Looks like everyone broke/ignored the law at UCDavis but the students (UPDATED)

davis pepperby DonkeyHotey

Sometimes, When “All the Facts are In,” It’s Worse: The UC-Davis Pepper-Spray Report
[Via The Infamous Brad ]

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.


Yep, the administration and police violated the law. Not only did they ignore the law, they were happy to tell people how great it was to do illegal things to the students.

The students – they had checked with campus lawyers regarding what they could do. They did what we would expect – find out was they could legally do and what they could not. Turns out everything they did was legal and virtually everything the authorities did was illegal.

A major conclusion of the report states:

In a democratic society, police are controlled by the law. It is the law, primarily Constitutional and criminal law, which gives police the authority and power to take action. Here, there is a fundamental question as to which law gave police the authority to take down the tents and arrest those who opposed them. Without the legal authority to demand that the tents be removed, the police lose the legal authority for much of what subsequently transpired on November 18, including the issuance of an order to disperse and the declaration of an unlawful assembly.

There was no definitive law that the students were breaking and none that gave the police the authority to do what they did. The authorities simply made up their own laws – no camping on campus – without any reference to legal statutes.

Let me say that again – The authorities simply made up their own laws. And then used illegal means to defend those laws.

The students were lawfully assembled and the authorities illegally dispersed them using possibly illegal approaches.

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.

But she did not follow what her lawyers said. The police chief did not follow what she said. The police did not follow what the chief said. Look at this incompetence :

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.

California law limits pepper spray to 2.5 oz canisters. Mk-9 is 12 oz. No one was trained in the use of a tool for torture. And its use was never authorized.

Ironically, the officer who used the pepper spray inappropriately had been worried about the legal justification for the entire operation. He argued against the timing of the entire operation. It is very likely that he knew he was being given illegal commands to proceed yet he followed those orders. Resulting in the use of unauthorized deterrents.

He used that pepper spray in a cavalier fashion with no training and against the directions of the maker. The manner he used this pepper spray could have resulted in deaths. It did result in hospitalizations.

The officers only stopped using pepper spray because they ran out. Then they mischaracterized many f their actions  in their reports. In fact, much of their reports fail to be substantiated by multiple videos.

They broke the law and should all be punished. They used illegal means to follow an illegal order. The administration should be criminally punished. If there is no criminal punishment, we do not live in a country with laws that matter,

The students followed the law. Laws they had carefully checked out before hand to make sure they were in compliance with. But a totalitarian and illegal authority contravened those laws. They went outside the law and should all be treated as criminals.

There should be criminal action here, not just civil. University authorities broke the law. If we allow civil authorities to so obviously break the law with no repercussions, then we have descended into a society run by outlaws.

This was the response of the students to the lawless actions of the officers as they left the area. This is what they shouted at the officers as they left, after their use of an unauthorized deterrent in a possibly illegal fashion:

We are willing to give you a brief moment of peace. So you may take your weapons and our friends and go. Please do not return. We are giving you a moment of peace. You can go, we will not follow you.

Even after being illegally attacked by inappropriate and unauthorized weapons, the students responded in a peaceful fashion. They recognized the humanity of the officers even after the officers treated the students inhumanely.

Read the report – it is a depressing read with regard to the casual disregard of the law  by officers and of the student’s legal rights – and the sheer incompetence of the University leadership and police. Then wonder about what happens when people follow the law but the authorities decide to simply ignore the law. What do we do then?

UPDATE: Looks like the Campus police chief is taking the fall. The campus administrators are still there.


2 thoughts on “Looks like everyone broke/ignored the law at UCDavis but the students (UPDATED)

  1. Just an FYI, as the misinformation about MK-9 seems to have spread like wildfire online: MK-9 is NOT illegal for CA cops to have/use *IF* they have the proper training. Civilian pepper spray possession IS limited to 2.5 oz (per CA PC 22810, (e) (1):http://law.onecle.com/california/penal/22810.html), but the code following this one, CA PC 22820, specifies that the restrictions do not apply to “peace officers”: http://law.onecle.com/california/penal/22820.html. However, they are also required to have completed training with it, so its use was still illegal.

    1. I did catch that but probably did not make it clear. The pepper spray used is not in itself illegal for an officer to possess. But they must have been trained in its use and they weren’t.

      I could not find, however, what the penalty would be for unauthorized and possibly illegal use of the pepper spray would be by a police officer. Just a slap on the wrist or something more substantial?

      I do think though that there will be quite some large awards from any civil suits here because of the unauthorized, possibly illegal and improper use of the pepper spray.

      What is upsetting is the absolutely casual nature of the lawbreaking by the authorities.

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