Yolo DA won’t charge officers in UCD pepper-spraying

The Yolo County District Attorney’s Office will not seek criminal charges against the UC Davis police officers involved in last fall’s pepper-spraying of seated Occupy protesters on the campus Quad, concluding that the officers’ actions did not amount to unlawful conduct.

In a statement released Wednesday evening, Assistant Chief Deputy District Attorney Michael Cabral said the decision relied heavily upon the conclusions reached in the independent Kroll Associates investigation into the Nov. 18, 2011, incident.

While that probe found that Lt. John Pike’s use of pepper spray to douse seated, unarmed protesters was “objectively unreasonable,” Yolo prosecutors say the Kroll report also offers “some support for the officers’ determination that they were faced by a ‘hostile mob’ and that the pepper-spraying was necessary” for them to safely leave the Quad, according to a report summarizing the DA’s nine-month investigation.

Interviews with Davis police officers who were on campus that day, and with a use-of-force expert who participated in the Kroll review, also factored into the decision, according to Cabral. The DA report says prosecutors also had access to interviews with Pike and former UCD police Chief Annette Spicuzza, who retired in the wake of the worldwide controversy. Pike was fired in July by current Chief Matt Carmichael.

“In light of this additional evidence, and viewing the incident through the totality of the circumstances, there is insufficient evidence to establish proof beyond a reasonable doubt that the use of force involved in the … pepper-spraying was unlawful and therefore warrants the filing of criminal charges,” the report concludes.

UCD spokesman Barry Shiller declined to comment on the DA’s findings, as did representatives of the American Civil Liberties Union of Northern California, which represented 21 pepper-sprayed students and other protesters in their recently settled lawsuit against the university.

Alexis Briggs, a San Francisco attorney who provided legal aid to the Occupy UC Davis protesters who were arrested prior to the pepper-spraying, said the report “fails to justify or conclude that the specific force used was reasonable.”

“The images that have led the world to condemn the actions of UC Davis on Nov. 18 did so because they depicted the application of a type and kind of force that is objectively unreasonable and therefore criminal,” Briggs said. “As a former resident of Yolo County, I am deeply disappointed that the people of that county can no longer rely on their public officials to protect their civil liberties.”

Briggs also offered a statement from several of the pepper-sprayed students: “UCD police clearly have a profoundly chummy relationship with the DA’s Office. No matter the language it is cloaked in, the message is clear: Police are not subject to the very laws they supposedly enforce.”

The DA’s decision was reviewed by the state Attorney General’s Office, which on Wednesday sent a letter to Chief Deputy District Attorney Jonathan Raven saying that “no basis appears to place this matter in the category of unusual circumstances in which the decision of the elected local law enforcement official should be set aside as an abuse of discretion.”

On the Quad

UCD police had probable cause to disperse the Occupy encampment that had been erected on the campus Quad, and to arrest the 10 protesters who resisted the officers, says the report, though the DA’s Office later declined to file charges stemming from those arrests.

“However, after Lt. Pike gave the dispersal orders, the crowd continued to grow and it became more difficult to distinguish protesters from spectators,” the report says. As police prepared to escort the arrestees off the Quad, “the crowd closed in around the officers,” chanting “set them free” and “if you let them go, we will let you leave.”

“By watching the various videos of the incident, one could conclude that the protesters were attempting to free the arrestees from the lawful custody of the police” in violation of state law, the report says.

According to the Kroll report, released in April, video footage of the incident showed gaps in the crowd that allowed some officers to move in and out of the circle of protesters. At one point, only a few seated protesters blocked the walkway the officers intended to use.

But Yolo prosecutors say the officers were faced with three options: release the arrestees, take them in a different direction “and hope that the crowd did not follow,” or use force to move the arrestees on the intended path.

“(O)ne could infer that officers believed that their only viable option was the application of some level of force to clear a path so that they could exit the area with their arrestees,” the report says. The method: MK-9 pepper spray that was not on the department’s list of authorized weapons and for which officers had received little training.

Proof required

Whether the conduct of Pike and a second UCD police officer — identified by The Enterprise through photographs and university documents as Alexander Lee — was criminal requires proof of “two basic elements,” prosecutors say. It must be both willful and unlawful.

While the pepper-spraying was indeed intentional, “a conviction in this context requires proof beyond a reasonable doubt that the officer’s use of force was unreasonable and therefore unlawful,” the report says. “The reasonableness of a particular use of force is examined from the perspective of a reasonable officer on scene and not by the 20/20 vision of hindsight.”

Davis police officers, who were not questioned as part of the Kroll report, “described a scene of total chaos upon their arrival” and also were concerned about being surrounded by the crowd, the report says.

Prosecutors also interviewed Michael Hillman, a retired deputy chief for the Los Angeles Police Department and a member of the Kroll investigation team, who said while a review of the Nov. 18 events found Pike’s decision-making faulty, “when viewed at the moment of the application, and considering Pike’s state of mind, the force was reasonable.”

In addition to evaluating police conduct, the Kroll report was sharply critical of administrators, calling the campus’ decision-making “ineffective.”

Pike and Lee remained on administrative leave for eight months following the incident. Carmichael fired Pike in late July despite an internal-affairs investigation that urged only demotion or suspension. Lee’s employment with the university ended earlier that month.

Neither Pike nor Lee could be reached for comment Wednesday.

Last week, the UC Board of Regents voted to approve a settlement in the excessive-force lawsuit filed by the Occupy UC Davis protesters who were pepper sprayed or arrested on Nov. 18. Terms of the agreement will remain confidential until both sides seek approval for the deal in federal court.

— Reach Lauren Keene at lkeene@davisenterprise.net or (530) 747-8048. Follow her on Twitter @laurenkeene