On the morning of November 17, UC Davis students participating in a peaceful protest of rising tuition costs, in solidarity with the Occupy movement, were informed that they were to remove their tents from the quad on which they had been camping. The protesters had spent only one night there, but the university said the encampment was a health and safety violation. The students’ first instinct was to engage in a dialogue with the university; students requested that the administration cite the standards they were violating, but by that afternoon no details had been provided to them, so the students decided to continue to “occupy the quad.”
That occupation, however, did not last long. At around 3 pm, police in riot gear arrived on campus, threatening to “shoot” students who refused to leave. As students were pulled up from the ground at random, their hands violently tied behind them, twenty-five students remained peacefully seated in the center of the quad. A crowd of onlookers began to accumulate. In a scene that would go viral, thanks to cell phone videos, officers stepped within a few feet of the seated protesters, shook cans of pepper spray—“like cans of aerosol paint,” according to the students’ complaint—and doused the protesters. UC Davis student David Buscho described the experience as “absurdly painful…we were in a state of collective shock.”
Now that the shock has worn off, nineteen of these students, supported by the ACLU of Northern California, are fighting back with a lawsuit filed against UC Davis administration and officials that alleges that its actions violated the students’ First Amendment rights. An attorney for the plaintiffs, Mark Merin, believes that the police had no right to get involved in the protest, asserting that the “right of general assembly is enshrined in the constitution and should not be interfered with by police.”
While the nineteen plaintiffs in this case are seeking compensatory and putative damages, the suit also asks for a statement from the court that the First Amendment rights of the protesters were violated, and that there be a serious effort to reform the campus practices that led to that violation. Merin believes campus policies should be revised to grant students an opportunity to appeal the decision if the university moves to quash protest.
Cases like this are not without precedence. In 1972, in the case of Jeanette Rankin Brigade v. Capitol Police, the Center for Constitutional Rights represented several Vietnam War protesters who had been arrested while demonstrating on Capitol grounds. CCR asserted that the federal statute under which they had been arrested, which prohibited congregating in a group in Capitol property, was unconstitutional. A district court, in a decision that was later affirmed by the Supreme Court, ruled the statute unconstitutional, stating that “it would be difficult to imagine a law that more plainly violates the principle that First Amendment freedoms need breathing space to exist.” In 2008, in the case of Kunstler v. City of New York, the New York Police Department awarded anti-war protesters $2 million after they filed suit for unlawful arrest and excessive detention, violating their First, Fourth and Fourteenth Amendment rights. Merin acknowledges that these are good precedents for the UC Davis case, signaling that free speech in general, and protests in particular-should be protected under the law.
The UC Davis case is just one in a series of recent lawsuits brought about by Occupy movement protesters asserting that their rights have been violated. Last October, protesters who where arrested while on the Brooklyn Bridge filed a civil rights complaint against the city, Mayor Bloomberg, and NYPD Commissioner Ray Kelly, alleging that they were lured onto the bridge in order to be arrested. Two women who were pepper sprayed in a now-infamous episode involving NYPD officer Anthony Bolgona sued Bologna, the city and the NYPD in February. Just last week, two protesters who were arrested during an action against Merrill Lynch offices in Washington, DC, sued its Metropolitan Police Department for violating their First Amendment rights and accused them of false arrest. All of these cases are pending.