November 20, 2009: Review, Reflection & Recommendations from the Police Review Board

The following is the introduction to and summary of UC Berkeley’s Police Review Board report on the events of November 20, 2009. To see the response from Chancellor Birgeneau, Associate Vice Chancellor Ron Coley and UCPD Chief Mitch Celaya, see the main report page.

Introduction: Setting the Expectations Stage

They say hindsight is 20/20. They’re wrong.

Download the full report (128 pages, PDF)

The purpose of this report is not to identify with certainty all the actions by all of the actors who played some role in connection with the demonstrations on November 20, 2009. That is impossible. It would be impossible even if all of the tools of civil litigation were masterfully deployed for years — and then all of the admissible evidence were submitted to a mentally and morally perfect jury. Certainty about the historical facts would be an even greater pretense in a report like this — unsupported, as is appropriate, by use of even the basic tools of civil litigation.

Members of the Police Review Board in 2010

  • Wayne Brazil, Berkeley Law, Chair
  • Nilima Bhatia, Staff Representative, Deans’ Office, College of Letters & Science
  • Michael G. Harris, Professor Emeritus, School of Optometry
  • Jennifer Lewis, Graduate Assembly Representative
  • Ronald Nelson, Retired Chief of Police, City of Berkeley
  • William Oldham, Professor, Electrical Engineering and Computer Sciences
  • Fran Packard, Community Representative
  • Waseem Salahi, ASUC Representative

Executive Staff Assistant to the Board: Rita Gardner
Independent Investigator for this Report: Sarah Weinstein, Attorney at Law

The inaccessibility of certainty, however, is not fatal to our mission. Our mission, as an agent of a University, is not to judge, but to contribute something to learning. Learning, in settings like these, is best advanced dialectically. And the dialogues that are likely to yield the richest and most reliable learning are not binary. Instead, they are multi-dimensional — informed from a wide range of divergent sources.

We hope to be one such source. We strive to be as objective, balanced, and thoughtful as possible — but we want no one to assume that we want ours to be the last word. Rather, we want our words to be part of a continuous process of engaged reflection from all interested quarters — a process that began before we began and that should continue long after our work is done.

To make our contribution to productive dialogue, we have striven not to be definitive about all the details, but to identify the events, developments, and decisions that seem to have affected most the way the story unfolded — and in which we see the most promising opportunities for learning.

Given the limitations of our process, and the complexity of the events we have been asked to chronicle, we make no attempt to isolate for blame individuals, individual acts, or individual decisions. The events of November 20th were not linear and were not the product of any one hand — visible or invisible. They did not evolve — at least if that word connotes direction. Rather, what happened on the 20th, probably at every major turn, was the product of a host of divergent forces and factors bouncing and playing off one another in complex, unpatterned and unpredictable ways.

Nothing was unitary. The students who occupied Wheeler Hall apparently were divided and could not foretell their own course of action. The composition, size, mood, and objectives of the multi-dimensional crowd outside Wheeler varied from corner to corner of the perimeter and were in virtually continuous flux. There were many changes over the course of the day in the size and composition of the law enforcement contingent, as well as in its composure and sense of direction. Within the civilian Administration, the flow of information was variable and uneven, impressions and reactions took many shapes, and the locus of responsibility for decision-making seemed mobile and uncertain.

In a setting this complicated and changeable, to attempt to pass definitive judgment would be hazardous in the extreme — both intellectually and morally. It also would divert us from the main chance — which is learning. It is to that task that we have devoted our work.

We have been asked not only to recount events, but also to try to assess dynamics and formulate recommendations. Meeting these responsibilities necessarily creates a risk that we will sound patronizing — that it will appear that we neither appreciate what our readers already know, nor understand all the pressures and obligations that affect their actions and decisions. We mean to be patronizing to no one. We pretend to understand nothing fully. We are not perfect — in determining facts, in understanding events or actions, or in any other way. We do not expect others to be perfect. What we hope for, in ourselves and others, is openness to learning.

In the process of developing the information base for our Report we have met and developed considerable respect for many of the people who were involved in the events we have chronicled. In some instances, our analyses and recommendations may seem critical of some decisions or courses of action by some of these people. We hope they understand that our respect for them remains fully intact and that we do not for a minute suggest that the acts on which we comment are ‘representative’ of how they meet the multiple, varied, and heavy demands of their jobs. We know that they appreciate that it is only by thinking independently, and by explaining honestly what we have concluded, that our work can contribute to reliable learning.

Executive Summary

Toward an Integrating Understanding of the Day

In this Report the Police Review Board describes and analyzes the events of November 20, 2009 — the occupation of Wheeler Hall, the demonstration in support of that occupation, and the responses by the police and the Administration.

For much of the day, the dynamic between police and demonstrators was non-violent. But on several occasions restraint collapsed, on both sides, and things got ugly. While one purpose of this Report is to describe what happened, the larger goal is to learn. What kinds of things could have been done differently? And what steps might be taken so that, in the future, occasions like this have a more handsome story line?

To address these questions intelligently, it might help to have ‘a theory of the case’ — an integrating understanding of the principal drivers of the day’s events. While many such ‘integrating understandings’ are possible, we will describe the two that seem most compelling.

The first of these two ‘theories of the case’ focuses primarily on the police and the Administration. Through this lens, it might appear that miscalculations, missteps, and inaction — by both the police and the Administration — converged to convert an animated but essentially non-violent protest into a raw power struggle between demonstrators and police. Under this theory, it was primarily a series of over-reactions by insufficiently supervised police — over-reactions that degenerated into dramatic uses of force — that first inspired, then intensified, fears in the demonstrating crowd about what the police would do to the barricaded protestors when they forced entry into the second floor of Wheeler.

These fears, in turn, intensified the crowd’s physical resistance to efforts by police to shore up the apparatus of control and to bring in reinforcements. And students on site were able to use inflammatory images of confrontations between police and demonstrators (shared electronically) to induce more students to join their ranks. Late in the day, before the occupiers were released, tensions outside Wheeler had mounted to literally dangerous levels.

If guided by this understanding of things, the campus’ longer-range responses to November 20th would focus on ways to improve administrative and police practices.

A second ‘theory of the case’ focuses first on the protestors. They were a heterogeneous lot, but consisted for the most part of students who generally were inclined to be civil. These students, however, were very upset about increases in the cost of their education and about how the Administration was responding to budget cuts. Most of these demonstrators were young, sincere, and emotionally mobile.

There was a smaller group in their midst that was less concerned about means than ends, a group that was looking for ways to tap the power inherent in the emotions of the majority. In this version of the story, this smaller, more calculating (but perhaps no less sincere) group set out to instigate confrontations with the police — to engineer challenges to their authority and to erect obstacles to their plans in order to provoke them into high-visibility over-reactions that could be used to inflame the crowd and escalate its aggressiveness.

Under this second theory of the case, the campus’ long range responses to November 20th would focus on ways to equip the larger group of civilly inclined students to remain independent and less responsive to the appeals and maneuvers of the smaller group of less retrained activists.

These two different ‘theories of the case’ are not mutually exclusive. At important junctures, they intersect and overlap. We are inclined to believe that there is some truth in both of them — and that it was the convergence of factors and forces from both story lines that proved so potent.

Shifting gears, we offer one additional integrating perspective on the events of the 20th. For this purpose, we use a spatial metaphor (acknowledging its analytical limitations). After studying the roles of the demonstrators, the police, and the Administration, we realized that, on November 20th, all three shared one significant and dysfunctional characteristic. In ways we detail in our narrative, each of these groups was ‘center-less’ for much of the day. To the extent this characterization is accurate, the shapelessness of the story, and the virtual randomness of some of the actions by which it was marred, can be understood as byproducts of the interplay (sometimes collisions) between three center-less spheres.

Principal Lessons and Recommendations

What are the principal lessons that our study of November 20th has suggested? What recommendations do we make? A comprehensive list would be too long for this kind of summary — so we distill here into a few major points the longer and more detailed list of suggestions that we present in the penultimate section of this report. Gluttons will find more food for thought imbedded in our ‘narrative’ of the 20th, as well as in the separate section of this Report that discusses the Police Department’s “Operational Review.”

The Administration on November 20th

As it already understands, the Administration’s response to the unfolding events on November 20th was, in important respects, center-less. Its planning for the three-day strike was far too generalized to be helpful. Even though there were reasons to worry that protestors might occupy a building, the planners prepared no specific strategies for responding to such a development. Relatively little thought was given to the advisability of activating the Emergency Operations Plan, or using the Emergency Operations Center, to improve communication or to coordinate responses.

On the 20th, the civilian leadership was misled (not intentionally) by unduly optimistic projections by UCPD — in part because the Administration failed to ask probing questions about plans and circumstances.1

Thereafter, the Administration’s response to the occupation and demonstration suffered badly from infirmities in the flow and inaccuracies in the content of incoming information. There was no reliable system for gathering information independently, or for effectively sharing accurate information with the campus community. While some players on the civilian side knew that they were not getting all the information they needed, no one made sufficient efforts to determine whether the Administration, at highly credible levels, needed to play a much more active and visible role in responding to the demonstration and in communicating with the barricaded students, their supporters outside Wheeler, and the police.

There were many reasons to believe that the vast majority of the barricaded protestors, and of the demonstrators outside Wheeler, were students. The Administration remained concerned, however, that “labor agitators” were playing key roles — even though its own Human Resources staff had concluded that unions were not directly involved. Thus, even information that was available from sources within the Administration did not reach key decision-makers in California Hall.

Had the Administration known that it was dealing mostly with students, perhaps it would have been proactive. As it was, the Administration took virtually no initiative — even after it learned late in the morning that the police could not keep their earlier promises and the situation around Wheeler was deteriorating badly.

In the afternoon, after the Administration was prodded by students into involvement, it focused its efforts to communicate on the protestors who had barricaded themselves inside Wheeler, devoting too little effort and imagination to trying to communicate with the much larger and more volatile group of demonstrators outside Wheeler. The failure to communicate effectively with the crowd created the mis-impression that the Administration didn’t care about or respect the students’ sincere emotions about the issues. That mis-impression fanned flames of anger.

Recommendations for the Administration

  1. In a written policy that is developed specifically for responding to group acts of civil disobedience, set forth clearly the allocation of authority and responsibility between the civilian Administration and UCPD.
  2. Develop detailed protocols for responding to group acts of civil disobedience. Specify the roles to be played by the Administration (various units) and UCPD; as part of such protocols, establish rules and provide redundant tools to assure prompt and clear communication between the civilian decision-makers and the police.
  3. Decide whether, or under which circumstances, to use the systems for communication and coordination that already have been established in the Emergency Operations Plan.
  4. For civil disobedience: fix, publicize, and consistently enforce clear policies and rules. Include a specific provision prohibiting false fire alarms.
  5. Educate all parts of the campus community, but especially incoming students (undergraduate and graduate) about the rules (criminal, civil, and campus rules that could affect academic standing) that apply to civil disobedience and the consequences of violating these rules.
  6. For anticipated demonstrations, use time that is committed to advance planning more productively by identifying specific scenarios and developing multiple detailed strategies (and tactics) for responding to each scenario.
  7. Decide, in advance, who will be in charge. Decide who will be in charge if the person who is to be in charge is not available.
  8. Set up a system for gathering information independently and for sharing it promptly with all affected entities and persons.
  9. Set up a system for prompt and reliable communication within the Administration, ensuring that the person or people in charge have all the pertinent information that is known by all the other administrative players.
  10. During group acts of civil disobedience, search actively for ways to communicate not only with “leaders’ of the protest, but also with all other persons who are participating. Initiate such efforts immediately after the protest event begins, be persistent, and be sure these efforts to communicate are visible to participants, to the campus community, and to the media.
  11. Determine the appropriate level of the Administration that should participate in such efforts to communicate — and clearly identify (for the protestors and others) the position and role2 of each person from the Administration who initiates communication with or responds to communication from the protestors.
  12. During demonstrations, find ways to remain accessible and to respond promptly to concerned faculty and students. Be sure the Administration’s accessibility is visible. Avoid the appearance of a ‘bunker mentality.’
  13. Re-evaluate the size and organization of UCPD to determine the levels of staffing that will be sufficient to enable our police force to respond appropriately to large scale group acts of civil disobedience.

UCPD on November 20th

The key leadership positions within the campus police department are occupied by good people, with good intentions, who try to run their department as constructively as circumstances permit. But the leadership of the department has been thinned by budget cuts and has been in place only for a relatively brief period. So its ability to meet new challenges has been limited by shortfalls both in resources and experience.

Just before 6:00 a.m. on November 20th, a UCPD officer who was on routine patrol discovered that all the doors into Wheeler Hall had been barricaded from the inside and that there were people occupying the building. Other officers who had been called to the scene soon discovered that a first floor window remained unlocked. Two officers entered a dark classroom through that window. Shortly thereafter, they arrested three protestors who were trying to put more barricades in place. After a brief physical confrontation, a fourth protestor escaped into the interior of the building.

When additional officers arrived (also gaining entry through the unlocked window), they conducted a systematic search of the building and determined that all of the remaining protestors were on the second floor, having barricaded all its entrances. Identifying himself as a police officer, a lieutenant ordered the protestors to open the doors. They refused.

Because the barricaded protestors had entered or remained in the building unlawfully (when it was closed to the public), because they were physically preventing others from entering the building and using it for its intended purposes, and because their occupation was compromising, significantly, the University’s ability to pursue its core academic mission, the UCPD officers on the scene did not consider this occupation of Wheeler to be merely an “unlawful assembly.”

Had the occupation been so deemed, it would have been appropriate for the officers to follow a set of protocols that the Department had developed for attempting to persuade an unlawful assembly to disperse. Under those protocols, the officers would have announced that the assembly was unlawful (in violation of campus rules, and, in some circumstances, the state’s criminal laws), ordered the crowd to disperse, identified a route or routes by which the people could comply with the dispersal order, told the assembled people that they had a specific, limited amount of time to leave and warned them, clearly, that if they did not comply with the dispersal order they would be arrested.

But because the barricaded protestors clearly were violating state law, the UCPD lieutenant who was on the scene “told them [at about 7:00 a.m., through the barricaded doors] they were under arrest for trespassing” and again ordered them to open the doors. As a “ruse,” he “threatened to use pepper-spray on them if they did not open the doors.”3 This “ruse” was ineffectual and unwise.4 The protestors again refused to open the doors.

By 8:30 a.m., UCPD command staff had determined that the police could remove the barricaded protestors by 11:00 a.m. This determination was made too hastily — without knowing that Berkeley Police officers would not agree to enter Wheeler to assist in the removal operation, without foreseeing how quickly the crowd outside Wheeler would grow and how animated it would become, and without anticipating how long it would take to mobilize the bulk of the UCPD force that was off-duty.

Only the normal compliment of UCPD officers (about five) was on duty early in the morning of the 20th, even though the Department knew that some kind of ‘escalation’ of strike activities was planned for that day, and even though it knew that “there may be a protest inside of Wheeler Hall.” The Department had scheduled additional officers to report for duty later in the morning — in anticipation of a large rally for Big Game in Sproul Plaza and a strike-related demonstration around California Hall, both of which had been announced in advance for noon on the 20th. But the Department had made no special arrangements in advance to bring off-duty officers to campus quickly if an unforseen need were to arise. Thus, when the call went out to the bulk of the off-duty officers (after the occupation and demonstration were more than two hours old), they ‘dribbled’ in.

After the Department determined that its original plan was not feasible, several hours passed before the leadership made the call for mutual aid that would secure the presence (a few hours later still) of a sufficient number of officers to carry out the removal plan.

During those several hours (and throughout the rest of the day), demonstrators frequently broke the police tape surrounding Wheeler — and occasionally breached the perimeter (to limited extents). But apparently no one tried to rush into the building. Over the entire course of the day, police officers arrested only one person for breaking or cutting the crime scene tape — a professor.

By mid-morning the Department decided to replace sections of its crime scene tape with metal barricades. When officers began bringing barricades through the crowds late in the morning, demonstrators resisted and tried to block the officers’ paths. This aggressive physical resistance was unlawful and unprovoked. It cannot be condoned or excused, even though the officers’ efforts to bring in the barricades were ill-planned, insufficiently supervised by command staff, and not preceded by effective efforts to communicate with demonstrators.

In the early afternoon officers brought in additional barricades — to try to complete a line on Wheeler’s south side. On this occasion, the crowd had inched into a six-foot wide band of territory that had been placed off-limits by police tape that someone had torn. For reasons we don’t understand, officers decided to take this territory back, so they could place the barricade along the original tape line. When the officers pushed the crowd back, a violent confrontation ensued.

The crowd’s anger and agitation increased as the hours of demonstration and foul weather dragged on. Officers were targets of taunts, obscenities, and threats.

In mid-afternoon officers from the Alameda County Sheriff’s Department and the Oakland Police Department began arriving in response to Captain Bennett’s call for mutual aid. The officers from off-campus agencies were deployed on the front lines with little briefing and no means of communicating by radio with UCPD command staff. They marched, in full riot gear and with provocative arms readily apparent, through physically resistant demonstrators. More violence ensued. UCPD officers had led these squads through the ranks of the protestors without command supervision, without first looking hard enough for alternative courses, and, again, without communicating effectively in advance with the crowd — whose anger, by this time, had been largely re-directed from the Administration to the police.

The dramatic confrontations between the police and the demonstrators were captured by demonstrators and the media on cameras and cell phones. Demonstrators then used the images of these physical struggles to encourage more students to join the protest. These images also fueled fears in the crowd about what the police might do to the students who occupied Wheeler’s second floor. These fears made the crowd outside Wheeler even more volatile.

At about 5:00 p.m., after trying for most of the afternoon to persuade the barricaded students to leave Wheeler voluntarily, the police forced entry into the second floor, where they found all 40 of the protestors in one classroom, sitting with hands raised. The students cooperated fully with the arrest and booking process. About two hours later, after being cited, they were escorted out of the building and released.

Recommendations for UCPD

  1. Teach all UCPD officers that they must be friendly and respectful when serving in this campus community, even when dealing with disrespectful people, and that by conducting themselves in this way they will be more effective. Moreover, by maintaining a positive rapport with the campus community, even in times of stress, they will experience more work satisfaction.
  2. On the basis of prior specific policy guidance that is developed by the Administration, enforce rules consistently.
  3. Understand clearly the policies and practices of the Berkeley Police Department that could affect on-campus deployment of officers from that Department.
  4. Establish and train a ‘crowd control team.’
  5. As an integral part of preparedness training, develop specific plans and strategies for responding to occupations of campus buildings.
  6. Be sure such plans provide for real time communication with all units and agencies (on campus and from off-campus) that might be involved, as well as with decision-makers in the civilian administration.
  7. When formulating tactical plans, be detailed and specific, examine underlying assumptions, and determine precisely how many officers will be needed to execute each variant of the plans being considered.
  8. When responding to group acts of civil disobedience, consider using the campus’ Emergency Operations Plan, its personnel, and/or its equipment.
  9. During all major operations, establish and properly staff an effective command post that is not vulnerable to encirclement.
  10. During major operations, make sure that one senior commander remains in the field at all times — and that the attention of senior command staff is not diverted away from field operations for substantial periods.
  11. Be well prepared (in training and equipment) to communicate during major incidents of civil disobedience not only with the people who seem to be leaders, but also with their supporters and other demonstrators.
  12. During demonstrations, determine which objectives really need to be achieved, then look for alternative means to achieve these ends that would require the least intrusive or provocative interaction with the crowd.
  13. During demonstrations, effectively communicate to crowds what you intend to do, and why, before taking action that could affect the status quo, that the crowd might not anticipate, or that the crowd might misunderstand or perceive as threatening or provocative.
  14. Secure permission from the Administration before requesting mutual aid (except in truly time-sensitive emergencies).
  15. When requesting mutual aid, specify the number of officers needed, the purposes for which they will be deployed, the circumstances in which they will be working, what equipment and gear they should bring and what equipment and gear they may not bring, and make sure UCPD will be able to communicate in real time (by radio or otherwise) with every unit that will come on campus.
  16. Establish systems to minimize response time by off-duty UCPD officers and to enable command staff to predict reliably how many officers will be on site at any given time.
  17. Take visible steps to encourage confidence in demonstrators and observers that the video-taping of events that the Department is doing is even-handed and will generate an objective, reliable record of relevant conduct by both demonstrators and the police.
  18. Hold full departmental debriefings within three calendar days of every major operation. De-brief with the civilian Administration within a week of each such operation.
  19. In preparing Operational Reviews, (a) seek information from a balanced cross-section of sources, and (b) acknowledge and analyze evidence and views that are not consistent with the Department’s proposed findings.

1 Asking such questions can expose superficiality and unsupported assumptions. And knowing that they will be asked such questions pressures planners to prepare their plans with greater care and specificity

2 A vice chancellor who participated in the Administration’s response on the 20th felt inhibited about roles he might play in part because he was not sure the crowd would know who he was or what position he occupied.

3 In this Report, quoted material for which we provide no citation has been taken from unpublished police reports, summaries of interviews conducted by the police, or statements or complaints that have been submitted to the Police Review Board.

4 It was unwise for at least two reasons. It fueled fears in both the barricaded protestors and in their supporters outside the building about what the police might do to the protestors if they could get to them. Because it was not true, it also could be used later to intensify distrust of the police.

Download the full report (128 pages, PDF)