Jim Porter: U.C. Davis 2004 Picnic Day shooting | SierraSun.com
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Jim Porter: U.C. Davis 2004 Picnic Day shooting

TRUCKEE, Calif. and#8212; As a youngster growing up in Sacramento, our family went to every Picnic Day at U.C. Davis and#8212; the only college I applied to. That was back when it had 10,000 students and the so-called and#8220;Honor Systemand#8221; during tests when the professor left the classroom. By 1968, the Honor System had become an unfortunate disadvantage to non-cheating students.

Picnic Day in the 60s was a family-oriented event, and still is; however, off-campus drinking has caused problems for the University. Case in point is Timothy Nelson, a former student who suffered a permanent eye injury when shot by an officerand#8217;s pepperball projectile at a party.

and#8216;Biggest Party in Historyand#8217;



On April 16, 2004, Picnic Day, approximately 1,000 people congregated at the Sterling Apartment complex in Davis, for what was described by one participant as and#8220;the biggest party in history.and#8221; Timothy Nelson and his dad were among the attendees. The party was so large that Cantrill Drive became gridlocked with partygoers parking everywhere.

The City of Davis police, whose station is also on Cantrill Drive, and campus cops unsuccessfully tried to disburse the crowd. After several attempts, they retreated back to the station; and came back with 30 to 40 officers assembled in riot gear.



Order to Disburse

The police attempted to and#8220;issue verbal orders to disburse,and#8221; but their voices could not be heard above the raucous noise. Most of the crowd neither heard the order nor disbursed. 15 to 20 persons had congregated in a breezeway on the ground floor, including Nelson and his friends. They were attempting to leave the party, but as the Court wrote, and#8220;The police blocked their means of egress and did not provide any instructions for departing from the complex.and#8221; You know which direction this Court is heading.

Ultimately, the order was given to and#8220;disburse them,and#8221; at which point three officers shot pepperballs and#8212; a paintball containing pepper spray fired at a velocity of 350 to 380 feet per second. The balls break open on impact and release a powder into the air and#8212; similar to mace or pepper spray. Another pepper spray incident associated with my favorite college.

Pepperball

Unfortunately, one pepperball struck Nelson in the eye. He fell into the bushes and remained there while officers provided no assistance for at least 15 minutes according to the Opinion. Nelson had multiple surgeries and has partial viewing impairment. The Davis Police did not conduct an investigation. The Campus Police did; however, relying only on the officerand#8217;s reports. Nelson sued.

Officerand#8217;s Immunity

Nelson had an uphill battle. Police are immune from civil lawsuits seeking damages unless the plaintiff, like Nelson, can show the officerand#8217;s actions violated a and#8220;clearly establishedand#8221; Constitutional right. In other words, police are given the benefit of the doubt when acting in their official capacity.

In what seems like somewhat of a contorted conclusion, the Court wrote: and#8220;The officers took aim and fired their weapons towards Nelson and his associates. Regardless of their motives, their application of force was a knowing and willful act that terminated Nelsonand#8217;s freedom of movement. It unquestionably constituted a seizure under the Fourth Amendment.and#8221;

Ruling Against Davis Officers

In the end, the Federal Court of Appeals ruled in favor of Nelson and against the City of Davis and U.C. Davis officers, allowing Nelson to take his case to a jury: and#8220;Under the factual circumstances present in this case, a reasonable officer would have been on notice that both the firing of a projectile that risked causing serious harm, in the direction of non-threatening individuals who had committed at most minor misdemeanors, and the release of pepper spray in the area occupied by those individuals, would constitute unreasonable force in violation of the Fourth Amendment … in reaching our conclusion we have taken into account the particular circumstances in which the use of force occurred on Picnic Day at U.C. Davis.and#8221;

From what I have read, U.C. Davis has taken significant steps to address its two pepper spray incidents, one notoriously on campus and this earlier off-campus incident.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor’s appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jimand#8217;s practice areas include: real estate, development, construction, business, HOAand#8217;s, contracts, foreclosures, mediation and other transactional matters. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.


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