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      Police, Student Protesters and Pepper Spray 

      Tom Hayden testifies at a December 14, 2011 joint hearing of the Senate Committee on Education and the Assembly Committee on Higher Education at the state Capitol in Sacramento.

      This article appeared at The Nation on April 18, 2012.

      In the most comprehensive official report on police tactics towards campus anti-tuition protests since the Occupy movement broke out last year, a University of California investigation concludes, “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”

      The police action was code-named Operation Eco-Friendly. The report delves deeply into the irrationality of administrative conduct, which resulted in the pepper spraying of UC Davis students on that day, and also paints one of the first portraits of the good-natured nonviolent idealism among the new wave of student protestors.

      The report was issued in name of Dr. Cruz Reynoso of the Davis campus, a former member of the California Supreme Court who lost his position during the anti-crime, anti-government hysteria that swept California in 1986, a precursor of the Neo-Con and Tea Party counter-movements. The 190-page review was shaped by Dean Chris Edley of UC Berkeley’s Boalt Law School.

      At a time of growing student concern about the militarization of university campuses in the face of rising tuition and declining employment opportunities, the Reynoso report offers a chance to rethink the worsening crisis of higher education and emphasizes positive nonviolent alternatives to batons, pepper spray and incarceration.

      The continuing impulse to campus militarization, however, is contained in a proposal by the security firm Kroll Inc., led by William Bratton, for a centralized system-wide police chief. Under current policing regulations, students who nonviolently link arms are defined as “actively resisting” and subject to arrest, coercive removal, and pepper spraying.

      The Reynoso report concurs with the student and faculty protestors’ assertion that there was no legal basis for taking down tents and hauling students away. Ironically, the UCD officer who led the pepper spraying, John Pike, repeatedly asked whether the procedure was legal. According to Kroll, “Members of the Leadership Team referred to a UC Davis policy against overnight camping on University property in emails, but no legal basis for campus police removing tents was stated.”  Camping in tents is prohibited by an administrative rule, making enforcement by the police “legally suspect.” California law makes it a misdemeanor to “lodge” in any “structure” without the permission of the owner, but the reports concludes that “it is not clear that the arrestees were, in fact, connected to any of the tents or had in fact ‘lodged’ on University property.” At present, the Yolo County district attorney has declined to charge any of the arrested students.

      As an example of the hysteria which led to the police assault, one campus administrator offered this “reasoning”: “We were worried at the time about that 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 …”

      The administration and police saw everything through the prism of previous and more radical confrontations in Oakland and Berkeley, and were obsessed with an unfounded belief that Davis students were led by “outsiders.” The reports found no evidence of outside agitators, though it noted that local clergy were present as observers and one of the arrested students was a 2009 UC Davis graduate.

      The use of pepper spray will remain a contentious issue since UC president Mark Yudof testified in Sacramento on December 14, in response to evidence provided by this writer, that the University would fund an independent study of the health impacts of pepper spray, which the state has failed to due since oleum capsicum (pepper spray) was deregulated in the 1990s through legislation by current congressmembers Dan Lundgren and Jackie Speier. Since then, pepper spray has been globalized as a weapon of choice by police and security forces against demonstrators.

      UC regulations permit the use of MK-4 pepper spray for “crowd dispersal.” The chemical weapon deployed against the Davis students was the higher-pressure MK-9, which is not authorized by the University and for which officers are not trained. MK-9 is manufactured by Defense Technology, Inc. As a sign of the chemical arms race, a UC police official told Kroll, “I’m the department trainer for chemical agents and part of that training is a review of our use-of-force policy in where this tool fits that policy...[another officer said] “we’re still in the process of working out what kind of training we need to do, ‘cause it’s essentially the same as the little pepper-spray can, it’s just in a lot higher volume form, so we’re still working out the kinks in that.”

      The campaign for an independent health assessment of pepper spray will continue.

      The report is filled with evidence that the University, with its combination of tuition hikes, removal of tents and coercive police tactics, is unwittingly radicalizing a generation filled with principled, non-violent, rational, good-natured and loving undergraduates. The process is very similar to the early 1960s, when students in the South wore proper suits and dresses into brutal beatings and gassings as police looked on or even joined the clubbings. Students at Berkeley were stunned to learn that campus officials would refuse student organizations the right to take stands on “off-campus” issues such as segregation at Bay Area hotels. Then as now, stupidity ruled the centers of higher learning. The official hostility to small things (the right to tables then, or tents now), the official paranoia about “outside radicals”, and the inevitable use of force or expulsions did more to harden, alienate and radicalize a generation than reading the Red Book could possibly have accomplished.

      Here are some descriptions of the Davis students in their time of testing before the arrests and pepper spray:

      According to [one UC observer], the activists went ‘back and forth’ about what to do next. At approximately 4:45 pm, the activists used consensus-style decision-making to reach the decision to continue to occupy Mrak Hall after it closed at 5 pm, and to ‘use bike locks and chains to lock the building doors open.’...the logic they used was that we are afraid the police are coming to the building, lock the doors shut, to trap us into the building and then come in and arrest they arrived at the conclusion that we need to lock the doors open. And they kept those doors open all night long. I was with them in the building from 3 pm to 6 am. And it got cold in there...

      The report continues:

      Leading up to 5 pm, there was a lot of discussion about ‘what are we gonna do when the police show up?...the students were having a lot of peer to peer education about what to do if you’re arrested, what your rights are, what to say, who to call. They were discussing ‘Are we going to link arms? Are we going to huddle? What’s going to be out strategy. And that theme of what to do when the police get here. That was a conversation they had throughout the week”, said the observer.

      A vice-chancellor who stayed with the students in Mrak Hall until 1:30 am called them:

      ’my children’ and said in the morning they were ‘very polite, they were gathering their stuff, you know, being sure they weren’t getting in the way of doorways and what have you.

      When the police arrived on Nov. 17, the activists mic-checked them with an invitation to dialogue “’in our method of speech, in our home.’” Then, according to video, the following words were exchanged:

      POLICE: You understand that by doing this, you are violating university policy, right?
      STUDENTS: In that case, the university policy is defying our constitutional rights.
      POLICE: You understand that you are subject to arrest.
      STUDENTS: We are not subject to arrest for our right to peaceably assemble. What’s our crime?
      POLICE: [holding yellow flyer] Has anybody read this thing?
      STUDENTS: Officer, what is the crime we are committing right now? Is this an order to disperse?
      POLICE: Not at this time.
      STUDENTS: [cheering]
      POLICE: What I am trying to do is let everybody know they are in violation of university policy. Does everyone understand that?
      STUDENTS: No. We were told we are actually in compliance with the university policy right now.
      POLICE: Well, you understand that the University policy is that camping is not allowed on university property.
      STUDENTS: How do you define camping?
      POLICE: Erecting tents and staying here.
      STUDENTS: We are using this space for organizing. According to this piece of paper, under article 5 of section 2, it says ‘use of university property for OVERNIGHT camping.

      When the pepper spraying began moments later, the police would testify that they felt surrounded by a threatening mob. The UC task force found no evidence for this fear, pointing out that the officers strolled back and forth through the student lines. Three bursts of pepper spray were released. The students were chanting “no, no”, “keep it nonviolent”, and “you use weapons, we use our voice.” One student proposed an amendment to the student demand for “cops off the Quad,” saying, “I think we should ask politely, because demands only inspire fear,” the very emotion which was enveloping the heavily-armored police. Then the students announced: “We are willing to give you a brief moment of peace, so you may take your weapons and our [arrested] friends and go. Please do not return. You can go, we will not follow you.”

      Will anything be learned from this fiasco? Certainly a healthy system-wide conversation is underway. But the students are correct in thinking that more tuition hikes are on the way, that the politicians are paralyzed, and that the University is being privatized. A key structural problem is that the UC Regents are dominated by a Republican majority and a bipartisan Wall Street mentality. Fifty years after the Free Speech Movement, student voices remain throttled by the allowance of only one non-voting student representative on the 26-member board. Lt. Gov. Gavin Newsom is a good vote for students, but offers no plan for democratic restructuring. Gov. Jerry Brown and the legislature’s majority Democrats could shift the balance among the Regents, but haven’t so far. Brown has actually convinced himself that the only way to save the University (he attended at something like $100 tuition) is to keep making it unaffordable to middle class families and most people of color. Someone could run for statewide office on a state-of-emergency platform of making college education free or affordable to all. The right candidate could win more than one million votes and reshape the California political climate, just as Occupy Wall Street has brought a new focus to economic inequality. But there is no sign of such a campaign on the horizon, perhaps because no big contributions can be extracted from the students.  

      Unless meaningful action is taken immediately against relentless tuition hikes and the warnings of the Reynoso report, the university will continue disappearing down the path of policing to protect its privatizing. And a new radical generation will arise from the brutal thwarting of their innocent dreams. Count on it. Because the young cannot for long endure the suffocating of their future.

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      Reader Comments (2)

      The police do not have authority to punish citizens. They can arrest them, and use such force as is reasonably necessary to make the arrest, or to prevent the citizen from harming himself or others.
      The availability of non-lethal weapons has been unfortunately embraced by many police departments as a license to assault citizens whenever it is convenient to do so. When we hear about the police electing to spray gas in people's faces, rather than simply lift them and/or escort them away from the area of the protest, this is clearly the unreasonable use of force.
      We already have a 9th circuit decision and a verdict for some protestors who were the victims of an unreasonable pepper spray assault by the police. It's really important that people attending demonstrations do their best to document the conditions so that the misuse of non-lethal force can be challenged in the courts. Just because it won't kill people does not mean the police can spray or taser citizens whenever it's easy to do so. That's not the law.
      "The Fourth Amendment permits law enforcement officers to use only such force to effect an arrest as is “objectively reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citations omitted). “[T]he essence of the Graham objective reasonableness analysis” is that “ ‘[t]he force which was applied must be balanced against the need for that force:  it is the need for force which is at the heart of the Graham factors.’ ” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir.1997) (quoting  Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367. (9th Cir. 1994). The facts reflect that:  (1) the pepper spray was unnecessary to subdue, remove, or arrest the protestors;  (2) the officers could safely and quickly remove the protestors from protest sites [without the use of pepper gas and without injuring the protestors]."

      April 23, 2012 | Unregistered CommenterNABNYC

      The use of brute force when dealing with Americans who disagree with a policy or law, as was applied in Waco, Texas, unnecessarily resulting in dozens of deaths, as well as so many incidents, across the country, on a daily basis, show an obvious pattern of overkill and lack of open dialogue between the military, police, law enforcement in general and the whole civilian population. It is common to be addressed and delt with rudely, by police in Los Angeles and SanDiego. The civilian population need a liaison or someone representing them, to end this unprofessional and truly barbaric behavior.. They are not being monitored by the people they're supposed to be representing and protecting.

      May 8, 2012 | Unregistered CommenterTom Frazee
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