It would have been easier for him to justify, had he used the MK-4.
If Pike had deployed the OC that he was authorized to carry, in the manner in which he had been trained, at the distance authorized, he would have been covered under qualified immunity, and they would be suing him in his official capacity... as has been pointed out.
Since he chose to use a different delivery system with a *different propellant apparatus* (a crowd control canister), for which no one on the department had been trained, including the OC instructor, and for which the manufacturer has set a minimum range of 6 feet, he was operating outside of the scope of his employment, and loses the immunity... as has been mentioned.
The fact that he is on video at a range of 2 feet spraying it directly into people's faces, instead of in the legitimate dispersal pattern, he is further out on the limb, under vicarious liability.
The comments of the OC instructor who had never been trained on the MK-9 that it 'looked OK' are basically useless in the face of the manufacturer's documentation, and the California police policies cited in the reports.
And the underlying argument that actions were justified by the need to control a dangerous crowd and to get arrestees out of the area is undermined by the items contained in both reports:
>There was no crowd control operation, as shown by the OSC's (in)action, the lack of a formation for crowd control purposes, and the lack of any place or transportation for containing arrestees. The fact that other officers both UC and Davis, saw no need to adopt any sort of crowd control measures further weakens that claim.
The whole point is that when police, individually or in groups, stay inside the scope of their job, and they follow the established procedures and policies, they have much more legal protection as police, which decreases their risk of being held liable, under the precept of vicarious liability... as mentioned many times.
Right now, it seems like Pike and the other Lt. decided to ignore this basic fact of cop life, and it may cost them.
It would have been easier for him to justify, had he used the MK-4.
If Pike had deployed the OC that he was authorized to carry, in the manner in which he had been trained, at the distance authorized, he would have been covered under qualified immunity, and they would be suing him in his official capacity... as has been pointed out.
Since he chose to use a different delivery system with a *different propellant apparatus* (a crowd control canister), for which no one on the department had been trained, including the OC instructor, and for which the manufacturer has set a minimum range of 6 feet, he was operating outside of the scope of his employment, and loses the immunity... as has been mentioned.
That sure is a lot of words to say "no, it would not have been justified".
Incidentally, the maker's recommended range is 6 ft. But I'm betting the outrage would be essentially the same if he had, in fact, been six feet away.
The fact that he is on video at a range of 2 feet spraying it directly into people's faces, instead of in the legitimate dispersal pattern, he is further out on the limb, under vicarious liability.
The standard cop use of pepper spray is directly into the target's face. The fact that the department hadn't trained them in the use of the MK9 is their fault, not his.
I'm not sure how they could be held vicariously liable for anything once the judge or jury sees the videos of the sprayed students smiling broadly and admitting they were trying to obstruct the cops. As far as I know, no serious harm was done at all.
That's kind of the point of pepper spray.
The comments of the OC instructor who had never been trained on the MK-9 that it 'looked OK' are basically useless in the face of the manufacturer's documentation, and the California police policies cited in the reports.
On what grounds do you make the claim that the instructor was not trained in the use of the MK9? Since when do manufacturers have the final legal say in the use of their product? And doesn't the report state that policies for pepper spray vary wildly? What polices, and where are they referenced in the report?
Section 6.1.6. said:
When asked if the situation on the November 18 was one in which an officer would typically
deploy pepper spray, Officer M replied “Absolutely. It … falls well within our policy to
my understanding and like I said, I'm the department trainer for chemical agents and part of
that training is a review of our use of force policy in where [sic] this tool fits in that policy.”
397
Incidentally, the instructor who the report said wasn't trained on the MK9 is officer C, not officer M, who made the remark to which I previously referred.
And the underlying argument that actions were justified by the need to control a dangerous crowd and to get arrestees out of the area is undermined by the items contained in both reports:
>There was no crowd control operation, as shown by the OSC's (in)action, the lack of a formation for crowd control purposes, and the lack of any place or transportation for containing arrestees. The fact that other officers both UC and Davis, saw no need to adopt any sort of crowd control measures further weakens that claim.
They weren't adopting crowd control measures because they didn't see the need to try to control the crowd. They were waiting for pickup in order to leave with their prisoners, actively trying to leave the crowd alone.
The whole point is that when police, individually or in groups, stay inside the scope of their job, and they follow the established procedures and policies, they have much more legal protection as police, which decreases their risk of being held liable, under the precept of vicarious liability... as mentioned many times.
The only procedure violated here was using the wrong can of pepper spray, and that was because they didn't have anything else. Upon being surrounded by the crowd, the police did, in fact, act in a defensive manner until backup arrived. They managed to get a prisoner or two out before the inner line was stopped, and then stopped trying.
The students, including the seated protestors, were trying to hinder the police in the transport of the prisoners. They admitted so both during and after the incident, and also threatened the cops unless the prisoners were released, a fact which the report, curiously, downplays, much like its commitment to describing the students in terms which imply they actually chose to do anything. Removing people obstructing to the lawful duty of the police is, in fact, within the scope of their duty. It would be impossible to reliably transport the bound prisoners safely over the inner line, especially since one of them refused to walk and would have to be carried.
I have challenged numerous defenders of the students--especially those saying the line presented no obstacle--to place themselves as the prisoner being transported in a simulation of the situation, with hands bound behind their back, being walked by "cops" over such a linked-arm line. None has ever been willing to try. In fact, I don't think they even acknowledged the challenge.
Right now, it seems like Pike and the other Lt. decided to ignore this basic fact of cop life, and it may cost them.
Because of the political backlash caused by the edited video, yes. The only thing they did wrong was use the wrong canisters. The riot-control canisters. And lo and behold, they nearly faced a violent riot. In fact, by Cali penal codes, the crowd was rioting.
Same old RPG tapdance to score imaginary points.... even when someone posts something that agrees with you, you instantly shift gears, and start making up strawmen and moving goalposts to challenge that.
The report very clearly cites the California written policies, and very clearly states that the UC department's OC instructor had never been trained on the MK-9. The lawsuit very clearly names Pike *outside* of his official capacity. You can't spin and deny your way out of that.
You've been playing these debate club games for weeks now in a vain attempt to deny reality, and pass yourself off as an expert in an area about which you know nothing... and about which, you clearly don't want to learn anything.
I'll make you a deal... you keep right on ignoring the facts, and I'll do the same for you... m'kay?
You missed a question. Was it possible to take arrested protestors to a squad car parked away from the rest of the protestors for transport? Yes. So, I guess your questions are largely moot in regards to this incident. However, to answer your questions. I would suggest that in the future the police follow policy (see the report).
Could there ever be a situation where policy would allow the use of OC? It's possible.
Is there a limit at which OC should not be used? At least one court has said so.
Did this case match either extreme? The 2 reports don't seem to think so, and the lawsuits haven't settled anything yet.
And it isn't as simple as 'cuff and stuff'. There was no place to take these students to because no holding or transport had been set up.
And simply grabbing people and applying whatever force would get them moving presents its own set of problems, including increased risk of injuries all around.
There are techniques for such situations, but the UC police apparently left them in the locker room.
Report answered that, as have previous experts:
"Thus, the use of pepper spray against seated protesters linking arms may be technically permissible. "
No. They were actively resisting. Trying to disengage linked arms that they are forcefully resisting could result in injury to the protesters. Pepper spray is an acceptable choice to obtain compliance.
Doesn't matter. They can't work backwards from what might have happened to justify problems in the planning and execution.
The whole thing was a sequence of errors by those in authority, so any reaction to what the students might have possibly been thinking about doing in some alternate future, is unconvincing.
Once you put cuffs on someone, you assume a duty of care... and there were no 'safe' arrangements in place to deal with that many people.
They badged into the situation, and couldn't badge out.
I think they sat down and bowed their heads so they could duck the pepperspray. Getting closer might have been necessary to avoid merely dusting heads with pepper. The stuff is useless to the target's eyes are shielded.
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