From: CBS SFBayArea
By: Randy Diamond 06/01/2018
SAN FRANCISCO (CBS SF) – A federal appeals court in San Francisco on Thursday dismissed police brutality claims filed in 2011 by 21 demonstrators against administrators and police of the University of California at Berkeley.
The demonstrators claimed in a civil rights lawsuit that campus police used unconstitutional excessive force when they jabbed protesters with their batons during a so-called Occupy Cal protest on Nov. 9, 2011.
The Occupy Cal action was part of the Occupy Wall Street movement that began in New York two months earlier and spread around the nation. The campus police were seeking to prevent protesters from setting up tents in violation of a no-encampment rule.
In earlier proceedings in 2016, U.S. District Judge Yvonne Gonzalez Rogers of Oakland dismissed the lawsuit’s First Amendment free speech claim, but said the students and community members who sued were entitled to a trial on their claim of excessive force.
In today’s decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals overturned Gonzalez Rogers’s ruling and issued a summary judgment stating that university officials and police were not liable for several reasons.
The court majority said that two officers accused of jabbing several protesters in the abdomen with their batons and in one case on the arm had used only “minimal force.” Those protesters did not need medical treatment, the court noted.
“The officers were entitled to use the minimal force they did to move the crowd in order to gain access to the tents erected in violation of university policy,” Circuit Judge J. Clifford Wallace wrote.
The panel said three top administrators, including former Chancellor Robert Birgeneau and former Police Chief Mitchell Celaya, were not liable because they “did not have sufficient personal awareness of the alleged use of force.”
“In asking police to remove the tents, the UC administrators had no reason to assume that police would use force beyond the bounds of UC Police Department policy,” the court said.
The panel said three other vice chancellors and associate chancellors weren’t responsible because they were not in the police chain of command and did not supervise the officers who allegedly used excessive force.
Finally, the court dismissed the claim against two police supervisors, Lt. Marc DeCoulode and Sgt. Andrew Tucker, who were alleged to have been in charge of officers who inflicted more serious injuries requiring medical care for four protesters.
The panel said it wasn’t deciding whether the force was in fact excessive, but said the supervisors were not liable because case law in 2011 did not clearly establish that the amount of force used was unconstitutional.
One of the more seriously wounded was lead plaintiff Yvette Felarca, who said she went to the hospital and had multiple bruises on her ribs and midsection from the baton jabbing.
The three-judge panel unanimously dismissed the lawsuit. But one judge, Paul Watford, said in a concurring opinion that he believed the use of the batons to jab protesters was excessive force, but said he agreed that all the UC defendants were exempt from the lawsuit because the law was not clearly established in 2011.
Ronald Cruz, a lawyer for the plaintiffs, said, “The decision is wrong and we will appeal.”
University spokesman Dan Mogulof said, “We are satisfied with the ruling.”
Russell Perry, a lawyer for UC Berkeley Police Officer Samantha Lachler, who is one of the two officers cleared by the ruling, said, “The 9th Circuit issued an excellent decision today for Officer Lachler and all peace officers.
“Officer Lachler did exactly what she was trained to do: her use of force was at the lowest possible level, did not result in injury to any of the complaining plaintiffs, and came only as a last resort following the protestors’ refusal to obey dispersal commands,” Perry said.
The attorney said five other officers he represented were dismissed from the case in previous rulings.
The 9th Circuit decision concerned only the university’s appeal on behalf UC administrators and police.
Additional claims in the lawsuit against seven defendants connected with the Alameda County Sheriff’s Office remain pending in Gonzales Rogers’s court.
