Ten protesters were arrested Friday afternoon after they refused an order to dismantle their tents from the Quad. Pepper spray was used during the incident.
I wanted to get the thoughts on the UC Davis pepper spray incident of someone who has been involved in working with local police on use of force issues, so I emailed Champaign resident Steve Holy, who is a martial arts instructor at his own Guardian Dragon Dojo, and who was an adjunct faculty member at the University of Illinois Police Training Institute between 1999 and 2004. During his time at PTI, he was active in training recruits from all across Illinois in Control Tactics, Nightstick/PR-24, and Pepper Spray. This training also included the Use of Force Scale as adopted by PTI.
I posed Holy the following question:
The most succinct way I can come up with to describe what actually happened in the incident is this: pepper spray was used by UC Davis police officer Lt. Pike on students who refused to leave a walkway.
Based on that and anything else you might know of related events and circumstances, do you feel that Lt. Pike acted appropriately in this incident?
Steve Holy responded:
Let me first say, this is just my opinion. I am not an “Expert” and this is not to be considered any type of legal advice; it is only my opinion.
The question posed: Do I feel that Lt. Pike acted appropriately in the UC Davis incident involving the use of pepper spray? The incident was videotaped and has been shown numerous times in a variety of media. In the video, protestors are seated with their arms interlocked. They did not disperse after being told to do so by police officers. One police officer, Lt. Pike, has a large crowd control sized can of pepper spray and sprayed the protestors with a continuous stream of pepper gas at a very close distance. It is his conduct that I have been asked to render an opinion on with respect to appropriateness.
The short answer is no.
The incident must be analyzed considering the Use of Force Scale. The purpose of this Scale is to provide acceptable guidelines for conflict resolution; it is meant to be fluid and not static. As circumstances change, the scale also must change to remain balanced. When the scale becomes unbalanced, there is the potential for excessive use of force, similar to what happened to Rodney King.
Familiarity with the Use of Force Scale is required prior to analyzing the appropriateness of the UC Davis pepper spray incident. The Use of Force Scale that I teach to my karate students is broken down into 5 Levels, Level 1 being lowest and Level 5 being the highest (This is not a legal or official definition and is for informational purposes only ― think: Use of Force Scale Made Simple):
- Level 1 – White – Compliant Person: Compliant to verbal instructions or commands.
- Level 2 – Yellow – Passive Resistor: Resisting with only dead weight or a limp body, no aggressive action.
- Level 3 – Orange – Active Resistor: Still only resisting but adding muscle tension to the resistance.
- Level 4 – Red – Aggressive Attacker: Switching from resisting to attacking. Turning aggressive, trying to strike, etc.
- Level 5 – Black – Deadly Force Attacker: Attacking in such a way that it could cause fear of death or great bodily harm. Using a weapon, etc.
Using this scale, it’s time to analyze the UC Pepper Incident.
Analyzing the protestor’s actions:
White (Compliant): Were they compliant?
No, they refused to leave.
Yellow (Passive Resistor): Were they a passive resistor?
No, they were not just using dead weight, or limp bodies to resist; they maintained their interlocked arms.
Orange (Active Resistor): Were they an active resister, was muscle tension involved?
Yes, they maintained interlocked arms, requiring muscle tension.
Red (Aggressive Attacker): Were they an attacker?
No, they were not attacking, only resisting.
Black (Deadly Force Attacker): Was there fear of death or great bodily harm?
No, they were not attacking, only resisting; there was no fear of death or great bodily harm to the officers.
Now, it is clear that the protestors’ actions fall at Level 3 – Orange – Active Resistor.
Next, the police’s response to the protestors’ actions must be considered. (Looking for a balanced response).
First the use of pepper spray is usually determined by the individual police department’s policy. When I was at PTI, we taught pepper spray at Level 3 – Orange – Active Resistor. However, at that time, the Decatur Police Department authorized the use of pepper spray at Level 2 – Yellow – Passive Resistor. So pepper spray usage can vary from department to department. Here, UC Davis Police Department’s policy for the use of pepper spray is unknown.
For the sake of this article, let’s assume that pepper spray is authorized at the higher level, Level 3 – Orange – Active Resistor. This is the level of the protestors’ actions at UC Davis. So, at first glance it would seem that the scale is balanced, thereby justifying the officer’s use of pepper spray, but this is only part of the picture. To analyze further, introduction of some “Reasonable Concepts” into the analysis process is required to complete the picture.
The Reasonable Concepts are:
- Reasonable Person: What would a reasonable person do in the exact same situation knowing the exact same information?
- Reasonable Perception of the Suspect’s Action: What is the reasonable perception of the protestor’s actions?
- Reasonable Response to the Perceived Action: What would be a reasonable response to the perceived actions?
- Reasonable and Necessary Force: Was the force used reasonable, and more importantly, was it necessary?
The most important question and factor is the last one; that is, was the force used reasonable & necessary?
Was the force used reasonable? By establishing that the scale is balanced, with both the protestors’ actions and the use of pepper spray at the same orange level, one can properly conclude that the force used was reasonable.
But was the force used necessary? In order to answer that, the method of deployment or how the pepper spray was used must be analyzed.
Normally, the accepted way to deploy or use a personal size can of pepper spray (like an officer would carry on his or her duty belt) is:
- A single 1–2 second burst.
- From a distance of 3’ or greater.
Here, the UC Davis officer possessed and used a large crowd control size can of pepper spray and sprayed the protestors with a continuous stream from a very close distance.
The crowd control size can disperses a much larger amount of pepper spray and also has a much greater range than the small personal size can. The large can is intended to be used in crowd settings, which is significantly different from the personal size can intended for use on an individual. Because of these different sizes and intended uses, there should be a drastic change in deployment methods when using a crowd control can on an individual, if at all. Here the officer did not use the deployment method for use of pepper spray on individuals as indicated above and misused the pepper spray. His misuse was compounded even further by failing to compensate for the intended use of the larger crowd control size can when he started spraying the protestors. This caused an imbalance in the Use of Force Scale. This was not so much that pepper spray was used, but rather, how it was used.
This leads back to my short answer: No, I don’t feel that Lt. Pike acted appropriately in this incident. I think that the situation was severely mishandled. What I hope comes out of this incident, is that UC Davis will re-examine its Use of Force Scale, increase officer training in the proper use of pepper spray, and create new policies what will prevent this type of incident from happening again.
I would also like to comment that the police have a very difficult job, and face many situations that most civilians will never have to face; they really do lay their life on the line for us every day. Not all police officers are bad, but I think this shows that we need to provide consistent and proper training for our police officers.