Plenty of Blame to Go Around

Many parties were at fault for the now-infamous November pepper spray incident at the University of California at Davis, including the chancellor and other administrators who failed to properly evaluate the protest situation or plan for its dispersal, and the police who did not follow protocol and whose use of pepper spray was “objectively unreasonable,” an independent investigative panel has found.

Communication breakdowns and procedural neglect snowballed into a confusing and poorly planned police operation, the panel's report says, and ultimately led to one officer casually pepper-spraying students at (much too) close range during a nonviolent protest. The students, who sat across a walkway, refused to move as campus police officers attempted to clear out the Occupy encampment.

“Our overriding conclusion can be stated briefly and explicitly,” the report states in its very first sentence. “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”

A common thread runs through the report’s recommendations for Davis and its police force: the need to recognize the unique culture of a campus community and the importance of debate and dissent.

Davis had not commented as of press time.

A task force charged with examining the incident spent months on its investigation and subsequent report, but its release had been postponed repeatedly, first twice on the part of the task force, which wanted more time to investigate, then again when the UC police union requested a temporary restraining order because it believed the report contained confidential personnel information not suitable for public release.

Many students and faculty attended a public meeting Wednesday afternoon where the task force presented its findings. It appeared that for some, the report reignited their anger with police conduct. Some expressed newfound frustrations at findings such as one that revealed the pepper spray used on the students was military-grade and was not authorized under UC rules, and that police were not trained in how to use it. One graduate student at the event was so upset with the conduct documented in the report, he said all UC police should "leave immediately."

The task force, led by a former California Supreme Court Justice, Cruz Reynoso, was assembled by UC President Mark G. Yudof at the request of Davis Chancellor Linda P.B. Katehi. It was charged with reviewing the facts of the case (assembled separately by the research firm Kroll), issuing “findings regarding responsibility” for the incident based on the facts, and forming recommendations on “improvements to police procedures, command protocols, and campus policies and oversight structures that will help ensure the rights and safety of nonviolent protesters and the entire campus community.”

But after reading the report, Fatima Sbeih, one of the students who were pepper-sprayed and who is suing the university, was unsure whether the results will be enough to repair the damage that’s been done.

“I don’t know if we can move on, honestly. It’s going to be something that’s always going to stick,” Sbeih said in an interview with Inside Higher Ed, mentioning a friend nearing graduation who has already vowed never to donate to Davis. But Sbeih was happy that the report confirmed the students’ assertions that campus officials and police had acted out of line: “This is what we’ve all believed in, but I was happy that it just said it.”

Katehi emerged from the incident far from unscathed. Even as she apologized to students, they were calling for her resignation.

A state court granted the stay sought by police March 6, but the restraining order was lifted nearly two weeks later. A state judge ruled that, contrary to claims made by lawyers for the union and Lt. John Pike, the officer who wielded the pepper spray, the report’s release would violate neither the Constitution nor a state penal code that prohibits the public release of personnel information including personal data, discipline, and “complaints, or investigations of complaints, concerning an event or transaction in which he or she participated…. and pertaining to the manner in which he or she performed his or her duties.”

Video of the incident sparked outrage in all corners of the country, and frustration still lingers for many on the campus. In a statement released after he learned of the restraining order, Yudof registered his disappointment and called the task force report “a fundamental stepping stone needed to carry the UC Davis campus past the events of Friday, Nov. 18.”

The report “concludes what we all know from watching the shocking videos,” read a statement Wednesday from the American Civil Liberties Union of Northern California, which is representing Sbeih and other students and faculty in their lawsuit. “While we are pleased with the light that the university has shed on this matter through this report, it left some key stones unturned (for example, the role of the UC Office of the President in protecting -- or failing to protect -- the rights of non-violent protesters).” 

“When the cost of speech is a shot of blinding, burning pepper spray in the face,” the statement continues, “speech is not free.”

The task force investigation is one of two stemming from the incident. While Reynoso’s team examined the situation as a whole and what led police to confront, pepper spray and arrest the students, a separate, internal investigation is looking into the conduct of individual officers. That report will not be made public, however, as it will address confidential personnel matters such as potential disciplinary action against individuals.

“Deficiencies in the Decision-Making Process and Substantive Mistakes at the Administrative Level”

The task force sets the incident against the backdrop of three years of students' protesting rising tuition, a local movement that ultimately merged with Occupy. As those protests spread to more than 100 cities nationwide this fall, concerns about health and safety became widespread. E-mails circulated among Davis administrators in the weeks leading up to the encampment show officials struggling to reconcile their reluctance to allow tents in the quad with their fear of “[creating] a scene” by removing occupiers.

“There appeared to be a near universal assumption that not only would non-affiliates be a significant participant in any protests at UC Davis but also that allowing tents would encourage additional non-affiliates and potential criminal activity such as seen at other Occupy events,” the report says. “These assumptions do not appear to be tested or validated.”

The task force also found that -- even as there was “no immediate need” to order the tents taken down -- administrators deployed police “before considering other reasonable alternatives,” such as posting police officers at the encampment overnight or delaying police action for a few more days to evaluate other options.

“Chancellor Katehi explained in interview after the fact that she envisioned the deployment of police on Nov. 18 to be a limited operation in which police would demand that the tents be taken down but would use no other force to accomplish their mission if the protesters resisted their efforts,” the report says. “The chancellor did not effectively communicate this expectation…. It is clear that different members of the Leadership Team understood the scope and conduct of the police operation differently.” (The Leadership Team is the group of officials who monitored the protests and acted as liaisons between the students and the university.)

The only record of Katehi’s expectations, the report says, is a Nov. 17 conference call in which Katehi agreed with the vice chancellor that “we don’t want it to be like Berkeley,” referring to the incident just days earlier in which police used batons against students -- an incident that helped fuel discontent at Davis. That lack of common understanding means the team probably didn’t evaluate the risks of intervention, the report suggests.

Nor did it claim to be justified in enforcing an overnight camping ban at 3:00 on a Friday afternoon (a time set by Katehi), the report says; right up to the day officers went in, police “continued to question” their legal authority to do so.

“This confusion as to the legal basis for the police operation to remove the tents had several consequences,” the report explains. “First, and most obviously, if there was no legal basis for deploying police to take down the tents, the operation should never have taken place. Second, a clear understanding of the legal support for the operation might have helped to clarify (and possibly narrow) the scope of the operation and its mission. Third ... the university could not communicate effective to the protesters. Protesters have a right to be told what laws they are alleged to be breaking. When there is ambiguity as to whether or not the police action is lawful or not, it is foreseeable that there will be an increased likelihood that protesters will resist police demands.”

The leadership team’s “informal, consensus-based decision-making process” put police in their precarious position, the report says.

“The Conduct of the Police Operation”

Davis police and administrators did not follow national or state-mandated planning rules, the report says, and their lack of clear objectives and procedures apparently came to a head via Pike’s actions.

Officers “apparently felt that they were surrounded by a hostile mob and that the use of pepper spray was necessary” to clear the quad, the report says -- but the evidence undermines that claim. For instance, officers were able to walk freely through the crowd, and in one case, Pike even stepped over the row of seated protesters in order to pepper-spray them -- “a move that would not generally be undertaken with a hostile crowd.”

The task force calls Davis police’s command and leadership structure “very dysfunctional,” citing heated exchanges between lieutenants and the police chief, and the former’s refusal to take commands from the latter. There was also no evidence of “standard debriefings” or after-incident reports prepared by the department.

“Individual Responsibility”

The task force blames Katehi for improperly deciding when to deploy police and failing to communicate to police that they should avoid physical force, and criticizes the police chief, Annette Spicuzza, for not challenging Katehi on the operation’s timing, for not clarifying her expectations for officers and for deviating from best police practices. However, it singles out Pike for “the objectively unreasonable decision” to use pepper spray on the students.

What’s more, the spray weapon that Pike used is not authorized under UC police guidelines. Officers were not trained on how to use it -- which is probably why Pike used it incorrectly. The weapon was higher-pressure than what the officers usually used, meant to be sprayed at a minimum distance of six feet. As the report says, “Pike appeared to be spraying protesters at a much closer distance than six feet.”

“Recommendations”

The campus should develop “a broadly accepted agreement” on rules and policies that regulate protests, and it should be regularly communicated to students, the report says. Among other things, the rules should distinguish between non-violent and other forms of protest, and recognize “the importance of open and vigorous debate to our institutional function and identity.” The report also says Davis should develop complaint protocols to standardize procedures for planning, managing, communicating and collaborating to manage large-scale events or incidents.

But campus leadership should be proactive, too, the report says, by working with various campus constituencies to build relationships and identify issues early, and developing a system such as office hours through which people can raise concerns.

For Davis police, the task force recommends an external review of department protocols and procedures, followed by “specialized training…. to assure compliance with modern and contemporary practices for a campus-based police department.” The review should address appropriate levels of oversight; the command structure and how incident command is managed; and recommendations for annual officer competency trainings and performance evaluations.

Police should also focus on “fostering a deeper sense of community” among students, the task force suggests, and “strive to be a model of policing for a university campus.”

The report also contains recommendations for the whole UC system, the largest of which is to evaluate and adopt police department policies “that reflect the distinct needs of a university community and utilize best practices and policing adapted to the characteristics of university communities.”