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Opening Remarks and Rebuttal, Police Review Board, Faculty Advocates

March 5-6, 2012

Judith Butler, Maxine Elliot Professor of Rhetoric and Comparative Literature

Jonathan Simon, Adrian A. Kragen Professor of Law

Thank you very much for this opportunity to show the footage we have found depicting

the events of November 9th under consideration here. Before we show this clip, which lasts

about 20 minutes, we would like to make some contextualizing remarks and explain what it is we

understand our appointed task to be. We understand that you have already received some oral

testimony about the events that happened, and we ask that the oral testimony be treated alongside

the visual testimony presented here. As you know, there was no one camera following all the

events, and many of the events, including the preceding and following sequences were not

captured by cameras on the spot. As a result, the presentation of evidence in this case depends

upon a number of people who only happened to be there and to be recording, and in no way can

represent the full picture or the complete story. In some cases, as you will see, the same event is

covered from different cameras with different perspectives.

We have understood our own mandate to represent, as faculty, the student side of the

story, and so we have worked with some students who were there to produce a video and a

timeline that we believe best represents the events of that day. And we have collected some

testimony from students, although most of them voiced skepticism about the Police Review

Board, and were reluctant to participate in a process whose efficacy and fairness remains

uncertain. Indeed, it has not been altogether clear to us from the beginning what the mandate of

this inquiry is, and why it has been framed in the way that it has. If the inquiry follows from an

explicit request of the Chancellor to inquire into whether or not police actions in relation to

demonstrations on campus conform, or fail to conform, to university norms of what police action

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should be, then surely we need to ask two sets of questions from the start. The first set includes

these two: how are those norms established? And how have they changed over time? The

second set follows from the first: how best do we judge the current norms that govern police

conduct on campus, and how, if at all, ought those norms to be changed. Indeed, if we are asking

whether the actions do or do not conform to norms, are we then conceding that there are no

available rules or standards that have already been established by the Police Review Board, the

Brazil Report, or other university offices?1 Or are we saying that the police, in fact, did operate

according to accepted norms, and that what we have seen, and will see, are the expressions of a

new normative regime?

If we are restricted to asking whether or not police action conforms to existing norms,

that does not really allow us to question whether the development of current norms are legitimate

or not. In other words, as the video shows, new norms have come into play that establish

excessive and unprovoked force on the part of police against students and faculty practicing

clearly established forms of non-violent civil disobedience.

What we are witnessing historically at this juncture is the development of a new set of

protocols that engage military techniques against students and faculty engaging in forms of

protest that have been, for decades, regarded as expression of free speech and the freedom of

assembly.2 These same actions are now re-named as “threats to campus security”, suggesting a

violent or destructive set of actions. It cannot be the case that the non-violent expression of ideas

– in this case, ideas about the enduring value of affordable public education – are themselves

threats to the university. The threat to the university clearly comes first from the fact that its

funding has been cut back massively in recent years, and that students acquire debt in the midst

of an imperiled education, and go through their days with a damaged sense of their own future,

the closing down of possibilities. And the threat to the university emerges as well through the

training and unleashing of a police force against students and faculty who are engaged in an

educational project, and whose viewpoints, their non-violent modes of expression have been

cruelly renamed as criminal. Indeed, it is not only the security of the university that is clearly

threatened when the unleashing of violent police force becomes the norm, but when what is

attacked is the right of free assembly, the rights of protest, the exercise of freedom, and the

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spirited defense of a public university.

Unlike some infrastructures, e.g., public transit systems or sports facilities, which are

resilient to episodes of violence because they require little trust or personal engagement by their

participants, academic institutions, which require a great deals, and are often deeply personal in

their engagement of a person’s thoughts, emotions and imagination, are extraordinarily sensitive

to violence. One way of describing this is that academic communities have an especially large

stake in the dignity of the individual participant. Of course, all democratic societies have a stake

in the dignity of persons under their jurisdiction, as large organizations do, but the academic

stake in dignity is an extraordinary one. Acts that degrade subject carry an especially high cost

in such a community. One might have assumed that was precisely the reason to have a dedicated

police force, purpose designed to protect this vulnerable environment from the rough order

maintenance priorities that more general jurisdiction police might display.

The question before us is not whether the students were right or wrong to pitch the tents,

where they did. Nor is the question whether some students chose to risk arrest by linking arms in

civil disobedient defense of the handful of tents ultimately erected: many clearly did. The

question is: what is the appropriate university response to the pitching of tents when they are

explicitly prohibited by the administration? And even if the creation of large tent encampments

is an undesirable form of political expression for the overall good of the campus, what is the

appropriate way to manage a situation in which a small and contained cluster of tents are erected

in a common area?3 Surely, the pitching of tents is not a violent act, nor was the location, Sproul

Plaza, one which endangered core academic or administrative functions (as a building take-over

could arguably be said to do). And even if a fearful administrator or police official senses that

the pitching of the tent is the first step toward the commission of violent acts, that premonition

cannot be confirmed outside of clear evidence that there were intentions manifested by the

students to undertake violent actions. And even if students taunt officers verbally, that is not

violent action, and certainly provides no justification for the beating of students. Indeed, police

should be trained to handle verbal taunting without responding with violent forms of retaliation.

As we all know, or should know, the linking of arms is an established non-violent practice, one

that was widely used in the south during peaceful protests against segregation. The arms are

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linked in a defensive posture, making very clear that protestors are engaged in passive resistance.

The explicit point is that the arms are not raised against those they confront, and Chancellor

Birgeneau has been rightly criticized for claiming that the student tactics were “not non-

violent”.45 Indeed, the audio portion of our video makes clear that the protestors are opposing

violence. Their remarks include “shame on you” – to the police who are using violence; “we are

trying to stay in school “ – indicating the political message they are communicating; “we are

doing this for your children” – indicating that their action is in support of affordable education

for working people such as the police themselves. The students object to the police actions –

“you are hurting him!”; and they are astonished and appalled by the excessive and brutal force:

“why are you hitting him?” And “stop beating students!” – a plea that speaks for itself and went

unanswered.

Professor Celeste Langan from the Department of English and Acting Director of the

Townsend Center, linked arms and then submitted to arrest readily (offering her wrists to the

police) when police officers reached her at 1.33 on that afternoon, described their reaction in the

following way: “When the student in front of me was forcibly removed, I held out my wrist and

said "Arrest me! Arrest me!" But rather than take my wrist or arm, the police grabbed me by my

hair and yanked me forward to the ground, where I was told to lie on my stomach and was

handcuffed. The injuries I sustained were relatively minor--a fat lip, a few scrapes to the back of

my palms, a sore scalp--but also unnecessary and unjustified.”6 Her account is corroborated by

many witnesses and appears as well on the video, where you have seen her pulled by the hair at

approximately the 8 minute mark. As you can also see on the video, the batons are shoved

repeatedly into the stomachs of protestors, risking harm to the abdomen, including the potentially

fatal consequences of kidney rupture.7 Protestors are put into choke holds, cornered into bushes

where they are beaten, arbitrarily slapped across the face (Amanda Armstrong, the brunette in the

bushes), and beaten on the head.

The video evidence supplied by both sides shows that this particular episode was one

where aggressive police action to quickly change the situation by removing the tents they had

already dismantled caused panic and distress for protestors as they were caught between

thrusting batons and the press of bodies behind them, and in some cases by the building and the

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bushes along its western edge. This situation showed much in common with crowd control

disasters that have resulted in serious injury or deaths. Going forward, for the safety and security

of the campus community, this Board should clarify that the sequence of strategic decisions by

the Administration, and tactical choices by police commanders on the scene that led to this

situation amounted to a clear and serious violation of Berkeley campus norms.

Professor Robert Hass, former Poet Laureate of the United States and member of the

Department of English, described the scene in which he found himself this way:

“ Once the cordon formed, the deputy sheriffs pointed their truncheons toward the crowd. It looked like the oldest of military maneuvers, a phalanx out of the Trojan War, but with billy clubs instead of spears…My wife was speaking to the young deputies about the importance of nonviolence and explaining why they should be at home reading to their children, when one of the deputies reached out, shoved my wife in the chest and knocked her down…

My wife bounced nimbly to her feet. I tripped and almost fell over her trying to help her up, and at that moment the deputies in the cordon surged forward and, using their clubs as battering rams, began to hammer at the bodies of the line of students. It was stunning to see. They swung hard into their chests and bellies. Particularly shocking to me — it must be a generational reaction — was that they assaulted both the young men and the young women with the same indiscriminate force. If the students turned away, they pounded their ribs. If they turned further away to escape, they hit them on their spines…”8

NONE of the police officers invited us to disperse or gave any warning. We couldn’t have dispersed if we’d wanted to because the crowd behind us was pushing forward to see what was going on. The descriptor for what I tried to do is “remonstrate.” I screamed at the deputy who had knocked down my wife, “You just knocked down my wife, for Christ’s sake!” A couple of students had pushed forward in the excitement and the deputies grabbed them, pulled them to the ground and cudgeled them, raising the clubs above their heads and swinging. The line surged. I got whacked hard in the ribs twice and once across the forearm.”9

The video shows us that the arms are quite literally tucked away, linking with one

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another, and thereby expressing modes of solidarity and non-violent intent. If anyone looks

upon those linking of arms as way of communicating a physical threat, indeed, as a physical

threat itself, then the history of non-violent protest suddenly vanishes, and well-established ways

of expressing non-violent solidarity are erroneously converted in the mind’s eye into threatening

gestures. Indeed, the tradition of civil disobedience and non-violent protest is destroyed

altogether when actions clearly operating according to those conventions are considered security

risks to a university that authorizes militarized modes of police force to beat those engaged in

such practices. When this happens, as it clearly did happen, this is a sad and terrible day for those

who assumed that the non-violent expression of protest is protected on the University of

California campuses, indeed, who assume that it is one of the cardinal norms of this university to

protect, and provide sanctuary for, non-violent practices, long-established by a history of protest

in the US, South Africa, and throughout Europe. At such a moment, when violent police force

seeks to crush and disperse those who freely exercise their right to assemble and to express their

viewpoints in public, then the university is itself under a dire threat, since it has then failed to be

a sanctuary for the free expression of ideas - and this is a threat from which no police force can

protect us. Indeed, it is a frightening and morally perilous condition to find that as a university

community, we do not now know who might protect us from a police force that has been clearly

authorized to use excessive force and inflict physical damage on the community whose well-

being it is meant to protect.

It matters whether violent action is attributed to protestors, whether it is anticipated, and

whether the violent actions undertaken by police, authorized and and supported by

administrators, is preemptive rather than reactive. Preemptive police action can only be justified

if and when there is clear evidence that those gathered to protest intend to commit violent acts,

even then it should be used in measures carefully calibrated to be proportionate to the threat.

Otherwise the risk to the vital interests of the university from a catastrophic, if unintended result

is unacceptably high. There is, as far as we have been able to discern, no evidence that

protestors intended violent action or gave any indication, verbal or gestural, that that was their

intention or their aim. In psychological terms, the attribution of aggression to someone, or to a

group, who is not explicitly signaling any aggressive or violent intention, is called projection,

and it is a component part of paranoia. If an administrator says, “stop them now before they

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commit a crime” that administrator is imagining a scenario, and actually beginning the very

sequence of violence that he fears (this appears to be the operative assumption in UC Police

Captain Margo Bennett’s remark: "The individuals who linked arms and actively resisted, that in

itself is an act of violence." - an inference that defies every conceivable established norm

regarding non-violent protest10 It is our contention that violence was used without justification, a

preemptive maneuver, to crush and disperse a crowd who in no way signaled any violent

intention or action. Indeed, the most prominent signal given by protestors were the linked arms,

a clear and readable sign of non-violent protest that should clearly have been part of any police

training, especially for US campuses. The actions on November 9, 2011 clearly go against the

recommendations of the Brazil report, specifically the recommendation to establish lines of

communications with protestors prior to any police action. This is but one reason that students

and faculty alike call into question the efficacy of the Police Review Board to effectively guide

the actions of police in such instances. We hope you can and will dispel such doubts.

It makes no sense to argue about whether or not the police had to use batons to beat and

drag protestors in order to accomplish the goal of taking down the tents unless we first establish

that the goal of removing the handful of tents contained along the northwestern corner of Sproul

Hall was worth beating and risking the lives of protestors. One reason this makes no sense is

that it is clear from testimony both visual and verbal, that the police brutality continued even

after the tents were taken down. This leaves us with a troubling question: why would police

continue to beat protestors when the apparent aim of the police was to clear the tents? This

clearly suggests that police brutality was excessive and continued way beyond the stated goal of

the police action. Instead it is consistent with either personal vendettas on the part of police

officers, or a collapse of discipline by an angered and poorly trained unit, neither of which is, or

should be, within campus norms.

The other main reason it makes no sense to argue this point is that the command to use

police violence against protestors is in no sense commensurate with the goal of clearing the tents.

There would have been other ways to arrive at that goal, if that goal was to be achieved. And

yet, no efforts to sit down and negotiate with those protestors preceded this action. Moreover, as

our video shows, the tents were effectively cleared (by minute 13 of this video), and police

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violence continued after that clearing and into the night, as the final footage shows. It was

panicked, excessive, if not frenzied, and did more to damage a sense of trust in the university as

a space for free assembly and public expression than any ostensible security problems posed by a

set of tents established on campus. Indeed, one can be for or against tents, and still find that the

police actions in this instance evidenced excessive force that was unjustified and in violation of

the university norms that protect freedom of assembly and expression, and guarantee students

rights of protest free of intimidation and harm. 11

It is clear that police reacted with batons, beatings, and dragging to those who tried to

speak to them, or to speak their views. And in these cases, amply demonstrated by faculty

members Robert Hass and Celeste Langan, it was precisely the speech that prompted the violent

response. The speech was time and again an effort to dissuade police from the use of force, and

to insist on rights of free expression. The speech was itself not threatening, and in no sense

could be construed as the expression of a threat on the part of unarmed and peaceably assembled

members of the community gathered to insist on the importance of maintaining an affordable

education at UC Berkeley. The police actions were in this sense not only unwarranted and

unprovoked, but clearly excessive and unjustified by any norms that would acknowledge and

preserve the absolute rights of freedom of assembly and expression.

One problem we have had with the Chancellor’s mandate to the PRB is that it restricts

itself to the question of whether police actions were acceptable according to the norms of the

university community. As we mentioned above, it does not allow us to discuss and dispute what

the new norms have become, and how we are to evaluate them. We need to ask whether these

norms include a new militarization against campus protest, and why and how such norms should

be undone, rethought and remade. And yet, when non-violent protest is renamed as violent

provocation, then we enter an Orwellian world, and we must then return to examine what words

mean, and why, ethically and politically, we cannot reverse the order of violence or the very

distinction between violence and non-violence without committing a massive and consequential

injustice. Secondly, we are not permitted within the narrow confines of this proceeding to ask

whether the police were acting on the explicit orders of the administration. If they were, then

they still bear some responsibility (since unjust actions mandated by authorities in power should

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be contested and refused by those who know the law and see the way it has been overstepped by

anxious administrators who base their actions on imagined scenarios that haunt their minds

rather than on any discernible empirical evidence).

And yet, we want to argue that it is germane to these proceedings whether police actions

were authorized and instigated by administrative command, as the police have made clear in

their circulated missive to the administration and regents on November 28, 2011 (“Please don’t

ask us to enforce your policies then refuse to stand by us when we do.") It makes a difference

because if recent police actions represent an effort to enforce new norms of preemptive action

against civil disobedience promulgated by the university administration, and if this committee

seeks to preserve norms that have traditionally governed police relations to the members of this

educational community, it is important for this Board to make clear that the norms articulated by

the administration are the ones that are clearly in conflict with, in violation of, the norms by

which this community has and should be governed. Thus, it makes sense to ask for a full

disclosure by the administration of the chain of command that led to the use of excessive police

force that left many students and faculty injured, and which left the rest of us in a state of shock

and moral revulsion. Without knowing whose orders precipitated this unwarranted and

excessive use of force, we cannot know what part of the responsibility lies with the police, and

what part lies with our own administration. If the ideal norms of the community, the ones that

this committee is entrusted to preserve and defend, have been abrogated by administrative as

well as police policies, then we need to know (a) how best to allocate responsibility for this most

grievous breach of trust, and (b) how to make sure, as a result, that such force never again be

unleashed against those who are exercising their most basic and protected rights. Indeed, we will

not know what part of that responsibility ought properly to be assumed by the police until we

have a fully transparent account of the chain of command.

We understand that this puts the Police Review Board’s proceedings in a predicament,

since it is this Chancellor who has appointed this committee and asked to be presented with its

finding. But that does not mean that the committee is obligated to turn away from any and all

ways that the Chancellor and Vice-Chancellor took an active part in the authorization of

excessive force. I am sure that none of you were told that you may not place any blame on the

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Chancellor’s office as a condition of participating in this review. Your task, as I understand it, is

to follow where the evidence leads and to provide strong normative guidance for the police and

the administration regarding the just treatment of protestors in any future case. To that end, we

would like to reiterate that it is not possible to delimit police responsibility for those actions

without full disclosure of the chain of command.

As we now know from published emails obtained through the Freedom of

Information Act by the ACLU of Northern California, that (a) Birgeneau was told that police

were using batons, and he did not object12, and (b) that Breslauer clearly relayed without

objection the following description of events: “Protestors locked arms to prevent police from

getting to the tents. Police used batons to gain access to the tents.” Thus, after learning of the use

of batons, Birgeneau replied “This is really unfortunate. However, our policies are absolutely

clear. Obviously, this group wanted exactly such a confrontation.” Although Birgeneau claimed

at the meeting of the faculty senate on November 28, 2011, that in the meeting preparing for the

demonstration, “we did not discuss the use of batons.” And yet, he was told about that use, and

offered no objection: his response: “it is critical that we not back down.” A closer look at those

emails shows that there is no discussion of (a) ways of trying to solve the problem that would

balance the rights of students to protest with the security concerns of the university, (b) ways of

solving the problem that would place police force as the last resort, (c) how arm-linking is a way

of signaling non-violent protest and solidarity, (d) whether the use of violent police force against

protestors to remove tents is commensurate with the problems that the tents posed, and (e) why

police violence persisted even when the tents were clearly gone.

Moreover, we see precisely a set of imagined and projected scenarios that fatefully took

the place of a careful inspection of the situation and a full and thoughtful deliberation on

appropriate approaches to take. Chancellor Birgeneau: “obviously this group wanted precisely

such a confrontation” – a massively erroneous presupposition that led to the violent attack on

non-violent protestors who clearly did not seek to be beaten and dragged. And then again, EVC

Breslauer, imagining in his emails that this protest would go on for days, and then again, at the

faculty meeting, confessing his fear that it would turn into another tree protest, lasting more than

a year. These spectres do not correspond with the facts of the case, and yet they were

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mistakenly and forcefully put in place as the administration joined ranks with the police in

attacking unarmed protestors practicing time-honored techniques of non-violence.

The Occupy Cal protest on November 9 included calls for both a one-day protest and

potentially an extended encampment. The Administration was intent on preventing the latter.

Although we might individually question the wisdom of that decision,13 it was not the fateful

one. We know from the statements made by the representatives of the police at the March 5,

2012 PRB meeting, that broad and concerted actions were undertaken by the police beginning

the night of November 8th and continuing throughout the morning of November 9th to prevent the

infrastructure of encampment from being brought onto campus. We are not in a position to

evaluate the conduct of the police during that phase of the operation. Some of it may have been

well calibrated, but there may have been incidents of abuse and unnecessarily strict enforcement

of regulations involving core free speech activities like for example the precise size of signs (we

would call this pretextual policing which has its own complicated ethical and legal problems).

The main point we can comment on, however, is that due to that effort, by the time confrontation

on Sproul escalated, only a handful of tents were in evidence. There was little or no risk at that

point of an Oakland let alone New York type of encampment and if some risk remained proper

passive deployment of police could have address it (or perhaps a negotiated resolution that

symbolic encampment of limited duration would be tolerated).

In the end protestors, which was composed in large portion by students of this university

(as well as some faculty and staff) were subjected to unnecessary physical beatings that created a

serious risk of injury or even death, and a near certainty of injury to their dignity as human

beings. Those who gathered there in no way asked for the beatings they received. In fact, their

only real error was to think that their peaceful protest would be protected by a university and its

police force that is dedicated to the rights of peaceable assembly, the rights of protest, and free

expression. We do not wish to suggest that in the past there was always an balance between free

expression and campus order. The policing of protest has resulted in confrontations and violence

periodically since the 1960s. Many of these could have been avoided or minimized by a stronger

Administrative commitment to protecting the university’s long term interest in the dignity and

security of the campus community and better policing tactics, but recent clashes suggest a shift

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toward preemptive policing of civil disobedience that is new and highly threatening to the

university’s core interests. But since norms can replaced and remade, and committees such as

yours are charged with the responsibility of articulating the norms by which we all wish to be

governed, we urge you to make clear that these forms of unprovoked and excessive brutality

have no place in a public institution of higher learning such as ours.

In conclusion, we ask you to protect Berkeley’s norms of public expression and abiding

respect for the dignity of all participants by developing strong and binding standards that will

make sure that excessive police force is never again used on this campus as it was used on

November 9th, 2011. We ask as well that the Police Review Board follow the sound legal advice

of the ACLU of Northern California and urge the administration to drop all criminal charges

against students and faculty who engaged in protest on that day and granted amnesty. We

include among the supplementary material here statements from the ACLU, Professors Langan

and Holmes, and student, Julie Klinger, all of whom call for the dropping of criminal charges.

Some of the supplementary material expresses the sentiment that appeals to the Police Review

Board for assistance with legal proceedings against them have fallen on deaf ears, and whose

experience, collectively, confirms the sense that this Board has not yet taken a strong stand

against the preemptive criminalization of protest and against excessive police violence. That

impression can be reversed through this proceeding, and it is our wish, our hope, that it will.

Final remarks from Judith Butler at the close the session on March 6, 2012:

The Police Review Board meetings consisted of approximately 4 hours of presentation by legal counsel for the police, and about 1 hour and 15 minutes of presentation by Professors Jonathan Simon and Judith Butler, assisted by faculty witness, Professor Celeste Langan, and three students, Amanda Armstrong, Munira Lokhandwala, and Michelle Ty.

The rebuttal of the legal testimony on behalf of the police included the following points:

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1.) The first point pertains to the counsel’s claim that the gap between the hedge and the

wall during the second police confrontation with protestors was “created” by the police

as they passed through, once having cleared the protestors away. As anyone can verify,

there is a pipe along that wall, and a path has long been established for the servicing of

that pipe. So it is clearly not the case that the path came into being only once the police

made the path, and that their sole intent was to clear the path in order to retrieve the tents,

as counsel claimed. They had access to this path all along to get to the tents they were

seeking to dismantle and carry away.

2.) Indeed, this leads us to the conclusion that, in fact, the police had two different options

when the attempt was being made to confiscate the tents for the second time. They could

have used the south passage, as the counsel’s video itself clearly demonstrated. And they

could have used the path between the hedge and the wall. Instead they chose to engage in

a frontal attack on protestors with batons. This was not the only option, so we have to

ask why they chose that option rather than the other two that were available to them.

3.) I think we can only understand why they chose the option of frontal confrontation with

batons because they actually had two aims that they sought to accomplish. The first has

already been stated: the removal of the tent. The second is the dispersion of the assembly

itself. After all, prior to that confrontation that is clearly documented visually by the so-

called “viral” video, the assembly had itself been declared unlawful. This was done by

the police officer using the bullhorn. So the police aims at that point became minimally

two-fold: the removal of the tents, and the dispersal of the crowd that was now

understood as unlawfully assembled.

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4.) When the police announced through the bull horn that this was an encampment, and

camping was illegal, the student protestors responded verbally with “we are standing" –

which was a way to verbally communicate that they were not camping.   So the practical

issue of removing the tents was clearly different from the declaration of unlawful

assembly and its consequent enforcement. This raises a set of questions about the

conditions under which it is justified to declare an assembly unlawful. It is especially

important if we are to understand that the freedom of assembly is revoked at this moment

by police order.   If the assembly itself was non-violent, on what grounds was it declared

unlawful?  That it was non-violent is clearly demonstrated by the fact that there is no

video testimony that documents even a single instance of a student assaulting a police

officer. Note that the student chanting consistently differentiates its own behavior from

the violent tactics of the police: “peaceful protest, peaceful protest”; “stop police

brutality”; “shame”; “free speech”; “you’re hurting us”, “what are you doing?” “we are

peaceful” Also, how are we to understand the protestor’s response? They were clearly

objecting to the suspension of their rights of assembly, quite clearly opposing the

declaration of unlawful assembly on the part of the police as a way of insisting on those

rights of assembly: it is those rights that were being asserted by the refusal to disperse,

and this is easily identifiable as a conventional practice of non-violent civil disobedience.

I also want to add here: civil disobedience is the tradition from which we draw when we

consider a law, or its implementation, to be unjust, and it is conventionally responded to

by civil arrest, indicating a recognition by the police of the non-violent form of protest

that is happening, the willingness to be arrested on the part of the protestors, thus the

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non-violent character of the event. But what we are witnessing is a change in police

protocol and tactic that responds to non-violent civil disobedience with force, with

batons, and with military tactics. This represents a significant change in the “norms”

that have governed protest on the UC campus.

5.) Legal counsel seeks to establish that the police action was planned, that it was “a

controlled moment”, and this argument is meant to demonstrate that there was no rogue

action, no excessive force, no mayhem caused by police actions. But this begs the

question, since even if it was a plan, and that can be clearly established, that does not tell

us whether this plan is justified or not (whether it conforms to those norms that should be

governing this community, or whether this constitutes a new set of norms that unfairly

criminalize protest and militarize police tactics). If the plan was to use force to remove

tents, then we have to ask whether (a) whether the police used excessive force, (b) and if

yes, whether the use of excessive force was justified by the nature of the infraction

(“encampment” – and so an infraction that caused no harm to persons or to property), and

(c) whether the use of batons to disrupt or disperse non-violent assembly on campus is

ever justified.

6.) If we then return to the question, whether the force used was commensurate with the

infraction, we are led to consider whether other avenues of negotiation were pursued?

This is a moment when the Brazil report recommendations to exhaust other means of

negotiation prior to the use of police force was clearly disregarded. This should be of

special concern to the Police Review Board which was in large part responsible for the

drafting of the Brazil report.

Indeed, the lawyer had not queried whether or not the administration sought to contact

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and negotiate with demonstrators prior to unleashing the police on protesters. But this is a

key question whose answer bears directly upon the question, did the university act in

compliance with the Brazil report and with UC Berkeley's Principles of Community ("We

are committed to ensuring freedom of expression and dialogue that elicits the full

spectrum of views held by our varied communities.").

I would also note that Amanda Armstrong, a student protestor, witnessed police beating

protestors who were actively and clearly leaving the scene, which clearly suggests that

the police action was not exclusively guided by the removal of tents. Indeed, it was not

even focused secondarily on the dispersion of an unlawfully assembled crowd. It was

vicious and pointless, except to inflict injury on those who were either seeking to

assemble or seeking to disperse. And both Amanda Armstrong and Celeste Langan

report that protestors were backed up without the possibility of dispersing, and then

individually wrenched from the crowd and thrown to the ground or beaten with batons.

Both Langan and Armstrong relayed that they tried verbally to indicate that there was no

place to go to after having been told to move and leave. So the question remains: was

whether the crowd was being “kettled” or dispersed, or possibly both at once? If the

orders to disperse happened at the same time as the “kettling” that made any dispersal

impossible, then gathering the crowd into a mass produced a population immobile and

defenseless up against the police batons.

Final remarks from Jonathan Simon at the close the session on March 6, 2012:

I would only add that the extensive and well delivered lawyering on display here over the

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last two nights has only strengthened the case that the Administration and the Police

made a terrible mistake in deciding to turn the elimination of a handful of tests and a

largely symbolic encampment into a security imperative justifying violence against

protesters engaged in non-violent civil disobedience. The usual logic of defense

presentations, extensively pursued by counsel for the police, Dr. Scancarelli of Crowell

and Mohr, involved widening the “time frame” of the facts to show that apparently

assaultive behavior was in the broader scope of events, justifiable. But here the

somewhat broader and more temporally precise time frame provided by the police has

only underscored the absence of context specific justification for the undeniably violent

batoning of demonstrators.

1 We recognize that a variety of existing university rules and regulations provide broad guidance on how to protest without fear of arrest, and grant to police authority to enforce campus rules and regulations with arrest, as well as to use reasonable force in accomplishing arrest. It is however the reasonableness of the force used on November 9, 2011 is that is at issue here. To establish what constitutes a reasonable use of force, we must have recourse to established norms regarding the appropriate policing of acts of civil disobedience, including what one might call “civil arrest” in the history of the Berkeley campus. It is here that we are concerned that these events, when connected to the events of November 2009, may signal a new normative order being imposed by this Administration. 2 Police were filmed practicing striking protesters with batons a month before the events of November 11th, 2011, implying that this form of crowd management was, in fact, a deliberate and planned policy. See: http://www.youtube.com/watch?v=mAx_tDn2zus&sns=em

3 Video shown by police representatives at the March 5 meeting of the PRB showed that only a handful of tents had been erected and that at the point when the most outrageous police violence occurred these tents had been effectively contained and cut off from expansion by police officers. 4

5 These remarks were made by Chancellor Birgeneau on November 10, 2011: “It is unfortunate that some protesters chose to obstruct the police by linking arms and forming a human chain to prevent the police from gaining access to the tents. This is not non-violent civil disobedience.” A knowledgeable response emerged shortly thereafter on a blog cited below: “The docket records of civil rights struggle show too much resistance for it to be plausible to assert that it was no part of the tradition Birgeneau wants to honor. Chicago v. Gregory (1966), Pennsylvania v. 100 Defs. (1963), New York City v. 7 Defs. (1963), New York v. 17 Demonstrators (1966), and New York v. Gray, Vaughan (1966), to name a few, look like good places to explore further the resistance of civil disobedience within the "tradition." In New York v. 17 Demonstrators, for example, “50 demonstrators, mostly mothers on welfare, blocked doors of Dept of Welfare, seeking increased clothes allowances for school children,” and were arrested for “disorderly conduct, trespass, resisting arrest.”

Closer to home, Mario Savio was among a group of protesters who repeatedly picketed and sat in at the Sheraton Palace Hotel in San Francisco to protest its racially discriminatory hiring policies in 1964. They did so in violation of a court injunction that limited the time they could protest, and on March 7, 1964, were arrested “lying down with arms linked . . . blocking the exits of the hotel” (from Savio’s applications to the Mississippi Summer Project, King Center Library, Atlanta; quoted in Jo Freeman, “How the 1963-64 Bay Area Civil Rights Demonstrations Paved the Way to Campus Protest,” Organization of American Historians, San Francisco, April 19, 1997). Freeman, who participated in the Sheraton Palace protests, remembers how their efforts were almost universally reviled.

In thinking about the reception of African-American civil rights protest and examples like Mario Savio’s together, we re-encounter in its most powerful form Birgeneau’s hoped-for distinction between heroic non-violent activists and undesirable, not non-violent students. It's the convenience of this that is at stake in the question of the incidence of resisting arrest in “classic” African-American civil rights protest. In a recent book on the photography of the civil rights era, Martin Berger and David Garrow ponder the anonymous photograph above, showing a woman in the Birmingham protest fiercely contesting her arrest. Berger and Garrow point out that the mainstream history of the era tends not to reproduce such photographs, and we can see the legacy of that pattern in the cliché version of the “tradition” mobilized by Birgeneau. “White publications in the North shunned such complicating photographs,” they note, and left it to segregationist journals to publish them. The “inactive-active opposition,” they argue, “structured the emotional and intellectual response of whites to photographs of dogs and fire hoses” ( Seeing Through Race: A Reinterpretation of Civil Rights Photography [Berkeley and Los Angeles: University of California Press, 2011, p. 119]) and so regulated both their empathy and their understanding of protest. It is this very opposition that Birgeneau complacently repeats, at once narrowing the possibilities for activism and obscuring the complexity of the history he thinks he honors.” Written by “RT” in http://workwithoutdread.blogspot.com/2011/11/not-non-violent-civil-disobedience.html

www.aclunc.org/issues/freedom.../asset_upload_file306_9437.pdf6 Professor Langan’s account was published as a blogpost at http://utotherescue.blogspot.com/2011/11/why-i-got-arrested-with-occupy-cal-and.html 7 The death of newspaper seller Ian Tomlinson after being struck in the leg by police officer wielding a baton and pushed to the ground, during a London anti-G20 demonstration in 2009 shows a recent example of the potentially fatal consequences of baton use in a chaotic demonstration setting. Due to an investigation by the Guardian Newspaper the Crown Prosecution Service was ultimately led to charge the office involved with manslaughter (a legal standard requiring gross negligence if not recklessness toward the risk of death), a trial currently scheduled to begin this June. See,   http://www.guardian.co.uk/uk/g20-police-assault-ian-tomlinson;

http://www.guardian.co.uk/uk/2009/apr/07/video-g20-police-assault; http://www.guardian.co.uk/uk/2010/jul/22/cps-statement-death-ian-tomlinson. Tomplinson’s death is compelling evidence that a baton blow can be a fatal event and thus should be justified only in response to conduct that also carries very significant risks.8

9 Sunday Opinion Review, November 19, 2011

10 www.aclunc.org/issues/freedom.../asset_upload_file306_9437.pdf

11 http://campuslife.berkeley.edu/sites/campuslife.berkeley.edu/files/Final-Report-Code-of-Student-Conduct-Task-Force.pdf

12 http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/21/BAJ21N9CVU.DTL

Professor Simon noted on his blog that private universities, like the University of Chicago, have often been more reluctant to utilize police violence against students. http://governingthroughcrime.blogspot.com/2011/11/police-are-not-here-to-create-disorder.html

Selections from testimony and supporting evidence submitted to Police Review Board:

From the ACLU, December 12, 2011:

“Urge the Alameda County District Attorney not to prosecute Occupy Cal arrestees and to make a prompt public announcement of all charging decisions. Chancellor Katehi has taken similar steps with the Yolo County District Attorney with respect to Occupy Davis arrestees. This is necessary to ensure that those who were arrested - a universe of individuals who are most likely to have relevant information about police conduct on November 9- can make informed decisions about whether to testify, and are not chilled from participating in an interview or testifying because of uncertainty about their criminal cases.”

From student:

“… Wednesday, November 9, UC Berkeley students staged a rally andmarch with the goals of protesting a proposed 81% fee hike and drawingattention to the increasing fiscal crisis facing public education inCalifornia.  After the march, students held a General Assembly meetingin which they formed a consensus to build an encampment (a la OccupyWall Street) on Sproul Plaza.  Students made this decision with fullawareness that, earlier in the week, the UC Berkeley Chancellor hadissued a letter stating that camping constituted a violation of thecampus code.

Shortly after the tents were pitched, while students were playingmusic on guitars, painting signs, and chit-chatting in true UCBerkeley fashion, police forces began gathering.  What ensued wasnothing less than two separate police attacks on non-violent studentprotesters.  Two police forces (UCPD and the Alameda County Sheriff'sDepartment) and hundreds of police officers in full riot gear advancedon students who had linked arms to form a human barricade around thetents.  The riot police formed a line with batons drawn, held in bothhands across their bodies, and they moved forward as a block, jabbingthe batons towards the line of students in unison.  Behind them wereseveral officers holding automatic weapons that looked like somethingout of Grand Theft Auto--tear gas launchers? rubber bulletguns?--which they sometimes pointed directly at students' heads andbodies.

I witnessed a young woman on the ground being repeatedly attacked withthe end of a baton by a police lieutenant from the Alameda CountySheriff's department.  I saw two young men get tackled and arrested,one as a tactic to break the line of locked-armed students, and theother for trying to pick up a tent pole.  I also saw two young womenget their hands stamped on by a policeman's boot when they tried topick up a bike light in between our line and the officers'.  And thiswas just in my small corner of the first and less intense standoff.

In the second, the police forces were more aggressive, and manyofficers (as opposed to only a few in the earlier event), were--forlack of a better word--rabid.  They repeatedly attacked students withbatons with ZERO provocation.  In total, 39 people were arrested inboth confrontations, and many more were beaten, including two students

in a class I am currently teaching and a fellow graduate student frommy department.

I was fortunate enough to escape these events with only minor scrapesand bruises.  I am shaken, however, and more angry than perhaps I'veeven been in my life.  On Thursday morning, I had visions of bootingpolice officers in the face while I was in the shower.  For the restof the day, I intermittently cried and swelled with outrage.  When Isaw police officers on Sproul plaza standing around in small groups, Iliterally could not raise my eyes to look at them.  Predictablyenough, I have been completely mobilized into action by Wednesday'sevents, as have thousands of students and community members who havebeen shocked and outraged by the videos they've seen…

I am incredibly proud of Cal students who courageously held the lineand remained completely peaceful throughout the day and night.  Wecontinuously shouted "peaceful! protest!" particularly when the policewere acting most aggressively.  There was not a rock or bottle thrown,and the chants consistently demonstrated empathy with or at leastrespect for the humanity of the police ("We're doing this for yourchildren!" or "Stop beating students!" or "You are the 99%!").

The larger point here is that we live in a society in which this typeof police use of force is entirely normalized.  It is expected, and infact justified, that the roll-out of police in riot gear is the firstresponse to non-violent student protesters. I mean, the students wereviolating the law, right?  They should have known that this is whatthey would get.  What did they expect?

I ask instead, in what world are militarized riot police anappropriate response to students with tents?????  And I challenge you(and all of us) to think through what Wednesday afternoon might havelooked like if the use of force was OFF THE TABLE.

In the aftermath of these events, I had the urge to ask the Chancellorto articulate the threat that the encampment posed that justified thekind of response we saw on Wednesday.  And in fact, he issued a letterto the campus community doing just that on Thursday.  It turns out,while he supports marches and rallies as forms of protest, encampmentspose a threat to sanitation and hygiene, and he is worried about thecampus administration's ability to manage conflicts arising within(Needless to say, I, too, am worried about the administration'sability to manage conflict after Wednesday's events, but I digress).

I would argue that this standoff is not about hygiene, sanitation, orconflict management; nor is it simply about a few students with tents,as those of us who are sympathetic to the protests have argued.  Thisis about establishing a space within which dialogue across divisionsof race, class, gender, religion, and ideology is encouraged,facilitated, and prioritized; within which any and all participantsare provided the consistent opportunity to give voice to their ideasand concerns about the nature of the society they live in; a space in

which the creativity and imagination necessary to visualize inclusiveand egalitarian political, economic, and social systems are nurtured;a space in which I, for one, feel like I can participate withoutmaking ethical compromises.  THIS is the threat that these encampmentsrepresent.  And this is also the reason that so many students,including me, are willing to defend their construction with ourbodies.

From student:

"Put the guns down!" shouted students who had linked arms as police shoved and swung batons, whacking anyone who stood between them and the impromptu encampment outside the administration building.

"It really, really hurt - I got the wind knocked out of me," said doctoral student Shane Boyle, raising his shirt to reveal a red welt on his chest. "I was lucky I only got hit twice."

from Seth Holmes, faculty:

“According to coverage by the Daily Cal, all 31 students arrested on November 9th were charged with "resisting arrest and unlawful assembly" and Birgeneau's email stated that he would be "granting amnesty from action under the Student Code of Conduct to all Berkeley students who were arrested and cited solely for attempting to block the police." 

(http://www.dailycal.org/2011/11/14/chancellor-promises-inquiry-into-police-use-of-force-amnesty-for-some-student-protesters/) 

If citation for "blocking the police" is the same as "resisting arrest and unlawful assembly" in legal terms, then all of these students should have been granted amnesty according to Birgeneau.”

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/09/BA861LSR8G.DTL#ixzz1oI7hlupt

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