Reports Reveal Two New Scandals in the Pepper-Spraying at UC Davis

An official investigation suggests there was no legal basis for the raid on the students that day. Meanwhile, California public employee rules prevent the pepper-spray cop from being fired.

After Lieutenant John Pike discharged a thick cloud of pepper spray at a group of non-violent student protesters on the quad at UC Davis last November, he returned to campus police headquarters, where video of the incident was soon displayed on a nearby television screen. Said a suddenly concerned colleague, Dispatch Supervisor Leticia Garcia-Hernandez, as she watched the footage for the first time: "John, that looked really bad." She wasn't alone in thinking so. Almost immediately the video went viral, spread by digitally savvy Occupy Wall Street protesters and mainstream media organizations struck by the brutality of the scene. His identity quickly outed, Lt. Pike became a figure of infamy even as he took off as an Internet meme, his visage Photoshopped into iconic scenes where he'd invariably deploy his highly-pressurized pepper spray in the unnervingly casual, almost offhand way that he had against the undergraduates.

When would Lt. Pike be fired? That's what many campus activists, professors, and faraway pundits wanted to know. Some called for the university's chancellor and police chief to resign too. Administrators responded by promising a thorough, independent investigation, a pledge they kept. Last week, a task force chaired by Cruz Reynoso, a former associate justice of the California Supreme Court, released its report, along with a separate, independent fact-finding document assembled by Kroll, a consulting firm that specializes in investigations. Both reports set forth a scathing indictment of the university administrators who ordered campus police to remove protester tents from the quad; the hapless chief of campus police; and the officers who carried out her orders. The reports concluded with pointed recommendations for improving UC police protocol.

Press coverage has understandably focused on the culpability of UC leadership. "Report Faults UC Davis Administrators, Police In Pepper Spray Incident‎," NPR stated. "UC Davis chancellor says she takes 'full responsibility' in pepper-spraying case," the McClatchy/Tribune wire reported.

What's garnered less attention are two details about the controversy that are scandalous in their own right. One concerns a telling assumption that almost every single observer made as they watched the UC police action on YouTube or The Daily Show or the nightly news. The other concerns the fate of Lt. Pike, who seemed to act indefensibly in that viral video -- and in fact did, two exhaustive investigations found, though their fact-finding is surprisingly irrelevant to his fate.

 It Isn't Civil Disobedience If You're Not Breaking the Law

As Occupy Wall Street protestors camped out in parks, plazas, and other public spaces throughout the country, Americans became accustom to a familiar script: citing a threat to sanitation or public safety, municipal authorities would issue lawful orders for the protesters to abandon their camps by a certain deadline, after which police would be called to arrest them. Observers were divided about whether municipal authorities ought to keep permitting Occupy to camp or require their departure; and about whether resisting lawful orders was an act of civil disobedience in service of a larger moral point or an illegitimate exercise in posturing; but most everyone agreed that protesters were choosing to break duly enacted laws that had long been on the books.

Whether due to familiarity with previous Occupy coverage or the American tendency to trust police, almost every observer fit the altercation at UC Davis into the willful civil disobedience script: students were protesting by breaking the rules, and Lt. Pike used excessive force to respond. But the Reynoso and Kroll reports conclude that we were likely all wrong about that. The students had a right to be on the quad. Neither administrators nor campus police possessed clear, lawful authority to order their departure at 3 pm on a Friday afternoon. It turns out that the Occupy Davis protesters were following the law far more assiduously than the police forcibly dismantling their tents, spraying pepper into their mucous membranes and carting them off in flex handcuffs. And there's evidence that both administrators and campus police knew it!

Says the Reynoso report:

The police officers in charge of the police operation were uncertain as to the legal grounds for the action they were taking and consulted with University Counsel on the issue. Even on November 18, Police Department leadership continued to question their legal authority to remove tents during the day in order to implement legal prohibitions against overnight camping.

The Kroll report goes into more detail:

Despite the lack of clarity of the legal basis to remove the tents, the UCDPD operation plans for both November 15 and November 18 stated that camping was not allowed on campus and that tents would not be permitted... A few hours before the operation commenced, Chief Spicuzza, Lieutenant Pike and OfficerP sought legal advice regarding the laws that apply to camping on the UC Davis campus... This call was apparently placed because of the Lieutenants' continued concern over the legal basis for removing the tents, and the police operation was commenced only after this last-minute call.

The legal advice given in that call was kept secret from the independent investigators. But the Kroll report undertook its own analysis of the relevant laws, and found that each one cited by UC Davis administrators and police to justify their actions didn't apply. They failed to press "for a definitive legal assessment of the scope of its authority to order the removal of the tents," the report concluded. "Kroll has been unable to identify the legal basis for the decision of the Leadership Team to act against the protesters... It appears that the UCDPD mounted its operation absent the clarity of legal authority under pressure from the Administration to do something to get rid of the tents."

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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