of a well defined election campaign for some specific political figure?

Is it ineffective because it doesn't work and protests don't convince people of things, and don't motivate people to get out and vote and campaign? Or is it wrong because good citizens wouldn't want to do things other than vote and campaign for specific politicians?

Is there a problem with the very idea of having an 'ideology' or 'platform' or 'goal' that transcends the effort to get people to vote for Candidate A or Candidate B in a competitive election? Is that what's bothering you here?


Again, I'm really having trouble grasping the underlying political theory here, in terms that make sense to me.

---

The fact that you think elections are limited just to the election day is yet another demonstration of the slavish adherence to black-and-white principles I'm talking about. You cannot even consider that there are third options or middle grounds. This is little different from the single-minded shit that Shroom is trying to pull by pretending that there are no varying levels of non-violent protest - there's only "violent" and "non-violent".

I really do not see where you're coming from with this.

There are, surely, different levels of non-violent protest. But so what? Violent and non-violent actions are still different, even if not every non-violent act is the same as every other non-violent act. For most of the twentieth century, this concept of civil disobedience has been around. It's an accepted part of all sorts of political movements- protestors act in ways that they know transgress minor laws, to express opinions the establishment doesn't want promoted, as a way of gaining publicity for those opinions.

Exactly which laws are transgressed is immaterial. Whether the law in question is a law against producing salt or a law against forcing policemen to tug on you in order to arrest you does not matter. The transgression is not the point here- and it is not violent, it is not an attack on the institutions of law directly. It is at most a brief inconvenience for the state's agents, so long as they don't decide to commit massacres of their own free will.

The aim of this is to force the state to put its cards on the table- to make them act in public and obvious ways, ways that argue that they are willing to go much too far to suppress you. And ways that argue that the system is indeed totally unwilling to accept the basic legitimacy of what you are trying to achieve.

And whether you recognize it or not, this does affect the political process. It serves to persuade people that all is not well with the nation, that the people ruling the nation do not necessarily have the interests of the man in the street at hear. And that there is a dangerous trend towards state-sponsored brutality and suppression of people who, when you get right down to it, have a lot more in common with the man in the street than the rulers do.

And those are exactly the things OWS members want to convince everyone of. So how are their actions not logically aimed at achieving their goal?

[Kamakazie Sith]

WTF.... Kamikaze, you seem to be using the tack that evicting protesters from their campsites is a legitimate order that allows the escalation of force as seen in pepper spray.

Seriously. Its a consitutional right in the US for freedom of assembly and free spech. Where is the justice, or even right for policemen to utilise force to deny non violent protesters from using their rights? Or are you using some form of the Nuremberg defence here..............

They weren't denied the right to protest. They're being denied the option of camping out. As for the use of pepper spray. I only see that being necessary if other less intrusive means are unavailable or ineffective. In other words, if they go right to the pepper spray then that is excessive.

Maybe I'm wrong, but it seems to me that you're arguing that the order to arrest these protesters is a valid order, and since these protesters resisted arrest by linking their arms, escalation of force to tasers/pepper spray is a valid tool to enforce arrest..... all the while ignoring the legality of the arrest order.

I'm not entirely sure the order is valid but my position is based on the assumption that it is valid. As I pointed out earlier the government has the right to dictate the time, place, and manner of assembly but not the content. When making this decision it must consider four things; 1. Does the regulation serve an important governmental interest? 2. Is the government interest served by the regulation unrelated to the suppression of a particular message? 3. Is the regulation narrowly tailored to serve the government's interest? 4. Does the regulation leave open ample alternative means for communicating messages?

Indeed, the fact that this is being carried on a University campus adds another level to these discussions.

I think Terralthra as well as Kamikaze Sith has already commented on this here
"The chemical agent is intended for use in those cases wherein a member of the Department is attempting to subdue an attacker or a violently resisting suspect
If KS is right that this is in the police officer manual as opposed to a court finding, it reinforces my point that pepper spray is an escalation of force above laying of hands and probably ranks uneasily beside the use of striking force with nightsticks etc.

OC spray is certainly a higher level of force than hands on. FYI though that policy from the California Highway Patrol is pretty old and could be significantly different to reflect modern applications.

I'll share my departments policy regarding the use of force in an arrest. "Any person is justified in using any force, except deadly force, which he reasonably believes to be necessary to effect an arrest or defend himself or another from bodily harm while making an arrest." The guideline for the use of OC is simply - is it reasonable and necessary.

While Terralthra is looking into the legal aspect of this, I'm questioning the justification of it. Why was there a need to escalate to such a level of force for peaceful, non violent protesters? Just because you were surrounded?

The issue in that situation was that they were preventing officers from taking arrested persons out of the area. Basically, they were interferring in police duties. Not that they were surrounded. If it were simply them just surrounding officers not engaged in any action it is pretty obvious that they could have just stepped over those people.

I simply cannot understand how the importance of removing protesters and their tents off campus can justify this escalation of force. I'm not challenging the legality of the order or the First Ammendent rights here, although I do believe this is a valid issue.

Well, it's based off the idea of having an effective police force. Basically, using that logic of limiting tools means an arrest can be defeated by a sufficiently motivated person.

There was simply no urgent need to justify the escalation. Was there any imminent threat? Potential harm to others or the suspect? The only reasoning I can think of is harm to property, but even here, I fail to see any imininent harm that could justify the escalation of force and I'm quite sure that the use of chemical agents and tasers rank above laying of hands.

This is different from the normal use of pepper spray in enforcing an arrest, where failure to use such an agent could cause harm to either the suspect or others

If we're assuming that the officers went right from verbal > OC spray then I'm behind you in saying that is excessive force. There was a video posted in this thread earlier showing officers order people away then eventually encircling protesters sitting on the grass. The officers conduct was verbal dialogue > physical force > more verbal dialogue to those that physical force failed against > OC spray.

Also, I want to point out that I agree with Simon_Jester that the real question is "should the police be arresting them at all?" Not "should the police be using violence to back up the arrests?" I don't think that's a simple question because I do believe that there are legitimate concerns for camping overnight for long periods of time especially with falling temperatures.

Terralthra's point regarding the fact that the pain caused by the use of OC doesn't end when resistance ends therefore the use of OC does deserves further attention. I don't think any force option, except obviously deadly force, should be taken off the table when dealing with this type of non-violent resistance. What needs to be addressed and probably improved is the path that is taken to that point where OC is deemed necessary.