The images are horrifying.
A group of UC Davis students sits on the ground, echoing generations of predecessors engaged in nonviolent civil disobedience. A police officer displays a canister to the students standing around, then turns and sprays down at the seated students, walking back and forth, orange liquid streaming out. A second officer comes from behind the seated students, first spraying some on the back, then steps to the other side and continues directing spray toward the seated, huddled protestors.
The Christian Science Monitor describes dispassionately and accurately what led up to this moment. Here's the best rationalization that the UC Davis police came up with to justify their actions as reported by the CSM:
According to police and university officials, the officers (35 or so) felt surrounded and threatened, even though there is no video or other evidence indicating that.
What is plentifully in evidence in the videos of the incident is an attack on students who are not seen to move or lift a hand to ward off the chemical attack to which they are subjected.
Because that is what pepper spray is: a chemical agent that Fairness and Accuracy in Media notes cannot be used in war. Under the 1993 Chemical Weapons Convention, it is classified as a riot control agent, which while prohibited in war, is allowed in use for riot control. So perhaps we are seeing a new definition of riot, in which the rioters sit calmly on the ground.
How did we get to a point where this substance is used routinely, casually, against motionless, unthreatening students?
Pepper spray uses the fiery power of chiles. According to FAIR, it was adapted in civilian policing from the US Postal Service, where it was approved for use against dogs that might attack an unwary mail carrier. In the first instance, then, its use against human beings rests on an equation of the person with an uncontrolled animal.
Pepper spray was in fact promoted specifically to be used for "incapacitating dangerous or violently resisting suspects".
Media reports quote a former Baltimore police official, Charles Kelley, describing the UC Davis use of pepper spray as following "standard" police practice. That may well be true-- but true and right are not the same thing. What we are seeing here is abuse of a substance originally approved for one set of circumstances-- people "violently resisting"-- as a general tool to disperse crowds exercising their free speech rights nonviolently.
And while what we saw may be "standard" practice-- as described in testimony from Methodist minister Rich Lang, attacked in Seattle while wearing his clerical alb, stole, and cross-- in this case, "standard" police practice violates the guidelines that are supposed to govern the use of this chemical weapon.
The ACLU reported in 1995 that no Federal oversight of use of pepper spray existed, and specifically noted that in California, police training had "failed to caution police that pepper spray should not be used in excess of a single one-second burst". It appears that things have not improved in the intervening years, to judge from the video showing UC Davis police spraying continuously for many seconds. The ACLU report includes a model policy that would call for use of other, less forceful, techniques before escalating. They recommended pepper spray be
used only against violent or hostile subjects. It is a defensive weapon intended for use when attempting to subdue an unarmed attacker or to overcome resistance likely to result in injury to either the suspect, officer or bystander.
Guidelines for the use of pepper spray in the California State University system state that
the use of chemical agents...shall be limited to the protection of life or property when other means of lawful force are either unsuitable or unavailable.
Neither life nor property was endangered by the protest at UC Davis, and many other means of lawful force were available-- including arresting the protestors.
The CSU guidelines specifically define the conditions for the use of pepper spray in what the report-- rather chillingly-- calls "the normal escalation of force". It defines the appropriate situations as
to gain control of an unarmed attacker, or to overcome resistance likely to result in injury to either a suspect, a victim, or the officer.
Again, there were no attackers here-- except the police; and nothing visible seems "likely to result in injury"-- except the attack by the police.
Most damning is the contrast between the CSU guidelines and what the UC Davis officers did. The CSU guidelines say that pepper spray
is to be sprayed in a one second burst. It is not meant to be used repeatedly on an individual, or for long periods of time.
The emphasis on "one second burst" is in the original, not my addition. The UC Davis officer maintained a continous stream of pepper spray for far longer, and moved back and forth-- that is, he repeatedly sprayed the same individuals.
UC Berkeley guidelines, dated January 7 of this year, are contained in an 86 page manual on Police Policies and Administrative Procedures. Starting with Section 812 on page 29 of the PDF document, the UC Berkeley policy describes pepper spray (here formally listed as Oleoresin Capsicum) as
used to minimize the potential for injury to officers, offenders, or other persons. They should be used only in situations where such force reasonably appears justified and necessary.
This is, disturbingly, a less restrictive standard than the CSU policy, dated in September of 2000. And unlike the CSU policy, the UC Berkeley version includes no guidelines at all about how this dangerous chemical agent should be used.
A report in 1998 on an inquiry into UC police use of pepper spray against demonstrators protesting California Proposition 209 raised concerns about the use of pepper spray at that time that resonate today:
the board was concerned about the clarity and wisdom of the UCPD's policy for the use of pepper spray in crowd control situations and about the adequacy of the UCPD's pepper spray training...[the report called for] improved pepper spray training and an overall review of the effectiveness of pepper spray for crowd control and in less specialized uses.
In 2000, a civilian commission investigating use of pepper spray by the New York City Police Department described guidelines for justified use emphasizing situations where a suspect was resisting arrest or violent. Here, as in the CSU guidelines, the technique advocated involved short bursts from at least three feet away. The report notes that the NYPD
Patrol Guide prohibits the use of pepper spray against subjects who passively resist (e.g., going limp, offering no active physical resistance).
Promoted as a relatively mild police technique, pepper spray was reported to have killed at least 100 people as of 2000.
Legal defense sources are unanimous in questioning the widespread use of pepper spray. The National Police Accountability Project of the National Lawyer's Guild distributes a report by Attorney Lynne Wilson that explains how we got to this place, including documenting the advocacy of pepper spray by an FBI agent later convicted of taking bribes from a manufacturer.
Attorney Wilson describes legal decisions supporting peaceful demonstrators who were affected by pepper spray used by police, in situations that clearly do not meet even police policy guidelines, dating back to the mid-1990s. In an Illinois court ruling in 1996 against police who used pepper spray on 2000 labor activists, a judge wrote
"What value would the First Amendment carry if its demonstrators could be dispersed or intimidated by police brutality or unnecessary force?"
So what is there to do? Chris Hoofnagle of UC Berkeley suggests that the UC police be placed under faculty administration, rather than (as is presently the case) under a pure administrator. He writes
The long term interest of Berkeley is not served well by the spectacles generated by last week’s beatings by outside law enforcement on our campus, or in the criminalization of student behavior generally. They are embarrassing to our campus. An academic manager of the UCPD, be it the Provost or the many faculty on campus with expertise in police supervision, would understand the special context we operate in, and the special duties we owe to students.
Sound utopian-- something that only an academic community could imagine? Well, let me introduce you to Norm Stamper, former Seattle police chief, notably serving during the WTO protests of 1999, marked by intense and violent police actions against protestors. Writing in The Nation, Stamper calls for new models of policing to reverse what he characterizes as a steady "militarization" that leads police to view the people who they are supposed to protect as the enemy. "How do we proceed?" he asks:
By building a progressive police organization, created by rank-and-file officers, “civilian” employees and community representatives. Such an effort would include plans to flatten hierarchies; create a true citizen review board with investigative and subpoena powers; and ensure community participation in all operations, including policy-making, program development, priority-setting and crisis management. In short, cops and citizens would forge an authentic partnership in policing the city. And because partners do not act unilaterally, they would be compelled to keep each other informed, and to build trust and mutual respect—qualities sorely missing from the current equation.
Partners in policing might have helped prevent the uncalled for violence of the responses that have been seen, not just on campuses but country-wide, to legitimate voices of protest. They might even come to the conclusion that there is no place in civilian policing for a substance proven to kill, and intended to cause intense pain. There is a word for that: torture.