Friday, September 14, 2012

UC regents OK financial deal with protesters in pepper-spray incident - Sacramento Bee

The University of California regents approved a settlement Thursday that provides financial compensation to 21 students and former students hit by pepper spray last November on the UC Davis campus, an incident that already has cost the university well over $1 million in legal, investigative and other fees.

Meeting in closed session in San Francisco, the regents agreed to a settlement that had been hammered out earlier in negotiations with a mediator. UC officials said they would not release details of the proposed settlement until it was filed in U.S. District Court in Sacramento, where the students filed suit in February.

The pact still must be approved by the court, but that is considered a formality. The settlement allows UC Davis to avoid a civil trial, which would have prolonged publicity of an episode that has proved a major embarrassment to university officials.

The Nov. 18 incident sparked widespread outrage after videos of UC Davis police officers pepper-spraying students seated on the campus quad went viral on the Internet.

Several investigations were launched, including one still pending in the Yolo County District Attorney's Office and another that resulted in the release Thursday of a 158-page report on how UC campuses can improve their response to protests.

The two UC Davis officers identified as using the pepper spray â€" Lt. John Pike and Officer Alexander Lee â€" no longer work for the department. In addition, Chief Annette Spicuzza retired in April after an independent panel issued a blistering report on her management of the department and the incident.

Officers pepper-sprayed the students during a protest against rising tuition costs. Some demonstrators had erected a tent encampment on the university quad, and police were sent in to remove it.

Chancellor Linda P.B. Katehi has apologized for the episode, saying she would not have authorized breaking up the demonstration had she known force would be used.

UC Davis has sought to keep some details of its internal inquiries into the incident confidential. But emails, memos and other documents obtained by The Bee reveal the extent of the school's efforts to handle the demonstration.

Internal emails obtained by The Bee indicate that school officials were still debating late into the evening before the pepper-spray incident on how to proceed.

One 7 p.m. email from Michael F. Sweeney, the UC Davis senior campus counsel, offers an analysis of various laws that could be used to justify removing the student encampment with a sweep at 3 a.m. and indicates that officials sought input from Yolo County Chief Deputy District Attorney Jonathan Raven.

"If he/she fails to disperse after a dispersal order, he/she is in violation of PC 409," Sweeney wrote, then added in boldfaced type: "I ran this analysis by the DA's office (Jonathan Raven), and he stated that my analysis was 'technically correct,' although he wasn't particularly impressed by the crime."

The documents also reflect a decision in January to redact Pike's report on the incident and remove the original copy from police files.

Copies of the original and redacted version obtained by The Bee indicate that the new UC Davis police chief, Matthew Carmichael, blacked out a sentence from Pike's report involving advice university lawyers gave in a phone call about the legality of the efforts to remove the demonstrators.

At the time, university officials were debating whether to move against the encampment before dawn or to remove it in the afternoon. Katehi subsequently ordered the operation to take place at 3 p.m.

"Campus legal counsel acknowledged that there was sure legal standing to conduct the operation during the afternoon hours, but there was greater legal standing to conduct the operation in the early morning hours," Pike wrote in his report.

Carmichael attached a memo dated Jan. 3 explaining that he had removed some language "to protect these (attorney-client) communications from inappropriate disclosure." A university spokesman said Thursday that Carmichael acted at the direction of UC Davis lawyers to protect attorney-client privilege.

In the memo, he added, "I have removed the original of Lt. Pike's report from the Police Department files and have given the original of the report to University legal counsel."

The redaction is referred to in a report by Kroll, the firm brought in last year to aid an investigation into the incident by an independent panel headed by former state Supreme Court Justice Cruz Reynoso. The Kroll report notes that its investigators were never given the information by campus counsel.

"It is unknown what specific legal advice was given in that call; it has been redacted from Pike's Supplemental Narrative Report and was not provided to Kroll investigators in correspondence from Campus Counsel," Kroll wrote.

Kroll also noted that UC Davis officials would not say whether they had sought legal advice from the DA.

Carmichael was acting chief at the time, and was appointed to the job permanently in April. Pike was fired July 31 after Carmichael concluded that the "manner in which you used the pepper spray showed poor judgment."

His decision to fire Pike came despite an internal investigation that concluded Pike had acted reasonably given the situation.

Students and supporters of the police have been divided over whether officers faced any threat that day that required the use of pepper spray. Pike's report provides the greatest detail to date on his version of how events unfolded and the situation officers faced when he decided to deploy the pepper spray.

"The mob encircled the officers on the quad," he wrote. "Four to five people deep surrounded us in some areas of the circle. Several hostile chants were heard coming from the crowd."

"Within moments," he continued, "the crowd and mob mentality of the moment became even more belligerent and worrisome. I received information that a couple of male subjects in the crowd were seen holding and passing out rocks. I ordered the officers to draw their batons."

Pike added that the crowd's chants of "If you let them go, we will let you go" concerned him. "I did not believe we could safely exit the circle with our in-custody arrestees without further confrontation with the crowd," he wrote. By then, Pike wrote, he had warned demonstrators several times to disperse.

"The event had rapidly evolved from a situation wherein our initial goal to remove the tents was accomplished and the need to remove us from the scene was increasingly more apparent and perilous," he wrote.

At that point, Pike wrote, he turned to another officer, Lt. Barry Swartwood, "and discussed with him the use of the pepper spray. I considered other force options within the continuum and evaluated what was at my disposal."

He said he concluded that the use of batons, pepper spray balls and other devices "could have led to serious injuries to suspects and officers."

"The pepper spray was the tool at the time I believed to be most appropriate for conducting the necessary action needed to secure the arrestees and remove us from the confines of the mob," he wrote.

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Call The Bee's Sam Stanton, (916) 321-1091.

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