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Review Board: I hope you will accept these further reflections on the police presentation at the meetings of the Police Review Board; at the close of the meeting, I made a few extemporary comments about that presentation, but I think I may not have made the connections between these points clear. I grouped my remarks around 3 terms: “context,” “unlawful assembly,” and “communication.” The lawyer for UCPD, Janine Scancarelli, identified one of her purposes as the provision of context for the montage of videos. There were two main aspects of her contextualization. *On the one hand, she referenced EVC Breslauer’s account, at the Faculty Senate meeting of November 28, 2011, of what had been on the minds of the administration: OWS, Occupy Oakland, People’s Park, the tree-sitters. Vice Chancellor Breslauer acknowledged that these sites of memory had apparently crowded out from consideration the recent events of November 2009, where the police response to the occupation of Wheeler Hall, and particularly its interactions with the crowd assembled out of support of or concern over that action, had drawn public criticism and elicited the thoughtful review and recommendations of the Brazil Report. *On the other, she referenced the efforts made in the days leading up to November 9 to negotiate with some faculty and some student representatives, and the announcements made over the bullhornon November 9, prior to the deployment of police baton strikes, that the assembly had been declared “unlawful” and those assembled ordered to disperse. She also described the plan that the police had developed in the days and hours leading up to the tents being erected on November 9. We heard from Captain Margo Bennett that police planned to use bullhorns rather than the PA system because they did not know where the tents would appear, and bullhorns were more mobile. We heard that, once the tents had been set up, taken down by police, and re-erected in the afternoon, that a plan was developed to have police move in from both the north and the south of Sproul Plaza. We also heard that, in the evening, police wanted not only to gain access to the tents, but also to move the crowd off the lawn area where the tents had been repeatedly erected, and to occupy this ground for some period of time. We also heard that all of these plans were developed with the object only of removing or preventing encampment, and that it was the desire of the police not to interfere with “the protest.” Repeatedly, it was alleged that the reason the police did not remove the tents via the southern access route that was first established in the afternoon, and used what might then be judged to have been unnecessary force to gain access through the north, was because they wanted not to disrupt “the protest.” She also showed videos, including one from the evening that captured the police in their phalanx (I’m sorry that I’ve forgotten the term of art used by the police to describe this tactic), shouting, “Move! Move!” at the same time they
advanced their batons into the bodies of protesters. She showed this and other videos, she said, to demonstrate that the police exercised a “disciplined”, not a “random,” use of baton strikes. She also alleged that the crowd was growing increasingly “restless,” but offered no video confirmation of police statements, in the immediate aftermath of the events, that “the body blocking, the pushing, the yelling, a couple times things were thrown … those were the kinds of things that prompted the arrests of individuals” (Daily Californian, “Use of Police Force Draws Fierce Condemnation,” Nov. 12, 2011). These are the points I wish you to recall as I reflect on “context,” “unlawful assembly,” and “communication.” CONTEXT 1. Even if Vice-Chancellor Breslauer had forgotten about the Brazil report, its criticisms (of the administration’s “bunker mentality”; of the failures of the police (a) to communicate effectively with the crowd; and (b) to offer sufficient supervision of the non-UCPD police), that is no excuse for a similar inattention by the police to the recommendations of the report. In particular, as I suggested, there was probably sufficient time, once the General Assembly had voted, publically and vociferously, to erect the tents on the grass in front of Sproul Plaza (rather than an alternate location that had been suggested) for the PA system to have been put into operation. 2. The Police Review Board has heard testimony from a representative of the Graduate Assembly that in the conversations prior to November 9, she repeatedly raised the question of what the response would be if attempts to prevent or remove tents were met with mass civil disobedience. She reported that the only answer to her question was, “You’re speaking of hypotheticals.” Given the attention devoted to other hypotheticals (would Occupy Cal morph into People’s Park? Occupy Oakland?), this refusal to develop (or at least a refusal to articulate) a plan if the police encountered mass civil disobedience is striking. UNLAWFUL ASSEMBLY Probably the central problem at issue in the presentations made to the Police Review Board concerns the police announcement that the gathering of people linking arms around the tents on the grass in front of Sproul Hall had been declared an “unlawful assembly.” The real dispute is not whether everyone heard this announcement; what we wished to point out is that the bullhorn was an ineffective means of communication, which required the supplement of a “mic check” repetition, and that the choice indicated UCPD’s disregard for the recommendations of the Brazil report. What is at issue is Dr. Scancarelli’s claim, repeated by Captain Bennett, that, at the same time the police had declared an unlawful assembly and gave orders to disperse, they were also trying not to interfere with “the protest.” It is important to point out that at no time did the police communicate this (apparently contradictory) message to the assembled crowd. Professor Butler pointedly asked, on the first day, about the spatial dimensions of the assembly that had been declared “unlawful”: did it extend to the Sproul steps, to the plaza? And how was anyone to ascertain these spatial dimensions? We tried to point out that, while the declaration of unlawful
assembly and the order to disperse had been given, no instructions for dispersal were announced over the bullhorn. Even more important, I believe, is the failure of the police accurately to communicate the consequences the protesters might face if they disobeyed the order to disperse given immediately after the declaration of unlawful assembly. We heard the UCPD police lieutenant say that they would be “subject to arrest.” But in fact, we learned from Dr. Scancarelli that the police plan did not involve mass arrests (this was confirmed by the fact that, although the Alameda County Sheriff’s Department had been called, for several hours neither the UCPD nor the ACSD had vehicles available to transport even the 6 initially arrested.) At no time did the police say: “Our objective is to clear a passage to take down the tents. Those who obstruct our passage will be shoved and struck by batons. If you do not wish to be subjected to this action, you must delink your arms. If you do delink your arms, you will not be judged to be part of an unlawful assembly, and you will be subject neither to arrest nor to baton strikes.” To our minds, that is what would be a sufficient attempt to communicate with protesters. I want to connect this lack of communication to the context, because it suggests a failure of the administration and the police to consider the nature of civil disobedience. Civil disobedience is a practice of political dissent that has a tradition and norms. It is not described in the campus’s “rules for safe protest” because it involves a refusal to obey laws and/or the commands of a police force that have become repugnant to its citizens. It is a deliberate violation of law designed to remind us all that in a democratic society, laws are not only enacted by but also require the consent of the governed. Dr. Scancarelli attempted to dispute Professor Butler’s description of linked arms as an expression of solidarity iconically identified with Martin Luther King, Jr. and the civil rights movement of the 1960s; Dr. Scancarelli said that arms were not linked to obstruct police. But the charge of “obstruction” was used to justify police brutality on the occasion of the first attempt to march from Selma to Montgomery on “Bloody Sunday” (March 7, 1965).1 Another relevant “context” for understanding the decision of Occupy Cal protesters to link arms is Berkeley’s own Free Speech Movement, and the famous speech of Mario Savio, in which he expressed anguished opposition to an odious “system,” and identified the University as part of that system in his implicit equation of student sit-ins with “putting your bodies upon the wheels, upon the lever, upon all the apparatus.” “Putting your bodies upon the wheels, upon the lever” is a phrase that expresses the relation between civil disobedience and the obstruction of police enforcement policies. There are also norms and traditions of responding to acts of civil disobedience. Of course, there is an ongoing problem of police violence, witnessed on Bloody Sunday in 1965 as well as before and after. Visual evidence of police beating nonviolent protesters, however, has frequently elicited public outrage, and sometimes expensive, drawn-out legal cases. There is another, far more palatable tradition, however. On this model police instruct the assembly that they are being arrested for their act of disobedience; each protester is arrested (usually standing up) and led away to a place where, after being processed, the demonstrators are cited and immediately released. One question certainly pertinent to the Board’s review of November 9 surely must be: Why did the UCPD have no plan for, and apparently no interest in, arresting students
engaged in an act of nonviolent civil disobedience? Why, if students were blocking the police (but posed no danger to the police nor to public safety), were they not arrested, but instead subjected to the force of batons? (A related question: why were some of those who were arrested, arrested with such … vigor? When did the norm for the arrest of nonviolent disobedients become yanking them to the ground by their hair, and putting boots on their necks while handcuffs are applied?) Although the lawyer for UCPD did not directly address this issue, she implied that the plan was only to “get the tents.” Our objection is that, once the declaration of an unlawful assembly had been made, those who remained assembled understood that they were subject to arrest, not to physical punishment. Quite obviously an orderly arrest procedure could have cleared a path to the tents, with far less bodily and psychic harm inflicted. Was this obvious option even considered? If not, why not? If so, why was it deselected? Was cost a factor? Was the public image of UCPD arresting students and faculty in the vicinity of the Mario Savio steps deemed too damaging to public relations? COMMUNICATION I have already alluded to what I regard as the signal failure of communication of November 9: the failure of police to inform those assembled that, if their arms remained linked and they refused to disperse, they would not only be subject to arrest, but also to physical harm. This was not the only failure to communicate, however. Dr. Scancarelli several times described the phalanx action of shouts of “Move!” accompanied by baton strikes as attempts to “convince” protesters; she surely chose this word because of, rather than despite, its primary meaning of “to conquer, to vanquish,” in short, to overcome by (physical) force—not by the force of reason, by communication of rationales and purposes. “Move” is an imperative, but the baton strike followed so immediately upon its utterance that the word could have no effect. In another instance of failure to communicate (despite the fact that the PA system had been deployed), no evidence was presented that the police communicated their purposes and intentions to the evening assembly. Those present at the evening protests heard for the first time at last night’s meeting, I believe, that it was the intention of the police to occupy the lawn where the tents had been, just as they heard (with some incredulity) for the first time that it was the object of the police in both instances (afternoon and evening) not to disrupt the protest, despite having declared it to be an unlawful assembly and having ordered it to disperse. The kinds of communication that we do have evidence of are deeply troubling. Professor Geoffrey O’Brien testified to the Board that, when he addressed a police officer who was striking a female student, “If you want to beat someone, beat a professor”, the officer responded, “Want some?” (a rhetorical question, as Professor O’Brien pointed out), and whacked him so hard in the ribs that he required medical attention. We know that Professor Robert Hass, the 70-year-old former Poet Laureate of the US, along with his wife, Brenda Hillman, were hit by police as they tried to dissuade the police from using brute force (Professor Hass is caught on tape shouting “Use your heads!”), despite the fact that, as he has written, there was no place he might have moved. These incidents seem to offer evidence not of the “disciplined” force Dr. Scancarelli alleged, but of willful and purposeless violence. Sincerely,
1 In deciding the case of Williams v. Wallace, the presiding judge cited a conflict—between “rea- sonable
accommodation” and economic efficiency. On the one hand, King’s Alabama Project was protected by freedom of assembly: “The law is clear that the right to petition one’s government for the redress of grievances may be exercised in large groups.” Conversely, the judge accepted that “heavily trafficked highways exist principally to facilitate travel and commerce, not speech activities.” The decision on behalf of the Alabama Project held that the wrongs suffered were sufficiently grievous to justify any inconveniences to commerce that a peaceful march might entail. See R. Krotoszynski, "Celebrating Selma: The Importance of Context in Public Forum Analysis," 104 Yale L.J. 1411 (1995): 69–70.
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