UC Davis Police Actions w/ Occupy Report

[Terralthra]

Two blog entries analyzing the now-published report:
[quote="Sometimes, When "All the Facts are In," It's Worse: The UC-Davis Pepper-Spray Report"]You know how every time somebody in law enforcement does something that looks bad, we're told that we should "wait until the facts are in" before passing judgment? Well, after Lieutenant Pike of the UC Davis Police Department became an internet meme by using high-pressure pepper-spray on peaceful resisters, the campus hired an independent consulting firm to interview everybody they could find, review all the videos and other evidence, review the relevant policies and laws, and issue a final fact-finding report to the university. The university just released that report, along with their summary (PDF link), and the final report is even worse than the news accounts made it seem.

You probably weren't aware that the protesters warned the university that they were going to be protesting two weeks in advance, were you? The campus, and campus police, had two weeks' notice to plan for this, and yes, on day one, one question they addressed was, "What if the protesters set up an Occupy encampment?" Two weeks in advance they planned, well, if they do that, then we'll send in police to remove the tents, and to arrest anybody who tries to stop them. Now, under California law, when planning an operation like this, there's a checklist they're supposed to follow when writing the operational plan, specifically to make sure that they don't forget something important. Had they done so? They would have avoided all four of the important steps they screwed up. When asked about it? Nobody involved was even aware that that checklist existed.

The most important thing that the checklist would have warned them about was do not screw up the chain of command. Let me make clear who was in the chain of command. Under normal circumstances, it runs from university Chancellor Katehi, to campus police Chief Spicuzza, to campus police Lieutenant Davis, to his officers, including one I'll call Officer Nameless. (The report refers to him by a code letter.) Once the cops arrive on the scene, there's supposed to be one and only one person in a position to give orders to the other officers on the scene, including any higher-ups who are there (if any). Officer Nameless, who wrote the plan, was put in charge of the scene by Lt. Pike. By law, the officer in charge of the scene is not supposed to get directly involved. He or she (in this case, he) is supposed to stand back where he can see the whole scene, and concentrate on giving orders, and everybody else is supposed to refrain from giving orders. Officer Nameless instead ignored his responsibilities, and waded in, and so did Lt. Pike; Chief Spicuzza sat in her car half a block away, communicating with the radio dispatcher by cell phone, and at one time or another, all three of them, Officer Nameless and Lieutenant Pike and Chief Spicuzza were yelling out contradictory orders.

But before it even came to that point, the student protesters had, with the help of Legal Services, gone over all the relevant state laws, city ordinances, campus ordinances, and campus regulations and concluded that no matter what the Chancellor thought, it was entirely legal for them to set up that camp. When the university's legal department found out that Chancellor Katehi was going to order the camp removed, they thought they made it clear to her that the students were right.

I kept having to stop and slap my forehead over that one repeated phrase in the report: (this person or that) was under the impression she had made it clear that (some order was given), but nobody else present had that impression. Anybody who is "under the impression that they made it clear" that some order was given who who didn't put it in writing and who hasn't had that order paraphrased back to them? Should be slapped. Or at the very least demoted. Unless you actually said it, you didn't "make it clear."

It turns out that it is illegal for anybody to lodge on the campus without permission, but the relevant law only applies to people trying to make it their permanent dwelling. The law prohibits non-students from camping on campus for any reason, but neither student affairs nor the one cop sent to look could find any non-students who were there overnight. A campus regulation says that students can't set up tents without permission, but that regulation is not enforceable by police, only by academic discipline. Campus legal "thought they made it clear" that the law was on the students' side, but according to multiple witnesses, what they actually said was "it is unclear that you have legal authority to order the police to do this" and Chancellor Katehi heard that as "well, they didn't say I don't have that authority, only that it's not clear."

Chancellor Katehi, on her part, "thought she made it clear" that when police ordered the students to leave, they were (a) not to wear riot gear into the camp, (b) not to carry weapons of any kind into the camp, (c) were not to use force of any kind against the students, and (d) were not to make any arrests. But all that anybody else on that conference call heard her say out loud was "I don't want another situation like they just had at Berkeley," and Chief Spicuzza interpreted that as "no swinging of clubs."

Chief Spicuzza "thought she made it clear" more than once that no riot gear was to be worn and no clubs or pepper sprayers were to be carried. What Lieutenant Pike said back to her, each time, was, "Well, I hear you say that you don't want us to, but we're going to." And they did, including that now-infamous Mk-9 military-grade riot-control pepper sprayer that he used. Oh, funny thing about that particular model of pepper-sprayer? It's illegal for California cops to possess or use. It turns out that the relevant law only permits the use of up to Mk-4 pepper sprayers. The consultants were unable to find out who authorized the purchase and carrying, but every cop they asked said, "So what? It's just like the Mk-4 except that it has a higher capacity." Uh, no. It's also much, much higher pressure, and specifically designed not to be sprayed directly at any one person, only at crowds, and only from at least six feet away. The manufacturer says so. The person in charge of training California police in pepper spray says that as far as he knows, no California cop has ever received training, from his office or from the manufacturer, in how to safely use a Mk-9 sprayer, presumably because it's illegal. But Officer Nameless, when he wrote the action plan for these arrests, included all pepper-spray equipment in the equipment list, both the paint-ball rifle pepper balls and the Mk-9 riot-control sprayers.

The students set up their tents on a Thursday night. Chancellor Katehi ordered the cops to (a) only involve campus police, because she didn't trust the local cops not to be excessively brutal, and (b) get them out of here by 3 AM Thursday night. Chief Spicuzza had to tell her that that wasn't physically possible, they couldn't get enough backup officers from other UC campuses on that short notice, it was going to have to be Friday night at 3 AM. Chancellor Katehi said "no can do," that they had to be out of there before sunset Friday night, so that the camp wasn't joined by drunken and stoned Friday night partiers that would endanger the camp and even further endanger cops trying to deal with them -- arguably an entirely reasonable objection. So she ordered Chief Spicuzza to get them out of there by 3 PM Friday afternoon. Chief Spicuzza "was under the impression" (oh, look, there's that phrase again) that she made it clear to the Chancellor that for one thing, it couldn't be safely done, at 3:00 PM the protesters and passers-by would way outnumber her officers, and for another, it couldn't be legally done, because there was no way to legally arrest someone for "overnight camping" in the middle of the afternoon. Nobody else who was in that meeting thinks she made that clear, only that she made it clear that she didn't want to do it but couldn't explain why not. Still, when she gave the order to Lieutenant Pike, he very definitely did raise the same objections, clearly and unambiguously, backed up by multiple witnesses, who all agree that Chief Spicuzza told him, "This was decided above my level, do it anyway."

So, there's Lieutenant Pike. (Who, by the way, for obvious legal reasons since he's still being investigated by internal affairs and, last I heard, still being sued by his victims, refused to be interviewed by the consultants, so everything we know about his side of this comes from what he told other people and what he wrote in his reports.) As far as he's concerned, he's been given an illegal and impossible order: take 40 or so officers - unarmed and unarmored officers - into an angry crowd of 300 to 400 people who aren't doing anything illegal and make that crowd go away without using any force or getting any of your officers injured. For reasons Stanley Milgram could explain, it does not occur to Lieutenant Pike to disobey this order, so instead, he does the best he can, using his own judgement to decide which parts of his orders and which parts of the law to ignore. Unsurprisingly, it goes badly. Backed into a corner by an angry crowd (which has, by the way, demonstrably left him room to retreat, even with his prisoners, contrary to what he says in his report) that is confronting him with evidence that he is the law-breaker here, not them, he snaps. And rather than take it out on the more-powerful people who put him in this situation, he takes it out on the powerless and peaceful people in front of him, using a high-pressure hose to pump five gallons of capsacin spray into the eyes and mouths of the dozen or twenty people in front of him ... and he would have used more if he'd had it, he only stopped when he did, halfway through his third pass down the line, because the sprayer emptied. When he gets back to the station, Chief Spicuzza (who has no idea what's just happened) congratulates him in front of half the department for how well he just did. And now, as far as he's concerned, he's being hung out to dry. We're apparently supposed to ignore the fact that multiple video sources contradict almost everything about his after-incident report because apparently, in his opinion, he was only following orders.

This is not better than the initial media reports. This is worse. This is an epic textbook in official-violence failure.[/quote]

[quote="More on "the Pepper Spraying Cop:" Why WERE the Cops There?"]In the interest of brevity, when I wrote yesterday's journal entry about the UC Davis report (PDF link) on the still-infamous "pepper spraying cop" incident, I left one of the interesting unanswered questions of the report out of it: what were the cops even doing there, when everybody, and I mean everybody, that they interviewed knew in advance that this was not a police matter, and when everybody, and I mean literally everybody, who was involved in the planning of this was present at at least one meeting where that was brought up?

I mean, after all, this is the University of California system that we're talking about, here! This is not the first campus protest they've had to deal with, to put it mildly. The University of California system has been dealing with disruptive campus protests since shortly after World War II. They have been dealing with disruptive protests, including ones that violate campus regulations, including ones that go farther than this one did and explicitly broke the law, ever since the Berkeley Free Speech Movement days. They have procedures for this. Those procedures were not followed. Why not? The report doesn't say. And the report does say that this question was asked in advance.

I didn't know this, but it turns out that under UC rules, no campus protest is a police matter. By long-standing policy, no protest that is defined as a campus protest is a matter for the university to involve state, local, or even campus police in. The consultants who wrote the fact-finding report couldn't find an official definition of the term campus protest, as separated from an outside protest, one for the cops. But the department that is supposed to handle campus protests is the Student Affairs office, and when interviewed, they said that they use the same rule that the university system uses for defining campus clubs: three quarters or more of the attendees must be current students of that campus, alumnae of that campus, or faculty of that campus, and all leadership roles must be filled by students, alumnae, or professors. It seems like a good rule of thumb, and nobody had a contradictory definition. So if a protest happens on campus, and it meets that definition, then the campus police (and, in the university system's opinion, all other police) are supposed to stand back and let Student Affairs handle it.

At the previous protest, the one where this protest was decided upon and scheduled, there was someone from Student Affairs there monitoring it, as part of her job. She reported that during the day, she couldn't get a good count, but it seemed to her like it was more than three quarters students, not even counting alumnae and faculty. When they were occupying the admin building overnight, she did get an approximate count: 20 to 25 students, 10 to 15 alumnae, and one non-campus person, some kind of legal adviser who was there in case there were mass arrests, well within the guidelines. However, one campus police officer went by briefly and he reported to the Chancellor, the next day, that almost none of them were students. In that same meeting, after questioning him, the Chancellor said that she didn't believe him, because he admitted that he had somehow forgotten that UC Davis has a grad school and plenty of older students; he had assumed that anybody who looked older than 20 couldn't possibly be a college student. Nevertheless, she seems to have forgotten this by the time of later meetings, and in every meeting thereafter she stated that her concern was that she had a report from campus police that "most" of the protesters were from off campus, from Occupy Davis, who had come over to campus to make trouble.

But before that meeting even occurred, the head of Student Affairs had gone to the Chancellor and said "we have this under control, let us handle this" and the Chancellor agreed. In that meeting, Student Affairs again contradicted the one cop who said otherwise, and said, "we have this under control, we have a plan, it's worked before, let us handle this." I can't remember the circumstances, but I remember reading that there was one more meeting or voice conference of the "leadership team" set up to deal with the protests where it was said, yet again, that this was Student Affairs' responsibility, why are the campus cops dealing with this? The day of the incident, the Vice Chancellor, when it was her turn to speak, gave an impassioned 20 minute speech about how involving the cops in this and evicting the protesters was a bad idea, that they were on the wrong side of history, that using cops against protesters has never worked well for the University of California, we should not be doing this, we should let Student Affairs deal with this. Everybody who was on that conference call remembers this ... and the awkward silence that followed it ... and then everybody else ignoring the Vice Chancellor and going on with planning the police raid. And in the car on the way to the raid the incident commander (the one I called "Officer Nameless" yesterday) and his superior, the now-famous Lieutenant Pike, say that it occurred to them to ask each other, "Wait, why are we even being asked to do this? Isn't this Student Affairs' job?"

So, was it Student Affairs' responsibility? Well, Lieutenant Pike and his officers arrested 10 randomly-selected people: 8 students, 1 alumnus, 1 outsider. So, yes.

(What was Student Affairs' plan, if they had been allowed to use it? Politely wait them out, basically. Instead of paying overtime to every other campus police agency for one big raid, pay one local campus officer overtime on Friday and Saturday nights at bar-closing time to be on hand to keep rowdies from disturbing the camp. At other times have one Student Affairs staff member or volunteer at the protest to monitor it for safety issues and politely bring those issues up with the protesters. Student Affairs said that their experience was that when handled this way, campus protests always dry up and blow away, usually after the first rain, but if not then, then always by finals week.)

When interviewed after the fact, neither UC Davis Chancellor Katehi, nor US Davis campus PD Chief Spicuzza, could explain why the police were there, what campus policy or state law made it a campus police matter. Nobody said it, but I will: Student Affairs, the Vice Chancellor, the consulting firm who ran the investigation, and all of us who are appalled by this, we all have "a pre-9/11 mentality." Since the Bush administration, "coddling" protesters (and by "coddling protesters" what I mean is "obeying the law" and "following good standard procedures") is just not what "real Americans" (and by "real Americans" I mean "people with authoritarian personality and social dominance orientation") do.[/quote]

Relevant links from the blog entries in questions preserved, including a link to the report itself (PDF link). I'd bold parts for emphasis of fucked-up things, but really, most of both blog entries would be bolded.

Kamakazie Sith, since we had a dispute regarding the constitutionality of the pepper-spray incident, I draw your attention to the fact that the military-grade pepper spray used was, by California law, illegal for police to possess or utilize. I think that should settle the question of excessive force, no?

[Agent Fisher]

Military-grade pepper spray doesn't mean shit. The pepper I carry is more powerful than what most police, or military carry. Did not know it was illegal for police to posses or use Mk. 9 size. Which is hilarious cause as private security, I don't have that restriction.


EDIT: Forgot to chime on the incident. Yeah, poorly handled. Especially if three people on scene were giving out orders and not coordinating with each other.

I mean, what should I say?

Oh and that 'illegal for police to carry'? Bullshit. I just looked up the penal codes.

22820. Nothing in this division prohibits any person who is a peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2, from purchasing, possessing, transporting, or
using any tear gas or tear gas weapon if the person has
satisfactorily completed a course of instruction approved by the
Commission on Peace Officer Standards and Training in the use of tear
gas.

Also...

22835. Notwithstanding any other provision of law, a person holding
a license as a private investigator pursuant to Chapter 11.3
(commencing with Section 7512) of Division 3 of the Business and
Professions Code, or as a private patrol operator pursuant to Chapter
11.5 (commencing with Section 7580) of Division 3 of the Business
and Professions Code, or a uniformed patrolperson employee of a
private patrol operator, may purchase, possess, or transport any tear
gas weapon, if it is used solely for defensive purposes in the
course of the activity for which the license was issued and if the
person has satisfactorily completed a course of instruction approved
by the Department of Consumer Affairs in the use of tear gas.

So, when it says any tear gas weapon, that means any size.

[Stark]

Are tear gas laws also used for pepper spray? That's pretty funny.

[Terralthra]

My apologies, I spoke incorrectly. The Mk. 9 is not illegal in California, it is unauthorized for use by UCDPD officers.

D. The Pepper Spray Used, the MK-9, First Aerosol Projector, Was Not an
Authorized Weapon for Use by the UCDPD

UCDPD General Order No. 559 provides that pepper spray can be used, but specifically
refers to the MK-4 (a smaller canister). 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 agrees.

[Kamakazie Sith]

The author of the article is just mixing up terms. It isn't illegal in a criminal sense but in order for police to utilize a weapon they must be certified in its use. I'm certified in every single weapon I carry.

Anyway, the report is very thorough. We have an unspoken rule in our department. If you aren't sure of something. Don't do it.

The unauthorized pepper spray supports the claim of excessive force along with several other identified problems. However, in my opinion the most important reason is the fact that the police weren't actually surrounded which is what they claimed was their basis for the utilization of force. See Section III, part F.

[Thanas]

So what's going to happen to the incompetent screwups?

[Zaune]

So what's going to happen to the incompetent screwups?

My guess? The poor bastard at the bottom who'd been given vague and sometimes contradictory orders, lied to about the limits of his legal authority, placed in a potentially dangerous situation for no good reason because of them and just plain lost his temper will be thrown under a bus by the people who put him in that situation in the first place.

And for once, the police are right. Now the facts are in I'm not actually quite as outraged by what Powell did as I was before. Still think he needs prolonged and thorough attitude adjustment for lashing out, but what the hell was his boss thinking ordering his people into that crowd without weapons or armour?

[weemadando]

So what's going to happen to the incompetent screwups?

Person at the bottom gets fired, or not as they'll probably get heavily protected by interested parties. The rest are "up and out"-ed.

[Kamakazie Sith]

So what's going to happen to the incompetent screwups?

My guess? The poor bastard at the bottom who'd been given vague and sometimes contradictory orders, lied to about the limits of his legal authority, placed in a potentially dangerous situation for no good reason because of them and just plain lost his temper will be thrown under a bus by the people who put him in that situation in the first place.

And for once, the police are right. Now the facts are in I'm not actually quite as outraged by what Powell did as I was before. Still think he needs prolonged and thorough attitude adjustment for lashing out, but what the hell was his boss thinking ordering his people into that crowd without weapons or armour?

Lashing out even due to verbal abuse isn't acceptable, especially when it is done with a weapon such as OC, regardless of what position you're put in by your leadership. If his only consequence is termination then he should count himself lucky. (Assuming that is accurate...I didn't find this information in the PDF report)

The rest of the named chain of command also deserves termination.

[Haruko]

No matter how intricately this case is analyzed, I still do not get why the officer had to empty out his pepper spray on subdued protestors.

[Zaune]

Lashing out even due to verbal abuse isn't acceptable, especially when it is done with a weapon such as OC, regardless of what position you're put in by your leadership. If his only consequence is termination then he should count himself lucky. (Assuming that is accurate...I didn't find this information in the PDF report)

The rest of the named chain of command also deserves termination.

Not arguing with you there. My point was that a bunch of college students getting pepper-sprayed was one of the better possible outcomes of this clusterfuck, because the one and only vaguely smart thing Powell did all damn day was get everyone kitted out in full riot gear. Would've been nice if he'd applied the same filter to the rest of his orders, but at least we don't have YouTube footage of a cop punching someone in the face for no good reason and getting beaten to death by a mob; not everyone in these movements is sticking to exclusively non-violent protest for ideological reasons as opposed to merely not being confident of winning.

[Kamakazie Sith]

No matter how intricately this case is analyzed, I still do not get why the officer had to empty out his pepper spray on subdued protestors.

According to the officer he was unde the belief that the protestors had surrounded them and were preventing them from leaving until they released those that they had arrested.

[weemadando]

The article seems to indicate that there's a feeling that the police station certain levels should have not acted and told higher ups they needed better defined orders or clarification of certain "policies".

How does this kind of official questioning of orders and refusal to act fit into police institutional psychology?

Does it happen regularly? Not at all?

[Terralthra]

So what's going to happen to the incompetent screwups?

Well...

UC Davis Police Chief Resigns Over Pepper Spray Incident

Wanting to allow the UC Davis police department to rid itself from the toxic stigma caused by the infamous pepper-spraying incident during an Occupy UC Davis protest on November 18, 2011, the department's police chief Annette M. Spicuzza has announced her resignation today. And perhaps wanting to avoid getting peppered with questions about the "objectively unreasonable" use of the eye-stinging chemical, Spicuzza notified the press of her decision in an e-mail to the Sacramento Bee.

"As the university does not want this incident to be its defining moment, nor do I wish for it to be mine," Spicuzza wrote. "I believe in order to start the healing process, this chapter of my life must be closed."

Spicuzza has been on paid leave since the incident occurred and so has campus police lieutenant John Pike, who sprayed students in the face from an oversized canister while they sat on a sidewalk. Spicuzza's resignation comes a week after a UC Davis investigative task force announced its conclusion that the use of the spray was not necessary under the circumstances, a claim the attorney for the campus police officers union has disputed.

"There was really no reason, we conclude, to have used the pepper spray," said Cruz Reynoso, a retired California Supreme Court justice who chaired the task force. The Associated Press reported last week that the report chided Spicuzza for "failing to challenge the timing of the operation and not providing clear instructions to the responding officers."

The chapter may be over for the outgoing chief, but the Internet is forever.

[Haruko]

"There was really no reason, we conclude, to have used the pepper spray," said Cruz Reynoso, a retired California Supreme Court justice who chaired the task force.

I can't wait for Lieutenant Pike to have an opportunity (i.e., when the investigation is through) to give his at least remotely good reason for unloading an entire can of pepper spray on subdued protestors.

[Thanas]

Resign with full benefits? I hope he gets sued to oblivion.