An achingly rational approach to the UC Davis pepper spray incident
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From a November 19th UC Davis press release:
Ten protesters were arrested Friday afternoon after they refused an order to dismantle their tents from the Quad. Pepper spray was used during the incident.
I wanted to get the thoughts on the UC Davis pepper spray incident of someone who has been involved in working with local police on use of force issues, so I emailed Champaign resident Steve Holy, who is a martial arts instructor at his own Guardian Dragon Dojo, and who was an adjunct faculty member at the University of Illinois Police Training Institute between 1999 and 2004. During his time at PTI, he was active in training recruits from all across Illinois in Control Tactics, Nightstick/PR-24, and Pepper Spray. This training also included the Use of Force Scale as adopted by PTI.
I posed Holy the following question:
The most succinct way I can come up with to describe what actually happened in the incident is this: pepper spray was used by UC Davis police officer Lt. Pike on students who refused to leave a walkway.
Based on that and anything else you might know of related events and circumstances, do you feel that Lt. Pike acted appropriately in this incident?
Steve Holy responded:
Let me first say, this is just my opinion. I am not an “Expert” and this is not to be considered any type of legal advice; it is only my opinion.
The question posed: Do I feel that Lt. Pike acted appropriately in the UC Davis incident involving the use of pepper spray? The incident was videotaped and has been shown numerous times in a variety of media. In the video, protestors are seated with their arms interlocked. They did not disperse after being told to do so by police officers. One police officer, Lt. Pike, has a large crowd control sized can of pepper spray and sprayed the protestors with a continuous stream of pepper gas at a very close distance. It is his conduct that I have been asked to render an opinion on with respect to appropriateness.
The short answer is no.
The incident must be analyzed considering the Use of Force Scale. The purpose of this Scale is to provide acceptable guidelines for conflict resolution; it is meant to be fluid and not static. As circumstances change, the scale also must change to remain balanced. When the scale becomes unbalanced, there is the potential for excessive use of force, similar to what happened to Rodney King.
Familiarity with the Use of Force Scale is required prior to analyzing the appropriateness of the UC Davis pepper spray incident. The Use of Force Scale that I teach to my karate students is broken down into 5 Levels, Level 1 being lowest and Level 5 being the highest (This is not a legal or official definition and is for informational purposes only ― think: Use of Force Scale Made Simple):
- Level 1 – White – Compliant Person: Compliant to verbal instructions or commands.
- Level 2 – Yellow – Passive Resistor: Resisting with only dead weight or a limp body, no aggressive action.
- Level 3 – Orange – Active Resistor: Still only resisting but adding muscle tension to the resistance.
- Level 4 – Red – Aggressive Attacker: Switching from resisting to attacking. Turning aggressive, trying to strike, etc.
- Level 5 – Black – Deadly Force Attacker: Attacking in such a way that it could cause fear of death or great bodily harm. Using a weapon, etc.
Using this scale, it’s time to analyze the UC Pepper Incident.
Analyzing the protestor’s actions:
-
White (Compliant): Were they compliant?
No, they refused to leave. -
Yellow (Passive Resistor): Were they a passive resistor?
No, they were not just using dead weight, or limp bodies to resist; they maintained their interlocked arms. -
Orange (Active Resistor): Were they an active resister, was muscle tension involved?
Yes, they maintained interlocked arms, requiring muscle tension. -
Red (Aggressive Attacker): Were they an attacker?
No, they were not attacking, only resisting. -
Black (Deadly Force Attacker): Was there fear of death or great bodily harm?
No, they were not attacking, only resisting; there was no fear of death or great bodily harm to the officers.
Now, it is clear that the protestors’ actions fall at Level 3 – Orange – Active Resistor.
Next, the police’s response to the protestors’ actions must be considered. (Looking for a balanced response).
First the use of pepper spray is usually determined by the individual police department’s policy. When I was at PTI, we taught pepper spray at Level 3 – Orange – Active Resistor. However, at that time, the Decatur Police Department authorized the use of pepper spray at Level 2 – Yellow – Passive Resistor. So pepper spray usage can vary from department to department. Here, UC Davis Police Department’s policy for the use of pepper spray is unknown.
For the sake of this article, let’s assume that pepper spray is authorized at the higher level, Level 3 – Orange – Active Resistor. This is the level of the protestors’ actions at UC Davis. So, at first glance it would seem that the scale is balanced, thereby justifying the officer’s use of pepper spray, but this is only part of the picture. To analyze further, introduction of some “Reasonable Concepts” into the analysis process is required to complete the picture.
The Reasonable Concepts are:
- Reasonable Person: What would a reasonable person do in the exact same situation knowing the exact same information?
- Reasonable Perception of the Suspect’s Action: What is the reasonable perception of the protestor’s actions?
- Reasonable Response to the Perceived Action: What would be a reasonable response to the perceived actions?
- Reasonable and Necessary Force: Was the force used reasonable, and more importantly, was it necessary?
The most important question and factor is the last one; that is, was the force used reasonable & necessary?
Was the force used reasonable? By establishing that the scale is balanced, with both the protestors’ actions and the use of pepper spray at the same orange level, one can properly conclude that the force used was reasonable.
But was the force used necessary? In order to answer that, the method of deployment or how the pepper spray was used must be analyzed.
Normally, the accepted way to deploy or use a personal size can of pepper spray (like an officer would carry on his or her duty belt) is:
- A single 1–2 second burst.
- From a distance of 3’ or greater.
Here, the UC Davis officer possessed and used a large crowd control size can of pepper spray and sprayed the protestors with a continuous stream from a very close distance.
The crowd control size can disperses a much larger amount of pepper spray and also has a much greater range than the small personal size can. The large can is intended to be used in crowd settings, which is significantly different from the personal size can intended for use on an individual. Because of these different sizes and intended uses, there should be a drastic change in deployment methods when using a crowd control can on an individual, if at all. Here the officer did not use the deployment method for use of pepper spray on individuals as indicated above and misused the pepper spray. His misuse was compounded even further by failing to compensate for the intended use of the larger crowd control size can when he started spraying the protestors. This caused an imbalance in the Use of Force Scale. This was not so much that pepper spray was used, but rather, how it was used.
This leads back to my short answer: No, I don’t feel that Lt. Pike acted appropriately in this incident. I think that the situation was severely mishandled. What I hope comes out of this incident, is that UC Davis will re-examine its Use of Force Scale, increase officer training in the proper use of pepper spray, and create new policies what will prevent this type of incident from happening again.
I would also like to comment that the police have a very difficult job, and face many situations that most civilians will never have to face; they really do lay their life on the line for us every day. Not all police officers are bad, but I think this shows that we need to provide consistent and proper training for our police officers.
6 comments
Local Yocal
What a load of apologetic shit. While Holy’s conclusion is correct, Lt. Pike’s behavior was inappropriate, the use of force scale and Holy’s interpretation of the student’s actions of “interlocking arms” as an “active resistor” misses the point about what pepper spray is. Pepper spray is a very painful offensive weapon. So we have to ask, did the students deserve painful force? At what point are officers allowed to inflict painful force?
Training and definitions offered by Holy reveal there has been a 30-year disconnect between the militarized police training and citizen’s expectations. Police have been trained that mere “non-compliance” to an officer’s verbal orders are sufficient for officers to inflict pain. The definitions of this “non-compliance”
can be interpreted through Graham v. Conner as “anything the officer perceives at the time.” Thus, officers have learned to falsify their police reports later to justify their uses of force. “I felt my safety was in danger when the defendant raised his voice” and boom: out comes the pepper spray.
It’s now time to take back the training standards from ambiguous teachers like Holy, who provide broad interpretations and a poorly understood concept of what force is. Officers need far better standards than what Holy provides when it’s decision time on whether to inflict pain on citizens. Thanks to this article, I now understand why young 20-somethings have become robotic thugs on the street- it’s the very brief, ambiguous training they get provided by guys like Holy. Perhaps Holy needs to be pepper sprayed to better understand what the UC Davis video is about.
@Local Yocal
As someone who supports the Occupy movements, it is very tempting to indulge in the symbolism of this incident. By all means, if this can be a rallying cry for further activism, it should be used. But if we are going to look at this on a micro-level, I think we have to be careful.
Without getting into a huge back and forth of the entire issue, I do wonder - what would I want the police to do if there were someone in my home who latched onto some grippable surface, and refused to leave.
If the trespasser could be dragged or carried out easily - that should be the first step. But when they actively prevent that option by holding onto something, what should the next step be? Pepper Spray seems a reasonable choice.
Keep in mind I’m not just going to let them stay in my home until they starve, so a solution needs to happen. If pepper spray is the next smallest action that can get compliance, why not do it?
I think the point that how the pepper-spray was used is fair. There’s a reason different levels of tranquilizers are used for different creatures. And it seems like Pike used the Elephant-Sized can on humans in error.
Now, whether you agree that the students were trespassers on the campus, whether the application of the pepper spray was incorrect - the underlying question is: is pepper-spray justified when a trespasser refuses to leave, and prevents you from carrying him off?
I think it is.
My only problem with the above comment is that your home is not a public place. But that’s nitpicking your example. I understand from the remainder of your comment the semi-validity of both sides, but make no mistake - I am 100% with the peaceful occupiers.
Local Yocal
@”@LocalYocal”:
“If the trespasser could be dragged or carried out easily…But when they actively prevent that option by holding onto something…. Pepper Spray seems a reasonable choice.”
If searing pain seems reasonable to you to handle a trespassing, then I guess that’s how we want to be policed. But really, you open pandora’s box with such an example. Trespassing somebody’s private property is something entirely different than a public demonstration at a public university on public property. I wouldn’t change the circumstances and just deal with what’s on video.
You’d think by now that officers would have had the training to deal with interlocking arms, were it really necessary to remove those students. First step, is to make a reasonable determination as to how necessary it was to remove the students in the first place. Nothing can replace a reasonable brain, before deciding to go to painful force. The use of tasers and pepper sprays is the lazy form of policing, and no one has ever been allowed to vote on whether this is the way we want officers to resolve EVERY single conflict and so quickly every time. There used to be something called “verbal judo” the police were trained on, but anymore, they are merely trained to be first on the draw with force without warning. I wouldn’t call the police to my own beating anymore, it would just make things worse.
@Local Yocal
If searing pain seems reasonable to you to handle a trespassing, then I guess that’s how we want to be policed.
Well, I think as stated in the OP, how such weapons are used is important. For me, (and sidebar on the disagreement of trespassing vs. civil disobediance being a valid point) - but, for me, I see the escalation as the following:
1. Verbal Attempt (Talking down, requesting to leave, verbal judo, etc)
2. Passive Attempt (Can the person be simply led or carried away without harm)
3. Minor Invasive Action (Pepper Spray to subdue or encourage compliance - I’d actually rate pepper-spray before tazers because of the risk of heart issues in the latter)
4. Invasive Action (Bodily Contact - Control Tactics, Joint Locks, etc)
5. Major Invasive Action (Weapon use - nightsticks, teargas, riot equipment)
6. Deadly Invasive Action (Shots fired)
I’m curious, Local Yocal, how you’d rate your own list. Like I say, for me I’d say Police should be trained to get the job done by the Invasive Action level (Pain, but no breaks, no bleeds). And shouldn’t be encouraged to go past that use of force for trespassing.
But, at any stage of the above, there is room for abuse. The officer who comes in and simply shouts, “Okay fucktard, off the poperty now!” isn’t really utilizing approproate Verbal Judo. Just as it can be said Lt. Pike did not utilize an appropriate application of Pepper Spray.
But that’s a far cry different then saying Pepper Spray should never be used. I think it is important to focus on the specific details, so that future issues such as these have precedent to build on. If we just lump the whole thing as one big abuse of authority on all levels, it doesn’t give us the capability to understand the nuance of social-security responses.
Local Yocal
@”@Local Yocal”
Well, the first question is why the municipalities across the country needed to use the police to violently overthrow the Occupy encampments in the first place. I’ll let others explain that, for I have no answer.
So upon receiving the request from Chancellor Katehi to remove the student protestors, the police had choices. They always have choices. It’s routinely called “officer discretion” and is often used to explain everything whenever the police choose not to enforce the law. The police, particularly in California, know well what kind of risks are to officer safety when confronting a large political crowd.
Smart community policing assesses the need to enforce a particular law.
Here we have an ongoing political protest on a university campus.
Officers need to ask:
1) are the student protestors preventing or hindering employees or students from attending their classes or performing their duties?
2) Are the student protestors threatening the physical safety of employees or other students on the campus?
If not, then smart community policing would inform Chancellor Katehi that in the interest of officer safety, the police department will not enforce trespassing violations en masse against the student protestors. It is recommended that the University provide garbage bags, trash cans, and port-a-potties for the sake of public health. Officers will monitor the protest for individual violations of the law in the event of violence and vandalism. Littering, smoking pot, drinking alcohol and consensual premarital humping under blankets would be a low enforcement priority and handled on an individual basis in the event it is notorious and disruptive to the general peace.
Any forceful removal of the student protestors en masse will be conducted only by order from the Attorney General of
California or the Governor of California.
Chancellor Katehi could suck up and shut up from there.
In the bizarre event that the Governor or Attorney General ordered the entire removal of the UC Davis protestors, officers could utilize the following techniques, some they deployed, most they didn’t.
Numerous officers would be deployed, wearing full protective gear. Check, they did this.
A command officer with actual people skills, would address the crowd by megaphone with a repeated message three times:
“We have been commanded by the Attorney General of California to remove all of you from trespassing on university property. You are now ordered to disperse. If you choose to leave now, you will not be arrested. If you do not choose to leave, three officers will come to arrest you. If you resist by using interlocking arms, officers will deploy control hold measures on your hands and wrists. These holds can be painful and you are advised to not resist the officers’ actions. We do not wish to hurt you. If you leave now, you will not be arrested. If you choose to be arrested, do not touch the arresting officers. If you touch, grab, or hit an officer during the course of your arrest, you will either be struck with batons, or pepper sprayed. You have five minutes to decide what will happen.”
Repeat that message three times. In light there were only 12-14 interlocking students seated before the officers, they could have delivered the message individually to each student before action commenced.
Then post two officers with video cameras to carefully videotape each arrest so any resistance can be documented and officers would be justified by camera as to what happened. If we saw a student strike an officer or deliberately touch an officer, then the nation would have seen a justified pepper spraying, instead of the casual wanton infliction of pain we were treated to. Pepper spray would only be used in the event officer safety was in jeopardy.
But control holds would have been deployed first by three officers on each student. It would have worked, and the amount of pain inflicted would have been determined by how much resistance the individual student decided upon. If you ever had your arm, wrist, and hand worked by one of these control holds you would know it doesn’t take a whole lot to decide you will be letting loose of your neighbor’s arm in short order.
It’s still an unfortunate kind of policing made by a bad decision at the top. Chancellor Katehi is to be blamed first. The entire action was completely unnecessary.
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