There is an interesting debate going on at Tarheel Red with Nick from Poison Your Mind about the pepper-spray incident at University of California-Davis. The video images of the pepper-spray incident at UC-Davis do not look good. Apparently, they are so ugly that the University is firing people over the incident. As the left relishes what seems to be a propaganda coup, it is important to step back and analyze the facts.
In any protest, there is an inherent tension between freedom and security. First Amendment rights are paramount in this country, and the state ought to protect and respect them. That said, the United States is a nation of laws for a reason. Certain laws and regulations exist to ensure that the exercise of my rights do not prevent or harm the exercise of yours. As such, there inevitably is a balancing act between these two goals.
On the one hand, the protestors at UC-Davis have every right to express their views. On the other hand, other UC-Davis students have a reasonable expectation of access to campus facilities and physical safety while at the university. Their parents have a right to demand the safety and security of their children on campus. This reason is precisely why the University has regulations that stipulate limited times for protests on school property. According to Chancellor Linda P.B. Katehi‘s “Message to Protesters on the Quad” on November 18th (emphasis mine):
“…[W]e also have a responsibility to our entire campus community, including the parents who have entrusted their students to us, to ensure that all can live, learn and work in a safe, secure environment without disruption. We take this responsibility seriously. We are accountable for what occurs on our campus. Campus policies generously support free speech, but do include limited time, place and manner regulations to protect health, safety and the ability of students, staff, and faculty to accomplish the University mission. If an unfortunate incident occurs as a result of violations of these limited regulations, we are all responsible.
We are aware that many of those involved in the recent demonstrations on campus are not members of the UC Davis community. This requires us to be even more vigilant about the safety of our students, faculty and staff. While we have appreciated the peaceful and respectful tone of the demonstrations to date, the current encampment raises serious health, safety and legal concerns, and the resources we require to supervise this encampment cannot be sustained, especially in these very tight economic times. Our resources must support our core mission to educate all of our students.”
So, it is clear that the protestors, many of whom were unknown outsiders, were putting a strain on the university’s resources and were disobeying legitimate local rules and regulations. As such, UC-Davis authorities had legitimate authority to remove the protestors.
That begs the next question. What about the means?
Put yourself in the position of a police officer charged with clearing the Quad. The protestors’ arms are locked in a human chain. The University Chancellor has warned them in a written statement that if they don’t stop violating UC Davis rules and regulations, the police will remove them from the site at a prescribed date and time.
Decades ago, security personnel would have been armed with nothing but clubs, high pressure water hoses, tear gas, and guns. The most cost-effective method of breaking up an illegal protest would have been to use clubs, and the most humane would have been to use water hoses. Today’s police have a tool that is both effective and economical — pepper spray.
As you can see in the video above, one of the cops explicitly warned an organizer that if the group did not decamp, the police would use pepper spray on the protestors. The protestor’s response seemed giddy and excited, for he knew he would likely acquire the mantle of victimhood he so desired. He says, “No, that’s fine, that’s fine,” and then starts laughing.
Instead of viewing this video through an irrational emotional lens, one should view it rationally. The key question is: Did the police use a minimum of force to achieve a maximum of effort?
I believe they did.
As one watches the video, the police calmly apply pepper spray to the faces of protestors who have ignored repeated warnings that they violated local law. This tactic effectively disrupts the human chain, allowing police to separate protestors from one another without serious injury such as the breaking of limbs. No one is permanently harmed, and the police accomplish their mission in a matter of minutes.
Furthermore, as someone who has been gassed repeatedly during military training, I know roughly what being pepper-sprayed feels like. It stings. It is uncomfortable, but it certainly is not permanent.
For those who are outraged by what I feel are perfectly legitimate and efficient methods, requiring a minimum use of force and causing no permanent damage, how could police have accomplished this mission any more peacefully?
And no, the answer is not that they should have left protestors in place. As a California tax payer, I am not a bottomless pit of money to support police protection for a group of smug, entitled, seemingly aimless vandals to disrupt normal campus activities.
Again, I ask, if the mission were to clear the park, how could authorities have done it in a more peaceful manner?
The silence is deafening.
Reflections of a Rational Republican 
If they “were disobeying legitimate local rules and regulations” they should be cited and fined. If they do not pay the fine a warrant can be issued for arrest. There are systems in place to deal with those who break the law, and those systems do not generally include pepper spray.
How does one cite and fine people who are locked in a human chain? You have to separate them first. Do you believe they would calmly have offered their names and numbers to authorities if they were already refusing to move despite repeated warnings by the Chancellor and the police?
I don’t believe so, but what if the police had done all that (they may have, though I do, I just don’t have any of that information to confirm or refute it), and the protestors contined to remain in place. Then would the police have been justified in pepper-spraying the protestors?
That said, I agree that they should have exhausted all avenues. I’m just not convinced that the issuance of warrants and fines would have changed the outcome.
But the issue is multi-faceted. Consider: who got the most out of the incident? I’d say that the photos, which have gone all over the internet, facebook, etc., have benefited the occupy movement and harmed the police. It may have been smarter to allow them to remain in place. It’s clear that with social media and instant tweets and status updates, stuff like this is actually something OWS welcomes. Complain about it if you want, but it’s an effective, rational strategy. I also have a lot of respect for protesters who are willing not to be apathetic and to take a stand. As long as its by and large peaceful, it’s not a bad — they see something wrong with the country and the only way to change it is to protest, get attention, and try to get others to see what they see. The tea party had different tactics, but deserve respect too. I think the bigger problem is apathy.
“Complain about it if you want, but it’s an effective, rational strategy. I also have a lot of respect for protesters who are willing not to be apathetic and to take a stand. As long as its by and large peaceful, it’s not a bad”
I certainly agree it is effective. In fact, it is so effective that most Americans are willing to suspend their beliefs in the legitimacy and importance of the laws governing our society.
I agree that protests are fine as long as they are peaceful and do not break the law. This protest at UC-Davis clearly fails the second test.
I respect people who speak up for their beliefs, but I do not respect people who break the law. And that is what fundamentally separates the Tea Party from the OWS movement.
I guess reflecting my more rebellious personality (in a personality test you posted awhile back) I have no problem with peaceful violations of the law as long as people are willing to accept the consequences. The classic example is Thoreau’s refusal to pay taxes because he opposed the Mexican war, but was willing to thus sit in jail. I don’t respect a law just because it is a law (most people don’t – look at the speed people go on interstates!). That said, I think people have to think about any law they are going to violate, what harm might be done, and whether the cause is worth it and if they’re willing to pay the consequences.
I totally agree, which is why the pepper-spray incident doesn’t bother me.
@Sean
The fact that the protesters were willing to take a pepper spraying does not have any bearing whatsoever on whether it was an appropriate police use of force. If anything, it would show that the protesters were prepared for it and the use of pepper spray was unlikely to have any effect.
“The fact that the protesters were willing to take a pepper spraying does not have any bearing whatsoever on whether it was an appropriate police use of force.”
That’s fair.
The letter refers to “Campus Policies”, not laws. I’m not going to say that there were no laws broken because, well, I’m not a California lawyer (and I’m also pretty sure everyone breaks a dozen laws every day whether they know it or not), but I’d like to see more support for this “illegal” argument.
And besides, if the protest is peaceful, how can it be illegal? Since when does UC Davis get to deprive people of their right to assemble? If they protest an unconstitutional restriction on their right to petition for redress, do you still support police force to remove them? You’re putting a lot of weight behind a university policy, allowing it to trump a constitutional guarantee.
“The letter refers to “Campus Policies”, not laws. I’m not going to say that there were no laws broken because, well, I’m not a California lawyer (and I’m also pretty sure everyone breaks a dozen laws every day whether they know it or not), but I’d like to see more support for this “illegal” argument.”
I totally agree that there is a lot of legal ambiguity. That said, when legitimate authorities tell you that they will forcibly remove you from a gathering based on some legitimate authority (school policies, regulations, etc.), you ignore them at your own peril. Additionally, I believe they used a minimum amount of force to remove the protestors peacefully. As such, I think many are making a mountain out of a molehill.
“And besides, if the protest is peaceful, how can it be illegal? Since when does UC Davis get to deprive people of their right to assemble? If they protest an unconstitutional restriction on their right to petition for redress, do you still support police force to remove them? You’re putting a lot of weight behind a university policy, allowing it to trump a constitutional guarantee.”
You are assuming that a legitimate protest includes the right to deny others access to campus facilities, which I think makes that protest illegitimate. Again, it is a fine line so some sort of balance must be achieved. Futhermore, as happened in Oakland, the longer a group camps out, the more they become a threat to public safety (i.e., rodent problems, lack of sanitary conditions, diversion of protection forces, rising costs to maintain those police forces, etc.). Authorities need some leeway in deciding when public safety trumps the right to perpetual protest.
“And besides, if the protest is peaceful, how can it be illegal? Since when does UC Davis get to deprive people of their right to assemble?”
We’re talking about university property, right? There is no constitutional right to go and occupy someone else’s property, and hold an assembly on it. There is a constitutional right peaceably to assemble, but that means things like you can hold a meeting with James Madison and Thomas Jefferson in your home and the state can’t come and arrest you just for getting together.
In other words, it’s not a right to trespass.
Other than that, I would just reiterate what Raechel says below: My understanding from other sources is that the protesters were blocking the police in, not allowing them to leave campus. (That’s what it looks like on the videos above, too.) What are the police supposed to do in that situation?
@Chillingworth
UC Davis is a public institution. People have every right to protest on public land, subject to certain governmental restrictions. Is this area more similar to a park, where government restrictions are very limited, or something less traditionally open to assembly and debate? I’d wager that many student rallies, functions, and assemblies are held on that very spot, which means that you have to have compelling state interest, etc., etc. There’s still the time/place/manner restrictions, and that’s probably enough to save UC’s ass (unless, of course, they never bothered to put restrictions in until this protest forced them to). But there is clearly a right to assemble here. Check out Perry Education v. Perry Local for the precedent that freedom to assembly clearly applies to public areas such as parks and sidewalks.
I cry uncle. I don’t think your legal analysis is correct, but I don’t have the time to research it and argue about it further.
It may have been smarter to allow them to remain in place.
Well, the police aren’t engaged in a popularity contest. And really, the only people these scenes outrage are the people who are already protesting.
I think the minds of many are already made up on OWS folks. This only reinforces a previously held opinion.
Pino, I’ve heard more “average” folk talk positively about OWS (and negatively about the pepper spraying) than I’d have expected. They’re having a huge impact on shaping the political conversation. I believe they have to shift tactics, but they’ve accomplished more than I expected at first (I thought it would be a week or two then it would dissipate). I think the big difference between OWS and the tea party now is that one is yesterday’s news, the other is shaping the conversation.
“I think the bigger problem is apathy.”
I completely agree. As long as the Tea Party and OWS remain peaceful, I think they’re both fantastic for our country. It’s long past time to have these kinds of discussions as a country: inequality, personal responsibility, taxes, the social safety net, etc.. The Tea Party has forced me to think differently about my beliefs and I am grateful for that. I just lament how quickly these worthy conversations seem to devolve into peripheral side shows: “The Tea Party is racist, so tax reform isn’t necessary” “OWS is making a mess of the park so inequality isn’t a problem”.
I agree that pepper spray was the least violent and least injurious way to break up a human chain.The occupiers are not a peaceful assembly. It is therefore not constitutional. For more detail, see this: https://sites.google.com/site/orthovoxwritings/home/columns-2011/111118-ov-23-peaceable-assembly
I think you lost your credibility when you stated that “The Occupiers are in full riot mode.”
I take your point there .. a bit of hyperbole … but some of it was riotous.
Let’s not forget this was a college campus and many of the protesters were students. I’m not saying it changes the legal analysis but it is one of the reasons the backlash has been so strong.
Also, my understanding was that the police were called in to remove the tents from the protest but that by the time they got there the tents were already gone. So where exactly was the need to break up the protest. If students can’t get together on a college campus to protest, where can they go?
We take a lot of pride in our country’s protection of free speech, but the fact is there are fewer and fewer public places out there where people can exercise that right.
“Let’s not forget this was a college campus and many of the protesters were students. I’m not saying it changes the legal analysis but it is one of the reasons the backlash has been so strong.”
Fair point.
“We take a lot of pride in our country’s protection of free speech, but the fact is there are fewer and fewer public places out there where people can exercise that right.”
I think this is a separate (though very worthwhile) discussion. I think there is a strong argument to be made that there are fewer and fewer public places out there where people can exercise their First Amendment rights, and that this is generally not a good thing. That said, the reason there are fewer places is because many protestors have abused that right to the point in which it infringes are other’s rights to simply earn a living. The BART protests are but one example.
I personally don’t know how to reconcile the two, but am open to hearing various remedies that balance both rights.
As to the specifics as to what happens, I think it is fair to say that the legal line seems very hazy at this point. However, when the police say they are going to crack down, I believe one should respect their authority and find other ways to work within the system. By flouting it, these protestors got, what I think they deserved.
There’s also the issue of respect for law enforcement officers. They are regularly assaulted, spit on, defecated on, and urinated on. This is a far greater health hazard than pepper spray, but there is no public outrage or viral videos about this. This men and women put their lives on the line anytime they go into a situation like this. We need to go back to the old fashion notion of respecting and obeying law enforcement. In almost every instance of so called “police brutality”, the incident was preceded by an uncooperative suspect.
People should not assault, spit on, defecate on, or urinate on police officers. Their jobs are hard enough as it is, not to mention dangerous. We should respect police officers for their service, and that’s the opinion of everyone I know.
This is completely irrelevant to the current discussion, or do you think that we should just stop questioning the use of force out of respect?
Nickgb,
No, I don’t think we should never question the use of force. Certainly there are a few bad apples, hot heads who are in the wrong line of work and need to be weeded out. I guess the point I was trying to make was that I think our sense of outrage was misplaced. I disagree with the whole idea of “civil disobedience” as it requires one to have a deliberate disregard for the rule of law. I do not think this is protected under the right to peaceful assembly. Not that I think all laws are good, but our forefathers gave us the power to choose our representatives and the right to peaceful assembly so that we the people have the power to change unfair laws. It seems to me that people resort to civil disobedience because it easier to take to the streets and join the mobs that it is to organize a proper and lawful rally, or take the time to wright our congressmen.
Proper civil disobedience is the deliberate disregard of a particular unjust law and entails a willingness to accept the consequences. Momizms states correctly that civil disobedience is not peaceful assembly, which is lawful.. Lawful civil disobedience is an oxymoron.
Momizms,
Thanks for stopping by.
I agree with you that policing is a tough and honorable profession. The police are frequently never given the benefit of the doubt in performing what is a thankless and difficult job.
Even protesters engaged in civil disobedience should do nothing to harm law enforcement — they should not assault them, spit on them, defecate on them or urinate on them, agreed. Sometimes they may believe its right not to follow their instructions – as long as they make that choice out of principle and are willing to pay the consequences, I see no problem with that. But unless you want to say the state is always right, I can’t say that it’s never right to go against what the authorities demand.
As just one example of why I think there is a need to continue to question the government’s police power: http://www.thisamericanlife.org/radio-archives/episode/414/right-to-remain-silent
It should be done respectfully, with recognition of all that the police have to put up with and the risks they face day in and day out. But that doesn’t mean they should be given a free pass.
Thank you for sharing this radio show.
I agree that there always remains a need to question the government’s police power. We can thank Janet Napolitano and Facebook for Joe’s dilemma. I’m actually surprised the police didn’t give him a drug charge. We can thank Janet Naplitano because Joe was likely given “special” attention because of his veteran status (Notice there was interest from the Department of Homeland Security in the matter).
At least Joe won the case in the end. The fact that New York spent a ton of taxpayer money on this case is ridiculous.
if you get a chance, the second segment from the same show is also on point.
I went through that segment as well. It sounded pretty bad. That said, I haven’t heard the other side of the story. I’m also not surprised that the NYPD has ticket quotas. I’m sure SF and LA probably do as well. Its all about generating tax revenue for these cities. Apparently they aggressively give out jaywalking tickets in SF, though I’ve personally never seen it happen.
That said, if someone gets carted in for saying “F-you” to a cop, I have zero sympathy for them.
It seems to me that due to damage done to public property and no clear agenda has made OWS jump the shark. I was initially sympathetic on the UC Davis case, but I find your case persuasive sean.
Thanks, Bruce.
Some of you are missing the point. The protestors had the police circled, trapped and would not move to let the police out. So telling protestors you are going to be arrested or fined if you don’t move wouldn’t have helped, be realistic. They are young kids who were trying to prove a point, they were not going to move. You can not block or trap police. They were specifically warned, if you do not move you will be sprayed, they laughed. They got sprayed, completely justified, the protestors were in the wrong.
There’s two fundamental questions:
1) Were the police acting under legal authority when they used the pepper spray?
2) If yes, is that something that we should allow?
I think the answer to the former is, sadly, yes, because we give such immense deference to use of force by police officers. The answer to the second, I believe, is no, but that’s what the debate should be about.
Your argument is that the protesters knew that the police would use force and therefore deserved it, but you’re completely skipping the question of whether that force, predictable though it may be, is/should be appropriate.
Nick, I don’t think I understand your position. Are you agreeing that the protesters encircled the police and wouldn’t let them leave? If so, what would you have had the police do?
They definitely encircled the police. Whether they really would have prevented them from leaving is hard to say, but I think that it’s fair to say the police shouldn’t be forced to try to walk through a mass of people. There are other kinds of force (I’m not entirely convinced of Sean’s point that pepper spray leads to less injury, for example), and there are other ways of applying chemical agents. For example, you don’t need to apply it in a continuous stream, from two feet away, for several seconds on each protester. There’s a lot of valid room for debate here, because it’s the amount of force used and the reason for the force that are so subjective (for example, pepper spray has a mixed and pretty poorly understood effect on use of force and injury rates, as with tasers). But what we’re hearing from the right is that, because the protesters were in the officers’ way and were warned, they were entitled to use whatever force they wanted.
What if the officer had instead used bean bag rounds? Or batons? Is there any amount of force that you would find objectionable in this situation? If so, then you have to acknowledge that the real debate is about the amount and nature of the force used. (There’s another issue about whether the police should have used force at all or whether they should have withdrawn, but I think that’s a separate topic that is going to swallow this discussion up if we get into it).
“There’s another issue about whether the police should have used force at all or whether they should have withdrawn . . . .”
I understand that you want to argue about the precise amount of force used, whether it was justified, etc. I kind of don’t care about that discussion. If the protesters refused to do as they were asked, and if the police didn’t kill any of them or even break any bones, I’m inclined to assume that whatever the police used was a reasonable amount of force.
What I don’t understand is how you can actually acknowledge, “They definitely encircled the police,” and then still keep talking as if the police were free to leave at any time and “withdraw[ing]” was an option.
I know we’re kind of past this discussion, but I saw this on youtube. It shows more of what happened before they got to the pepper-spray stage.
Wow. I had no idea. The professionalism of these police officers is amazing. These protestors actually got off easy.
I’m not really seeing what it new here. The police clearly weren’t threatened. The only new detail that I can see is that they specifically state that the reason for spraying the students is because they need to bring a paddy wagon in to pick up the other protesters, and they need a clear path for it. There’s still no threats, no violence.
This is a little off the subject again, but the fact that the threatening behavior of the students was not emphasized by the major news outlets goes to show the anti- law enforcement bias of the mainstream media. We need to remember that police officers are not hired to deny us of our Constitutional rights, but they do have the authority to keep the peace. When protests become violent, and make no mistake, surrounding the police was a violent act, they are no longer protected under the Constitution.
“surrounding the police was a violent act”
How exactly? Do you have any definition of “violence” to support that, in law or in English?
OK Nickgb, You got me. According to my handy dandy “Webster’s New Collegiate Dictionary” The student’s actions did not exactly fit the definition of a violent act. They did however, fit the definitions of provocative and menacing. They did NOT fit the definition of peaceful. Now I’m a little young to have hob-knobbed with the Founding Fathers, but I’m pretty sure that a demonstration meant to annoy cause an inconvenience to others wasn’t what they had in mind for a peaceful assembly. “the police clearly weren’t threatened”? Were we watching the same video?
You can get as snarky as you want, but you unequivocally stated that the students were violent. It wasn’t just some slip of the tongue, you stated:
“When protests become violent, and make no mistake, surrounding the police was a violent act, they are no longer protected under the Constitution.”
If you want to make that point, fine, but don’t get snarky when someone points out that you are completely wrong.
There’s a difference between preventing the officers from doing their job (which is clearly what happened, and which is an argument for the use of force that I’m sympathetic to) and the officers using pepper spray because they were threatened. The officer goes up to each student before administering the spray, and calmly explains to them what he is going to do. He has no weapon in hand when he does it. He turns his back to the protesters several times while he does this. If he really felt threatened, and still put himself in such vulnerable situations, then the guy isn’t fit to wear a uniform.
Why does it matter? I think there’s a different amount of deference that we should give in these situations. When a cop needs to do his job and protesters are interfering, then he should be using a minimal amount of force to get it done (or, if there’s no immediate threat to life or property, maybe you back off and get more troops to effectively handle such a large crowd). He has plenty of time to assess threats, to come up with other plans, to call for more backup etc., and therefore I am going to demand a higher level of justification for his actions. If he was actually threatened and in danger, I’m far more likely to defend higher levels of force because I don’t expect him to be able to think things through in the heat of the moment. That latter case, however, is clearly not happening here.
Nick, I get your argument for using the mimimum amount of force necessary and no more. I agree with you on this point. I guess what we have here is a disagreement of perception. I clearly saw a situation were the police were being threatened. You saw it differently. I’m curious to know just how much force do you think should have been used? And for how long should the students have been allow to continue to disrupt the campus?
1) The amount of force: To be perfectly honest, this is a question I’m wrestling with still. I think they could have pried them apart and separated them without chemical agents. Sean’s counterargument is that that leads to more injuries, not less, but I’m unpersuaded (especially because the accounts I’ve read indicate that the police had to do this anyway after the pepper spray didn’t accomplish the goal). If they had to use pepper spray, they could have used it from a greater distance or for shorter times. There’s insufficient data on a lot of this, but there’s case law that sustained, close-up sprays are excessive force (in part because, once a protester submits, they have to endure the chemical effects for a long time, and in some cases it has been linked to serious injury and death). I don’t think it’s universal law of the land, but there’s lots of support that you should be using pepper spray less invasively than what we see here. Also, why not use pepper spray sparingly, and then use more of it when it is ineffective? Start low, see what happens, and increase as needed.
2) Even the chancellor stops short of calling the protests disruptive. She even notes the peaceful and respectful nature of the protests. We can choose to discredit her statement if we want (I’m not particularly keen on taking her at her word in this case), but I haven’t seen general agreement that the protest was disruptive. I don’t mean to dodge your point, so I’ll go ahead and say that the university should take steps to prevent the protest from conflicting with other students’ right to learn. But the presence of tents doesn’t do that, nor does the camping element of it, and I haven’t seen evidence that this protest is any more disruptive than, for example, a daily rally (which would certainly be protected assembly/speech).