Addendum to the Police Review Board's report on November 9

The text that follows is an addendum to the report issued by the Police Review Board (PRB), and released today, regarding the police violence which took place at UC Berkeley on November 9, 2011. It was written by Eve Weissman, the graduate student representative who sat on the board. In the response, Weissman identifies a number of critical weaknesses with the report specifically and the PRB's investigation more generally.

Next to the important critiques laid out by Weissman, we want to make a general observation about the report: namely, that it is written from what is essentially an administrative perspective. Consider the discussion of "hair pulling" by the police: "Some members of the committee do not think that pulling protestors by their hair is consistent with campus norms; others believe it is effective and creates little risk of permanent injury" (p. 21). It's worth noting that the two sides of this supposed divide are not actually equivalent; the efficacy of yanking protesters' hair as a pain-compliance technique is not the question. Or rather, it is significant only to the extent that the question is how best to guarantee compliance, through pain or otherwise. The bottom line is that the PRB report, like the Bundy and Brazil reports that preceded it and the more recent reports (Reynoso/Kroll, Robinson-Edley) pertaining to the "Occupy" cycle, is primarily dedicated not to making the police more accountable or reducing the possibility of physical injury to protesters but to making the administrative apparatus more effective at shutting down protests, eliminating disturbances, and removing blockages. In other words, it is about facilitating the implementation of austerity measures and the privatization of public education.

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This Report regarding November 9, 2011 is the result of extensive deliberations and significant compromise of five members of the UC Berkeley Police Review Board. With respect and appreciation for the work of my colleagues on the PRB, I sign on to the final Report, but write separately to further articulate my views and note information that is not conveyed in the Report. This is necessary because the Report does not clearly communicate my judgment regarding the response of UC Berkeley campus leadership and law enforcement on November 9.

Given past and recent political activity on UC Berkeley’s campus, the detailed suggestions in prior PRB reports, and advance notice concerning large-scale protest activity on November 9, campus leadership’s preparation for and response to the day’s action was unjustified, inadequate and irresponsible.

First, in preparing for November 9, campus leadership was heavily influenced by their unfounded belief that “non-affiliates” – presumably more prone to disruptive behavior than members of the UC Berkeley community – had a central role in planning and carrying out the day’s actions. Similar beliefs were held by campus leadership during the 2009 Wheeler occupation. Then, as now, such fears proved to be unfounded. It is distressing that campus leadership continues to assume that “outside elements” pose an imminent threat, despite evidence to the contrary. Campus leadership should not prepare for protests based on the faulty assumption that individuals from outside the UC Berkeley community will be present – not without concrete evidence that this is the case and that such individuals will ferment disruption.

Second, and as another threshold matter, the Report does not address whether the campus leadership and police had a legal basis to remove the tents. This is a significant omission. The investigation into the much publicized pepper spray incident at our sister campus UC Davis concluded that “it was not clear what legal authority existed for the campus police to remove the tents and arrest those who opposed them,” and that “if there was no legal basis for deploying the police to take down the tents, the operation should never have taken place.” See Reynoso Task Force Report (March 2012) at 15. Students at UC Davis had camped out for one night when the police used pepper spray to remove protesters. At UC Berkeley, by contrast, students had not camped out a single evening on November 9. If the legal authority to remove tents was lacking or unclear at UC Davis, it was all the more so at UC Berkeley. Just as campus leadership should not respond to protests based on faulty factual assumptions, they should not respond on the basis of unclear or erroneous legal premises.

Third, simply articulating a “no encampment” policy without discussing how that policy would be enforced (beyond instructing law enforcement not to use chemical agents) was insufficient, at best. Given past protests at UC Berkeley and then-recent police confrontations with the Occupy movement across the country, campus leadership could and should have recognized that sending police squads clad in riot gear and armed with batons and bean-bag guns into Sproul plaza to remove tents would escalate tension and likely lead to violence against unarmed and generally peaceful protestors.

Undoubtedly, the seven Protest Response Team principles articulated by campus leadership after November 9 and repeatedly cited in the PRB Report represent an improved approach to campus protests, which emphasizes de-escalation and thoughtful planning. The PRB members generally agree that promulgation of the PRT principles demonstrates that campus leadership believes the response on November 9 did not comport with campus norms. However, even without the PRT principles, it is clear, based on both legal standards and the campus’s own written policies (detailed in the PRB Report), that the responses of campus leadership and law enforcement on November 9 were inconsistent with campus norms existing at that time.

Campus leadership and law enforcement should have known that removing tents from Sproul Plaza in the middle of the day at the height of the protest would require use of force and likely the use of batons. Despite the no-encampment policy, it is unclear why they chose to take such action. Not only did this strategy increase the likelihood that protesters would suffer physical harm, it stifled protected speech. Dispersal orders sometimes declared the entire assembly unlawful, while on other occasions the orders were limited to the actual encampment and interference with police. Additionally, this strategy contained no plan to prevent the further erection of tents after the first encampment was dismantled. Surely, clearing the tents in the middle of the night, rather than in the middle of the day, would have reduced the risk of confrontation, as demonstrated by the prior experiences of other Occupy encampments. It is troubling given the Wheeler occupation in 2009 and attempts to dismantle Occupy encampments across the country that the campus leadership did not anticipate and work more diligently to prevent the use of force.

Fourth, apart from the lack of foresight and planning around the first use of batons on Sproul Plaza earlier in the day, campus leadership’s failure to take steps following the afternoon confrontation to prevent or mitigate a similar occurrence in the evening is inexplicable. Crisis Management Team (CMT) members, informed the PRB that they did not attempt to intervene and/or modify police tactics during the six-hour period between the afternoon and evening confrontations because they had not yet seen the video footage that depicted the use of force by police. In light of the facts uncovered by the PRB during its investigation, that claim seems highly implausible. Internal emails confirm campus leadership was closely tracking social media on November 9. Videos depicting the use of batons were posted online within minutes of the afternoon confrontation. In addition, the Daily Cal’s live blog, which campus leadership also tracked, first reported the use of batons at 3:55 p.m. At 4:04 p.m., the Daily Cal blog quoted UC spokesperson Janet Gilmore as confirming five arrests from the “clash near the Sproul steps.” Also, Vice Chancellor George Breslauer sent Chancellor Robert Birgeneau an email regarding the use of batons at 4:30 p.m. Further, student government leaders met with members of the CMT in Anthony Hall following the afternoon confrontation and described the events that had transpired.

The CMT, as a group, was charged with managing the campus’s response to student protest. This was their primary, if not their only duty, on November 9. It appears the CMT met only once as a group on November 9. During this meeting, at around 3:30 p.m., Chief Celaya informed CMT members that tents had been removed from Sproul plaza and that some “confrontation” had ensued. According to the CMT, they did not request additional information and shortly after disbanded so that some CMT members could meet student leaders in Anthony Hall. It is disconcerting that members of the CMT did not actively seek out more information about the events that transpired on Sproul Plaza.

CMT members acknowledged that had they been fully aware of the afternoon encounter, they would have tried to prevent a similar evening occurrence. But the responsibility for obtaining this information was squarely within their purview and their collective failure to do so was inexcusable. In any case, CMT members knew or should have known about the now-infamous use of batons on Sproul Plaza around 3:30 p.m. Their failure to intervene and prevent a second occurrence is highly problematic.

Remarkably, nearly all members of the CMT went home for the evening by 9:00 p.m. with instructions to Chief Celaya (the only remaining CMT member) to remove the tents without the use of chemical agents. According to the CMT no further discussion regarding tactics or strategy for removing the tents took place. This too seems improbable, given their internal emails and communication. For example, a 7:41 p.m. email from Associate Vice Chancellor Clair Holmes, to Birgeneau and Breslauer states: “Our message is widely distributed, and it is very clear that we will not tolerate any encampments. All media outlets and the protestors know this. Now, for the execution of that strategy which will happen when the sun goes down of course...” Unanswered is the “strategy” Holmes is referring to in this email. Needless to say, the level of planning and the information gathered by CMT members during the day and into the evening on November 9 appear to have been inconsistent with the gravity of the situation confronting them and the breadth of their responsibilities.

Fifth, the PRB Report focuses exclusively on the afternoon and evening confrontations between police and protestors. In my view, at least two other events that transpired on November 9 should also have been investigated and reported by the PRB. First, in the afternoon police detained two Latino students outside of Berkeley Law School, near the intersection of Bancroft and College Avenues. Both students allege that they were improperly stopped pursuant to the UCPD’s campus monitoring policy. In one incident, officers put a law student carrying protest signs into a “stronghold” and asked him for identification. Eventually, the student was allowed to leave. As the student walked away, one of the officers allegedly asked whether he was sure that he spoke English.

The second incident involved another student also returning to the law school from Sproul Plaza. She had a bullhorn borrowed from the law school tucked beneath one arm. An officer approached, stood very close to her, and requested identification. Stepping back from the officer she said that she was a law student but did not have identification on her. When asked to give her name she was at first hesitant and inquired why she was being stopped. The officer stated that she could not have a bullhorn on campus. The student explained it belonged to the law school. Ultimately three more officers arrived on the scene. The student was handcuffed and placed in the back of a police car while bystanders contacted law school administrators, who persuaded police to release her.

Additionally, lingering questions about the processing of arrestees and the use of student medical records remain unanswered. For example, a group of individuals who were arrested around 3:45 p.m. and booked by the Berkeley Police Department allegedly were not released after receiving citations. In addition, they were initially informed that they would be required to post bail, even though Penal Code § 853.6 requires misdemeanor arrestees be cited and released on their own recognizance unless unusual circumstances apply. According to the Berkeley Police Department, the decision not to cite and release was made by UCPD. It seems that this decision was ultimately reversed, after numerous complaints and prolonged detention of misdemeanor arrestees. Students have also voiced concern that their medical records have been misused to identify protestors and even assist the Alameda County District Attorney in filing criminal charges months after November 9. Pursuant to state law, the Tang Health Center must turn over medical records involving incidents of assault to law enforcement. The UCPD (and campus leadership) deny using these records in any untoward manner, including assisting the District Attorney. However, the timing and nature of arrests and subsequent charges raise questions that warrant further investigation.

Sixth, the PRB’s investigation was hampered by several factors, including the possibility of criminal charges being filed against participants in the protest. The very individuals most likely to have information relevant to our investigation were also potentially imperiling themselves by assisting our investigation. Students and faculty expressed concern about participating in public hearings given the prospect of criminal charges. While the PRB tried to allow people to anonymously submit evidence and testimony, many members of the campus community did not feel that they had a full and adequate opportunity to participate in the investigation given these concerns. Further, the fact that criminal charges were actually issued against some individuals after they publically testified at PRB hearings, reinforced the belief that there was a connection between the filing of criminal charges and the extent of one’s involvement in (legal) protest activity and the PRB investigation. Regardless of whether there was an actual connection, the criminal prosecutions have fostered distrust and possibly chilled participation by members of the community in future investigations.

Seventh, it is important to recognize that the PRB does not have a clear protocol for conducting effective, timely, and transparent investigations regarding the response of police and campus leadership to protest activity. When the Chancellor requested that the PRB investigate the November 9 incident, the Board Chair, with assistance from Board members, began to design the investigation procedure. Considerable time and energy was spent by PRB members negotiating over the contours of the investigatory process. This prolonged the investigation and ultimately the publication of a final Report. The failure to have an investigatory procedure in place resulted in confusion and miscommunication with faculty members and others asked to participate in the investigation. Additionally, certain hearings and testimony were not recorded or transcribed even though some Board members believed recordings and transcriptions would enhance the investigation. Accordingly, written guidelines for PRB procedures should be developed before the next investigation. Such guidelines should be established through a transparent process that encourages student, faculty, Administration, and police input. The guidelines should specify the role of individual PRB members including the Board Chair.

The lack of protocols was also reflected in the way campus leadership communicated with the Board. On a number of occasions, campus leadership refused to answer questions or speak directly with Board members, other than the Chair. The Board Chair had conversations with UC Berkeley Counsel Chris Patti and perhaps with other members of the Administration, to which members of the Board were not privy, compromising the transparency and reliability of the investigation. Also of concern is the fact that campus leadership paid private outside counsel to prepare testimony on behalf of UCPD, while comparable resources were not available for students or faculty participating in the investigation process. The PRB process was intended as a search for the truth, but the campus leadership assisted only one set of stakeholders in presenting its story to us.

In conclusion, the University’s use of force on November 9 was unjustified because it rested on faulty factual assumptions and questionable legal premises. Establishing a blanket “no encampment” policy days before November 9, while making no attempt to engage in a meaningful and constructive dialogue with students and faculty about the substantive issues underlying the protest, was a thoroughly ineffective approach to the announced protest action. Going forward UC Berkeley campus leaders should carefully consider how to promote and encourage an atmosphere in which free speech and expression is valued and supported. Campus leadership should recognize that they share many of the same goals as the protestors – sustaining and growing a premier public university. Accordingly, the response of the Administration to protests should be crafted with an eye toward collaborating with students and faculty to achieve common ends and not simply to squelch peaceful assembly and speech because it may violate a “no encampment” policy. Further, if campus leadership is serious about curtailing the use of force by law enforcement, an independent, transparent, and sufficiently staffed PRB must be in place, guided by clear written protocols. Most importantly, never again can there be a recurrence of the type of uncalled-for violence by campus police that we witnessed on November 9, 2011.