Pepper Spraying Fallout and the Right to Protest

The pepper-spraying of seated, nonviolent protesters at my university, the University of California, Davis, made international headlines in November 2011, complete with pictures and videos.  Now that some of the major consequences have shaken out, I thought people might be interested in hearing how things currently stand.

First, though, I think it's important to remember what the protests were about.  In part, they were (ironically) about the right to protest.  Just a few days earlier, a protest at our sister school, UC Berkeley, degenerated when campus police jabbed nonviolent protesters with nightsticks.  So, the UC Davis protest was meant to be a show of solidarity with the Berkeley protest.  The UC Davis protests were also meant to highlight the problems with repeated tuition hikes at the university.  Not only have these tuition hikes made getting an education difficult for many students, but also, they represent the steady erosion of a public university into a private one and an abandonment of California's promise to educate all qualified applicants (the so-called "Master Plan").  Finally, the UC Davis protests were held during the height of the nationwide Occupy protests, and thus to some extent echoed many of those more general concerns, not to mention the tactic of occupying a common area overnight with tents.

The space the protesters chose to occupy was the Quad in the heart of campus.  Although some of the details of what happened were not known at the time, they have been revealed through an investigation that resulted in the Kroll/Reynoso Report.  The UC Davis Chancellor (equivalent to the position of President at many universities), Linda Katehi, ordered that the tents be taken down.  The Report criticizes the way that this decision was made and communicated, but leaving aside the details, one of the salient points was that Chancellor Katehi urged that the tents be removed during the day, even though it is unclear whether having tents on the Quad during the day was in violation of any campus or other statute.  She also said that she wanted the tents to be removed "peacefully" and that she did "not want to have another Berkeley."  However, these vague directions were not propagated through the chain of command. In particular, the now-former UC Davis Police Chief, Annette Spicuzza, told her Lieutenants not to wear riot gear, but they called her suggestion "ridiculous" and the campus police wore them anyway.  Throughout the event, Chief Spicuzza was on the scene (rather than at a command center), relaying directions to her officers via cell phone.  Apparently, however, the decision to pepper spray the seated protesters was not made by Chief Spicuzza or by the incident commander; rather, it was made by Officer Lieutenant Pike (the officer pictured in the infamous internet meme) himself, who ordered a second officer, Officer Lee, to pepper-spray along with him.  The pepper spray they deployed (MK-9) was not one that they were approved to carry or were trained on; furthermore, it is designed for crowd dispersal and is meant to be used at a minimum distance of six feet.  As the pictures and videos document, the pepper spray was deployed at a much closer range than that.  To my knowledge, it is not known how the officers came to be carrying this unapproved pepper spray rather than the MK-4 that they were authorized to carry.  The protesters were pepper sprayed in the face and left screaming and writhing on the ground.

The fallout from these events includes:

• Chancellor Linda Katehi is still the Chancellor of UC Davis.  UC Davis faculty voted 697 to 312 to defeat a no-confidence measure that censured Katehi's handling of the controversial police action.  The President of the University of California, Mark Yudof, praised her "integrity as a leader and her personal empathy for all members of the UC Davis community" in responding to the incident.
• UCD Police Chief Spicuzza resigned in April 2012.
• The two pepper-sprayers, Lt. John Pike and Officer Alex Lee, were fired in July 2012, having been on paid leave since November 2011.
•  The Yolo County DA's office declined to bring charges against anyone involved in the pepper spraying, stating that "there is insufficient evidence to establish proof beyond a reasonable doubt that the use of force involved in the November 18, 2011, pepper spraying was unlawful and therefore warrants the filing of criminal charges."
• The protesters settled their suit with the University.  There was no admission of guilt, although each protester will receive an apology from Chancellor Katehi and $30,000.

It is hard to feel good about these outcomes.  Although the officers surely bear significant personal responsibility for what happened, it seems as though yet again it is the lowest-level employees who bear the brunt of the consequences for a troubling incident.  Since there will be no criminal trial and no civil trial, many of the details of what happened will remain unknown.  Furthermore, there will be no judgment about the legality of deploying MK-9 pepper spray at close range on seated, peaceful protesters, thus leaving the right of students to protest safely on campus (again, one of the main motivations for the protest in the first place) ambiguous.  Last but not least, the University of California's tuition problems remain.  If Proposition 30 (a proposed tax increase) does not pass in the upcoming November elections, there will be further cuts to both the University of California and the California State University systems. Will students feel comfortable protesting again?  In spite of assurances that new policies for handling protests have been put into place, it would be hard to blame someone for not wanting to risk a blast of pepper spray in the face for their troubles.