Two police officers have been suspended for using pepper spray against nonviolent protesters on Nov. 18 at the University of California, Davis, in a visceral illustration of the reason why courts have curtailed law enforcement judgments calls in the field.
UC Davis Chancellor Linda Katehi issued a public apology Nov. 20 for the incident after initially voicing support for the police, amid cries from faculty and students for her resignation. Two officers have been placed on administrative leave in connection with the matter, which was captured on videotape and in the still photos accompanying this story. The photos on the right show the students while they are being pepper sprayed and immediately afterward. Those on the left show them immediately prior to the incident.
The disturbing images show a group of very young and very nonviolent protesters sitting passively on the ground as they are pepper sprayed by a burly police officer before being handcuffed and dragged away. Given that the protesters were about to be forcefully removed anyway, they also raise a simple question.
Why did they need to be pepper sprayed?
The use of pepper spray to force compliance with police orders has some support in California law, but the use of pepper spray purely as punishment does not. Its use against nonviolent protesters also is contrary to societal standards.
“I spoke with students this weekend, and I feel their outrage,” Katehi said in a statement. “I have also heard from an overwhelming number of students, faculty, staff and alumni from around the country. I am deeply saddened that this happened on our campus, and as chancellor, I take full responsibility for the incident.
“However, I pledge to take the actions needed to ensure that this does not happen again,” she said. “I feel very sorry for the harm our students were subjected to and I vow to work tirelessly to make the campus a more welcoming and safe place.”
It was Katehi who ordered police to dismantle the UC Davis encampment of the Occupy Wall Street movement, setting the scene for the pepper spray incident. She and other officials representing entrenched local and state political machines have been surprisingly intolerant of the nonviolent protests which have swept this nation the past two months, since the first group of protesters set up camp in Lower Manhattan on Oct. 5.
More than 300 protesters were arrested last 
week in a series of local crackdowns that were coordinated by mayors and their advisors in 18 cities, according to comments made to the BBC by Jean Quan, the democratic mayor of Oakland, Calif.
The suspension of the two officers in the UCDavis incident could have a far-reaching impact on the behavior of police ordered to disperse future protests by the pro-democracy movement.
Officers have been using pepper spray and tear gas liberally against Occupy protesters working to highlight the redistribution of our nation’s wealth to the richest Americans that has occurred the past 20 years via tax loopholes, favorable industry regulations and pay-to-play politics.
Marine veteran Scott Olsen (bottom rig
ht) was critically wounded Oct. 25 when he was shot in the face with a canister of tear gas by police in Oakland, Calif. Dorli Rainey, 84, was pepper sprayed by Seattle police last week (bottom right). There is no evidence that either Olsen or Rainey was ever a threat to police or to others. They simply questioned the motivation of the ruling machines and those being enriched by them.
The recent incidents illustrate the huge divide between public officials growing rich at the public trough and the citizens they’re supposed to represent. A recent study by the nonpartisan Center for Responsive Politics exposed that widening gap by revealing that half the 659 U.S. Senators and Representatives were millionaires in 2010. By contrast, only 1% of the 315 million Americans are millionaires. The median U.S. household income was $50,046 in 2009-2010.
Clearly, those benefiting from the status quo th
at created this disparity have a vested interest in maintaining it. Like Katehi, who was given an annual salary of $400,000 when she was named chancellor on Aug. 17, 2009.
The Board of the Council of UC Faculty Associations condemned the violent responses to Occupy Wall Street protesters at UC Berkeley, UCLA, CSU Long Beach, and UC Davis. The Board called for a halt to the practice.
“We call for greater attention to the substantive issues that motivate the protests regarding the privatization of education,” the Board said in a statement. “With massive cuts in state funding and rising tuition costs… public education is undergoing a severe divestment. Student debt has reached unprecedented levels as bank profits swell.”
Many of those banks
are investors in a new generation of for-profit colleges like Bridgepoint Education, which have stooped to enrolling questionable students at homeless shelters in a bid to raid the federal Treasury through Pell Grant scholarhips acquired in their names. The for-profit colleges benefit financially when public education costs rise, donate heavily to elected officials and buy lots of advertsing on the various TV networks.
The campus of the University of California is located at Davis, Calif., and has 31,000 students. It’s consistently ranked among the top 10 public universities in the nation.
Legal decisions over the past 15 years in California are divided on police use of pepper spray and pain compliance. State courts have come down on both sides of this issue.
Use of “excessive force” is proscribed under 
the US Constitution’s Fourth Amendment, which specifically prohibits unreasonable seizures by law enforcement officers. It also requires that the use of force in arrests be “objectively reasonable” under the circumstances. The Constitution’s Eighth Amendment specifically prohibits “cruel and unusual punishment.”
Independent video of the confrontation shows officers spraying pepper spray into the faces of a row of seated nonviolent protesters at a range of 18-24 inches. The action was undertaken neither in self-defense nor in response to any direct threat. The circumstances suggest the actions may not meet the standard of being “objectively reasonable.”
In the state of California, several opinions over the past 10 years have served as guidelines for “reasonable force” In Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F.3rd 1125. It defined reasonable force as “the amount of force that is reasonably necessary under the circumstances to effect an arrest, prevent escape, or overcome resistance.
Headwaters Forest Defense v. County of Humboldt also revolved around the use of pepper spray by police seeking to break up a protest. In that case, the use of pepper spray on non-violent demonstrators was determined to be excessive in the presence of less intrusive alternatives.
However, an earlier decision in 1994 called “Forrester v. City of San Diego” upheld the use of “pain compliance” to arrest passively resistant demonstrators as reasonable. The court reasoned that painful compliance was acceptable when it was used after a warning, was not applied any more than necessary to gain compliance, and could be ended instantaneously by a protestor’s compliance with police instructions.
Justification for the use of excessive force usually revolves around the issue of “probable cause” when confronting a suspected criminal. However, there is no evidence of any imminent threat to the arresting officers in the UC Davis incident. The absence of that threat raises doubts about whether it was an “objectively reasonable” use of pepper spray.
According to the 4th Amendment to the U.S. 
Constitution “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” However, it’s also the foundation of all “excessive force” cases.
Thanks to Robert Phillips at Law Enforcement Legal Update for this summary.
All UCDavis photos were taken by Brian Nguyen and provided to The Cynical Times by him and The California Aggie, which is the student newspaper of UC Davis.
