The UC Davis Pepper Suit

by Dan Bacher, February 29, 2012

Clips from a video that showed a UC Davis police officer pepper spraying protesters.

The inevitable lawsuit contesting the brutal pepper spraying of UC Davis students last fall was filed on Wednesday, February 22.

Seventeen students and two recent graduates, represented by the ACLU of Northern California and cooperating attorneys, filed a federal lawsuit against UC Davis over the University’s treatment of protesters during a November 18 demonstration.

In a now-famous video that went viral on the internet, University police were caught dousing seated protesters with pepper spray. The video has become a symbol of the police brutality imposed upon Occupy Wall Street protesters by police forces throughout the country in a national crackdown coordinated with the Department of Homeland Security and other federal law enforcement agencies.

“The lawsuit seeks to determine why the University violated the demonstrators’ state and federal constitutional rights and seeks to result in better policies that will prevent repetition of such response to a non-violent protest,” according to a news release from the ACLU of Northern California. “The lawsuit charges that Administration officials and the campus police department failed to properly train and supervise officers, resulting in series of constitutional violations against the demonstrators.”

UC Davis spokesperson Barry Shiller said in an email that the campus could not comment on the lawsuit's details.

“Attorneys for the university and the plaintiffs have been talking,” Shiller stated. “We hope those conversations continue. In the meantime, we’ve not seen the lawsuit and therefore aren’t in a position to comment on details.”

On November 18, students gathered in the quad on the UC Davis campus to demonstrate against ongoing tuition hikes, as well as against recent brutal treatment of demonstrators at UC Berkeley. UC Davis campus police arrived in riot gear, and officers threatened students, who were seated on the quad in a circle, and ordered them to disperse, according to the ACLU.

“When students remained seated to continue their demonstration, a UC Davis police officer repeatedly sprayed the line of protesters with pepper spray at point-blank range, while scores of other officers looked on. Another officer sprayed the demonstrators from behind. The seated students posed no physical threat to the officers. Pepper spray has excruciating effects that can last for days,” the ACLU stated.

Lawsuit says 'unacceptable and excessive force' used on students

The lawsuit said the University’s response to seated student protesters amounts to “unacceptable and excessive force that violates state and federal constitutional protections,” including the First Amendment to the U.S. Constitution.

“The University needs to respect students’ rights to make our voices heard, especially when we’re protesting University policies that impact our studies,” said Fatima Sbeih, a student plaintiff who was pepper sprayed after joining the demonstration on the quad after returning from afternoon prayer.

Sbeih had previously been a volunteer paramedic and afterwards helped tend to other demonstrators who were in pain.

“This was my first demonstration,” said David Buscho, another plaintiff. “So many of my friends can barely make ends meet and then another tuition hike was proposed. We had no idea there would be police in riot gear or that we would be pepper-sprayed because we were making our voices heard.”

Buscho, a Mechanical Engineering student, said he was in searing pain and had trouble breathing after being pepper-sprayed directly in the face.

“Using military-grade pepper spray and police violence against non-violent student protesters violates the constitution, and it’s just wrong,” said Michael Risher, staff attorney at the ACLU of Northern California, and one of the attorneys for the plaintiffs. “When the cost of speech is a shot of blinding, burning pepper spray in the face, speech is not free.”

“The University needs better policies on how it deals with protests and protesters, said Mark E. Merin, one of the attorneys for the plaintiffs. “Students deserve to know what went wrong and how this could be allowed to happen. They want to make sure it never happens again.”

Documents subsequently received from the University of California indicate that the pepper spray used was military grade and, based on manufacturer instructions, should be used from a minimum of six feet away – much farther than the close range at which the students were sprayed, according to the ACLU.

The suit was filed in the United States District Court, Eastern District of California. The plaintiffs are seeking a jury trial, injunctive relief and damages. In addition to Risher and Merin, attorneys working on the suit are Alan Schlosser, Linda Lye and Novella Coleman for the ACLU-NC, as well as Meredith Wallis.

Al Rojas: State Attorney General needs to conduct full investigation

Al Rojas, a longtime civil rights and pro-democracy activist and one of the founders of the United Farmworkers Union, applauded the announcement of the lawsuit, but said the lawsuit must go further.

“Good for Mark Merin and the Northern California ACLU!” said Rojas. “Finally, somebody is listening. However, the real question is what was the FBI's relationship with UCD Chancellor Linda Katehi.”

In 2010, Katehi joined an “elite team” of twenty college presidents on the “National Security Higher Education Advisory Board,” a committee that “promotes discussion and outreach between research universities and the FBI, according to Dave Zirin in the Nation magazine.

Rojas said what is needed is a full and thorough investigation by the State Attorney General's Office, since they have state jurisdiction, asking the following questions:

• “Did Katehi participate as an FBI Committee member?

• Did she allow UCD staff to spy on student activists on campus during the student surveillance scandal last year?

• What exactly happened during this surveillance and how was the information used?

• Where is this information now?

• What did Katehi receive inkind from the FBI for this information??

• How many meetings took place with the FBI?

• Why did Chancellor Katehi allow UDC student surveillance?

• Was there a possible violation of the civil rights of students? If this is found to be true, Katehi must be held accountable and fired,” Rojas concluded.

Rojas emphasized that UCD is the same University that accepted $25 million to build the Robert Mondavi Arts Center from a wine company, Mondavi, that denied farm workers the right to join a union and paid low wages.

He also noted that UCD is the same university that assisted a private company in the development of the electronic tomato harvester in Yolo County in 1974, a move that displaced tens of thousands of farm workers in order to break the United Farm Workers Union strike in 1975.

Campus officials conducted surveillance, infiltration of students

Last spring, internal UC Davis emails revealed surveillance and infiltration tactics employed by campus officials during campus tuition increase protests.

A Public Records Act request by a UC Davis Student resulted in the release of 280 pages of documents that disclosed a surveillance and infiltration program by university officials to monitor, and shape the protests, and also the narrative reported by the news media, according to the ACLU of Sacramento County.The request was made by student Bryan Sparks for documents dating from July 1, 2010 through December 6, 2010.

“The Sacramento Chapter of the ACLU is extremely concerned about what appears to be violations of the free speech rights of students at the University of California, Davis during fee hike protests,” according to a joint statement by the ACLU in Sacramento and Yolo counties on April 11, 2011.

“The documents reveal high-ranking administrators, and staff members, and leaders of the campus police department formed a network called the 'Activism Response Team' to keep close tabs on student activists, including monitoring student Facebook activity, infiltrating protests and attempting to obtain information about 'anticipated student actions,' and individuals involved in the protests,” the ACLU stated.

In one case, a campus police officer marched with students in plain clothes and refused to identify herself as a member of the UCD police department, according to the ACLU. UC Davis officials apologized, claiming it was a “mistake.”

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