Nanette Asimov

SF Chronicle, February 21, 2012

E-mails have surfaced that for the first time reveal UC Berkeley Chancellor Robert Birgeneau was informed on Nov. 9 while traveling that police used batons to forcibly remove an encampment involving hundreds of student Occupy protesters, yet did not call a halt to their use.

The use of force was criticized as excessive not only by students who were hit and are suing the university, but also by faculty and others.

The Nov. 9 protest is under investigation by a campus Police Review Board to determine who authorized use of batons by police, seen on video hitting nonviolent student protesters who had pitched tents in violation of campus policy. The five-member Review Board, convened by Birgeneau in November, is also holding hearings to determine a timeline of events that day and whether police conduct was appropriate.

Birgeneau, who was traveling in Asia on the day students first set up tents as part of the Occupy movement, received an e-mail from Provost George Breslauer soon after the first of two police confrontations with protesters on Nov. 9.

“Police used batons to gain access to the tents,” Breslauer wrote, describing a scene in which 300 to 400 students had locked arms to prevent police from moving in. “This is likely to continue for days, I suspect.”

Birgeneau responded a few hours later.

“This is really unfortunate,” the chancellor wrote. “However, our policies are absolutely clear. Obviously this group wanted exactly such a confrontation.”

A second e-mail from Birgeneau reiterates the no-tent policy and refers to the mishandling of Occupy Oakland, where tensions were inflamed in October after Mayor Jean Quan at first permitted encampments, then had police remove them forcibly. She then reversed course but eventually had the tents removed for good.

“It is critical that we do not back down on our no encampment policy,” the chancellor wrote Breslauer, copying the message to several other executives. “Otherwise, we will end up in Quan land.”

Chancellor’s apology

Birgeneau has apologized for the events of Nov. 9. He also told almost 400 members of the Faculty Senate on Nov. 28 that he was “extraordinarily disturbed” by what happened and that, as chancellor, he took full responsibility.

He told the faculty that he had explicitly prohibited police from using tear gas or pepper spray.

“Unfortunately, we did not at the same time discuss the use of the baton,” Birgeneau told the faculty.

In two open letters to students, faculty and others on campus, Birgeneau also did not reveal that he knew police had used batons. Instead, he wrote on Nov. 14 that “we cannot condone any excessive use of force against any members of our community.”

Linda Lye, an attorney with the American Civil Liberties Union of Northern California, which obtained the e-mails through the Public Records Act, identified what she called a “deeply troubling” discrepancy between how the chancellor is represented in his open letters and testimony to the Faculty Senate and how he appears in the Nov. 9 e-mails.

She said the letters and testimony “paint a misleading picture of the role (Birgeneau) played while abroad, which was in reality that he was in active contact and affirmatively set the tone for the university’s response” to protesters.

‘Batons used after the fact’

UC Berkeley spokeswoman Claire Holmes, who was among four campus executives copied on the e-mails, strongly disagreed with Lye’s interpretation.

“He found out that there were batons used after the fact,” Holmes said. “The chancellor acknowledged that that was unfortunate, but that we don’t want to abandon (the policy) that we don’t want people to camp. I don’t think you can infer from the e-mails that he’s authorized” the use of batons.

At their November meeting, the Faculty Senate passed four resolutions disapproving of Birgeneau’s handling of the Nov. 9 protest.

Yet Bob Jacobson, Faculty Senate chairman, said the e-mails by themselves fail to indict the chancellor because they don’t indicate who first authorized police to hit the nonviolent students with batons.

“I hope that the entire set of statements is going to come out at some point, and we’ll have this entire history,” Jacobson said.

Meanwhile, the ACLU plans to send a letter today to the Police Review Board, informing them of the new information.