Reasoning with University Police

(And the moral of the story is: don't bother talking to the cops, kids.)

I am fairly certain that one of the most alluring temptations when discussing theory and political practice is the impulse to work through a facile deconstruction that would read theory as practice, or vice versa. This is not to say that academic writing has no effect on the world; nor is it to say that political practice is transparently comprehensible. But to describe theory and activism (or academic writing and political praxis, or scholarship and politics) as opposing terms—even to deconstruct this weak binary—is already to misrecognize the world and the things we do in it. Academic writing is strongly shaped by political practices, surely, and certainly actions are are determined by a vision (theory, theoria) of the world.

Simply put: the distinction between theory and practice is a purely theoretical one, as the joke goes.

So my aim here is not to categorically separate theory from practice, nor to show how their inextricability subverts any hierarchical valorization of one term over the other. Instead, I would like to approach the problem of politics and scholarship through a consideration of the ways in which both intersect in the notion of authority. Authority names an abstract figure that is—if taken as the sum of its variations and related instantiations (e.g. competency, mastery, sovereignty, majesty, and the psychoanalytic father/phallus)—fraught with ambivalence for the student activist. As students, authority is an ideal we aspire towards in our own work, which is to say authority understood as mastery over a field or discipline, as writerly control and as authorship. On the other hand, authority is that against which we protest, against which we rebel as political activists. This is not to say, of course, that we blindly rebel against all authority—though some of us do—but rather that everything we protest should be some form of authority. The king cannot rebel against the subject, obviously, though those in power can certainly take on the superficial trappings of protest (but their shallow grievances always ring insincere). And yes, students hold quite a bit of power in our society, if taken as a whole, though we are excluded from the decisions that determine our conditions of study and of labor. When we want to influence changes at this level, from which we are excluded, we can only plead, cajole, reason with, sway, persuade, etc. We can occasionally demand change, true, but it's very rare for student movements to amass the power necessary to produce a real threat that could fortify this demand (and by "real threat," I don't mean physical force or violence necessarily, but also the maneuvering of enough symbolic capital to shame or embarrass the university into response). Insofar as student activism implies a degree of protest, this activism positions itself against authority and it addresses authority; authority is its target as well as its aim.

But sometimes we confuse the authority of reasoned academic discipline with the authority of physical force. This is a more common understanding than one would think. But every address to the latter form of authority in the name of reason mistakes words for batons. This mistake is understandable; that force finds its justification in rules and laws ostensively backed by reason can make it seem as though the distribution of violence is governed by an underlying and comprehensible logic. In an environment that claims to uphold rational thought above all, encountering the dumb indifference of university police towards reason is jarring. But this encounter is enlightening in the same way that all mistakes are, and I am reproducing my mistake below to make it available to others. Last year, I emailed a lengthy argument to UC Irvine police about police violence, and never received a reasoned response to the points I made. Though this was technically a dialogue, it more closely resembles the exchange of two bloated windbags, each blowing in the general direction of the other. Still, I have decided to put the entire exchange online, not only because I think that my critique of the UCI police code has some small merit, but more so because the unfolding of the exchange reenacts the argument I make. “Reasonableness” in the UCI police code of conduct is only something that can be determined by a police officer, and the following exchange demonstrates this rule in action insofar as the police felt no obligation to respond to my reasoning. The refusal to accept a student protester’s “reasonableness” and the refusal to seriously engage with my argument stems from the same foundation. The police are under no obligation to hear the student/protester. There is no reasoning with the police, and even as I admitted this conclusion logically, I still emailed them back. The content of my email contradicts its intent. It was a profoundly, fundamentally stupid thing to do on my part, and I admit this wholeheartedly. The stronger reason is sometimes the better, but the reason of the strongest is always the best.

As I will shortly show.

A little background first. A UCI police officer emailed my friend J. and me out of the blue Winter Quarter 2012. Neither of us particularly worked on UC police violence, though we were at meetings with administration where the question was brought up. I wrote up a response, ran it by my friend for feedback, and sent it. This was during a period of strong student protest, at least by UC Irvine standards. The response was strongly influenced by Giorgio Agamben, and more specifically an article on Agamben by Kirk Wetters titled “The Rule of the Norm and the Political Theology of ‘Real Life’ in Carl Schmitt and Giorgio Agamben.” What I really drew from this article is the idea that the sovereign decision is one that determines whether a given situation conforms to a norm, defined as a normal situation in which the rule of law applies, or not. Sovereignty does not determine the law so much as determine whether a law applies in any given situation. This is the basis for authority, not reason.

I have bracketed all changes and additions since this was originally written in March 2012. I’ve added some relevant links. I omitted the name of the officer who emailed us, though I did not omit the name of his superior officer or the administration. I did this because I assume that the former was simply following orders.

Hi [J.] and [T.N.],  my name is [XXX XXXXX] and I am a Lieutenant at the UCI Police Department.  Chief Paul Henisey gave me your names and stated you may be interested in meeting with someone at the police department to discuss the role of the police during student protests on campus.  I am the person in charge of the uniformed officers who work patrol and I would enjoy meeting you to have this discussion.  Please let me know if you are interested in meeting and when you would be available.  Thanks [XXX]     

Hi [XXX],

First of all, I’d like to personally thank you for keeping us in mind. I also would like to apologize for the delayed response. It is the end of the quarter, and we have just been completely swamped. It seems like everyone is a little overworked in this environment of tough funding cuts, so we really appreciate that you have taken the time to make student concerns about safety a priority. We are, however, a little confused as to why you would reach out to us specifically about this. While we as occasional student protesters are concerned about the safety of ourselves and our fellow students, police overreaction is not our personal hobbyhorse, so to speak. We have been focusing our scant time and energy available for protest this year mostly on understanding and discussing the distribution of funding cuts across academic units. [Read about it here!] Furthermore, the groups that we are a part of do not function according to representational organization, so we would only be able to come to the table representing the views of two students out of the thousands at UCI—we are not even authorized to represent the positions of the groups we are a part of. While we would certainly support any sort of public forum that would include student input and coordination in the drafting of the police guidelines and protocols, we think that a meeting between the three of us would simply be a waste of your time.

It would also be a waste of your time, I think, because we are already familiar with police guidelines and protocols. We have, of course, copies of the UCI Police Department’s Use of Force Guidelines 300, 308, 309, and 424 from when Chancellor Drake released them in November [2011, through Subversities]. We have looked through them and understand the conditions under which uniformed police officers are authorized to use force in controlling or detaining students. I wish that we could say that the existence of these documents alleviates our concerns by establishing the requisite parameters and protocols that would safeguard students from unwarranted police violence and overreaction, but quite frankly we find that these guidelines are sufficiently undefined as to render any conversation about police roles or student conduct purely academic. What we have come to realize reading these documents is that no amount of guidelines, protocols, or rules—or conversations about them—guarantees safety for students when it comes to police overreaction to uncertain situations. Insofar as the authorization to use force is grounded solely on the specificity of the conditions of the situation—ultimately rendering it contingent on the immediate judgment of the responsible officer—we believe that no amount of familiarity with the police guidelines or dialogue between students and officers could ever make us feel safe at a protest. This is to say that though these guidelines ostensively set clear criteria by which the use of force is authorized, thereby establishing reciprocally the acceptable conduct of student protesters, the authorization of the use of force ultimately resides solely in the capacity of the responsible officer to declare whether a given situation conforms to the standards set in the guidelines. In other words, while these guidelines set out what are or are not authorized uses of force in any given situation, these guidelines themselves do not offer the criteria by which officers can declare a situation as one that necessitate the use of force, outside, of course, the individual judgment of the officer. To take a concrete example, the section 300.2.2, “Factors used to determine the reasonableness of force,” describes one of these possible factors as “Risk for escape.” However, the document does not sufficiently describe what constitutes a “Risk of escape,” nor does it refer the reader to an officially sanctioned definition. So while “Risk for escape” is a factor that can be used in the determination of the reasonableness of the use of force, the concrete factors that go into the assessment of this risk are unavailable.

This is especially troubling as one of the factors that goes into the calculation of the reasonableness of the use of force is “conduct” (300.2.2, but this is brought up more than once, e.g. 309.4.1). While “conduct” is a factor that an officer can use in determining whether or not he has the authorization to use force, what is defined as conduct that warrants the use of force is undefined. So while this document authorizes the use of force based on “conduct,” it leaves up to the discretion of the individual police officer to determine what is or is not “conduct” that warrants the use of force. What is worrying to me, as a student protester, is that “conduct” as a word is sufficiently vague as to effectively authorize the use of force in any situation. Indeed, counterintuitively, there seems to be no safeguards written into the document that would prevent against violent police overreaction. Often, the language used in the description of the situations in which the use of force is authorized comes down to phrases such as, “reasonably appears justified and necessary” (for instance, in 308.2, 308.3, 308.4). “Reasonableness” is a criterion used often in the police guidelines for dictating the behavior of officers but there are no descriptions of what constitutes “reason.” The only point where this is overtly considered is 300.2, which makes the claim that “’Reasonableness’ of the force used must be judged from the perspective of a reasonable officer on the scene at the time of the incident.” While this appears initially to be a completely toothless tautological claim—i.e. the blind dumbness of the statement that reasonableness must be judged by someone who is reasonable—if you look closely it singles out police officers at the scene as the only persons capable of deciding whether an act of force is reasonable. Take a hypothetical situation where there is one officer and ten students, and some police violence has occurred. It would not matter if all ten students agreed that the use of force was unreasonable—the only person in that situation who has the power to determine reasonability is the officer. In other words, “reasonableness” here, while appearing to delimit the use of force, in fact reinforces the ability of a police officer to use force against a student, since this clause excludes students from being capable of determining “reasonableness” and thereby offering a counter-interpretation of the incident. I have looked over this document, and this is the only section of it that clarifies what is meant by “reasonableness.” Whether or not this is what would happen is beside the point—the point is that in their current configuration police guidelines and protocols only exist to authorize police violence, never to delegitimize it. 

You can understand why this is troubling, especially considering what has happened recently at UC Berkeley and UC Davis. The continued legal persecution of student protesters at UCB is especially chilling, as it has recently been revealed that UCB Police had access to supposedly (but, apparently, not legally) confidential medical information taken as students sought medical care for their injuries. These students are now being charged with criminal complaints by the Alameda County DA. These are students who, in the best tradition of passive civil disobedience from the Indian anticolonial struggle to the 1960s Civil Rights movement, had linked arms and were beaten by UCPD batons. This is not a “heat of the moment” oppression of student dissent; these charges are being raised now, months after the incident. In short, the structure of policing and litigation mobilized by the UC system state-wide is such that the victims of the use of force, the people who are the direct subjects of physical violence, are viewed as not the victims, but perpetrators of crime. This is the infamous tortured logic of the “not non-violent.” [For an amazing analysis of this madness, read the Work Without Dread blog post and its follow-up.] More locally, the final decision of the prosecution of the Irvine 11 has fundamentally shifted the terrain of student protest here at UC Irvine. The absolutely radical interpretation of the protections of the first amendment—and its politically selective application solely to students who are of an ethnic and religious minority—has made it clear to UCI students that the legal institutions and policing practices that are supposed to protect us and our right to free speech can and will be used to foreclose political dialogue. What is worrying—and you can see the similarity here with what I have been saying above about the UCI PD guidelines—is that the rules, laws, and guidelines are selectively applied. This has established an environment on campus in which we are never certain of how UCI PD will respond to our gestures and actions. And because the UCI PD “Use of Force” guidelines ultimately leave the authorization of the use of force in the hands of the individual police officers—authorized to make immediate decisions involving the use of violence in uncertain situations—there is nothing that will ever make us feel safe at a protest or demonstration. From the perspective of the student, there is nothing in the police guidelines that ever ensures complete safety from the use of force, no matter our “conduct.” And we know, going to every protest, that there is the possibility that the police will use force. For some protests there is a greater risk—a greater ability for “reasonableness” to be warranted—but the point is that there is a risk, for us, of police overreaction and violence at every protest. Not just accidental, rogue violence either, but violence sanctioned and authorized by the UCI Police Department’s own Guidelines. There are effectively no limits to police reaction and violence when it comes to student protest. And when a quiet, peaceful protest of twenty students warrants the immediate arrival of six armed police officers (as happened at UCI on March 13 [2012]), you can see why we are nervous at any time we are holding a sign in support of higher education.

The combination of recent police overreaction to student protests, both here and elsewhere in the UC system, coupled with police guidelines that effectively puts no limits on situations where the use of force is authorized has left us with a paranoia that is, in our opinion, justified. It does not help alleviate our paranoia, I am sorry to admit, that you have singled us out for a meeting when neither of us requested one nor ever showed any interest in meeting with police representatives. I hope you understand now that part of the reason why we never asked for such a meeting is precisely because we understand that no amount of dialogue would protect us from the authorization of violent police overreaction. So when you contacted us to follow up on a meeting neither one of us requested—and neither one of us thought would be an effective dialogue—then we begin to question why you have reached out to us in the first place. We’re not trying to be paranoid. Nor are we trying to impugn malicious intent on your behalf. Rather, we simply want you to understand where we are coming from, why we are concerned about your email, and why we are not interested in meeting. We want the administration at UCI and public education throughout California to question and reconsider its priorities; given the history of litigious persecution and violent police overreaction by UCPD both locally and state-wide, being in this position makes us very cautious. I hope you understand where we are coming from. We will ask around and see if any of our colleagues are interested in having a dialogue between UCI PD and student protesters; if so, we will pass your information along.

Thanks,

[T.N.] and [J.] 

Hi [T.N.] and[J.], Thank you for responding to my email.  I understand you are just finishing finals, so no need to apologize for the slow response to my email.   The reason I reached out to you was because in your previous meeting with Dr. Thomas Parham and Leslie Millerd Rogers there was a discussion about the difficulties in meeting with someone from the police department.  My intention was to provide an opportunity to meet. From your response I can see this was incorrect.  There was no other reason for contacting you other than I thought you wanted to meet with us.  If you or anyone you know would like to talk with someone at the police department about any issues you now have my contact information.

I have been involved in police work for over 30 years and when I started police officers were very reluctant to engage the public to seek suggestions on how they could do their job better.   I believe and many others do also it created an "us against them" mentality.  Over the recent years police departments have strived to reach out to the public to seek input about how they were doing their job and as a result many of the policies, procedures, guidelines etc... the police departments have in place today are a result of community input.

I appreciate the comments you provided with regards to our policies and I will review them with our staff here at the police department.  Each year we do a complete review of all of our policies and make changes we feel will provide better direction and guidance to our officers in the performance of their duties.

This past week, Chief Henisey and I attended statewide training on Civil Disobedience and a good portion of the training was spent on the protection of the First Amendment rights of protesters.  The training was very informative and provided some excellent insight for officers throughout the state.   Here at UCIPD we are constantly trying to find ways we can improve our relationship with the UCI community we serve and to do our job better.   We recognize there is always room for improvement.

Thank you for your email and I hope you both did well on your finals.
[XXX]

Postscript: 

This last email about receiving training on the protection of the rights of protesters came to us on March 23rd, just six days before the Spring 2012 UC Regents meeting. We couldn’t attend that meeting, but we know a few students who did, including a friend who returned with bruised and inflamed elbows. Here is her description of what happened, about two weeks after the statewide UCPD "Civil Disobedience" training Officer XXX referred to above:

I was going to an area to the side of the stairs where we had been told to leave our food and drinks before going into the Regents meeting. I went to go grab my bag of nuts, but when I turned to leave there were police blocking the stairs as they were trying to get protesters to move down the stairs (some people reported being pushed). The cops suddenly grabbed someone, and started roughing him up. People started crowding in to help him. I don't remember exactly how it happened but a cop grabbed me by the neck with one hand, and put the other on my side or arm (I just remember the hand on my neck) and threw me. I landed a few feet away on my back, hitting my elbows and the back of my head. Two other students saw what happened and came to help me and the police tried to get them to stay away. One of the people who helped me out of the building said that the cops were making a move to arrest me (I was too dazed and shocked to notice any of this). When this person asked the cop why he had thrown me, the cop paused and said it was because I had grabbed him. Not only have I never grabbed a cop, it would have been impossible in this situation since he came at me from the side, out of my reach to grab him at all. 

So the contusions to my elbows were caused by blunt force (I wasn't sure at first because some people thought my left elbow had been torqued, but the doctor confirmed it was blunt force). And I wasn't able to extend my left arm for almost 3 weeks after the assault. 

This particular activist, I would like to note, did not seek medical attention immediately after being thrown to the ground precisely because she was worried that police would identify her though her medical records and prosecute her, which is what happened to UCB protesters. What about the basis, the declared justification of this force, which should determine whether university police are authorized to use force? My friend continues:

I think it's also important to note that I had exited the room in which unlawful assembly had been declared.

 In other words, she was in the process of following police instructions when this occurred.