More Angst Over Pepper Spray

A successful restraining order request by a police union means the findings of an investigation into incident at UC Davis will not be released to the public -- at least, not yet.

March 7, 2012

Lawyers will have a chance to show why the public shouldn’t be privy to the findings of an independent task force’s investigation into the use of pepper spray on students during a nonviolent protest at the University of California at Davis, after a state court approved a temporary restraining order on the report.

The UC police union and the former officer at the center of the controversy filed for the stay after hearing from a lawyer that the report would contain confidential personnel information, the release of which is prohibited under state penal code, said John H. Bakhit, the police union's lawyer.

The task force, appointed by UC President Mark G. Yudof three days after the incident at the request of Davis Chancellor Linda P.B. Katehi, had planned to announce its findings to the public Tuesday, but postponed the report’s release late Monday after Yudof’s office got wind that a request for a stay would be filed with the Alameda Superior Court. (The report is separate from another internal investigation into police conduct that day, which is reportedly near completion.)

Bakhit will now review the report before making his case to a judge March 16. A ruling in his favor would make for further delay as the task force redacts the confidential information, and it’s unclear when it would ultimately be released. This follows earlier postponements, those on the part of the task force, which had asked for more time to investigate.

Any significant reductions could hinder understanding of what directives were given by various players in the protest response -- key facts to those seeking to prevent future incidents.

Monday’s news also broke as thousands of California students and faculty were descending on the state capitol to protest rising tuition, declining accessibility and the privatization of higher education. The march was one of the first major public demonstrations of a rejuvenated Occupy movement – the same group that inspired the protests back in November – and about 70 people were arrested for trespassing.

In a statement Monday, Yudof called the request for a stay an “attempt to stifle these reports,” and said their release is “a fundamental stepping stone” needed for the campus to move on.

“The entire UC Davis community deserves a fully transparent and unexpurgated accounting of the incidents in question,” Yudof said. “Though I have not seen the reports, I am told the task force and its supporting investigators have provided just such an accounting."



Bakhit said the university was deliberately and wrongly trying to cast the request in a negative light, and both he and Andrew Lopez, president of the Federated University Police Officers Association, insisted they were acting in good faith. "We’re not opposed to releasing the facts of the case…. If they come out and say, ‘You know, we don’t think it should be done this way in the future,’ that’ll be it,” Lopez said Tuesday morning, prior to the court’s decision. “It has to do with releasing the officers’ personnel information…. I don’t want officers to get targeted from groups out there that are in deference toward us or something.”

Lopez said Lt. John Pike, the officer who became infamous after video of him casually pepper spraying students sitting at close range went viral last year, received death threats that led him to leave town. Katehi had placed Pike on leave the week after the incident. (Pike also became the subject of a popular Internet meme.)

But Cruz Reynoso, the law professor emeritus at Davis and former associate justice of the California Supreme Court who was tapped to chair the task force, was outraged at the request – in particular, at its last-minute delivery – and worried that it could prevent the truth of what happened from coming out.

“I believe that any portion of the Policeman’s Bill of Rights that prevents the public from finding out what happened serves neither the police nor the public. The police, because they have to have the confidence of the public that they do a good job,” Reynoso said, “and the public, because the public has a right to know what’s happening.”

Asked what would be left in the report if the task force would have to significantly redact information in the report, Reynoso said, “Having a complete distrust of the police department of this university, of this state.”

Katehi apologized to students in the days following the protest, and Yudof, while stating his support for the Davis president, said he was “appalled” by what happened there and at the University of California at Berkeley, where just days earlier police had used batons during a confrontation with students and faculty protesting as part of Occupy. Those statements did little to quell anger, and in further protests, many called for Katehi’s resignation.

Incidentally, Grant Weiss, an undergraduate involved in Occupy UC Davis, thinks this is merely a distraction from the real matter at hand.

“Of course [a redacted report] is a concern, but in the end, it really doesn’t change what we’re trying to do. The main issue of the protests is not being abused by the cops. The whole point is the goddamn fees, how expensive it is to be a student, and how prohibitive it is becoming,” Weiss said. “I think the real question people need to ask is, why people would sit in the campus quad and be willing to be pepper sprayed. Why would people be willing to go to those lengths?”

But the delay was a blow to Fatima Sbeih, one of the students who was pepper sprayed and is suing the university.

“At this point, I don’t feel like anything can come of it, or if it does, that it can’t happen for a long time. And by that point, who knows what the state between the faculty, the university and the police will be,” she said. “This whole thing has gone on far enough. Every delay really just makes me feel like I have no faith within the university, with this task force.”

Davis spokesman Barry Shiller noted that the university has already taken some measures to improve protest response, such as placing senior officials at demonstrations and engaging with protesters on a case-by-case basis before things escalate too far. (Sbeih acknowledged that relations between police and students have improved at recent protests, as well.)

“I hope, anyway, that -- whether it’s a couple of weeks, whether it’s three weeks – that it won’t materially impact the mood on campus,” Shiller said. “This is a very disappointing delay, and we had hoped today to be receiving a report and beginning a dialogue with the campus about steps moving forward.”

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