Slashdot Mirror
The Future of Protest In Panopticon Nation
Hugh Pickens writes "James Fallows writes that you don't have to idealize everything about the Occupy movement to recognize the stoic resolve of the protesters at UC Davis being pepper sprayed as a moral drama that the protesters clearly won. 'The self-control they show, while being assaulted, reminds me of grainy TV footage I saw as a kid, of black civil rights protesters being fire-hosed by Bull Connor's policemen in Alabama. Or of course the Tank Man in Tiananmen Square,' writes Fallows. 'Such images can have tremendous, lasting power.' We can't yet imagine all the effects of the panopticon society we are beginning to live in but one benefit to the modern protest movement is the omnipresence of cameras (video) as police officials, protesters, and nearly all onlookers are recording whatever goes on bringing greater accountability and a reality-test for police claims that they 'had' to use excessive force. 'What's new is that now the perception war occurs simultaneously with the physical struggle. There's almost parity,' writes Andrew Sprung. 'You have a truncheon or gun, I have a camera. You inflict pain, I inflict infamy.'"
The Davis situation has some important differences with other Occupy incidents.
First and foremost, there is a strong presumption (strong enough to stand in any civil court in California) that the individuals involved had a legal right to be where they were. They were not being accused of trespassing, nor were they being accused via any specific form of due process of any crime at all. They were technically "in or near their domicile", the common area around a residential section of their campus. To some degree they have the same rights as you would have, on the sidewalk in front of your California home. Because of this aspect, there are as many Fourth Amendment considerations as there are First Amendment questions.
Next, also somewhat important, is that the officer (Lt. Pike) was acting on his own initiative, contrary to orders to _not_ use force. At least this is according to official statements made today by people speaking for the university. While he may enjoy immunity from any _criminal_ accusations, he may not have _civil_ immunity because he was acting as an individual and not following orders of a law enforcement organization. He was using force against individuals who were not under arrest, not under suspicion of any particular crime, and certainly without any warrant or the will of any judicial magistrate. It remains to be seen if the departmental policy documents this procedure for the use of pepper spray and whether it was consistent with that policy, even if justified.
But it does not matter. It will be a long road for the university officials to defend the premise that an order to vacate that particular area was lawful in the first place, because they cannot show that the individuals had no right to be there, whereas the protestors can show that they did.
Perhaps most important of all, the UC Davis Board of Regents are not stupid enough to allow any civil cases to escalate, since it's easy to see how they could be forced into explaining all of this to the very same Ninth Circuit panel that decided for Lundberg vs. Humboldt. If they allowed it to get to that point, and then if it could be shown that anyone in a position of authority knew or should have known about that standing case law as it applies in California, the door is open to not only unlimited civil damages (think millions per victim) but also to conspiracy charges against the people who made the decision to do this attack.
Smarter armchair lawyers than myself are obviously thinking about this, and are already doing damage control. I notice that soon-to-be-former Lt. Pike is wisely speaking to no-one other than his own lawyer, and that the people who speak for the university are making it clear that Pike was disobeying orders. If they fail to throw Pike under the bus, they have a HUGE problem in that orders were given which are not at all lawful in their jurisdiction. The school's directors are assuredly praying that none of these individuals have rich, well-connected, activist parents.
This may not end as badly for Pike as some of you are obviously hoping. He might turn out to be a pinhead who didn't understand what he was stepping in. Ignorance I can forgive, to an extent. But if he was ordered to do what he did by someone who knew or should have known the things I outline in my post above, then release the hounds.
My bet is that it will end quietly with undisclosed settlements offered to each victim. Like I said, the UC Davis board are not fools, and they know that trying to defend against civil litigation from any of these students will be a losing proposition. The Davis incident is quite unlike any of the other OWS protest violence incidents, primarily because none of those incidents can be construed to have occurred _where the protestors lived_.
I doubt Lt. Pike will be held personally responsible for financial losses to the University but I do not believe he has any sort of total immunity, especially if the University admins are telling the truth about him being ordered not to use force. If they are lying, they are F'd. If they are telling the truth, Pike is F'd. Either way, the institution is F'd, and there are going to be some very happy lawyers getting a piece of the action.