The University of California at Davis placed two of its police officers on administrative leave Sunday after they pepper-sprayed nonviolent student protesters Friday.
Video (here) and photos of the incident spread on the Web like wildfire, prompting widespread outrage and renewed demonstrations on the university’s campus. The video (there are several) showed a police officer spraying the reddish-yellow mist along a line of passively resisting students who had linked arms as they sat on the ground.
The police chief, who was placed on leave Monday, said it was because the protesters were surrounding officers, but video and photos clearly show the officer deploying the pepper spray wasn’t at all impeded, let alone in any kind of jeopardy. He easily stood in front of the protesters and at no more than two feet from them, calmly walking back and forth, spraying them directly, after which, he and fellow officers reached in, lifted up and arrested 10 of the protesters.
U-C Davis chancellor Linda Katehi said she took “full responsibility” for the incident, but despite being flooded with reaction, had no intention of resigning.
There’s a second video related to this story that, in some ways is more powerful than the one that’s been going viral. On Saturday, after a news conference she held, Katehi remained inside one of the university’s buildings for a couple hours. Outside, protesters regrouped. When she emerged, she and another woman walked three blocks to an SUV, passing through a gauntlet of several hundred students who remained silent in a powerful show of their disdain.
Well, heck, it’s right there in the First Amendment: “The right of the people peaceably to assemble, and to petition the Government for a redress of grievances, and to be clubbed, attacked with chemical weapons, and not permitted to peaceably assemble, whenever some petty official decides otherwise.” What’s the problem?
–The real laugher here is that if the students had been camping out for football tickets they could’ve stayed there for an eternity.
Legal analysis: It’s one thing for police to do their job; it’s another when they use unnecessary force. Are the police saying here that they couldn’t have arrested the protesters without first subduing them? The students looked pretty subdued to begin with.
Legally, the police may have been in violation of the Fourth Amendment’s “objective reasonableness” standard.
In 1989’s Graham v Connor, the Supreme Court held that excessive force claims are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard. The Court had to determine whether a particular use of force is legal under the Fourth Amendment in the course of making an arrest, investigatory stop, or other “seizure” of a person. In other words, how much force is enough?
Like most general standards found in Fourth Amendment precedent, the answer is, “it depends.”
In assessing when to use force, Graham requires an officer to give “careful attention to the facts and circumstances of each particular case,” including:
1) The severity of the suspect’s crimes
2) The immediacy of the threat posed by the suspect to the safety of the officers or others
3) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight
The court wrote: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving –about the amount of force that is necessary in a particular situation.”
None of that bodes well for UC Davis, just from the video evidence alone. The Graham decision doesn’t tell an officer how much force to use in a given situation. The Supremes left that to the lower courts. But the questions to be considered are clear: How severe was the crime, how immediate was the threat and was the suspect(s) actively resisting arrest.
By those standards, the UC Davis protesters appear to be protected by the Fourth Amendment. If lawsuits are filed, the police, campus official, even the municipality of county may be found liable for significant awards in court.
And California has precedent for such liability. In 2005, a federal jury found against the County of Humboldt and City of Eureka for excessive force by Humboldt County Sheriff’s Deputies and Eureka Police Officers for their use of pepper spray against peaceful protesters who became known as the Pepper Spray Eight.
The real irony, though, is that enforcement actions like this do more harm than good for the police and other authorities. Whether it’s setting dogs loose to attack protesters, beating them with billy clubs, firing water cannons or even firearms and killing protesters (as happened at Kent State in 1970), it does more to galvanize protesters rather than disperse them, and historically has inspired sympathetic observers to join them.